Akhtar v United Bank Ltd [1999] UKEAT 667_98_0103

EAT
Akhtar v United Bank Ltd
[1999] UKEAT 667_98_0103 · 1999-03-01
HIS HONOUR JUDGE LEVY QC: This is an appeal by Mrs P Akhtar from a decision of an Employment Tribunal sitting at London (South) on 16, 17 and 18 March 1998. The issue before the Tribunal was whether Mrs Akhtar had been unfairly dismissed by the Respondent bank. There were certain financial counter-claims by the Respondents, which it is unnecessary for us to consider at the moment.The background to the hearing before the Employment Tribunal is this. The Appellant commenced her work with the Respondent bank on 7 June 1980. In October 1994, a Mr Jalil became manager of the branch of the bank at Hounslow where the Appellant worked. In August 1996, another person took temporary work at the bank whom it is suggested, and for the purpose of this appeal we accept, had a more than close relationship with Mr Jalil. After that other person had been employed at the bank, there were certain monies credited to her account wrongly. Those credits took place in the month of November and December 1996. In May 1997, Mr Jalil was suspended from his duties. On 13 May 1997, a letter was sent to the Respondent setting out under the heading "3 re: financial irregularities" suggesting that in 3 matters an explanation was called on. The third matter reads as follows:
"We have further noted that following irregular transactions have been posted under your ID i.e. 12 without any vouchers having been found on record."
Mrs Akhtar was called upon to explain as to under whose authority those amounts were credited to an account and posted without any vouchers having been prepared for the same. She replied to the letter by letter dated 14 May 1997 and as part of her reply she said
"I would like to confirm that these instructions were passed to me since the onslaught of these two officers, one of these was Mr Jalil, and I was not responsible for these mistakes. No previous manager of this branch has asked me to sign these vouchers or Natwest cheques.
I never wanted to feed my identity and password into manager's computer until I was forced by the manager to do it so that I could do my cash posting and he would do the rest of posting, and he was supervised on his identity."On 22 May 1997, the Respondent bank interviewed the Appellant on part of her explanation. On 6 June a private and confidential letter was sent to her under the heading "charge sheet". The letter reads as follows:
"It has been brought to our notice that you have, whilst working in the bank's branch in Hounslow, committed various irregularities of a serious nature as set out herein below:
(1) On 14 June 1995 you jointly signed a debit cash voucher for £150 as an expenditure account, temporary staff. The rating thereon has been an amount paid for casual labour as to Mohammed Naeem. On investigation, it came to light that no casual labour was engaged as named thereon, and/or the person named thereon worked during the said period.(2) On 10 July 1995, you signed jointly with Mr F I Jalil a bankers cheque (particulars have given). The cheque was issued to the debit of an account which was given without any authority.(3) By reason of your length of service in the bank and your familiarity with the bank's procedure, you are aware that you have no authority to sign the bankers payment or other bankers instruments, or however in the case of the aforesaid debit cash voucher the payment to the said Mohammed Naeem was completely unsupported by record of the branch.(4) It has come to our notice that various irregular transactions as set out herein below have been posted under your ID without there being relevant vouchers on record. They date between the dated 25 November 1996 and 12 December 1997.(5) Are all the aforesaid matters clearly irregularities of serious nature and exposes the bank to financial risk and/or loss. We have seen your explanation as contained in your letter dated 14 May 1997 and find it unsatisfactory. We therefore give you a further opportunity to explain your position. Your explanation should reach the undersigned by June 16 failing which we reserve the right to take such action as it is deemed fit to warrant the seriousness of the irregularities."The Appellant replied to that letter by letter dated 16 June 1997. Detailed answers, paragraph by paragraph, were given. The crucial paragraphs on appeal:
"Mr Jalil the then manager once forced me to put my password into his computer so that he may help me in branch working to finish the job well in time because at that time both of us were in the branch. While feeding my password in his computer I did not realise he will trace my identity which he did and posted all the cheques in Miss Sumera T. Quazilbash account without my notice.
As you are aware of the facts that Mr Jalil and Mr J Mir ,then the 2nd officer did many wrong transactions with the collaboration of Miss Sumera T Quazilbash, who was also the part of the whole affair.In the end I would like to sum it that I have served 17 years in this esteemed organisation having no bad spot on my career. I have always proved myself to be honest, dedicated and loyal to the bank.Keeping in view of my past record, the charges levied against me may please be withdrawn."Mr Jalil was dismissed by the Respondent on 13 June 1997. On 18 June 1997 the Respondent, by the assistant vice-president, wrote to Mrs Akhtar a letter calling her to attend a disciplinary meeting on 20 June. The letter stated:
"The charges against you are that you signed a cash voucher of expenditure on temporary staff knowing or no supporting records, and that said staff had not been employed; that you signed a bankers cheque debiting to an account with no authority and that irregular transactions were posted under your ID without relevant vouchers on record, such matters constitute gross misconduct."
The names of those to hear the disciplinary charges were given. The disciplinary hearing took place on 20 June, and between pages 112 and 124 of our bundle we have documents relating to that hearing. At page 113 there is a paragraph which deals with the last of the three matters on which the disciplinary hearing was to be called. This refers to the Appellant's evidence.She recalled that one evening it was quite late and that Mr Jalil, Manager, asked her to feed her ID and password or give it to him so that he could post the vouchers under her ID and thus supervise the posting. She refused to give him the password. He then asked her to feed it herself and thus finish the work under his supervision in time and relay the message to computer department. She said that she did not realise at the time that Mr Jalil had traced/found her password, but only knew when she received the letter of explanation the credits were provided to Miss Quazilbash's account on various dates under her ID. Mrs Akhtar was asked "why did you not give your password to Mr Jalil when he asked for it, what is the significance of the password." Mrs Akhtar replied "it is always confidential." Mrs Akhtar was asked as to how many times did Mr Akbal ask her to enter her password. She replied "just once".The Panel came to the decision that she should be dismissed. She was so informed and given notice of her right to appeal. From the written statement of Mr Azmat who was a witness before the Tribunal and who was a member of the Panel, it is clear that, at the conclusion of the disciplinary hearing, he gave certain information to those sitting with him. The passage reads:
"I then explained to Mr Ali and Mr Nasreb that her story regarding the postings into the account of Miss Quazilbash simply could not be true. Her password has changed during the period and therefore her explanation that Mr Jalil had traced it would not work. Clearly therefore, she had entered at least some of these transactions and by making up the story she had, she knew full well what was going on. It was therefore largely on the basis of her story regarding the passwords that we made up our minds whether to dismiss her or issue her with a final written warning. Our decision was unanimous. It was summary to dismiss her.
After an adjournment of about half an hour, we returned and told Mrs Akhtar and Mr Brawley our decision. That was the end of my involvement in the matter."It is apparent from other evidence that in that half hour, a computer print out ("the computer print out") of three pages, at the end of our bundle was the subject of discussion. One page shows the dates on which the Appellant's password was changed, namely 20 November 1996, 5 December 1996 and 19 December 1996, and the computer print out showing the cheques or the entries about which particular complaints had been made. Some of those entries had been made after the date of change of password. It was thus that Mr Azmat found the confirmation which he put to his colleagues after they had retired. The existence of these documents was not disclosed to the Appellant until the hearing before the Employment Tribunal.There was an appeal held on 1 July against that decision. We have the notes of that hearing when the decision to dismiss was upheld. In the course of that hearing, Mr Jeffrey, who appeared to chair it said:
"Of these transactions, Mr Jeffrey said there were several transactions on different days. He said that unless she gave to someone or fed it in herself enabling other people to use the machine, no-one could have got in. That was how the bank established security control. Mrs Akhtar said that she did not know how he had cheated her. The Manager had destroyed her life with only three years to go. Mr Jeffrey said everyone had setbacks in life. The charge was not about her honesty but about her vigilance and the way she had or had not done her job. Mrs Akhtar said she was innocent and had not committed this crime. It was down to the Manager. Mr Jeffrey said the Manager was dealt with as to his own conduct. He said that as far as he could see, Mrs Akhtar had committed gross misconduct and that could not be ignored."
There is a passage dealing with mitigation by the Applicant. Nowhere at the appeal hearing was the computer print out shown to the Appellant. On 17 September 1997 the Appellant instituted her unfair dismissal application to an Employment Tribunal. As we have already stated, her application failed. On 1 May 1998, she lodged her appeal against the decision. At the preliminary hearing, the matter was allowed to come to a full hearing and directions given for those parts of the Chairman's notes of evidence which might assist at the hearing.We have had the advantage of the same Counsel appearing before us as appeared at the Employment Tribunal. The nub of Mr Thacker's submissions, set out in his well ordered Notice of Appeal, is that the irregularities which occurred during the disciplinary hearing were not put right on the appeal hearing or indeed before the Employment Tribunal: the employer looked at and relied on the computer print outs: documents which they neither showed to nor sought an explanation regarding from the Appellant.The answer to that, in short, from Mr Sewell, is that the Respondent had already satisfied themselves of the misconduct of the Appellant, without seeing those documents, and those documents if they had been shown to her were not ones which could have improved her position. Mr Thacker's complaint is that she did give an explanation as to the documents, which, if believed, could have exculpated her. It is clear to us that such explanation as she gave could not have exculpated her because it was not possible for all the transactions to have been carried out, of which complaint was made by the dismissed Manager, without her knowledge.It has been submitted, with vigour, that several paragraphs of the Employment Tribunal's Extended Reasons show a misapplication of the law, in particular at paragraph 15 which reads as follows:
"Some complaint was made as to the conduct of the hearing by the Applicant and her Trade Union representative. It seems to us that with hindsight, it was not sensible for the Respondents to seek to hold a number of disciplinary hearings on one day. We accept there was a possibility of some haste in the first hearing.
On the evidence before us however, we are quite satisfied that the appeal hearing, where the Applicant was again represented by Mr Brawley, she would have had ample opportunity to put forward any facts or arguments which she wished. Indeed Mr Brawley was not able as a matter of detail to point out any facts of argument which the Applicant or himself had been prevented from putting forward at the disciplinary hearing on 20 June 1997 in any event. There it was suggested that on the disciplinary hearing, Mr Brawley did not know these additional documents."Paragraph 17 of the Extended Reasons commences:
"It is certainly wrong for the Respondents' management to look at documents either at the dismissal stage and/or at the appeal stage which had not been shown to the applicant and/or her representative."
It continues:
"We bear in mind however that in many large organisations such as the bank for example, there are a vast number of computerised transactions and other form of computerised and manually entered documents which are the everyday routine of the staff. Had the Respondents wished to do so, they could no doubt have prepared for the purposes of the disciplinary hearing and/or the appeal hearing and the hearing before us, a very large bundle of documents dealing for example with the rules as to password, the procedures as to password , a list of all operators doing computer operations on the critical days, a log of any staff who are on duty or off duty on a particular day, details of other transactions and paperwork which the Applicant had been carrying out on the critical days and no doubt much other evidence of that kind."
18. What pages 170 and 171 showed Mr Azmat was that the Panel's conclusion that the Applicant was not being truthful about the circumstances in which her password came to be used was well established."Paragraph 18 in our judgment, contains a proper finding of fact by the Tribunal. In the circumstances, it appears to us that the conclusions of the Tribunal which they then continue to make in setting out the Burchell test are ones which they were entitled to make.In paragraph 20, the Extended Reasons deal with the oversight in failing to show the computer print out. The Tribunal concludes:
"We accept however they were entitled to come to the conclusion that the evidence was overwhelming on the existing documents and the implausibility of the Applicant's explanations."
Despite Mr Thacker urging on us that the Applicant was denied the chance to give an explanation, we are satisfied that there was no explanation that the Appellant could have given which should make any difference at all to the situation. In our judgment, though the Respondent can properly be criticised, as indeed it was, the decision reached was one which a reasonable employer could have reached in the circumstances and the decision of the Employment Tribunal in reviewing the disciplinary proceedings is a proper one for that Tribunal to have reached. Mr Thacker has addressed us during today with many submissions, which we have fully considered. One submission Mr Thacker made at some length was that it was wrong for reliance to have been placed on evidence of Mr Ajdant regarding the changes made to the Appellant's bank password. Without setting out the submissions at length, we considered that Mr Sewell satisfactorily answers Mr Thacker's submissions. In short, Mr Thacker's submission required us to make two and two add up to five, which we were obviously reluctant to do. We are satisfied that on each of them, the decision of the Employment Tribunal was a proper one in the circumstances. We, like them, have sympathy for an employee who after 17 years employment was dismissed, but given the nature of her employment, her employer and her conduct, the dismissal was within the range of responses of a reasonable employer in the circumstances. As Mr Sewell submitted, this was a case where the Employment Tribunal's decision was, on analysis right. In the circumstances, we thank Mr Thacker and Mr Sewell for their submissions and we dismiss this appeal.On instruction Mr Sewell tells us that the cross-appeal, which we are next to hear, is not being pursued. We have no objection to that. Indeed, in the circumstances, we think it entirely desirable that it should be withdrawn and we therefore note that it is being withdrawn and not being pursued. Mr Thacker had suggested in the context of the cross appeal that the Employment Tribunal had no jurisdiction to determine the question raised in the cross appeal. Mr Thacker suggests therefore that this is a matter which could be, if necessary, litigated in the County Court. We note that Mr Sewell does not dissent from that proposition.