Butler v OCE (UK) Ltd [1996] UKEAT 1261_94_0907

EAT
Butler v OCE (UK) Ltd
[1996] UKEAT 1261_94_0907 · 1996-07-09

JUDGE PETER CLARK :

This is an appeal by the employee, Mr Butler, against a decision of London (North) Industrial Tribunal sitting on 30th June and 18th October 1994, that although he had been unfairly dismissed by his former employer, OCE (UK) Ltd, it would not be just and equitable to award him any compensation. Extended reasons for the tribunal's decision are dated 23rd November 1994.

The Facts

The material facts, as found by the Industrial Tribunal are these. The respondent is a subsidiary of a Dutch company employing some 1,200 people in the United Kingdom. Its core business is the supply of office photocopying equipment and associated products. The appellant was employed as a delivery driver based at their Loughton, Essex depot. He commenced his employment on 9th April 1975.On 19th February 1993 Mr Hawkswood, the Distribution Manager, circulated a memorandum to all drivers, including the appellant, which read:
"Earlier this month a customer delivery occurred in which the driver delivered the goods but did not leave the premises with a signature for the delivery. The customer now claims not to have received the goods the value of which is in excess of £150. This order is effectively lost and we will never receive payment for it.
Please let me reiterate that NO customer receives goods without signing and putting their name in capital letters (an illegible signature on its own isn't any good at all). If no-one is prepared to sign for receipt of the consignment then bring it back with you. Never leave anything with the customer without the above .I hope I don't have to bring this subject up again. Thank you in anticipation, for your support."On 18th May 1993 the appellant received a written warning from Mr Hawkswood relating to a delivery which he had made to Runwell Hospital on 6th May. The delivery note returned to the depot by the appellant had an illegible signature, no date and no clearly printed name. The customer claimed that this order, consisting of six items, had not been fulfilled. Three days later the appellant succeeded in obtaining a signature from the customer after the goods turned up. The warning nevertheless stood, based on the inadequacy of the original delivery note details.The material incident occurred on 27th May 1993. Included in his round that day was a delivery to Becontree Hospital. The contact name on the delivery document was Pat Olver. The appellant returned the document signed P H Olver with that name printed.Subsequently the hospital telephoned to say that the order had not been received. Mr Hawkswood telephoned the customer on 22nd June having checked the delivery note, and informed their Mr Brown, the Day Hospital Manager, that the goods had been signed for by P Olver. Mr Brown was stunned, Pat Olver, a woman, had been on sick leave at the relevant time. Indeed, it transpired that Ms Olver died in June 1993.Mr Hawkswood then obtained specimen's of Ms Olver's genuine signature; the appellant's signature and compared with the signature appearing on the relevant delivery document. He concluded that Ms Olver had not signed the delivery note, but that the appellant's signature was very similar to that on the document. He invited other members of management to compare the writing and they reached a similar conclusion.Accordingly the appellant was called to a meeting on 25th June 1993, together with his trade union representative, Mr Jones, the SOGAT Father of Chapel.At that meeting the appellant maintained that he had delivered the goods to the hospital and they had been received by a small man, in his forties, with grey hair, wearing glasses. Mr Hawkswood put to the appellant that he had not gone in that day, and had signed the delivery note himself. The appellant denied the allegation. However, from his demeanour at the interview Mr Hawkswood was convinced that he had in fact signed the document.Following the meeting, having reached the conclusion that the appellant had not gone to the hospital that day, but had himself signed the delivery note, Mr Hawkswood wrote to the Logistics Manager, Mr Spillman, stating that he wished to terminate the appellant's employment. Mr Spillman agreed and, without himself seeing the appellant, dismissed him by letter dated 8th July in these terms:
"Further to your meeting with Richard Hawkswood after careful consideration we decided not to accept your explanation concerning the events surrounding non-delivery of goods to Becontree Day Hospital.
As the company regards this matter as serious misconduct we have determined to terminate your employment forthwith. Any monies due to you up to 8 July 1993 will be forwarded in due course."The letter concluded by informing the appellant of his right of appeal to Mr Hanmer.The appellant exercised that right of appeal. The hearing took place before Mr Hanmer on 2nd August. Mr Hawkswood was present throughout the appeal hearing, and retired with Mr Hanmer after the hearing.Following the appeal hearing, Mr Hanmer made some enquiries of the hospital. He was informed by Ms Amanda Blank that she had spoken to the cleaners (the appellant having claimed that the man who signed in the name of P Olver was a cleaner) who insisted that where they received goods they would have signed for them in their own names. Mr Hanmer upheld the decision to dismiss.

The Industrial Tribunal Decision - Unfair dismissal

The tribunal found that the reason for dismissal was the appellant's misconduct in failing to follow clearly laid down procedures. However, they found the dismissal to be unfair for the following reasons:(1) No notice was given to the appellant of the disciplinary hearing held on 25th June. He was not informed of the charge in advance. No adequate investigation was carried out at the first stage disciplinary.(2) The appeal carried out by Mr Hanmer did involve a proper investigation. However, it fell short of being a full appeal hearing and did not cure the defects in the first stage procedure. Further, the tribunal criticised Mr Hawkswood's involvement at the appeal stage.

Compensation

The Industrial Tribunal dealt with the question of remedy in this way:
"46 We must consider the question of remedy. There was no suggestion by the Applicant of his desire to be re-employed. In relation to compensation the Tribunal must award what sum it considers just and equitable. It is the Tribunal's view that in this case the Applicant should receive no compensation and that is the just and equitable amount to award. Both Mr Hawkswood and Mr Hanmer were concerned about the demeanour of the Applicant and we in the Tribunal were very concerned as to the Applicant's evidence which was inconsistent in a number of ways. Furthermore, if there were defects, which we found there were, in all the circumstances it was clear that there was detriment suffered by the Applicant. He would have been unable to have had the decision reversed because there was no grounds on which one could do so. It was surprising to the Tribunal that the Applicant had not been to hospital himself to find out who might have accepted the goods.
47 Accordingly the Tribunal in this case awards no compensation despite our finding that the Respondent did not act reasonably. We believe that had their been a proper procedure followed the Applicant would still have been dismissed fairly. We need not consider the question of contributory fault in this case."In support of the appeal Mr Bibby submits first that in the absence of any finding of fact as to the appellant's conduct before the dismissal it was not open to the tribunal to reduce, or here extinguish, the basic award. The only relevant power to reduce that award is contained in Section 73(7B) of the Employment Protection (Consolidation) Act 1978 which provides:
" (7B) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) ... was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly."
We not believe that that is a fair reading of that Industrial Tribunal's reasons taken as a whole. The issue in the case related to the appellant's conduct; had he failed to make the relevant delivery and forged a signature of the person named as the contact on the document? The tribunal found that it was misconduct which formed the respondent's reason for dismissal; but they went further in their own findings based on the evidence which they had heard. In paragraph 29 of the reasons they say this:
"29 When the Applicant gave evidence in the Tribunal he was actually asked about the person to whom he delivered the goods at the hospital and on this occasion he stated the man was of medium height and had darkish hear whereas at the original disciplinary hearing he said he had grey hair and was small. That was a matter which did cause some alarm to the Tribunal but we have to judge the Applicant by his story as at the disciplinary hearing for the purposes of determining liability."
That observation was made at a stage in the reasons where the tribunal were considering the fairness or otherwise of the dismissal. But they returned to that theme in paragraph 36 which we have set out above. In particular we draw attention to their observation that:
"Both Mr Hawkswood and Mr Hanmer were concerned about the demeanour of the Applicant and we in the Tribunal were very concerned as to the Applicant's evidence which was inconsistent in a number of ways."
In our judgment it may properly be inferred from the decision that the tribunal were finding that the appellant had in fact misconducted himself in the way alleged, and that in those circumstances it would be just and equitable to reduce the basic award to nil.Secondly, Mr Bibby submits that the tribunal's decision to make a nil compensatory award under the just and equitable provisions of Section 74(1) of the 1978 Act was perverse. We remind ourselves of the substantial hurdle which an appellant must overcome in order to establish perversity, particularly in relation to the assessment of compensation by an Industrial Tribunal. We are simply not persuaded that such a case is here made out. It was open to the tribunal to conclude that had a proper procedure been carried out, then a fair dismissal would inevitably have resulted. They saw and heard the witnesses over two days; we have not. Parliament has entrusted questions of fact and impression to Industrial Tribunals, not to this Appeal Tribunal. We can only interfere where an error of law is apparent; in this case it is not; the appeal must be dismissed.