TNT Express UK Ltd v McConnell [1994] UKEAT 612_94_2511

EAT

TNT Express UK Ltd v McConnell

[1994] UKEAT 612_94_2511 · 1994-11-25

JUDGE HULL QC :

This is an Appeal to us by TNT Express U.K Ltd the well known Delivery and Transport Company; the Respondent is Mr McConnell.

Mr McConnell was employed as a loading bay operator by TNT and he started work on the 28th May 1990. He worked at their depot at Milton, near Abingdon, which is one of many depots which TNT operate. His employment finally ended on 25th June 1993 after he had been suspended and an enquiry had been held; the allegation being that he was guilty of theft. He appealed twice, first of all to Mr Lowry, the General Manager at Milton and then he had a final appeal to a Mr Knights who is the Regional Director - both those appeals were dismissed.

In those circumstances, he applied to the Industrial Tribunal seeking re-instatement. The Industrial Tribunal sat at Reading on the 14th February 1994, under the Chairmanship of

Mr Thomas with two Industrial Members; and the majority, which consisted of the two Industrial Members of the Tribunal, found that the dismissal was unfair. They held that there were no reasonable grounds on which the employers could conclude that

Mr McConnell was guilty of theft and that they had not conducted a fair enquiry.

Those two matters in this case, as in many others, are closely linked, indeed so closely linked that it may, on particular items, be very difficult to say whether this is a matter of substantial grounds on which the belief rests, or whether the legitimate criticism is of the procedure.

Now we must of course look at the Decision in a moment. Putting it very shortly, in 1993, there was concern about a fairly high level of pilfering which was going on at this particular depot, and a number of enquiries were made. We know nothing of all the details of those enquiries, but as so often, when enquiries are being carried out into irregularities or illegal acts, other matters come to light. On this occasion other matters did come to light, and those were the subject matter of the charge which was brought against Mr McConnell. A statement was taken from a person whose identity has not been revealed. He is referred to as employee A and he said as follows, at page 5 of the Respondents Bundle, R1:

"I have worked for TNT at Milton depot on back shift for the past 9 years.

About 2 years ago and Alan McCONNELL joined the shift.

I recall about 12 months ago [ about the middle of 1992] I saw a consignment of lump hammers on pallets, they were fully visible. I was down sorting out the MOD bags when I saw the hammers and I actually saw Alan McConnell take one of the hammers off the pallets and take it across towards the Biffa bin bay. I didn't see him actually put down the hammer but later on I was about to go off shift when I saw Mr McConnell on his bike carrying the lump hammer. He actually left the depot still carrying the hammer through the small gate into the rear car park. This incident took place about 1am - 1.15am and I was on my way to the car park when I saw this happen. I can't recall the date of the incident. I have heard about the stealing of OAS items from the depot from on the night shift, who I believe has heard about these matters from someone who has actually seen it happening on the garage staff. He has also named and Mr McConnell as being responsible.

Other than the lump hammer incident I have not witnessed anything dishonest directly.

This statement is true."

That was taken by a Mr Evans, who was an investigator, and he apparently is an experienced investigator and indeed an ex police officer.

There were two other statements taken, no doubt amongst many others, from an employee B and an employee C. Those employees spoke of rumours, what people had been told that other people had been told, and so on; double hearsay; and they also referred to Mr McConnell. Those do not of course figure very large in the story.

It was the statement of employee A that mattered. On the face of it, he was the only one who directly implicated Mr McConnell. Now it is to be observed that this is a very short statement. It is about as short as one can imagine and uncircumstantial. Why is he now reporting it for the first time? Did he say or do anything at the time? Many are the questions that arise. Did he say anything to Mr McConnell? Of course, the more sinister question which presents itself is this; taken as it is in the course of an enquiry into quite different matters, is it an attempt to deflect attention? Is it an attempt to curry favour with the inspecting officer, to try to be helpful?

There it is. It was an anonymous statement because the witness said, without giving any particulars:

"I am afraid of reprisals if I allow my name to be put forward"

. So that was the situation, it was based on the statement of employee A. I will not go on with all the details there because it is enough to look at what the Industrial Tribunal themselves said about this.

They dealt with some of the matters which I have referred to and then they go on at paragraph 10 to refer to the Depot Manager, Mr Cornish:

"10 The next witness to give evidence was Mr Cornish, he was the Depot Manager and he had been twelve months at the depot. He said that he suspended the applicant on 14 June as a precaution following the general allegation of theft. Mr G Pointon had also been suspended. He said that he had the statements of witnesses A, B and C and the handwritten notes at page 8 and 9 of the bundle which was an interview between the applicant and two other security investigators in which a general allegation of thefts from the depot were put to him. [Those are notes of interview, which we have looked at] On that occasion the applicant declined to have anyone with him and had made the comment that he had heard of things having gone missing but that if people are stealing it is fair play if they can get away with it. He denied that he had been involved in thefts with Geoff Pointer and that he was just a work colleague. The applicant was again represented at that meeting when he was suspended. Mr Cornish also had the questions put to him by Mr Edwards and referred to earlier.

11. Mr Cornish dealt with the disciplinary meeting on 25 June, he said that he gave the applicant the opportunity to state his case, he being represented by

Mr Cyril Trinder, his shop steward and he said that he gave him details of allegations and referred him to the statement of employee A with the same. He said that he paraphrased the statement because he wanted keep all the witnesses anonymous. Mr Cornish stated that the applicant denied categorically that he had stolen a hammer but he did not give any reason as to why such information should have been laid against him. [pausing there, of course, if a man is entirely innocent and the true position is that somebody is telling untruths about him, he may be entirely unable to give any account of why that person should be telling untruths about him, but there it is] Mr Cornish said that he was satisfied that he had enough evidence, he looked at the statement of Mr Phil Davies with reference to the Spear & Jackson deliveries and the fact that witness A had tied up the matters with how the hammers had come on wooden pallets and that A had come on a bike and had gone away through a gate. He adjourned the matter, he carried out himself further checks and confirmed that the applicant was working at the time save for a period of two days. He said that he took no notes at the disciplinary hearing as there was nothing in fact to record because no explanation was being given save for a complete denial. [ again, one says, very often if a man is innocent, that may be all he can do, but at any rate no notes were taken]. The applicant did not request any statements to be read though normally he would have read statements. He concluded that there was no reason why there should be any dispute between the applicant and the witness A whom he had known for about twelve weeks. He said that he did ask the applicant why the witness should be lying to which he cannot recall the reply. He in cross examination confirmed that Pointer was still working for the respondents because there was nothing directly against him only a lot of hearsay. He said in the disciplinary hearing that he had read all the documents out although he had earlier said that he had paraphrased the statement of witness A and then added that he read out most of the contents of the statements including the statement of witness A. He said that at the appeal he went through [that of course was later in front of another Manager] he went through all the evidence again but had no other involvement."

Now that was the evidence of that witness and as a matter of commonsense, one notes that this case rested entirely on the evidence the anonymous informant, if it can be called evidence.

Plainly, in those circumstances, it was a very difficult matter. In the nature of things, the accused man was fighting with his hands tied behind his back, or at any rate one hand. He did not know his accuser. Matters were being referred to, twelve months before. It was a single instance, and it does not appear that many of the questions which one would address in cross-examination to a witness like witness A were asked. It does not appear that any explanation was given as to how this was the first time he had come to mention the matter, and so on. But that was the situation, and it was on that basis that Mr Cornish reached the conclusion which he did that Mr McConnell was indeed guilty of the offence charged, and the decision was reached, not unreasonably on the basis of that decision, of course, it was justly and properly arrived at, to dismiss.

They record later:

"14 Mr McConnell gave evidence and said that he had worked for three years with ten other individuals on overlapping shifts. He gave details of a previous incident in June of 1992 with a foreman who then worked away from the branch but had returned in April 1993. He said that he had been questioned regarding the losses but claimed that nothing had been mentioned regarding a lump hammer and he was asked merely about his involvement with Mr Pointon. He conceded that he didn't ask for the presence of any witness and that the version of matters as recorded by Mr Edwards [the investigating officer] at page 12 of the bundle, the questions prior to the disciplinary interview on 15 June was correct, save that Mr Edwards suggested either a lump or a sledge hammer. He said that he asked for Mr Pinder to represent him as he wanted someone with experience. He said that the question of the pickup vehicle of Mr Pointon on the statement witness B was not disclosed and that he might have been able to make something of that if he had known of it. He said that his request for the statements to be read out at each hearing was refused but conceded that he was given an accurate precis of what was said in statement A and conceded that he was fully aware of what they were accusing him of.

15 In cross examination he conceded that the only individual who might have a grudge against him was a man [whose name he gave] he had no complaints about procedure and that the details in statement A was correct, he repeated that he had never stolen anything."

So there it was. That was what the employers had proceeded on. As I say there were two appeals, and anonymity of the witness was preserved.

Then the Tribunal went on:

"18 The Tribunal thereafter direct themselves in accordance with Section 57(3) of the Employment Protection (Consolidation) Act and the Tribunal have helpfully been referred to well known authorities, the first being British Home Stores v Burchell and second, being Cash and Carry Limited v Lingford [we understand that in fact to be Linfood Cash and Carry v Thomson .

19 The Tribunal directs itself in accordance with the principles set out in Burchell that the employers must have a genuine belief in the guilt of the applicant and that the guilt [they mean, I think, the belief] must be based upon reasonable grounds following a reasonable investigation into the matters in consideration. The Tribunal also direct themselves that it is not for them to say whether or not they would have come to the same conclusion but only to satisfy themselves that from the information before it following the investigation that was carried out an employer could reasonably have reached the conclusion that the respondents did."

No criticism was made of that direction which the Tribunal gave to themselves. They refer again, to the Linfood Cash and Carry case and then they say as follows:

"21. The majority find that the dismissal was unfair, they find that the employers had a genuine belief in the guilt of the applicant but that there were no reasonable grounds for the belief and they did not carry out a proper investigation. The informant's statement they find was vague as to when the incident occurred in respect of the dates and month. Further there was no corroborative evidence of the loss because records were not kept after six months and two records of claim for a lump hammer at page 11 in March 1991 and September of 1992 were too vague in relation to the statement of the informant when he says that it was twelve months prior to June of 1993. The applicant was therefore suspended on the basis of a general allegation on 14 June 1993 and informed that he was accused of taking a lump hammer minutes before the disciplinary hearing on 25 June 1993. They also find that because the applicant did not have the statements read to him but only in precis form, he therefore had no opportunity to raise the question of time. The informant stated in his statements that he saw the applicant at 1.00 - 1.15 and the applicant said that he often left work earlier if work was completed. They further find that on the basis of the Linfood Case only some of the guidelines on the use of anonymous informant statements have been followed and concludes that the dismissal therefore would be unfair."

Then the Chairman, in a minority view, reached a contrary conclusion and thought that there was proper material on which the employers were entitled to reach their conclusion and the decision which they did.

This was pre-eminently a question of fact, provided the Tribunal, the majority Members and, of course, the Chairman, approached it in the correct way. What is said by Mr Hinchliffe on behalf of the Appellant is that in fact the majority did not approach this in the right way.

"Is it to be said" he said, "That if one has an anonymous statement which quite plainly convicts the employee of stealing, the employer is not entitled after a fair and proper enquiry to act upon that, in any circumstances? "Because that," he says, "is what the majority are saying." And that is the basis really of the submission.

Now we look at Linfood Cash and Carry v Thomson [1989] IRLR at page 235. That was a case in which it was suspected that blank credit notes were being stolen and forged and that dishonest employees were responsible for that. There was an informant, who preferred to be anonymous, who had given information identifying two employees, and there was other evidence from a witness who gave evidence in surrounding matters which was consistent with the information given by the anonymous informant. The employees were dismissed after a Disciplinary hearing.

"An Industrial Tribunal held that the dismissals were unfair. According to the Tribunal, applying the three-stage test set out in British Home Stores Ltd v Burchell , though the employers had a genuine belief in the employee's guilt, they had no reasonable grounds for that belief and had not carried out as much investigation into the matter as was reasonable in all the circumstances. In particular, the Tribunal considered that in the absence of any corroborative evidence, "the most stringent inquiries should have been made by management to ascertain that the informer was not actuated by any improper motive". The Tribunal were also critical of the reliance which the employers placed on Mrs Symm's evidence." [She was the lady who had given evidence, not directly implicating the two accused employees, but evidence which was consistent with the surrounding matters].

The Employment Appeal Tribunal upheld that finding of the Industrial Tribunal.

"The Industrial Tribunal had not erred in holding that the respondent employees' dismissals for theft, based upon allegations made by an informant who refused to allow his identity to be disclosed to them, were unfair because, applying the test set out in British Home Stores Ltd v Burchell , the appellants had no reasonable grounds for their belief in the respondents' guilt and had not carried out as much investigation into the matter as was reasonable in all the circumstances.

In applying the Burchell test, the question to be determined by the Industrial Tribunal is whether the employer, upon the facts and circumstances reasonably accepted by him at the relevant time, which imports the notion that there had been sufficient investigation, acted fairly and reached a reasonable and reasoned decision. That is essentially a question of fact.

In the present case, there was no error in the Tribunal's finding that the appellants had failed to satisfy them upon the Burchell test and the appeal would therefore be dismissed."

Then under obiter dicta - we are not disposed to agree that the report writer is entirely correct in saying that these were obiter dicta, they appear to us to be an important part of the Decision - but at any rate, this Tribunal said:

"Where allegations concerning an employee's conduct are made by an informant, a careful balance must be maintained between the desirability to protect informants who are genuinely in fear and providing a fair hearing of issues for employees who are accused of misconduct. Whilst every case must depend upon its own facts and circumstances may vary widely, employers may find the following guidance to be of assistance."

And then there were various matters, I shall not read them all. Among the many matters which this Tribunal endeavoured to put forward as guidance which it hoped would be useful to Industrial Tribunals.

"2. In taking statements, the following seem important: (a) Date, time and place of each or any observation or incident. [that most certainly of course could not be supplied by witness A] (b) The opportunity and ability to observe clearly and with accuracy. (c) The circumstantial evidence, such as knowledge of a system or arrangement or the reason for the presence of the informer and why certain small details are memorable. nothing of that. (d) Whether the informant has suffered at the hands of the accused or has any other reason to fabricate, whether from personal grudge or any other reason or principle."

And to go forward a little. Mr Cornish did not think it right, apparently, to interview these witnesses and in particular witness A and ask the sort of searching questions which one would have expected. Of course, that is a comment by us, but it is certainly a comment which was available to the Industrial Tribunal.

Then the E.A.T. in paragraph 3 of the "obiter dicta":

"...Corroboration is clearly desirable."

"5. If the informant is prepared to attend a disciplinary hearing no problem will arise but if, as in the present case, the employer is satisfied that the fear is genuine then a decision will need to be made whether or not to continue with the disciplinary process."

In other words, it may mean that a prosecution, so to speak, based on this sort of thing, simply cannot go ahead.

"6. If it is to continue, it is desirable that at each stage of those procedures the member of management responsible for that hearing should himself interview the informant and satisfy himself that weight is to be given to the information."

That was not done by Mr Cornish. The written statement of the informant, if necessary with omissions to avoid identification, should be made available to the employee and his representatives. That was not done. Instead Mr Cornish paraphrases it. He later said that he had read it out, but he told the Tribunal that he had paraphrased it.

"9. Although it is always desirable for notes to be taken during disciplinary procedures, it is particularly important in these cases that full and careful notes should be taken.

10. Whilst not peculiar to cases where informants have been the cause for the initiation of an investigation, it is important that if evidence from an investigating officer is to be taken at a hearing, it should where possible be prepared in a written form."

Now, there is a whole list of matters which were not attended to, in this case. There was this single informant who wished to remain anonymous and the various precautions suggested by this Employment Appeal Tribunal were not observed. It was clearly a particularly difficult case from the point of view of the employer. These matters were alleged to have occurred no less that one year before. Although other managers apparently saw the witnesses on appeal, and in general had no reason to doubt what they were saying, nonetheless, if as necessarily was the position, neither Mr McConnell nor his representative was in a position to cross examine witness A, surely, it was incumbent on the management to undertake a rigorous inquiry into why witness A was telling this story now, and to ask so far as they could just such questions as Mr McConnell would have asked, had he been in a position to do so, and had he been properly advised.

I made the comment during argument, that some people would say, "You would not hang a dog on this evidence." That of course again is entirely a matter for Members of the Tribunal. Now we ask ourselves, in those circumstances, why should the majority not have reached the decision which they did? Were they not entitled to say that?

Let us look, first of all, at the grounds on which the employers' decision rested. Thoroughly shaky, they might have said. Here we have an anonymous statement but with no explanation of how it comes to be made at this late date, and none of the details, of the sort that might be filled in with cross examination, gone into. Mr Cornish did not interview him and ask him these questions.

And then look at what happened. Breaches of a number of the suggestions by the Employment Appeal Tribunal, in the case of Linfood Cash & Carry v Thomson . They were, in our belief, fully entitled to take that view, if that appeared to them to be the just view. Mr Hinchliffe says to us, very justly, those are only guidelines and suggestions by the Employment Appeal Tribunal, they are quite certainly not principles of law, they quite certainly cannot supersede the duty which is cast on the employer under Section 57 of the Act to behave fairly and reasonably. But if this Appeal Tribunal said that these were matters which Tribunals would probably find it right and proper in appropriate cases to give effect to, then the converse of Mr Hinchliffe's submission to us is this: Of course a mere omission of certain of these matters will not necessarily found a finding of unfairness, but ex hypothesi if there is a breach of the recommendations, not just one, but a number of breaches, and if it appears to the Members of an Industrial Tribunal, sitting as Industrial Jury, that they are of importance and material matters, then they must, as a matter of law, be entitled to say so.

Here, it appears to us that there was abundant material on which the majority members were entitled to reach the view which they did. It is true, of course, that the Chairman, no doubt in every way as skilled and careful as the Industrial Members, reached a contrary view, that is in the nature of all jury question. Different people will have different views and the Chairman here did have a different view from that of the two Industrial Members. But the Industrial Members were fully entitled to reach the conclusion that in this very difficult case, the employers had not carried out a full and satisfactory inquiry, and the material on which they had based their decision was not adequate to support the decision. In other words, the decision was not based on reasonable grounds after a reasonable and fair inquiry. All we have to say, as a matter of law, is that they were entitled to reach their conclusion.

Once one has got to that point, of course, it follows that the Appeal cannot succeed because we can only allow an appeal if we find an error of law; and none of us can find any error of law here. So our unanimous decision is that this Appeal must be dismissed.