Taborda v Capital Corporation Plc [1998] UKEAT 444_98_0105

EAT

Taborda v Capital Corporation Plc

[1998] UKEAT 444_98_0105 · 1998-05-01

JUDGE PETER CLARK :

Mr Taborda was one of five applicants, former employees of the respondent, who were dismissed for conspiring to defraud their employers. They were tape recorded in conversation in a public house following a tip-off by a fellow employee.

The Industrial Tribunal sitting at London (North) hearing their complaints of unfair dismissal was critical of the procedures operated by the respondent in dismissing the applicants, but held that such procedural irregularities made no difference to the result and that the dismissal were fair. Alternatively, if wrong about the fairness of the dismissal they would have found that the applicants contributed to their dismissal to the extent of 100%, so that no compensation would have been awarded.

The sole ground now put forward by Miss Sinclair is this appeal is to be found in paragraph 6(a) of the Notice of Appeal. It focuses on paragraph 8(k) of the Industrial Tribunal's extended reasons, which deal with the applicant's case that the conversation in the public house was a joke. The tribunal say this:

"Other than Mr Gillem, all the parties (including Sue Hefferon) gave statements which implicated each of them including Mr Gillem. Mr Gillem gave no statement. Each of the parties giving a statement also admitted their involvement in the allegations. At no part of any of the statements given is there any suggestion that matters were a joke, which was the explanation put forward by all of the Applicants before the Tribunal. There is no suggestion by the Applicants that at any of these interviews they suggested to the Respondents through Mr Dunkerley and Mr Gomm that the matters that they were investigating were in fact a joke. Indeed, the suggestion that it was a joke was never raised by any of the Applicants in any of these processes and was only first raised in the Industrial Tribunal applications and before the Tribunal. No such explanation has ever been suggested, either directly by the Applicants or through their solicitors, at any time prior to the dismissal of the Applicants, nor indeed did Mr Gillem suggest it at the disciplinary hearing that he attended. Any correspondence that took place between the Applicants' solicitors similarly made no reference to a joke being perpetrated by the Applicants. Each of the Applicants, other than Mr Gillem and Miss Hefferon, gave statements which they alleged were obtained by way of duress or undue influence. ..."

Miss Sinclair submits, on instructions, that those findings are incorrect in fact. Mr Taborda's evidence was that he had raised the question of a joke at the initial disciplinary interview and had put that suggestion to Messrs Dunkerley and Gomm, who carried out that interview, in cross-examination. They apparently did not accept that he had done so.

We are invited at this preliminary hearing to direct that the Chairman's Notes of the cross-examination of those two witnesses be sought. We decline to do so. The findings of fact are clear and unequivocal. It is not the function of this Appeal Tribunal to re-investigate questions of fact which have been plainly dealt with by the Industrial Tribunal below. Since this is the sole remaining ground of appeal, we have concluded that there is no arguable point of law to go forward to a full hearing, and accordingly, this appeal must be dismissed.