Widger v Crook [1997] UKEAT 1212_96_1703

EAT
Widger v Crook
[1997] UKEAT 1212_96_1703 · 1997-03-17

JUDGE PETER CLARK :

This is an appeal by the employer, Mrs Widger, against a decision of an Industrial Tribunal sitting at Exeter on 19th July 1996 that the employee, Mrs Crook, had been unfairly dismissed. Extended reasons for that decision are dated 17th September 1996.The appellant is the proprietor of the Dartington Village Stores, a village shop containing a sub-post office. She acquired that business in April 1992, at which time the respondent was already employed in the business as a Post Office Clerk, that employment having commenced on 16th February 1991. Between 30th September 1994 and 6th February 1995 she took maternity leave. She had earlier taken a holiday between 27th August and 17th September 1994.There was a history of cash deficiencies associated with the Post Office side of the business. Significant discrepancies were noticed so the tribunal found; including 15th June 1994, £749. Again a discrepancy on 7th September 1994 when the respondent was on holiday, and on 11th January 1995 when £945 was missing at a time when the respondent was on maternity leave.In November 1995 the tribunal found, the Post Office raised the matter and suggested an investigation by its internal Post Office Investigation Department ["POID"]. A Mr Hillier of POID spent an afternoon with the appellant in late 1995. He estimated the overall shortfall at £15,600. In fact it turned out when he was cross-examined it was some £2,000 less. The appellant told him that only she and the respondent had access to the sub-post office. She pointed out that she had to make up any shortfall from out of her own funds. The respondent must be responsible.Mr Hillier advised the appellant to dismiss the respondent. A meeting was held on 3rd January 1996 without prior warning to the respondent. Mr Hillier was unable to attend the disciplinary hearing that took place on that day, and the Post Office regional network manager, Mr Neck sat in for him. The Industrial Tribunal found that after a short introduction it was put to the respondent that there were shortages and that the appellant was not responsible for them; in these circumstances she believed the respondent was responsible and a decision had been taken to dismiss her, subject to any explanation the respondent might give.No specific amounts were put to the respondent and no detailed explanation was sought. She was summarily dismissed.The tribunal proceeded on the basis that the reason for dismissal related to the respondent's conduct, but when considering the question of reasonableness under s.57(3) of the Employment Protection (Consolidation) Act 1978 then in force, concluded:(1) that the appellant had carried out insufficient investigation;(2) that she did not have reasonable grounds for her belief in the respondent's dishonesty; and(3) that the dismissal was procedurally defective in that no notice of the charge was given to the respondent; she was not offered a proper opportunity to respond; no provision was made for her to be accompanied at the disciplinary hearing.Against that decision the appellant now appeals and is represented today by Mr Bryant of Counsel, under the ELAAS scheme. We are grateful to him for his assistance.He tells us that the parties, following the liability decision by the tribunal, agreed terms for compensation; and that agreement was then contained in a subsequent decision of the tribunal dated 14th August 1996, which is framed in the usual way; that is that the application is dismissed on withdrawal by the applicant upon the terms agreed between the parties.It seems to us that no point is taken by the appellant before us that there is no longer in existence an unfair dismissal application for us to consider. Equally, by the respondent, that this is not a case in which it is said that the appellant has prevented herself from appealing the liability decision by agreeing the amount of compensation. We therefore approach this appeal on the basis that compensation has been agreed subject to the appeal on liability.

The Appeal

As to the appeal, Mr Bryant takes three points on behalf of the appellant in submitting that the tribunal's decision was perverse.First he says that within the tribunal's extended reasons they say that the keys which give access to the Post Office cash were left in the store in circumstances where a third party could have made use of them in addition to the appellant and the respondent. He complains that that matter was not put to the appellant in cross-examination. she giving evidence first; and she did not have an opportunity to deal with that allegation when it came from Mrs Crook in evidence.The difficulty with that submission is that we are told that Counsel who then represented the appellant did not formally apply for his client to be recalled to give evidence after Mrs Crook had given that evidence, and in these circumstances we do not think that that is a complaint which assists the appellant in this appeal.Secondly, he draws attention to paragraph 11 of the reasons in which the tribunal say:
"11 Finally it should be recorded that, at the applicant's representative's insistence, the tribunal was asked to accept for consideration a statement signed by the respondent's husband. The tribunal considered this document and find it to be irrelevant to the issues and inappropriate to be introduced without oral testimony to be tested in cross-examination."
What is said on behalf of the appellant is that at the time when that application was made on behalf of Mrs Crook, although the tribunal said before looking at the husband's statement that it would be inadmissible if the husband was not called to give evidence, they nevertheless then retired and read the statement; and, it is submitted, that statement was highly prejudicial to the appellant's case.It seems to us that where a party presses a tribunal to admit a document in evidence, it is well within the tribunal's right to look at that document, de bene esse , in order to rule on its admissibility. That is apparently what happened in this case. The tribunal ruled it irrelevant and we are not satisfied that this decision can be faulted because the tribunal read the document for that limited purpose. Industrial Tribunals are referred to as industrial juries; however they are not juries in the sense of a criminal jury and they can be trusted to look at documents in these circumstances and then to put them out of their mind if they rule them irrelevant and inadmissible.Thirdly, he submits that in relation to the discrepancies which arose whilst the respondent was on holiday and later when she was maternity leave, that Mr Neck gave unchallenged evidence that those discrepancies could be explained as being accounting errors, but that the tribunal did not take this into account; on the contrary, they regarded it as significant that such discrepancies arose at a time when the respondent was not at work.It seems to us that this was a matter for the Industrial Tribunal to assess on the evidence which it heard. For example, it records at paragraph 4 of the reasons that Mr Hillier told the appellant that there was no accounting explanation for the shortfall. This, as we understand it, applies to the whole of the shortfall which he initially calculated at £15,600, although he later accepted that the figure was overstated by at least £2,000. In any event, we are not satisfied that this point undermines the three grounds upon which the Industrial Tribunal found this dismissal to be unfair.Having considered the submissions made on behalf of the appellant, and indeed the lengthy affidavit which she submitted in support of her appeal, we have reached the conclusion that no arguable point of law is made out, and in those circumstances the appeal must be dismissed.