Hastings v Pearl Assurance Plc [1998] UKEAT 1348_97_1601

EAT

Hastings v Pearl Assurance Plc

[1998] UKEAT 1348_97_1601 · 1998-01-16

MR JUSTICE KIRKWOOD : This is the preliminary hearing of an appeal by an employee from the decision of an Industrial Tribunal sitting at Truro on 16th September 1997 that he was fairly dismissed.

The appellant, Mr Hastings, was, from January 1996, Area Manager responsible for managing and supervising a team of representatives selling the respondent Company's financial products to the public.

The disciplinary offence alleged and for which the appellant was dismissed, was that forging a colleague's signature. The colleague was a Mr Foster. At the time of his purported signature to the document he was on holiday. There was no dispute that the signature was a forgery. The appellant had had conduct of the matter when Mr Foster was on holiday, he was in control of the documentation.

The Industrial Tribunal later found also that the appellant vetted all the documents before they went to Head Office for processing, though the evidential basis for that particular finding was challenged in the Notice of Appeal, though no argument is presented to us on the basis of that today. The tribunal also found in that regard that:

6 ... The applicant admitted that he was responsible for inserting Mr Foster's code number in the form which would thereby ensure that Mr Foster received the appropriate commission on the sale and he also accepted that approximately 90% of the documents concerned had been completed by him."

In the light of that and other findings by the Industrial Tribunal, it is quite understandable to us why that matter in the Notice of Appeal is not now pursued.

Investigation of all the people in the appellant's office at the time shed no light on the matter. The employer got the advise of a graphologist who found the appellant could have been the author of the document, but that the evidence was not conclusive. Mr Morrison, the Regional Sales Director, conducted a disciplinary hearing and concluded that on a totality of the evidence the overwhelming probability was that Mr Hastings was responsible for the forgeries. The appellant was under a previous 12 month final warning also for forging a signature on a document, and Mr Morrison decided upon dismissal.

The appellant appealed within the respondents' procedures. The appeal was delayed for the appellant to get his own graphological report. The appellant's graphologist said essentially the same as the first one had said. At the formal hearing before Mr Collins the appellant reiterated his denial. Following the formal hearing Mr Collins sought a third report from a hand-writing expert. He obtained it. He found that it did not assist the appellant in any way and did not disclose it to him. Mr Collins confirmed Mr Morrison's decision.

The Notice of Appeal in its second ground refers to the failure of Mr Collins to disclose the third hand-writing report. It is said that the appellant only became aware of it the day before the Industrial Tribunal hearing, that is to say long after Mr Collins had made his decision to confirm the dismissal. That is said to be a denial of natural justice. The appellant argues that no tribunal could reasonably conclude as this tribunal did that the appellant was not thereby prejudiced.

The Industrial Tribunal had this point clearly before it. We are told, furthermore, that they saw this third report. The tribunal dealt with it in this way:

"7 ... When he [ Mr Collins ] received the report and found that it did not assist the applicant in any way he decided that there was no point in disclosing it to the applicant or his advisors. We are quite sure that his sole purpose was to make one final attempt to obtain evidence which may have supported the applicant's denial and enable to reverse the dismissal. The Tribunal does not doubt that Mr Collins' intentions were entirely compassionate but the dangers of anyone who hears an appeal seeking additional evidence and failing to disclose it are readily apparent. We do not believe that in the particular circumstances of this case the applicant was prejudiced in any way. In other circumstances, it could have constituted a fatal flaw to the respondents case and in our view is not a practice which should ever be followed. Mr Collins decided that there was no evidence upon which he could reasonably reach any other conclusion than Mr Morrison and upheld the decision to dismiss.

8 ... We find that the respondents carried out an exhaustive investigation and this appeared to indicate that the applicant was the only person who could have been responsible for the forged signatures. The conclusion that the applicant was responsible for the forgeries appears unavoidable and we find therefore that the respondents held a reasonable belief in the applicant's guilt. In these circumstances and having regard to the subsisting disciplinary warning for a similar offence we also find that it was reasonable for the respondents to terminate the applicant's employment. Accordingly, we find that the applicant was fairly dismissed."

We endorse what the Industrial Tribunal said about the undesirability of receiving subsequent evidence and proceeding in the way that Mr Collins did.

We have asked to see the third report as the Industrial Tribunal we are told saw it, but it has not been available to us. We proceed on the basis that what the Industrial Tribunal said is right, that there was nothing in it that could possibly assist the appellant in undermining the decision as to his responsibility for the forgery.

It appears from argument that the hope of Mr Guy, who appears today for the appellant and appeared for the appellant before the Industrial Tribunal, is that if we should allow this case to go to a full hearing on the basis of the suggested denial of natural justice, that will open the opportunity for further negotiations on his client's behalf with the employer.

We must however address our minds to the question of whether it is arguable that the Industrial Tribunal erred in law, because unless that is arguable, there is no basis upon which the appeal can proceed before this tribunal. It is our unanimous view that the Industrial Tribunal approached this aspect carefully and in a manner that lay within their discretion and that we can see no argument for saying that the tribunal erred in law in the manner in which they proceeded. Therefore, this appeal should be dismissed at this stage.