Pulham v Branagan [1994] UKEAT 841_94_2311

EAT

Pulham v Branagan

[1994] UKEAT 841_94_2311 · 1994-11-23

JUDGE HULL QC :

This case is in our list under our practice direction to see whether, with the assistance of Mr Pulham, the Appellant, we can find any point of law in the case which entitles us to entertain the appeal.

By section 136 of the Employment Protection (Consolidation) Act that is the limit of our jurisdiction. We have no authority or mandate from Parliament to enquire into the facts. As has often been said the Industrial Tribunal is an industrial jury and they are the sole Tribunal of facts and they have the sole right to find the facts, but we can intervene if we think they have made a mistake of law.

In this case Mr Pulham was the Respondent before the Industrial Tribunal. The Applicant was Mrs Branagan who had been employed by him as a shop manager. She seems a lady who easily makes mistakes about dates. She said her employment began on 17 November 1993, in fact it was November 1991 and in another document she had said that it began on 24 November 1991. In fact the Tribunal found (and there is no issue on this now) that her employment began on 17 November 1991 and ended on 30 November 1993 by which time of course she had served the necessary two years in employment to acquire her statutory rights. What happened most unhappily was, she having served in two of Mr Pulham's shops as manager, there were losses from the shops. It appeared that somebody was stealing money in substantial quantities. There was an anonymous telephone call to Mr Pulham in which he was informed by the anonymous caller that she was taking money from the shop where she was at the time and that she was involved in drugs. Shortly after that call it appeared that £200 or thereabouts went missing from the till and a carton of cigarettes which had been left in the shop disappeared, a very valuable carton worth around £1,000 and so Mr Pulham formed the conclusion that Mrs Branagan was the thief and that she, as manager, was responsible. He dismissed her on the grounds of gross misconduct; he has set out the details in his Notice of Appearance. He said he dismissed her for gross misconduct and incapability. That appears to relate to the fact that she was not doing her job as manager properly in preventing these crimes, if indeed somebody else was committing them under her nose in her own shop. Mrs Branagan complained that she had been unfairly dismissed and said she wanted compensation for her unfair dismissal.

Under the Act which I have already referred to, the Act of 1978, it is provided by section 57 that if an employee complains of unfair dismissal as they are entitled to do:

"(1) In determining for the purposes of this Part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show - (a) what was the reason (or, if there was more than one, the principal reason) for the dismissal and (b) ..."

Then, if the employer does that; the Act continues:

"(3)...the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether [in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case.]

So the employer has to show what the reason is and the Tribunal, when it is satisfied of the reason for the dismissal, has to go on and see whether the employer acted reasonably or unreasonably. It is accepted on the highest authority that what the Tribunal has to do in a case like this is to enquire and find out first of all what the reason was and that is as I have stated, that she was responsible as manageress for these matters; and secondly that Mr Pulham, the proprietor and her employer, carried out a fair enquiry; reached a reasonable conclusion that she was guilty and in due course imposed a penalty, in this case of dismissal, which was one within the band of reasonable penalties which an employer could impose in such circumstances.

The Tribunal did enquire into it. They referred to the provisions I have referred to. They said:

"We emphasise here and wish both parties fully to understand that we are not a court of criminal jurisdiction. We are not here to determine whether the applicant was in fact innocent or guilty of the theft of monies and cigarettes from the store as alleged by the respondent. Our sole purpose is to determine the fairness of the respondent's actions in dismissing the applicant. [They refer to Burchell v British Home Stores Limited ] There the Court of Appeal laid down that an employer who dismisses an employee for misconduct must show to the satisfaction of the tribunal that he had a genuine belief based on reasonable grounds and after reasonable investigation that the employee, was probably guilty of the dishonesty for which he was suspected and dismissed. The test there is for the employer on a balance of probabilities to reasonably believe in the guilt of the employee. He does not have to have proof beyond all reasonable doubt...

8 On the basis of all the evidence available to us and indeed the evidence of the respondent himself it is clear that in determining the dismissal of the applicant the respondent relied essentially on four matters. First of all, the disappearance of £200 and a carton of cigarettes..."

The Tribunal then give their findings of fact:

"We have no doubt in our minds that none of those facts as such constituted evidence of a kind sufficient to justify the respondent's conclusion that the applicant was guilty of misconduct or incapable of performing her duties. There were many other factors which the respondent could and should have taken into account. He carried out no investigation and did not even speak to the applicant or to any other employees before reaching that conclusion. Thus, we have not had produced to us any evidence to show that the respondent had reasonable grounds for his belief in the guilt of the applicant and, on that ground alone, we find by a unanimous decision that the dismissal of the applicant was unfair.

9 There is a second factor affecting the fairness of the dismissal of an employee and that is that the employer carries out a fair procedure. In the case of incapability, [that does not arise in this case] that means that the employer must give the employee adequate warning of her incapability and an opportunity to improve. No such warnings were given in this case. [They say it has nothing to do with this case but in fact Mr Pulham had mentioned it in his answer]. In addition, in the case of gross misconduct it means that the employee must be given an opportunity to say what he or she wishes to say in her defence and be given an opportunity to provide an explanation. No such opportunity was provided to the applicant. We recognise that the respondent is a small employer and we do not expect him to have in place the procedures which are available to large companies, but there is such a thing as natural justice. It is quite evident to us that the respondent failed totally to carry out any fair procedures in relation to the applicant and indeed by his own admission felt it unnecessary to do so because he thought she had less than two years service and would not therefore be able to bring a complaint of unfair dismissal. For those reasons, therefore, it is the unanimous view of this tribunal that the applicant was unfairly dismissed."

They then went on to consider the question of compensation.

Mr Pulham complained that the Chairman had behaved unfairly during the hearing. It has to be remembered that the decision is the decision, as they said themselves, of the whole Tribunal and although the Chairman may do most of the talking if not indeed on occasions all the talking, announcing the decision on behalf of his colleagues, those colleagues the Industrial Members, are not mere ciphers and in my experience and indeed that of all of us if they have reason to object to the way in which the Chairman is conducting the case they will say so, for he is conducting it on their behalf and they are not simply over-ridden by the behaviour of the Chairman; that is the first thing to remember. The second is, and this will not be obvious to anybody who is not experienced in court matters, to conduct a hearing where each party, being somewhat emotionally involved in the case, is unrepresented and representing themselves, is a very difficult task for any Court.

In this case particularly there is a complaint that Mr Pulham was not allowed to cross-examine in the way that he wished to do. Now of course it is to be remembered that the vital evidence here had to come from Mr Pulham, not from the Applicant. It was for him to show what the reason was. It was for him to show that he had behaved fairly, although of course there was no actual burden of proof on him; nonetheless he was the one who would be expected to show how the dismissal was undertaken and therefore it was his evidence that was vital. Of course her evidence was important too, or might well have been, and it was therefore important to hear her evidence, but Mr Pulham's evidence was likely to be far more important; that is the first point to remember. Another point is this, and that is that when it comes to cross-examination there is no unlimited right to cross-examine in an English Court. It is true that Counsel and solicitors experienced in advocacy are allowed considerable latitude, but there are professional rules beyond which they must not go and one thing which is a matter of commonsense and certainly not just of professional etiquette, is that every question must be asked fairly and in such a way that the person answering it can give a useful, sensible and considered reply; otherwise the answer is valueless.

In this case apparently Mrs Branagan became tearful, upset, on various occasions and the Chairman told Mr Pulham to cross-examine no further on that particular topic. Again one must remember that that is a thing which every Chairman has to do, every Judge in this country has to do from time to time in such circumstances, because of a desire to prevent the proceedings simply becoming disorderly and a desire to make quite sure that people give such evidence as they can in a balanced and sensible way. But another important thing to remember is that when a witness becomes upset and appears unable or unwilling to answer a question, there are at least two views which can be formed about that. Either it is that the cross-examination is offensive and unpleasant and upsetting to the witness or, equally a possibility, that the witness is putting on a clever act which is intended to impress the Court and one has often seen that; and if the Court forms that conclusion it is a very bad moment for the witness concerned because it means that they are not merely telling untruths or attempting to, but putting on an act to try and deceive the Court and attract the Court's sympathy. When that happens of course the Court has to form its own view on that matter.

Complaining in particular of bias (and there were other allegations of the same sort) Mr Pulham said that favour was shown to the witness. He complained, for example, that the Chairman took from her details of her losses before she had finished her evidence; she was saying she did not feel that she could come back the next day. We can see no reason why he should not do so. That of course would be on the basis that the Tribunal had yet to hear some of the evidence.

Mr Pulham applied to the Tribunal to review its decision and he prepared an Affidavit on 27 September and he made these allegations of bias as he calls them on the part of the Chairman and he made complaints which he wanted the Tribunal to consider.

The Chairman did decide to refuse a review. He said that it had no reasonable prospect of success. He said that the Respondent's application for review was substantially based on a restatement of his evidence to the Tribunal and his assertion that he had reasonable grounds for the belief that the Applicant was guilty of misconduct, and then he set out that the Tribunal reached the decision which it did after considering these various matters and he rejected the suggestion that he had been guilty of bias. He wrote a note to this Tribunal in which he said as follows:

"This was a very difficult case as both parties represented themselves at the hearing having taken preliminary advice from their respective solicitors. They were constantly interrupting each other's evidence-in-chief to contradict statements made. These were dealt with firmly by the Chairman who attempted to conduct the proceedings by asking questions of both parties in order to establish the evidence relevant to the issues before the tribunal. It is assumed that the appellant's statement -

"In my case he controlled what evidence I was permitted to give, and full proof was require to support it"

relates to questions from the Chairman as to what investigations he had carried out and on what grounds he had based his belief in the applicant's dishonesty.

When it came to the cross-examination of the applicant the appellant (understandably through lack of experience perhaps) levelled direct accusations at the applicant rather than questions and she quickly became hysterical. She was apparently pregnant at the time. In consequence very little constructive progress was being made and it being late in the afternoon by then the Chairman decided to adjourn the hearing to the following day whereupon the applicant once again became hysterical and stated that she had no intention of returning. In those circumstances, and while making quite clear that it would be required only if the tribunal were to make a finding of unfair dismissal, the Chairman then obtained direct from the applicant evidence on her post dismissal history relevant to any award of compensation. In the event the applicant did attend on the following day."

Then he deals with the secondary issue of contributory conduct because if Mr Pulham could have shown and satisfied the Tribunal, a serious matter of course, that in fact the Applicant had been guilty of dishonesty or incompetence which had contributed to her dismissal or which on a just view should diminish any compensation she received perhaps to the point of nil - if he could show that she had been dishonest, he was entitled to do that and the Chairman says:

"Given the appellant's total failure to carry out any sort of investigation into the shortages which had occurred the tribunal found it impossible to reach any other decision than that of unfair dismissal. As indicated in the written decision, it went on to consider very carefully whether it could reduce the compensation on the grounds of contributory conduct but in the absence of any reliable evidence felt unable to do so. While it is not recorded in that decision, it is worth noting that in the course of the hearing it emerged that shortages continued after the applicant's dismissal in November 1993 and that the general manager to whom the applicant reported and who was ultimately responsible for security at the shop was himself dismissed for suspected dishonesty in April 1994.

In summary, the Chairman denies any bias in the conduct of the hearing and submits that on all the evidence presented to the tribunal the only proper decision which it could have made was one of unfair dismissal with no contributory conduct."

So that is what the Chairman has told us in response to the complaints of the Appellant, Mr Pulham.

We have considered this carefully as of course we have to, particularly when an allegation of bias is made. It appears from the Chairman's account of the matter that indeed he had to behave, as speaking for myself I often have to behave when sitting in Court with litigants in person, I have to say - "You are simply upsetting the other party by asking these questions; you are making accusations rather than asking questions, will you please tell me what you want to ask about and I will put the questions to the witness and we will see where we get" and in due course I say to the person concerned - "You will be giving evidence and calling any witnesses you wish to do". I have had to do that repeatedly in order to ensure, so far as I can, a just and reliable hearing in which the parties feel able to give their evidence in a sensible and coherent way without a lot of what really amounts to nothing more than public quarrelling; and the Chairman says that is what he did do.

We have looked at the grounds put forward by the Appellant in his Notice of Appeal. He does put it very largely on the ground of bias and he also makes allegations which we are quite sure he made before the Tribunal concerning her incompetence and the reason why he did not adopt a fair procedure.

These are all matters, as I said at the opening, for the Industrial Tribunal itself. It is not just for the Chairman, but for the Chairman and his members, to decide whether the employer has shown the reason for the dismissal (and they found that he had not), and whether he acted fairly in treating that as a reason for the dismissal and they found that he had acted unfairly. Mr Pulham feels exceedingly aggrieved by that but the fact is that if an employee is suspected of a serious offence such as theft, in this case not just one but a number of thefts, then the seriousness of the charge means that the enquiry must be correspondingly serious and fair. The Tribunal found, as facts, that it was quite impossible to find here that there had been any adequate enquiry, any adequate hearing. Mrs Branagan had not even been given a chance to explain matters and that there were no grounds on which the Tribunal itself, after their enquiry, could conclude that she was reasonably and properly suspected of theft or that she probably committed the thefts or connived at them or that she had probably been incompetent in failing to prevent them, or anything of that sort.

As to the account of what happened we accept what the Chairman tells us. We do not believe that what was done here amounts to an exhibition of bias; on the contrary what it does show is the determination by the Chairman and the members to try the case fairly so far as they were permitted and able to do so by the rather difficult circumstances. We ask ourselves - "Is there any point of law shown here on which we can entertain the appeal or is this simply a case of facts which were for the Industrial Tribunal alone?". Having all considered it together as carefully as we can we have come to the conclusion that we cannot find here any point of law on which we can entertain this appeal.

In those circumstances we have no alternative but to say this appeal cannot proceed to a full contested hearing. We must dismiss it at this stage to prevent the inevitable expense and delay which would be caused by a full hearing and therefore under our practice direction we direct that the appeal must be dismissed today.