MR D LINDOP v ROYAL ORDNANCE PLC [2000] UKEAT 1132_99_0504

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] EAT 1132_99_0504

Case No Appeal No. EAT/1132/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR D LINDOPAPPELLANT

ROYAL ORDNANCE PLCRESPONDENT

Before

Mr Justice Burton

Lord Davies of Coity

Date 5 April 2000

[1]APPEARANCES For the Appellant MR B COLLINS (of Counsel) Appearing under the ELAAS Scheme MR JUSTICE BURTON : This is an appeal by Mr Lindop against the unanimous conclusion of the Employment Tribunal sitting at Newcastle-upon-Tyne after a hearing, which lasted some 40 days, that he had not been unfairly dismissed or unlawfully discriminated against on grounds of race by the Respondent, Royal Ordnance PLC. The appeal came on for a preliminary hearing on 29th November 1999 when it was adjourned for further consideration. On that occasion the Employment Appeal Tribunal appear to have concluded (and we have had the benefit of Lord Davies, who was a member of that Tribunal, sitting with us today, by whom we have been further enlightened of what in any event is apparent from the Order) but in the absence of a judgment on that day it appears clear, and there seems no doubt about it from the submissions of Mr Collins today, that there was only one point in this appeal and it is certainly that one point which Mr Collins has pressed upon us today and he has done so with skill and perseverance. I shall return to what that one point is in a moment.

[2]The decision of the Employment Tribunal is a masterpiece of elucidation of what must have been a difficult case to hear, lasting as it did not only over 40 days but, because of unfortunate adjournments, at one stage being broken by a period of 18 months. Clearly in the course of that decision not every single piece of evidence is going to be mentioned, otherwise 40 days of hearing would result in a very long judgment indeed. It is long enough. It is 65 pages and it gives a very clear picture of the case to those, like this Tribunal, who are coming to the matter afresh. And of course, as is obvious, unless any of the conclusions can be alleged to be perverse, which they are not, at any rate before us today by Mr Collins, the facts found by the Tribunal must be accepted.

[3]The most significant matter perhaps to be said to start with is that the Tribunal took a very dim view indeed of Mr Lindop, and concluded indeed at paragraph 3 that, in somewhat memorable words:

"The Tribunal … perceived and decided that Mr Lindop's talent included the ability to state the opposite of what had happened and to assert that his statement represented the reality of the facts of the matter."

In those circumstances, plainly the Tribunal did not accept his version of the facts in arriving at their conclusions.

[4]The sad thing about Mr Lindop is that he was employed for many years, very successfully, by the Royal Ordnance PLC. But his dismissal the Tribunal had no hesitation in concluding to be fair.

[5]The grounds for the dismissal were summarised in the letter of 30th June 1995 as follows:

"(1) The charge made against Mr Lindop, viz, 'possession of ammunition (400 rounds of 7.62; 12 sten gun magazines; 1000 primer caps) with intent to endanger life contrary to Article 17 of the Firearms Northern Ireland Order 1981'. … (2) The transportation by sea of live ammunition into Northern Ireland contrary to the IMDG Code of the Carriage of Dangerous Goods on boats. … (3) The extreme concern felt by the company following a well-publicised police search of Mr Lindop's property at Chester Le Street. This search revealed a large cache of weapons and ammunition secreted in various parts of his house. …"

[6]A lengthy procedure was gone through of appeal and the conclusions eventually reached the Respondent, which were found to be fair and reasonable by the Tribunal, was that the relationship between the Mr Lindop and the Respondent had completely broken down on those grounds.

[7]Subsequently, Mr Lindop was acquitted of a number of the charges which he had had to meet in Northern Ireland, although there were conclusions reached as to what he had said to the Police, and he was convicted on one of the charges.

[8]The basis of the one point to which I have referred, is this. It obviously can be relevant, both in an unfair dismissal case and a racial discrimination case, to look at the question of how the employers dealt with allegedly comparable circumstances. In the course of this very lengthy hearing, there was some concentration upon the dealing by the Respondent with other employees. It appears from paragraph 4(fff) of the decision that Mr Hudd, who was the trade union representative acting on behalf of Mr Lindop, did raise the question of what was called 'consistency'. In this connection, the Tribunal records, Mr Hudd referred to a Mr Philip Morris and the evidence given by Mr Longworth in chief, Mr Longworth being an employee of the Respondent, relating to Mr Morris was set out by the Tribunal in paragraph 4(fff). It seems clear to us that this was the only matter by way of consistency which Mr Hudd relied upon in his closing submission. The Tribunal there records that in respect of matters investigated against Mr Morris, Mr Morris received a final written warning, removing him from work which he enjoyed and precluding him from future customer contact.

[9]At paragraph 6 of the decision a conclusion was put forward by the Tribunal as follows (page 67 of the bundle):

"Nor does the Tribunal accept that there is any proper comparison to be made between the treatment by the company of Mr Philip Morris and its treatment of Mr Lindop. It has to be remembered that no action was taken by the company until Mr Lindop was arrested and held in custody in Castlereagh in connection with alleged offences relating to ammunition. It is right to repeat that it was he himself who raised the mention of terrorism and of being "in the wrong place at the wrong time"

. Furthermore, the Tribunal accepted evidence that Mr Morris showed remorse, was punished and punished so severely that he considered his career was over and quit the company himself."

[10]Mr Lindop, it seems, in addition to Mr Hudd's submissions, made his own written submission to the Tribunal. In that submission there was mention made of a Mr Furnues. The context of the submission was that Mr Furnues was apparently the secretary of the staff gun club, a club in which employees took part in the spare time, but which was allowed to operate by the Respondent employer at its premises and with some sponsorship by it. It appears that evidence was given before the Tribunal about and indeed by Mr Furnues. Three matters have been put before us today by reference to Mr Furnues, with which I shall now deal. It is as this stage necessary to say that this was the one point which was left over as a result of the last preliminary hearing, when the case was adjourned specifically so that any statement which Mr Furnues had relied on in giving his evidence before the Tribunal should be produced, and so that the written submissions of Mr Lindop before the Tribunal should also be produced, so consequently the papers before us today have included those two documents, to which I now make reference.

[11]So far as the witness statement of Mr Furnues is concerned, we have been told by Mr Collins that there was no witness statement specifically prepared for the purposes of the Tribunal, but what has been produced before us is a witness statement which he gave to the Durham Constabulary in relation, no doubt, to investigations that the Durham Constabulary were carrying out. It is a witness statement, and not a statement under caution. In that witness statement the relevant aspect is that Mr Furnues recites, and no doubt he gave the same evidence to the Tribunal, that at Christmas 1994 he found an unusual box at the gun club at the back of a cabinet. He removed the box from the cabinet, and on looking inside, he found various component parts for firearms including triggers, barrels, sights, flash eliminator, pistol grips and springs etc. He realised that some of the contents of the box required to be endorsed on a firearms certificate. He did not wish to become involved, did not mention the box to anyone else at the gun club, hoped the box and its contents would disappear, had no idea how long it had been in the cabinet prior to his discovery, and had only examined the box on one occasion. It was that box, it seems, that was then found by the Durham Police on 1st May 1995 which led to the statement he gave to the Police of 3rd May 1995.

[12]We have been told by Mr Collins today, on instructions from Mr Lindop, that two other matters were given in evidence by and/or in relation to Mr Furnues, the gun club secretary.(1) That a weapon of some kind was in fact found in his locker at the premises; and

(2) that he had a firearms certificate for a carbine which was in fact a pistol which he should not have been possessing. Consequently, there would have been a double-headed complaint about the fact that Mr Furnues had in his possession an unauthorised weapon and one which was falsely described on the firearm certificate.

[13]When therefore it came to the written submission, which Mr Lindop was making in relation to his own case before the Tribunal, there was some reference made to that evidence, that I have described. The basis of the suggestion is that the Respondent should have taken action against Mr Furnues, and I quote the nub of the complaint:

"Mr Duckworth made the conscious decision to commence dismissal action of Mr Lindop on the grounds of firearms offences for which he had no evidence and at the same time take no action against Mr Furnues, even a Company investigation, when there was more than a reasonable suspicion that he was in unlawful possession of firearms parts of the Company premises and in the Company's time. Parts which had recently been manufactured by another Royal Ordnance Site. The act of discriminating against Mr Lindop had commenced."

The written submission also referred to Mr Morris, as follows:

"Just a few weeks prior to the Company dismissing Mr Lindop … they decided not to dismiss another employee by the name of Philip Morris. Evidence was given on behalf of the Company by Mr Longworth that Mr Morris had brought a prohibited weapon on to Company premises, during Company time without checking out the legal authority was held to do so. In fact legal authority was not possessed and he had not taken steps to obtain such authority. Mr Longworth gave evidence to the effect that Mr Morris's actions were a mistake and not worthy of disciplinary action. Again, Mr Lindop was treated less favourably by the Company and one can only conclude that it was because of the N Ireland connections with his case and the prejudiced belief by the Company that any firearms related matters by person in N Ireland must be linked to terrorism."

[14]As I have indicated, in its decision the Tribunal did not refer to Mr Furnues and in referring to Mr Hudd's submissions, referred only to the question of Mr Morris and indeed in relation to different matters so far as Mr Morris were concerned, and the Tribunal's decision in relation to Mr Morris I have already recited.

[15]In an application for review by Mr Lindop, which runs over some 14 pages, dated 8th August 1999, he made a substantial number of complaints about the decision, largely, of course factual, in order to seek a review by the Tribunal. No doubt every point that he thought was reasonably arguable was included in that document.

[16]So far as Mr Morris is concerned at Item (fff) by way of commentary on paragraph 4(fff) of the decision, he complained that:

"The Tribunal has overlooked the evidence of Mr Longworth in cross examination which confirms that Mr Morris had not checked out with the authorities that he had permission to possess a prohibited weapon. …"

In relation to Mr Furnues in the review application he said as follows:

"… all of the allegations of misconduct levelled at me – lack of openness with the police, not informing the authorities, breakdown of trust – could have been put against Mr Furnues at the same time as myself based on sufficient evidence known to the company to form a reasonable belief in his guilt. No satisfactory explanation has been given in evidence as to why Mr Furnues was not disciplined in the same way as myself, even though such a request was made on the RR65 Questionnaire. The only reason hinted at was that he had not faced prosecution by the CPS, although at the time of my dismissal a file of evidence on him had been sent to the CPS by the police. Such an excuse is not credible for two reasons:- 1) At the time I was dismissed no decision to prosecute had been made. and 2) Mr Clay, in his evidence, was quite adamant that guilt or innocence of a criminal offence was not an issue to be considered by the Disciplinary Panel. Not only was no disciplinary action undertaken but not even an investigation was instigated by the Company to determine if the weapon parts, which Mr Furnues had under his control, had been stolen from the Company … . In the absence of evidence to the contrary, and especially the non-attendance of Mr Duckworth who was responsible for instigating an investigation and disciplinary action against Mr Furnues, then on a balance of probabilities the Company's difference in treatment of myself and Mr Furnues was racially motivated. It fell within section 1(1)(a) of the Race Relations Act."

I had not indicated earlier and I now do, that the basis of the discrimination on grounds of race is said to have been that Mr Lindop himself emanates from Northern Ireland, and that was the basis of the alleged discrimination.

[17]When the preliminary hearing adjourned the matter over to today, it was the case that the only point left in the original plethora of grounds of appeal was the allegation that there was an appealable error by the Tribunal in relation to the way that the evidence of Mr Furnues was not dealt by it. For that very reason a microscope is now put on one aspect of the evidence in those circumstances. As I have indicated, it is indeed the only point pursued today by Mr Collins; there is not even any point made on Mr Morris, although I have referred to it.

[18]In considering a separate point under a microscope, it is vital not to lose sight of the fact that it is only one point, and that there was a substantial consideration of many other matters dealt with by the Tribunal in its 65-page decision. The Tribunal came to the clear view that the Respondent had acted reasonably in taking a very serious view indeed of the serious matters of misconduct by Mr Lindop, which I have only briefly summarised by reference to the letter of June 1995.

[19]What Mr Collins has submitted however, is that the Furnues point is arguably for the purposes of an appeal likely to form the basis of a challenge to the decision such as to show that the Tribunal were wrong in making a conclusion of unfair dismissal. Mr Collins submits:(1) That the circumstances relating to Mr Furnues, and I suppose he would say, although not in the forefront of his argument, Mr Morris, were, as he put it to us, very analogous to the circumstances of Mr Lindop.

(2) That because, at any rate, Mr Furnues was not mentioned by the Tribunal in its decision, the evidence must have been out of sight and out of mind.

(3) Had it been in the mind of the Tribunal it would have made or, at any rate, arguably would, or could, have made, the difference to the result.

[20]We conclude that none of those submission are arguable. (1) We do not consider, on what we have seen, that the facts involving Mr Furnues, or certainly Mr Morris, are or can be said to be very analogous to the circumstances of Mr Lindop. I do not propose to set out in any detail the very substantial findings of the Tribunal relating to Mr Lindop which are apparent from the very short reference from the letter that I have read out. The circumstances included the import, without authority, into Northern Ireland of substantial quantity of ammunition and weapons parts, which led to his arrest and indeed, incarceration upon remand, and the other matters including a substantial quantity of weapons and parts found in secret places in his home and the very detailed consideration given by the Respondent employers over a period, coupled, as I have indicated, with the finding that the relationship had indeed broken down. So far as Mr Furnues is concerned, the only reference that was made by Mr Lindop in his review document, or indeed in his submission document, appears to have been, or at any rate it appears to have concentrated on, the box which I have described by reference to Mr Furnues' witness statement, which would clearly show, if it were right, irresponsible conduct by a secretary of gun club, but nowhere near in comparison with the conduct of Mr Lindop. Even if the other two matters relating to Mr Furnues which have been mentioned to us today were indeed given in evidence before the Tribunal (a) they do not appear to have been relied upon at all, certainly by Mr Hudd, and it also appears, looking at his submissions and his review application, by Mr Lindop; and (b) they too appear to be in an entirely category, or, at any rate, reasonably capable of being looked at as being in an entirely different category, to the conduct of Mr Lindop. In so far as Mr Morris is relevant, the matters referred to by the Tribunal are clearly completely different from anything relating to Mr Lindop, and the one matter which is concentrated on by Mr Lindop, relating to Mr Morris, of his bringing a weapon into the Respondent's premises, which was said to have been concluded to have been a mistake by the employers, appears to us again to have no relationship with the facts of Mr Lindop's case. Even if one looks at these circumstances as being reasonably analogous, if not very analogous, it is quite plain to us that the Respondent was entitled, on the findings of the Tribunal, to deal as it did with Mr Lindop, however they might otherwise have dealt with Mr Furnues and allowing for how they did deal with Mr Morris.

[21]The second point is whether these matters were out of sight and out of mind so far as the Tribunal is concerned. As I have already indicated, this Tribunal dealt in great detail with 40 days of evidence. It does not need to deal with every point of evidence. It appears to us that this Tribunal, looking at the decision, was entirely on top of the case and thoroughly, if I can use the expression, 'on the ball'. It naturally enough concentrated on the evidence which seemed central both to it and also those arguing the matter in front of it. It appears clear that Mr Hudd did not consider anything to do with Mr Furnues as being sufficiently significant to put in his submissions, and that Mr Lindop's written submissions did not put the point anywhere near in the forefront and certainly not in the way it has been described today by Mr Collins. In those circumstances, we are satisfied that the Tribunal will have had the evidence in mind. It refers to Mr Furnues having given evidence, but, rightly, in our view, did not consider the necessity to deal with it in terms in its decision.

[22]Thirdly, it is suggested, had the Tribunal had it in sight or in mind, which I have already concluded that it did, but assuming it had not, it would, or should, have made all the difference to the decision, at any rate arguably. In the light of the findings of the Tribunal as to the seriousness of the conduct of Mr Lindop, it is quite apparent to us that it was open to the Tribunal to conclude, and would have still been open to it to conclude, even had the Furnues or indeed the Morris matter been more fully canvassed before it, that dismissal was not just a proper course, but an inevitable one, so far as Mr Lindop was concerned. It therefore followed that it was not a matter of racial discrimination against him that he was dismissed, whereas other were not.

[23]In those circumstances, we conclude that this appeal should be dismissed.