Ainsworth & Ors v Whitbread Plc [1997] UKEAT 1260_97_1712

EAT
Ainsworth & Ors v Whitbread Plc
[1997] UKEAT 1260_97_1712 · 1997-12-17

JUDGE PETER CLARK :

This is an appeal by seven applicants before the Manchester Industrial Tribunal sitting on 11th-14th August 1997 against that tribunal's decision to dismiss their complaints of unfair dismissal brought against their former employers, Whitbread PLC, the respondents. Extended reasons for that decision are dated 9th September 1997.Each of the appellants was employed by the respondent at its Shadsworth Distribution Centre. That depot suffered substantial stock losses amounting to £120,000 for a six month period ending in mid-June 1996. Those losses were caused by theft.In mid-June 1996 a member of staff named 13 individuals whom he said he had seen stealing goods from the premises. That person was interviewed by Mr Scott, the Operations Manager, members of the respondents' security staff and by police. All those who interviewed him were satisfied as to his honesty and the genuineness of his motivation. An enquiry conducted by Mr Scott then ensued.From the outset consideration was given to preserving the anonymity of informants. The initial informant feared physical harm if he was identified. Mr Scott believed that fear was genuine and reasonably founded. The tribunal concluded that was a reasonable attitude for Mr Scott to take.The enquiry proceeded in this way. Mr Scott sought corroboration of the initial informant's account, which named six out of the seven appellants. On 12th August 1996 he wrote to all employees inviting them to provide information about thefts taking place by telephoning a "hotline" number. As a result, 11 further members of staff provided information which was reduced into writing. In total the 12 informants named 19 individuals. Mr Scott assessed that information and rejected hearsay accounts. He thereby reduced the number of informants from 12 to 8 on that basis. He looked for corroboration of the allegations by seeing which individuals were mentioned in more than one of the eight statements.By this process Mr Scott decided to interview 14 of the 19 named individuals, including these appellants. Of the appellants, Mr Ainsworth was mentioned in all eight of the statements used; Mr Cotton in three and the other five appellants in five or six of the statements.Investigatory interviews were carried out by Mr Scott with all 14 individuals, including these appellants on 30th September 1996. At interview each applicant was provided with extracts from the informants' statements. In the interests of preserving anonymity specific dates, times and venues were omitted for fear that such detail would lead to the identification of the informant. The tribunal held that such a course was reasonable, weighing the conflicting principles of giving those accused a proper opportunity to defend themselves and preserving the anonymity of informants who were reasonably to be considered at risk of reprisals.Following the investigatory meetings, Mr Scott was satisfied with the explanations given by six of the 14 individuals interviewed and he suspended the remaining eight; these appellants and one other, Mr Walder.Disciplinary hearings then took place before Mr Scott on 2nd and 3rd October 1996. Each man was represented; notes of each hearing were taken. Each was given a full opportunity to give his account. Each was asked to name any individuals who might bear a grudge against him. Where individuals were named Mr Scott carried out a careful investigation, so the tribunal found, to determine whether they had provided information against that employee mala fide .In the event, Mr Scott decided that each of the seven appellants was guilty of theft. Each was summarily dismissed. Mr Walder resigned.The appellants then appealed against the dismissal decisions taken by Mr Scott to the Regional Distribution Manager, Mr Whittaker. The appeals were heard on 4th and 5th November 1996. They were dismissed.The tribunal found Mr Whittaker conducted appeals in a fair and reasonable manner. They rejected a submission made by Mr Mooney on behalf of the appellants that the hearings before Messrs Scott and Whittaker were charade.The tribunal then considered the fairness of the dismissals, the reason for which in each case related to the appellant's conduct. They directed themselves in accordance with the guidance of the Employment Appeal Tribunal in Linfood Cash & Carry Ltd v Thomson [1989] IRLR 235 and concluded that each dismissal was fair.In this appeal Mr Mooney challenges the tribunal's application of the Linfood guidance in this case. He submits that more information could have been provided, particularly in the form of times, dates and places, from the informants' statements, in order to give the appellants a proper opportunity to defend themselves. He challenges the reasonableness of the investigatory and disciplinary officer being one and the same person, Mr Scott. He questions whether proper investigation was carried out into the points made by the appellants between the investigatory and disciplinary hearings held by Mr Scott.Next, he submits that there was a breach of natural justice, based on the principle set out in the case of Khanum v Mid Glamorgan Area Health Authority [1979] ICR 40 .Finally, he relies upon the observations of Sir Richard Scott Vice-Chancellor in A v Company B Ltd [1997] IRLR 405 , at paragraph 4, where the Vice-Chancellor said:
"I have to say that it seems to me grossly unfair that an employee should be dismissed for gross misconduct without being given any opportunity, any chance at all, of meeting the evidently serious allegations that had been made against him. Indeed, as an example of employment practice it seems to me outrageous."
Taking those points in reverse order, first, we are satisfied that the factual circumstances in A v Company B Ltd were quite different from the instant case. There, the plaintiff was called in and dismissed without being given any opportunity to defend himself. The defendant company in that case admitted unfair dismissal before the Industrial Tribunal. That is not this case where the tribunal found that a full and proper disciplinary investigation was carried out in circumstances where as much information as was compatible with preserving the anonymity of informants was provided to the appellants.As to the principles of natural justice set out in Khanum , we think that subject to the constraints of preserving informants' anonymity, these appellants did know the nature of the accusation against them, were given a proper opportunity to state their case and that, on the tribunal's findings of fact, Messrs Scott and Whittaker reached their decisions in good faith.Finally, the Linfood guidance. We make it clear that the helpful observations of Wood J in that case are not a substitute for the words of s.98(4) of the Employment Rights Act 1996 . Having said that, we think that the Industrial Tribunal was entitled to conclude that the guidance was properly followed by the respondent in this case, but more particularly, it was entitled to find that overall the respondent had acted reasonably in dismissing these appellants. Accordingly we reject this ground of appeal.In the Notice of Appeal Mr Mooney raised certain complaints about the conduct of the proceedings by the Chairman, Mr Russell. Those complaints were later set out in an affidavit sworn by him on 10th December 1997 to which the Chairman responded by letter of 12th December 1997.We are told by Mr Mooney that he does not pursue this complaint as a free-standing ground of appeal. In these circumstances we would simply make this observation. There is a dividing line between the robust handling of proceedings by a Chairman, and the introduction of some levity, which is perfectly acceptable, and behaviour which indicates disbelief at a party's case during the hearing, or humour at the expense of a witness or a representative. The Chairman accepts that on one occasion he overstepped the line when referring to Mr Mooney in a way intended to be humorous, but capable of giving offence. He graciously accepts that his remark was inappropriate. We need say no more.In all the circumstances, we have concluded that this appeal raises no arguable point of law to go to a full appeal hearing, and accordingly, it must be dismissed at this stage.