Mbamalu v MD Foods Plc [1999] UKEAT 1413_98_2701

EAT

Mbamalu v MD Foods Plc

[1999] UKEAT 1413_98_2701 · 1999-01-27

JUDGE H WILSON:

This application involves considerable criticism of the finding of the Employment Tribunal in what is quite an extensive decision with many pages of Extended Reasons. Mr Bennett has argued the case on behalf of the Appellant and relies heavily on the Burchell tests. Those tests however, had to be viewed and applied in 1999 in light of current legislation which has changed in important respects from what the legislation required at the time the case Burchell was decided.

In particular, the case which draws together the changes is Boys & Girls Welfare Society v McDonald [1997] ICR beginning at page 693. In particular the headnote points out that there is a risk that, by following the wording of the threefold test set out in British Home Stores Ltd v Burchell

[1980] ICR 303

, a Tribunal might fall into error by placing the onus of truth on an employer to satisfy it as to reasonableness. That test was appropriate, onus of proof apart, where the employer had to decide a factual conflict. It might however not be appropriate when there is no real conflict on the facts, but it was desirable for an Industrial Tribunal to demonstrate by its reasons that it had applied its mind to the question whether the decision to dismiss fell within the band of reasonable responses to the employee's conduct which a reasonable employer might have adopted.

Applying that gloss on Burchell to the judgment of the Employment Tribunal in this case, we start from the fact that it is accepted - Mr Bennett reiterated that acceptance today - that the Employment Tribunal found the Respondent held a genuine belief in the Appellant's misconduct. Going on from there, it seems to us that there was no issue about the material facts. The material facts were that first, there was an unexplained shortfall in the books in question, and secondly that the Appellant accepted responsibility for that unexplained shortfall. Paragraph 11 of the decision and paragraph 6, deals with that matter also, and paragraph 19 states that the Employment Tribunal found that the Respondent did not act unreasonably in taking the view that the explanation for the shortage which were advanced by the Applicant were implausible and it is not for us to go behind any of those findings of fact.

The position therefore is that, sincerity of employers' belief is accepted and there is no issue about that; there is no issue on the material facts and the last point is whether or not the decision fell within reasonable band of responses. That also is dealt with in the Boys & Girls case and at the beginning of 701F and at letter H, Lord Denning's statement of the law about this aspect is quoted:-

"It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view and another quite reasonably take a different view. One might would quite reasonably dismiss the man and the other would quite reasonably keep him on. Both views may be quite reasonable."

If it was reasonable to dismiss him, then the dismissal must be upheld as fair, even though some other employers may not have dismissed him. Once sincerity and reasonableness are either conceded or found, as they were here, then that is the end of the matter and this application must be dismissed.