Carpenter v Stretton Leisure Ltd [1998] UKEAT 577_98_2909

EAT

Carpenter v Stretton Leisure Ltd

[1998] UKEAT 577_98_2909 · 1998-09-29

JUDGE J HICKS QC :

Mr Carpenter, the Appellant employee in this case, was employed by the Respondent employer, Stretton Leisure Ltd, as an Installation Engineer from 9 May 1995 until 19 September 1997. One of his colleagues or superiors had a company car which Mr Carpenter used on 17 September 1997 to go to Torquay on company business.

The number of persons who had access to the interior of that car during the relevant period was very limited and therefore when, on 19 September 1997, Mr Tailford, whose car primarily it was in the sense that he had the custody of it, found a polythene glove under the driver's car mat, with small packets of foil in the fingers of that glove and some burnt residue inside which the employers suspected or took the view were remains of illegal drugs - and the Tribunal found that that was a reasonable conclusion for them to reach - Mr Carpenter and the only other employee who had access during the relevant period were interviewed. The Tribunal found that the procedure followed was not, in some respects, a fair procedure, because there was not a full disciplinary meeting at which Mr Carpenter was able to bring a representative or a friend.

However there was an investigative meeting with Mr Carpenter in the course of which, as the Tribunal found on the evidence before them, he at first denied knowledge of the glove, but on being told that he and the other employee concerned would be suspended and the Police involved if the facts were not established, he admitted that although the glove was not his, he knew whose it might be. He said he had given a friend a lift when driving the car on 17 September. As the Tribunal find, he refused to give that friend's name, claiming to be in fear of being beaten up. He was distressed and agitated and the meeting was interrupted by a short adjournment.

The end result was that Mr Carpenter signed a letter of resignation. There was evidence before the Tribunal as to the circumstances in which that happened, Mr Carpenter claiming that he was entrapped into doing so and did not do so voluntarily and the employers denying that. The Tribunal accepted the employers' evidence on that point.

The terms of the arrangement which were reached and carried into effect were that Mr Carpenter did sign a resignation in the form of a document which the employers prepared after he had signified his willingness to do so. In return the employers agreed to give a reference as to the quality of his work and it appears that the glove and its contents were destroyed.

The Tribunal find as a fact that Mr Carpenter was not forced to resign in order to avoid either dismissal or at least investigation. Against that decision Mr Carpenter appeals and Mr Simpson, on his behalf today, confined his grounds of appeal or arguments in support of the appeal to three.

The first was a proposition that there was only one witness called as to the finding of the glove in the car and that was "not admissible", as the written outline puts it or (I think), as Mr Simpson would say, "not sufficient" for a finding by the Tribunal because two witnesses are required. That in our view is a simple misunderstanding of the passage in the 10th Edition of Salmond on Jurisprudence on which Mr Simpson relies, which reads:

"... in certain kinds of treason the testimony of one witness is insufficient - almost the sole recognition by English law of the general principle, familiar in legal history, that two witnesses are necessary for proof."

That is in our understanding a clear reference to the fact that, although at other times and in other jurisdictions there may be rules about needing two or more witnesses, the English principle is precisely the reverse and any examples, such as the "certain kinds of treason" referred to, are exceptions to that rule and not the general rule.

Secondly Mr Simpson relies on the fact that the Tribunal should not have allowed what he described as "minutes of the crucial investigative meeting" to be used in evidence, because they were not primary evidence of what was said, there having apparently been earlier notes. The Tribunal, however, deals with that in paragraph 5 of its Reasons in these terms:

"Minutes were kept of each meeting, which if not verbatim are, according to Mr Tailford and Mr Brooks, [those were the employer's witnesses] a generally accurate recollection of what happened. They may have been prepared from notes taken after the event, but we have no reason to doubt the respondent's view that they are generally true."

So it is quite clear in our view that the Tribunal had before it the fact that these were not contemporaneous verbatim notes or minutes and that even the notes from which they were derived themselves may have been prepared after the event, and it was for the Tribunal to consider to what extent in those circumstances it would have regard to those minutes and what weight it would attach to them.

Mr Simpson's submission is, in effect, that an absolute rule that primary evidence is essential when available and secondary evidence should not be accepted in its stead applied and was broken. The fact is that it is well established that Industrial Tribunals are not bound by the strict rules of evidence which in some court proceedings - a diminishing number, as it happens, nowadays - are applied to exclude secondary evidence and it was therefore entirely a matter for the Tribunal what evidence to take into account and what weight to give it and there is no error of law in that respect.

The third ground which Mr Simpson argued was, as he put it, that this was a put-up job and that the glove was manufactured evidence. In his written summary of argument he heads it "Perversity of Tribunal's Decision" and states that the statement in paragraph 3 of the Extended Reasons about the finding of the glove in the car does not tally with the evidence of the witness, Mr Tailford.

There is nothing in that ground to justify any argument that the Tribunal erred in law. The circumstances of the finding of the glove were, of course, crucial to the employer's decision. What the Tribunal had to decide was whether Mr Carpenter's resignation was in the circumstances a constructive dismissal, and they came to the conclusion that the employers were reasonable in the view they formed about the finding of the glove and the material that was in it.

The second part of that head, in Mr Simpson's typed summary of argument, is that paragraphs 5 and 10 of the Extended Reasons contain statements that the Respondent acted unfairly. It is perfectly true that that indeed is what the Tribunal found and clearly they took that into account. But they also took into account, and were perfectly entitled to do so, that Mr Carpenter was not in the event dismissed by the employers as part of this unfair procedure; if that had happened different considerations might well have arisen. What happened was that he resigned, and they had fairly and squarely before them his contention that he was entrapped into resigning and did not do so voluntarily.

It was pre-eminently a question of fact for the Tribunal whether his resignation was truly voluntary or was produced by oppression, entrapment or some other wrongful act on the part of the employer and the Tribunal came to its decision on that point. That was a decision for them with which we cannot interfere unless they erred in law in their approach and we see no arguable ground that they did err in law. On this point also, as it transpired in the course of argument, Mr Simpson's main complaint was that the original notes of the investigative hearing ought to have been produced and should now still be produced, but we have dealt with that matter already under the earlier head.

For those reasons we see no arguable ground on which this appeal could succeed and come to the view that it should be dismissed at this stage, and we therefore dismiss it.