MR A R FRANCIS v A C SKELTON & SONS LTD [2001] UKEAT 0587_00_0410

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0587_00_0410Case No Appeal No. EAT/0587/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A R FRANCISAPPELLANTA C SKELTON & SONS LTDRESPONDENT
Before
His Honour Judge J R ReidDate 4 October 2001
[1]APPEARANCES For the Appellant MR A R FRANCIS The Appellant in Person For the Respondent MR N WRAY (of Counsel) Messrs Ivesons solicitors PO Box 119 19 Bowlalley Lane Hull HU1 1YL HIS HONOUR JUDGE J R REID QC This is an appeal by Mr Francis, who is the Applicant below, against a decision of the Employment Tribunal promulgated on 20 March 2000 after a 2 day hearing at Hull. By that decision the Tribunal held that Mr Francis was unfairly dismissed but that no remedy should be awarded to him. The basis of that decision was that for procedural reasons the dismissal was unfair but that even if the employer had properly carried out its dismissal procedures the result would have been the same and therefore following the case of Polkey they held that since the outcome would not have been any different no cash award should be made to Mr Francis. The 2 errors which they found justified Mr Francis' complaints were, first, that he was not given notice of an investigatory interview that was conducted with him by a retired police officer retained by the Respondent, A C Skelton & Sons Ltd, and second, that he was not in advance of, or indeed at, the disciplinary hearing that followed, or given copies of the statements on which the employer relied for his dismissal.[2]The background to the case is that Mr Francis was employed as an accountant by A C Skelton & Sons Ltd. He began his employment there on 15 June 1988. The company employs about 750 people in a bakery business, manufacturing a wide range of products which it sells through a chain of 48 shops through the East Yorkshire and Lincolnshire region with its Head Office in Hull. The 2 relevant matters which led to Mr Francis' dismissal were incidents where it was asserted on behalf of the company that Mr Francis had removed cash from shops, saying that it was in respect of wages to be paid in cash when that was not the case. So far as the first of the incidents is concerned, Mr Francis says that, in effect, he cashed a cheque for £250 with a particular shop and owing to an oversight and difficulties with communication it was not until rather later, after the matter was brought to his attention, that he handed over the cheque. So far as the second matter is concerned there is a suggestion that he received £350 in cash which he said was needed to pay wages in cash when that was not the case. In this instance Mr Francis simply says that he never took £350 or any money from the shop concerned and indeed denies visiting the shop on the day in question.[3]The problem that faces Mr Francis is that an appeal to this Tribunal is an appeal on a question of law only. Mr Francis is of course extremely anxious to clear his name and has indicated that he is proposing to take proceedings for libel against the manager of the shop from which it is alleged that he took the £350. It may be that if those proceedings come to trial that he will succeed in achieving his aim. The difficulty that he has in this Tribunal is that this Tribunal is not a Tribunal in which disputes as to the underlying facts can be re-examined. Nor for that matter was the Employment Tribunal a place in which it would have been appropriate to conduct a re-trial of the disciplinary proceedings. To some extent I think Mr Francis must have appreciated this difficulty because his grounds of appeal try to avoid putting the appeal in quite such stark terms as saying that he never took the money and he wants us so to declare.[4]The grounds of appeal are set out in one side of manuscript as follows:
"The respondent's solicitor held back their file containing all documents and letters relevant to the case until 5 minutes before we actually entered the courtroom. I told the Chairman during the introductions that I had only just received the respondent's bundle (file). He looked surprised then said I could read it during the lunch break. The file contained approx 150-200 pages. I should have had access at least 3 working days before the Employment Tribunal."
Pausing there, that allegation was referred to the Chairman who indicated that although the majority of the documents would already have been known to the Applicant, there were a number of important documents, primarily the witness statements taken by the Respondents in the course of their investigation, which Mr Francis had not previously seen. He then suggested to the Applicant that they began hearing the case and that since the Respondents would be giving their evidence first, and the Tribunal would have to take time to consider the documents, it was unlikely he would be called upon to cross-examine the Respondent's first witness until after the lunch adjournment which would give the opportunity to review the documents as a whole. It is accepted by Mr Francis that he was told that if there were difficulties then he could say so and the question as to giving him more time could be reconsidered. Mr Francis says that he felt under pressure. He was unrepresented. He had his wife with him. He did not feel, in the circumstances, up to asking for further time.[5]In those circumstances it seems to us that is cannot be said at this stage that Mr Francis was disadvantaged by not having the bundle earlier. It cannot be said that the late delivery of the bundle to him caused the hearing to be unfair, such that the decision arising from that hearing should be set aside. It should be pointed out that it was not the fault of the Respondent's solicitors that the bundle came to him so late, because Mr Francis had earlier had solicitors and the Respondent's solicitors at the Tribunal were only informed on the Friday, before the hearing on the Monday, that those solicitors would not be acting. There was therefore no real opportunity for the Respondent's solicitors to communicate the bundle direct to Mr Francis in advance of the hearing, but that is by the way.[6]The grounds of appeal continue as follows:
"I was not allowed to question the alleged witnesses under oath, for the respondent under oath and yet the Chairman made his comments based on the twisted accusations made by the respondent's solicitors. They did not inform me until one working day before the appeal, that the alleged witnesses who had made statements against me wouldn't be attending even though several weeks before I had requested their presence (as attached letters show) so I could cross examine them. No conclusive evidence was reached on false accounting or theft only assumptions paragraph 23 of the extended decision."
The paragraph to which Mr Francis refers is in these terms:
"On the basis of that, the Respondents were clearly likely to accept the evidence of Mr Clayter and Miss Powton as to the taking of money from the Tivoli shop and although it was by no means clear how the change to the computer print-outs were connected with the taking of the £250 of money, the coincidence of the amounts of money involved were clearly sufficient to justify the Respondent's suspicions that something untoward was being carried out."
In explanation of that I should say that Mr Clayter was the manager of the shop from whom it was alleged that Mr Francis had taken £250 which he said he needed for holiday pay. Miss Powton was employed in that shop. Miss Powton had been told, she said, by Mr Clayter, that the money was to be taken for payment of wages and she had made the appropriate entry in the shop's records to take account of that. The position was that there was no compulsion on the Respondents to produce the witnesses on whose statements they had relied in the disciplinary procedure because the hearing before the Tribunal was not a re-hearing of those disciplinary procedures. It would have been possible, though no doubt unwise, for Mr Francis to have called the witnesses, but had he called them, then he could not have cross-examined them.[7]It seems to us that the position so far as this part of his complaint is concerned is that it is a complaint based largely on his disappointment at not being able, in the Employment Tribunal, to have a re-hearing of the disciplinary process and he has not suffered adversely by the decision of the Respondents not to call those witnesses, nor can he complain about it. As he rightly points out in the concluding passage of this ground of appeal:
"No conclusive evidence was reached on false accounting or theft only assumptions…"
He then refers to paragraph 23. The point is that the Tribunal had to decide, not what the absolute truth was as to the allegations, but what would have been the result of disciplinary procedure if properly conducted. So far as that is concerned their finding only reflects the fact that, on the material before them, which was the material which the parties properly decided to place before them, they took the view, which is clearly not a view which could be challenged as being perverse, that the result of the disciplinary procedures would have been the same. It follows that this ground of appeal also fails.[8]The last ground of appeal is this:
"By law I was not given any fair hearings to clear my name by way the company and their solicitors conducted their procedures."
So far as that is concerned the Tribunal held, and it has not been challenged by the cross-appeal, that the Respondent's procedures were procedurally unfair and to that extent therefore the ground of appeal re-states what is simply a finding by the Tribunal, but that does not allow us to provide a way by which there can be some further hearing of the disciplinary procedure or appeal from it, or review of it, so that Mr Francis can try to "clear his name". As I indicated at the beginning of this judgment, and I understand from what he has written to the Tribunal, he has libel proceedings afoot and it may be that he can ventilate questions in those proceedings that he would have wished, but was unable to ventilate, either here or in the Employment Tribunal.[9]Given that the powers of this Tribunal are limited to looking for errors of law in the procedure below and to determining points of law, we cannot say that there is any identifiable error of law which has been raised by the Appellant. In those circumstances the appeal must be dismissed.