ROBERT JOHN FLYNN v ADEM YESILADA T/A ADEM'S MEAT LIMITED [2000] UKEAT 431_00_1807

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 431_00_1807

Case No Appeal No. EAT/431/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

ROBERT JOHN FLYNNAPPELLANT

ADEM YESILADA T/A ADEM'S MEAT LIMITEDRESPONDENT

Before

Mr Recorder Burke

Date 18 July 2000

[1]APPEARANCES For the Appellant MS C HULSE (of Counsel) Free Representative Unit Verulam House Verulam Street London WC1X 8LZ RECORDER BURKE QC: This is a preliminary hearing of an appeal by the Applicant, Mr Flynn, against a decision supported by extended reasons of the London North Employment Tribunal chaired by Mr Rabin, that decision having been promulgated on 24 February 2000, whereby the Applicant's claim for unfair dismissal was rejected. A claim for unlawful deduction of small amounts of wages and holiday pay succeeded, nothing now turns on that. The Respondent employed the Applicant in the Tribunal below, now the Appellant, as a delivery driver from January 1998. He was summarily dismissed on 2 June 1999.

[2]As a delivery driver it was his job to deliver meat to and collect payment from the Respondent's customers. The customers usually paid by cash or cheque and the Applicant, used to check the counting of the money where cash was being paid, together with the customer, so that he, the Applicant, knew that he was receiving the right amount of money from the customer and there was no shortfall. After the deliveries were finished for the day, the Applicant would return to the Respondent's office and hand over the monies, and no doubt cheques as well, to the Principal of the Respondent's business, Mr Yesilada or his wife or to the Applicant's own manager, a man called Mr Kubasik. One of these would count the money in the Applicant's presence for the Respondent's own and the Applicant's own security.

[3]Prior to April 1999 it seems that, according to Mr Yesilada, the Applicant began to deduct small sums from money from the payments that he was receiving without permission, that he told the Respondent what he had done when the counting took place back at the office and was allowed to pay the money back out of his wages. Whether these events were in dispute or not is not clear and they are not of real importance in any event at this stage. In May, after the Applicant had been off work for a period of sickness, there was a disagreement between the parties, which led to the Respondent's giving the Applicant notice; but before that notice expired the Applicant began again to work for the Respondents as before and the Tribunal found that there was no break in continuity.

[4]On 2 June the Applicant had to collect a total of £1,750.19 from customers, including £1,526.40 from one customer in Guildford who paid in cash, including, apparently, two hundred £1 coins. When the Applicant returned to the office at the end of that day's deliveries, Mr Yesilada was busy so the Applicant left the bag for Mr Yesilada to count and went home. Mr Yesilada subsequently counted the money and found that there was a shortage of £274. Mr Yesilada had two other employees, including Mr Kubasik, the Applicant's Direct Manager, checked the count; so it was counted three times, each time with the same result. The Applicant was phoned and returned to the office and counted the money himself with the same result. No explanation of the deficiency was forthcoming from him. He also searched the van, which he had, apparently, previously cleaned out in any event and nothing was found.

[5]Mr Yesilada at that stage contacted the customer in Guildford whom the Tribunal found Mr Yesilada to have believed to be totally honest; that customer said that he had counted out the money accurately in the Applicant's presence and that the Applicant had put the money into a bag. The shortfall was bigger than the difference between the amount collected from that customer and the total amount of money collected that day. Therefore at least some of the shortfall represented money from that customer. On what that customer said, which Mr Yesilada plainly believed, it seems to us that this case ceased to be a shortfall case and become one in which Mr Yesilada was wholly entitled to believe that the Applicant had been given the correct money in the course of his deliveries.

[6]The Tribunal accepted Mr Yesilada's version of what happened next, namely that Mr Yesilda told the Applicant that he would have to make up the money which he agreed to do, but then he refused to sign a document, confirming in writing that he would do so. On the next day in a further conversation the Applicant said to Mr Yesilada words to the effect:

"How do I know you didn't take the money?"

Mr Yesilada then concluded, so the Tribunal found, that the Applicant was dishonest and that he had taken the money and dismissed him for that reason. The Tribunal found that the reason for the dismissal was conduct and asked itself whether the Respondents had behaved reasonably in deciding to dismiss on the facts known to them at the time (see paragraph 29 of the decision).

[7]It appears on the face of it to have asked itself the three questions which, in an appropriate case and Miss Hulse on behalf of the Applicant says that this is such an appropriate case, the Tribunal is obliged to ask itself along the guidelines set out in the case of British Homes Stores v Burchell . I should interpose that Miss Hulse has referred to the recent cases in this Tribunal of Hadden and Maddon in which some doubt has been expressed as to the use which should be made of the Burchell test; but we have not been taken to those authorities in the course of this hearing because Miss Hulse has, very sensibly and wisely, accepted that her submission relies on the correct application of the Burchell test and that this is a case in which the Tribunal should have directed itself according to the Burchell test. She says that it did not do so.

[8]At paragraph 24 the Tribunal sets out the three fold aspect of the Burchell test and then in its conclusions it refers to each of those three questions to which Burchell gives rise, namely: Did the Respondent's believe that the Applicant was guilty of the conduct alleged? If so were there reasonable grounds in all the circumstances for that belief and Had they made a reasonable investigation? Miss Hulse on behalf of the Applicant contends that the Tribunal did not apply that three-fold test correctly in that they did not direct themselves to consider whether or not there had been an adequate and reasonable investigation in all the circumstances of the case. She says that a reasonable investigation would necessarily have required Mr Yesilada to consider and make enquiries as to whether or not monies had been left at the premises of one of the customers or had somewhere dropped out of the van or had somewhere been taken from the van by a third party; and she says no investigation could be a reasonable investigation, unless those steps had been taken. First of all that there has been a misdirection by the Tribunal and Secondly if they have directed themselves properly, they have reached a decision on the facts which is a perverse one. We are unable to see that there was any arguable misdirection by the Tribunal in this case. It plainly asked itself whether or not Mr Yesilada believed that the Applicant was guilty of the conduct alleged. It seems that he did not so believe until Mr Flynn the Applicant actually suggested that it might have Mr Yesilada whom had made off with the money but that converted what might before have been a suspicion into a belief. It might be thought that, if that was Mr Yesilada's state of mind, he had been quite generous to the Applicant before reaching that conclusion but that is the sequence of events that the Tribunal found to have happened. " It is important to stress that what follows is really only an indication of different facets of this one issue. The employer must prove on the balance of probabilities - more likely than not -(i) that he believed - again - on the balance of probabilities (not beyond reasonable doubt) - that the employee was guilty of the misconduct and

(ii) that in all the circumstances based upon knowledge of and after consideration of sufficient relevant facts and factors he could reasonably do so. We use the word ' sufficient' because other relevant evidence may later come to light which may point one way or the other. Its existence will not of itself mean that insufficient evidence was known. The situations which arise upon this second limb (and I interpose that in this case of Gravett , Wood J chairing this Appeal Tribunal ran the second and third limbs of the Burchell test together for perfectly good common sense reasons and it makes no difference whether it is treated as one or two limbs) can and will be infinitely variable; at one extreme there will be cases where the employee is virtually caught in the act and at the other there will be situations where the issue is one of pure inference. As the scale moves towards the latter end, so the amount of inquiry and investigation, including questioning of the employee, which may be required is likely to increase. The sufficiency of the relevant evidence and the reasonableness of the conclusion seem to us to be inextricably entwined. However, it may be that some further inquiry is clearly necessary before the relevant evidence can be considered sufficient."