Holden v ARC Ltd [1995] UKEAT 460_95_1307

EAT
Holden v ARC Ltd
[1995] UKEAT 460_95_1307 · 1995-07-13
MR JUSTICE TUCKEY : At a preliminary hearing on 2nd December 1994, and 8th February 1995, the Industrial Tribunal in Manchester unanimously decided that Mr Holden's complaint of unfair dismissal against his former employers ARC Limited should be dismissed.Mr Holden has appealed and this case comes before us by way of a preliminary hearing so we can decide whether there is an arguable point of law which justifies the appeal going forward to a full hearing.The facts giving rise to the claim in the Industrial Tribunal are set out in great detail in their extended reasons. The appellant was employed as effectively the manager of a pre-mix concrete batching site at Blackburn. Pre-mixed concrete was delivered to lorries belonging to ARC and their other customers. The appellant's dismissal resulted from surveillance carried out by security consultants instructed by ARC on 21st May 1994. The Tribunal found that a lorry belonging to a Mr Abbott entered the site and was loaded first of all with about 4 cubic metres of concrete. It left and returned again shortly when it was loaded with a further 2 cubic metres. Surveillance of the movements of the lorry at the batching site was by video camera, but the lorry was followed to two different sites where the ready-mixed concrete with which it was loaded was discharged. So a total of 6 cubic metres of concrete was loaded on these two occasions. But the records completed by the applicant showed that only 1½ cubic metres of concrete had been loaded. That meant of course that the owner of the lorry would have been undercharged for the concrete he had taken for which no doubt a dishonest employee would be suitably rewarded. Such dishonesty was ride in the ready-mix concrete industry. It was something employees had been warned about; warned in particular, that sites would be the subject of surveillance without notice.Armed with the information from their security consultants, ARC suspended the applicant and gave him notice of a disciplinary interview. They had elaborate internal disciplinary procedures, which the Tribunal found as a fact they had followed, and had followed strictly. But the letter which called the applicant to a disciplinary interview, which was the first part of this procedure, is something which we need to refer to since its contents are relevant to one of the points made before us. It said that copy conveyance tickets and the daily production record were available for examination by the applicant should he so wish. He did not avail himself of that opportunity but attended the disciplinary interview which had been set for 20th June 1994, which was to be conducted by Mr Lauder who was his line manager.The interview lasted for just under two hours. The Tribunal found that the substance of the allegation that the company were making, that is to say, that he had deliberately under recorded the amount of concrete delivered to this customer was put to him. The applicant's response at that stage was, that he could not offer any explanation as to the discrepancy between what had been observed, and what the records he had prepared showed.The hearing was re-convened three days later on 23rd June 1994 after further checks had been made. At that hearing the applicant said that the records which he had completed were accurate because what had happened was that the lorry had first come to the site partially filled with 3 cubic metres of concrete, and had only been topped up. It had returned again still with concrete in it when it had been topped up again. This accounted for the fact that although it appeared to be full, it had only received 1.5 cubic metres in the course of its two visits.Mr Lauder found that explanation implausible, as, not surprisingly, did the Tribunal. He was satisfied that this was deliberate theft, and justified summary dismissal. The applicant was dismissed with effect from 23rd June 1994. The company's internal procedures allowed him to appeal, and he exercised that right of appeal, which came on before a Mr Kujawa, one of ARC's directors.The appeal hearing took 34 minutes, but the Tribunal found that all relevant matters that the applicant wished to raise were raised. Crucially, they went on say:
"... the applicant was asked how long the batching process would take in respect of the two volumes of material to which the conveyance notes referred."
The question of how long it would take to load a lorry with the small amounts of concrete which the applicant was saying were loaded, and the time it would take to load the larger volumes of concrete which the respondents were saying were loaded was investigated. The same explanation for what had had happened was given to Mr Kujawa. He dismissed the appeal and confirmed therefore the applicants termination.Neither at the hearing of the appeal or in the interview with Mr Lauder was reference made to the fact that the surveillance at the site had been by means of a video recording of the comings and goings of the lorry concerned.The Tribunal were presented with many arguments by Mr King, the solicitor who appeared for the applicant and who has appeared for him today.The appeal to us centres on whether ARC acted fairly. Firstly complaint is made that when they first gave notice of the disciplinary interview ARC did not provide the applicant with the documents upon which they relied. Secondly, in the letter calling for the disciplinary interview they did not give the date upon which the misconduct was alleged to have happened. The third point (and the one to which Mr King attaches most importance) is that at neither of the hearings did they disclose to the applicant the existence of the video to which we have referred. This was crucial, argues Mr King, since by the resumed disciplinary interview, the question of timing, that is to say how long the lorry was bring loaded, had become of great importance since that if it was only being loaded for a short time that would be consistent with a small amount of concrete being loaded and vice versa .These are the procedural defects which Mr King argued made the dismissal unfair. They were dealt with by the Tribunal in the following ways. As to the failure to provide documents the Tribunal said the applicant only had himself to blame since he had been given the opportunity to examine them and made no specific request for them by the time the first disciplinary interview took place. The applicant knew the date on which the misconduct was alleged to have happened. In relation to the video their findings are to be found in paragraphs 24 and 27 of their reasons. They say that they are:
"... satisfied that although the applicant and his father did not see the documents, they had more than sufficient of the summary of what was in them and that over the period of two hours which the initial hearing took, the vast majority, if not all, of the information in the two reports and the video must have been communicated the applicant. It is impossible to conceive of a hearing lasting that long without that information having been conveyed."
They said that if there had been any defect at the earlier stage in failure to provide details of the timings shown on the video, they were satisfied that at the appeal there was a clear discussion between the parties as to timing, and that remedied any defect that might have occurred before. They based that conclusion on the contents of the written report from the security consultants, which is before us, which does contain details of timing. And they went on to say:
"27 ...Since we have found as a fact that the substance of the two reports was given to the applicant and his father at the first two hearings and the issue as to time was discussed in detail at the appeal, there was no unfairness to the applicant by reason only of the non-production of the video. All that the video does is to corroborate the written report. Conversely, the written report corroborates the video. We do not believe that there is any obligation on the part of the a respondent to refer to and/or produce corroborative evidence, provided that the substance of the original evidence is made clear to an applicant."
They had seen the video, they had seen the report and they had heard all the evidence. Those conclusions which they reached are clearly conclusions of fact in our judgment.Mr King who put his case to us clearly and persistently in the face of considerable opposition argued that the existence of the procedural defects to which we have referred, flawed the Industrial Tribunal's decision to a point where it is at least arguable that this Appeal Tribunal should interfere with its finding.We have considered the points made by Mr King very carefully. We are unpersuaded however that they raise any arguable points of law. At the end of the day the Industrial Tribunal made findings of fact which resulted in them dismissing the applicants complaint. We can detect no error of law in their approach or the conclusion they reached. It must follow that this appeal is dismissed.