MS N BURKE v FORTNUM & MASON PLC [2000] UKEAT 1418_99_1503

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1418_99_1503Case No Appeal No. EAT/1418/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS N BURKEAPPELLANTFORTNUM & MASON PLCRESPONDENT
Before
His Honour Judge Peter Clark Mr J C Shrigley Mr N D WillisDate 15 March 2000
[1]APPEARANCES For the Appellant MR K HAMMOND (of Counsel) Pan African Legal Advisory Services 31 Bartholomew Street London SE1 4AL JUDGE CLARK The Appellant, Ms Burke, was employed by the Respondent from 14 June 1982 until her summary dismissal for alleged gross misconduct on 3 December 1998. Following her dismissal she presented an Originating Application to the Employment Tribunal on 1 March 1999, complaining of unfair dismissal, breach of contract (wrongful dismissal) and failure to pay outstanding holiday pay (unauthorised deductions from her wages).[2]Her complaints were heard by an Employment Tribunal sitting at London (North) on 30 September and 1 October 1999. By a decision with extended reasons promulgated on 25 October 1999 the Employment Tribunal upheld her complaint of unfair dismissal, dismissed the remaining claims and ordered no compensation. Against the decision to award no compensation she now appeals.[3]The Employment Tribunal found that on 1 December 1998 the Appellant was taken into police custody. A search of her flat revealed a vast quantity of goods, including wines and spirits, believed to be stolen. On that day a party from the Respondent's store, including the Security Manager, a Contract Security Guard and the Wine buyer visited the police station to inspect the goods.[4]On 3 December she returned to work and was interviewed by the Director of Human Resources, accompanied by the Security Manager. She was asked, among other things, about three pairs of gloves, wines and spirits, spoons and a selection of the Respondent's receipts and bills. At the end of the interview she was summarily dismissed for gross misconduct, that is misappropriation or suspected theft of company property. The Employment Tribunal found that in dismissing the Appellant the Respondent failed to follow its own disciplinary procedure. An internal appeal was dismissed.[5]Following the dismissal the Respondent discovered that the Appellant was holding several credit cards belonging to third parties for which no credible explanation could be given and a smoke detector which was unique to the Respondent's premises. On those facts the Employment Tribunal concluded:(1) that the dismissal was procedurally unfair(2) that no compensation should be awarded for that unfair dismissal(3) that she had been dismissed for gross misconduct. The Respondent was entitled to do so in view of the quantity of goods, the property of the Respondent, in her possession(4) there was no evidence advanced by the Appellant in support of her claim for unauthorised deductions from her wages[6]In support of the appeal Mr Hammond has concentrated his submissions on paragraph 10 of the Employment Tribunal reasons:
"We have considered the matter of compensation and are unanimous in concluding that this is a case where no compensation should be paid. The investigation both before and after the dismissal revealed that a lot of property had been acquired by the Applicant in suspicious circumstances. More particularly there was found at her home a smoke detector which was unique to the Respondent's building, an expensive collection of wines packaged for delivery in a manner inappropriate to the way that the Applicant did business with the Respondent with all labels removed and a collection of credit cards for which no credible explanation could be given by the Applicant as to how she might come by them innocently."
[7]Mr Hammond's first submission is that in order to determine the question, at this preliminary hearing, as to whether the appeal raises any arguable points or points of law, it is necessary first to have the Chairman's Notes of Evidence. He points particularly to the reference to a collection of credit cards, in paragraph 10 of their reasons and has taken us to the Respondent's Notice of Appearance which mentions a credit card belonging to another member of staff. He points our the discrepancy between the reference to credit cards in paragraph 10 and a single card in the Notice of Appearance. Further he submits that the Employment Tribunal has given no proper explanation for their finding that the Appellant could not give a credible explanation for having those various goods in her possession.[8]We reject that application. It seems to us that the purpose of directing that the Chairman's Notes of Evidence be obtained is not to assist a representative who takes over the case of the formerly unrepresented party, rather to deal with any specific allegation that there was a finding of fact by the Employment Tribunal which was wholly unsupported by the evidence. That is not the way in which the case is put.[9]Considering the appeal in order to determine whether it raises any arguable points of law, it seems to us that Mr Hammond's point is that at paragraph 10 the Employment Tribunal had failed to give adequate reasons for their conclusion that the Appellant should receive no compensation in respect of her unfair dismissal. We accept that the matter is dealt with compendiously by the Employment Tribunal, but we are not satisfied that this decision reveals inadequate reasons in the sense identified by Bingham LJ, in Meek –v- City of Birmingham District Council [1987] IRLR 250 .[10]It is plain to us that the Employment Tribunal accepted the Respondent's evidence that the Appellant had in her possession items which belonged to them. In these circumstance although the Employment Tribunal found that the dismissal was procedurally unfair, they concluded that the Appellant had contributed to her own dismissal to the extent of 100% by virtue of having these goods in her possession. Further, that for the purpose of the compensatory award for unfair dismissal it would not be just and equitable to make any award under the provisions of section 123 (1), Employment Rights Act 1996. Further, that for the purposes of a claim for wrongful dismissal, the Respondent had established, both by knowledge acquired before and after the dismissal see Boston Deep Sea Fishing –v- Ansell [1888] 39 ChD 339 , that she had been guilty of gross misconduct as alleged.[11]In these circumstances, it seems to us that the Employment Tribunal were entitled to reach the conclusion that no award for compensation was appropriate in this case and consequently we must dismiss this appeal.