Gardiner v Shell UK Ltd [1998] UKEAT 474_98_0106

EAT
Gardiner v Shell UK Ltd
[1998] UKEAT 474_98_0106 · 1998-06-01

JUDGE HULL QC:

This is an appeal to us by Mr Victor John Gardiner against a decision of the Industrial Tribunal sitting at London (North) under the Chairmanship of Mrs Prevezer with two Industrial Members. That Tribunal found, on Mr Gardiner's complaint, that he had not been unfairly dismissed and they therefore dismissed his application. Mr Gardiner had been represented at the Industrial Tribunal by a union official, no doubt of experience and ability, and among his complaints are that his union official did not do justice to his case and that he is dissatisfied too with the way in which the Tribunal dealt with it.Mr Gardiner's employment began on 16 February 1970 as a Tanker Driver at the Buncefield Terminal at Hemel Hempstead, where his employers, Shell UK, have a depot. He lived, at the time we are concerned with, at Ryde in the Isle of Wight which no doubt presented him with a long journey when he had to go back to duty or return from duty.Perhaps the saddest aspect of this case is that Mr Gardiner has been exceedingly unwell. We do not need to go into the details of the complaint but in the last few years it has resulted in him taking very long periods of time away from work. He has consulted doctors and we have seen letters from doctors in which they describe his complaint as a serious matter from his point of view, and also from the employers point of view because these very long absences, no doubt, were a serious matter for them too in organising the work.There was some gossip concerning Mr Gardiner's activities whilst he was away and eventually the employers, for that reason, on the occasion of one of his shorter absences, asked inquiry agents to keep him under observation. That was done and that is how this matter directly arose. I cannot do better than refer to the reasons of the Industrial Tribunal. I should say that the Industrial Tribunal is solely responsible for deciding what the facts of the case are. They are also of course responsible for duly applying the law. So far as we are concerned, we can entertain an appeal from an Industrial Tribunal only if we can discover a fairly arguable point of law. The facts, Parliament has said, are not a matter with which we are concerned, because the Industrial Tribunal, as it has been said, is the Industrial jury, and this Tribunal, as a Court of Law, has no concern to question any of the facts found by the Industrial Tribunal, unless they are affected by some error of law.We take the facts in the first instance from the Industrial Tribunal. They say in their Extended Reasons that Mr Gardiner had been absent in the period between 1989 and his dismissal on 14 March 1996 for no less than 696 working days; which, if one thinks about it, is something like half the working time available, at any rate a third of the working time available during that period, and of course there is no suggestion that he was "shamming" during all this period, or anything of that sort. They say he had suffered a number of different ailments and they say in paragraph 4 that:
"The Applicant had been warned by Dr Vaughan for the Respondent in October 1995 that, if the absences for ill health continued, it might result in the loss of his job. Mr Gardiner denied having received this as a warning but it is quite clear that he knew that the Respondents were losing patience with him over these absences."
They say that Mr Talbot, the Operations Manager, had an interview with him on 1 November 1995. Then they came to the facts of the matter which led to his dismissal.The period of the investigation, they say, by the inquiry agent was from 28 February until 4 March and in paragraph 7 they say this:
"..... On 28 February Mr Gardiner had reported sick saying that he would be off for at least the rest of the week. On Monday 4 March he confirmed by telephone to the operations superintendent that he felt dreadful and had not left the house. The private investigator's report, however, revealed that he had left the house and he was observed walking the dog and also going to the Wootton Bridge Community Centre arriving at 7.15 p.m. on 4 March, it was reported that he stayed there working behind the bar until 12.15 a.m. the next day."
That, of course, was reported to the employers.When Mr Gardiner reported for work on 6 March 1996 Mr Talbot had an interview with him. The Tribunal found in paragraph 9 that:
"..... He [Mr Gardiner] stated at that interview that he had been housebound and that he went out on only one occasion, which was to take his car in for repair. When asked if he ever undertook alternative work when not for Shell, he stated that he did not but when pressed he advised Mr Talbot that he occasionally undertook voluntary work at a local social club doing infrequent odd jobs and sometimes ordering beer for the bar. When asked if he had been able to undertake any of the voluntary work during the recent period of absence, he replied no, he had been far too ill. Mr Talbot then revealed to him the result of the private investigation and stated that he did not believe that he had been told the truth and he would be suspended on full pay. As a result of the investigation, Mr Talbot had reason to believe that on earlier occasions he had also not been ill and that his self-certifications were not correct. Mr Talbot confirmed to us that he seemed to notice a change when Mr Gardiner realised that they had had a private investigation. At the end of the interview he brought out a medical certificate and completed the self-certification and asked what he should do about the voluntary severance application."
In paragraph 10 they said this:
"A disciplinary meeting was held on 14 March 1996 and notes were kept of this. These notes were admitted to be a correct record. The Applicant was accompanied by Mr Gayler, who was the trade union branch secretary. Mr Gayler confirmed that he had believed that this was a formal disciplinary meeting ...."
They go on to say what Mr Gayler, the union representative, told them about these matters.They record in paragraph 11 that:
"As a result of the disciplinary meeting, at which the Applicant could give evidence and provide any explanation that he wished, the Applicant was dismissed. This was confirmed in a letter of 19 March and the Applicant appealed against this decision."
The Tribunal found that the appeal was to a Mr Comber, another Manager, and that was a complete re-hearing of all the evidence. He was then represented by Mr Williams, to whom I have referred, the union officer who was present, and that appeal was dismissed. Then he appealed to Mr Beer, who was Regional Vice-President of Shell International Ltd who heard his appeal on 10 May. That was well documented and Mr Beer dismissed the appeal, giving his reasons. He stated that in view of the Applicant's length of service he would not uphold the decision to summarily dismiss him but would substitute a dismissal with the benefit of three months notice and the Applicant was paid for three months.So that was the situation. The employers were of the opinion not only that Mr Gardiner had taken very long periods off on account of his illness but that he had exaggerated his need to take time off; in addition they had reached the conclusion that he had told them untruths on this most important matter concerning his health. It was then of course their duty to act fairly in deciding what to do about it. Should they dismiss? Should they award some lesser penalty? Could they overlook the matter in view of, for example, Mr Gardiner's long service or in view of his ill-health, and so on?Obviously, it seems to us, and no doubt to Industrial Tribunals, that in general an attempt to deceive an employer in an important matter and if the employee is treated fairly, it will justify a fair employer in dismissal, if that is, in the employer's view, a fair and proper answer to make.The Tribunal go on as follows:
"14 We find that the reason for the dismissal within section 98(2) of the Employment Rights Act 1996 was conduct. Although this appeared at first to be a capability dismissal because of the Applicant's sickness, it is apparent that the Applicant was dismissed because of his misconduct. [It is of course for the employer to show what the reason is for dismissal and for the Industrial Tribunal to find what the true reason is: whether they accept what the employer tells them.] The Respondents made an investigation and, from the report of the private investigator, concluded that the Applicant was abusing the self-certification procedures of the company and had not been sick as maintained during his absence. When confronted with this, the Applicant endeavoured to lie about what had happened and only when confronted with the full report did he state where he had been during this period. We find, therefore, that the Respondents had made a full investigation into the conduct of the Applicant and had a reasonable belief as a result of that investigation. They had reasonable grounds for sustaining that belief and they had warned the Applicant officially that his absences could lead to dismissal.
15 We find that in these circumstances dismissal was within the reasonable band of responses of the Respondents in view of the circumstances of this case and therefore this dismissal was fair."It appears to us and the contrary is not asserted by Mr Gardiner or by Ms Simler, who has assisted Mr Gardiner (although she does not address us), it appears to us that the Tribunal correctly applied the law as it has to be applied by an Industrial Tribunal enquiring into the question whether the employee has been unfairly dismissed. Mr Gardiner has appeared today and he has told us very shortly the nature of his complaints. He says the investigator's story is full of lies. He says that Shell only surmised the facts, they did not know the true facts. He says "I was in shock. I had not been working while I was at home. I was just helping people. I did not lie to the employers. I was confused, I am still confused. Perhaps I am naive." Then he turned to the hearing itself, which is what we are concerned with, because we have to look to see whether the Industrial Tribunal made any error of law.Concerning the hearing before Mrs Prevezer and the Industrial Members of the Tribunal he says "my own representative [Mr Williams of the TGWU] did not give me a good hearing. I was very disheartened with the way the Industrial Tribunal treated my case". We have considered those matters as carefully as we can as well as all the other matters in the case. As I have already said, we can only act if there is an error of law; a fairly arguable point of law in the case.We have considered everything that has been said to us and we have all come to the conclusion that there is here no fairly arguable point of law which would entitle us to allow the appeal to proceed in accordance with our Practice Direction. We therefore have to dismiss the appeal at this stage rather than allowing it to go to all the expense and trouble of a full hearing.