BG Plc (Tranco) v Dunthorne & Anor [1998] UKEAT 265_98_2307

EAT

BG Plc (Tranco) v Dunthorne & Anor

[1998] UKEAT 265_98_2307 · 1998-07-23

JUDGE J HULL QC :

This is an appeal to us by BG (British Gas) Plc (Transco) against a decision of the Industrial Tribunal sitting at Stratford, under the chairmanship of Mr Buckley, on 15 and 16 December 1997. That Industrial Tribunal had concluded in favour of the Respondents to the appeal, Mr Alan Dunthorne and Mr Anthony James Geary, that they had both been unfairly dismissed by their employers. Their employers, of course, are the successors of the old British Gas.

Mr Dunthorne had been continuously employed by British Gas and their successor since 1974 and Mr Geary since 1972. Both the men, of course, are in middle age; Mr Geary is a Distribution Fitter and Mr Dunthorne an Assistant Distribution Fitter and the substance of it was this; that on 5 September 1996 when these men said, and declared in their timesheets, that they had been working that afternoon, a Friday afternoon, in fact they were not at work. They were taking time off and their position therefore was that Mr Geary, who was responsible for making up the sheet and Mr Dunthorne who, of course, connived, so to speak, joined with him in putting forward the sheet as a truthful record, were guilty of absenting themselves, without leave, and an attempt to defraud their employers; that was what was said. These two men worked independently and were trusted. They had a lorry which was driven by one of them and they went to the jobs, which they were asked by their employers to go to, and there did excavations on British Gas pipelines, matters of that sort. They were engaged in works of repair at the material time.

That was the suspicion. It was based upon a visit by one of the employer's management to the site when he made certain observations. There was no doubt that, at that particular moment that afternoon, the employees were not there and the suspicion was based upon observations of the amount of work that had been done. The matter therefore had to be looked into. The allegation was made. The men said, No, It was true they had not been there throughout that afternoon. They had made a visit to the depot, but they had in due course returned and they had, in fact, done certain work in filling an excavation on the site.

That was the nature of their defence. The employers did not accept what they said and after conducting a number of enquiries, investigations, hearings, the employers were satisfied that, in fact, the charges were made out and they therefore dismissed the employees on the basis that this was not a mere oversight or misunderstanding or anything like that, but that there was dishonesty here and a false claim was being made to the employers.

They both complained, in their complaints to the Industrial Tribunal on 21 December, that they had been unfairly dismissed and they wished to be reinstated in the jobs which they had held for so long. It was, of course, for the employers to show first of all. the reason for which they had been dismissed and secondly, that the employers had acted reasonably in treating that as a proper ground for dismissal. That involves, where there are serious allegations of this sort, several steps which the employer would be expected to take. He must carry out a reasonable and proper enquiry. He must reach a conclusion on reasonable grounds that the suspicion is made out and conclude that he does believe that the employees are guilty of what is alleged. He must, of course, give them a proper opportunity to be heard and for that purpose explain the nature of the charges and he must react in a way which is within the range of responses of a reasonable employer. Those were the matters the Tribunal therefore had to enquire into.

The decision begins at page 3 of our papers. The Applicants, Mr Dunthorne and Mr Geary, were in person and the Respondent employers were represented by a Consultant. Miss McNeill, who has done everything she can to help us, is not able to tell us exactly what evidence the Tribunal heard, apart from what they set out in their findings; and certainly there may have been a good deal of evidence which we do not know about.

However that may be, the Tribunal say the issue is whether the Respondents genuinely believed, after carrying out a reasonable investigation, that the Applicants were guilty of misconduct by absenting themselves from work and by falsification of time sheets, thereby claiming payment for being at work at times when they were not, in fact, present. Perhaps it is permissible to point out that here, the employers were charging long-standing employees, who throughout their employment, had been trusted with recording their own times, with offences which clearly amounted to allegations of crime. They were endeavouring to extract money by making a false and forged document.

So, having set out, it seems to us quite clearly, the issues which they had to consider, the Tribunal said as follows:

"5 It was stated in the case of British Home Stores Limited v Burchell [1978] IRLR 379 , that it is for the employer to show, where an employee is dismissed because of an alleged act of misconduct, that there was a genuine belief in the employees guilt of the act of misconduct alleged and further that such belief was held following a reasonable investigation into the matters alleged.

6 It has been established by the case of Iceland Frozen Foods Limited v Jones

[1982] IRLR 439

, that in judging the reasonableness of the employers conduct as to whether to dismiss an employee, the Tribunal must not substitute its views as to what is the correct course for the employer to adopt. The task for the Industrial Tribunal is to decide whether in all the circumstances, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the decision cannot be said to be outside the band of reasonable responses then the decision to dismiss will not be unfair."

It is conceded by the Appellants that those directions by the Tribunal to themselves are absolutely correct.

The Tribunal, themselves, then went through their findings in considerable detail, setting out the enquiries which were made and the nature of the employer's case; the conclusions of the various managers who conducted the enquiries. They record the submissions. They say the Applicants made no submissions to them, but the Respondents relied on the cases to which I have referred.

Then they go on to their assessment:

"9 The Tribunal finds that too much reliance was placed upon Mr Robinson's alleged observation on 6 September 1996, as to there having been no visible signs of progress on the site since his visit the previous day. Having regard to the fact that each Applicant had an unblemished record of over 20 years of service for the Respondents, and particularly having regard to the fact that Mr Dunthorne had produced to Mr Dowling [one of the Managers] such an excellent testimonial as to his loyalty and character from his line manager Mr Alan Cobden, who was still employed by the Respondents, it was incumbent upon Mr Dowling to weigh the observation of Mr Robinson very carefully in the balance."

There, Miss McNeill says, and she says this several times in relation to what follows, the Tribunal are showing that, departing from their duty to consider the adequacy of the investigation, they are judging the case for themselves, as though they were the employers.

Then they say, in paragraph 10:

"10 The Tribunal finds that Mr Dowling gave undue weight to the statement of Mr Robinson as against contemporaneous evidence from the Applicants that, on 5 September 1996 they had indeed back filled the verge in the afternoon at 6 Harewood Avenue. ..."

They go on, in paragraph 12, to say:

"12 We find also that there was too much reliance placed upon the fact that the Applicants could provide no corroborative evidence of their movements in going back to the Depot after lunch on 5 September. Both Applicants had stated when asked by Miss Strohm as to their movements, that they had indeed gone back for materials. There was no evidence of any proper investigation by the Respondents amongst persons at the Depot as to whether anyone might have seen them. Mr Robinson himself conceded in evidence to the Tribunal, that it would be perfectly possible for them to have gone back and not have been seen by anyone in a supervisory capacity. However, it should have been part of the disciplinary investigation to see whether or not anyone in the Depot could give evidence in this regard. ..."

Again, says Miss McNeill, here they are carrying on as if they were conducting the investigation themselves, instead of looking to see the adequacy of the investigation.

The Tribunal say, in another passage criticised by Miss McNeill, that it would have been perfectly possible for Mr Robinson to have produced clearer evidence, as to lack of progress on site, had he taken photographs on his return to the site on 6 September. Presumably he went to the site for the very purpose of preparing a case against the Applicants and accordingly, "we feel such a course would not have been unreasonable". "It is not unusual, so the Tribunal was given to understand, for persons in Mr Robinson's position to carry cameras with them when they visit sites". And again, said Miss McNeill, this is a case of the Tribunal putting themselves in the position of the employers, assessing the evidence for themselves.

"14 Mr Dowling had before him persons of long service with exemplary records. In addition, he had a glowing testimonial in the case of Mr Dunthorne as to the fact that such actions would be completely out of character. The Tribunal find that it was unreasonable not to give a great deal of weight to such testimonial and to weigh those factors against the scant evidence before him as to the absence from site. ...."

Again, Miss McNeill says, this was a matter for Mr Dowling. It was not for the Industrial Tribunal. They were putting themselves in his place.

The Tribunal go on to investigate another matter, which Miss Neill has not pressed on us, and they sum up as follows:

"22 It is the Tribunal's view that the investigation of the allegation of unauthorised absence from the site was not made subject to a reasonable investigation by the Respondents."

They were not entitled to say that, says Miss McNeill, because as she showed us, at the hearings, one of the hearings at any rate, the Trade Union representative, an experienced gentleman, acknowledged that the procedure had been correctly carried out and there were no complaints about procedure. It was, of course, not for the Trade Union representative or anybody but the Tribunal to say whether that was so, but it was in the face of that that the Tribunal reached their conclusion about procedure.

Then they go on:

"23 The Tribunal also have considerable doubts as to the procedural steps followed by the Respondents consisting as they did, of an informal interview by Miss Strohm [this is the first point] some eight to nine days after the matter was reported to her by Mr Robinson. At that interview the Applicants were given no indication of the seriousness of their position, [a second, very important point] and indeed, they were never notified that they were liable to be dismissed for the matters which were put to them by Miss Strohm . Thereafter, the disciplinary procedures followed very quickly, within a day, and we have considerable doubts as to whether the Applicants had sufficient opportunity to prepare their defence to the serious charges that were being raised against them."

In our judgment, those three points which were expressed by the Tribunal were fundamental points, which the Tribunal was not only entitled to, but was under a duty to assert when considering the fairness of what had taken place.

They come to their conclusion:

"24 The belief which was formed by the disciplinary panel as to the guilt of the Applicants was not a belief which was based upon a reasonable investigation into the facts of this matter. Had such a reasonable investigation been carried out then it would probably have been concluded that there was no satisfactory evidence of falsification of accounts in relation to the alleged 5 September 1996 absence from site. ..."

There again, Miss McNeill says, they have shown that they are entering, so to speak, into the arena, carrying out the employer's task. But they do not say, it is interesting to note, that "they would have concluded" or "our conclusion is", they were saying what a reasonable investigation would probably have caused the employers to conclude.

So we have to ask ourselves, looking at this decision as a whole, is it fairly arguable that this Tribunal departed from their duty of looking to see whether the employers reached a reasonable conclusion, within the range of possible conclusions, after a reasonable investigation, that is to say, an investigation such as a reasonable employer would have carried out?

This Tribunal started by directing themselves scrupulously about the nature of their duties, so they were perfectly correct in law there. They then made at least three observations which could perhaps, if it had not been for what they had said, be taken as an indication that they were assessing evidence for themselves. They then come to their conclusion, which quite plainly in our judgment is one which was open to them as a Tribunal of fact.

It seems to us that looking at it justly and not, so to speak, going through, picking out a point here, picking out a point there, with a fine tooth comb, but looking at the whole of this decision, it is quite clear that what the Tribunal did was to carry out their duty by looking at the various ways in which the investigation dealt with various matters. They were entitled to do that. They were not saying to themselves, what would we have done or what view do we take of the evidence? They were pointing to transparent weaknesses or difficulties with the evidence and asking themselves, how had the employers dealt with those matters? - and reaching a negative and unsatisfactory answer on those and other points. Now that was exactly what they were entitled and, indeed, bound to do. They were entitled to say to themselves, "This was a case of employees of long standing, trusted to carry out a task and then charged with a nasty little fraud. Any employer in that position, certainly one who had a glowing testimonial from another executive for at least one of these men, would embark on a very careful and scrupulous investigation and would inevitably feel a great sense of duty to the employees and would not convict on anything less than perfect satisfaction".

Here, as I say, we do not know exactly what evidence was given to the Tribunal; or what view they took of the evidence of the various executives who may, or may not, have given evidence about these matters. At the end of it they were dissatisfied for the reasons which they gave.

We are entirely clear that as a matter of law they were entitled to reach those conclusions and we do not think, on a proper analysis and a fair reading of their decision as a whole, that it shows that they departed, in any way, from their legal duty. We are not prepared to allow this appeal to go to a full hearing because we are satisfied there is in fact no fairly arguable point of law involved in the case. The appeal will therefore be dismissed.