TAUNTON ASSOCIATION FOR THE HOMELESS LTD v MRS N E BOSWELL [2001] UKEAT 0620_00_2410

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0620_00_2410Case No Appeal No. EAT/0620/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
TAUNTON ASSOCIATION FOR THE HOMELESS LTDAPPELLANTMRS N E BOSWELLRESPONDENT
Before
Her Honour Judge A Wakefield Mr D ChadwickLord Davies of CoityDate 24 October 2001
[1]APPEARANCES For the Appellant MR MARTYN WEST (Advocacy Manager) Peninsula Business Services Ltd 2nd Floor Stamford House 361/365 Chapel Street Salford Manchester M3 5JY For the Respondent MS I OMAMBALA (of Counsel) UNISON Employment Rights Unit 1 Mabledon Place London WC1 9AJ HER HONOUR JUDGE A WAKEFIELD This is an appeal by Taunton Association for the Homeless Ltd against two decisions of an Employment Tribunal sitting at Exeter by which it was decided that the Respondent (the original Applicant) had been unfairly dismissed, had not caused or contributed to that dismissal and was entitled to compensation from the Appellant totalling £14,970. Thus far, we have heard the parties only as to liability and contributory fault.[2]The background to the Originating Application before the Employment Tribunal was that the Respondent, who had been employed by the Appellant for a little over nine years as a hostel supervisor, had been summarily dismissed following disciplinary proceedings relating to unauthorised taking for her own use and that of another employee of some tablets left behind by a former resident of the hostel.[3]In its decision, promulgated on 7 January 2000 following a hearing over two days in the previous November and December, the Employment Tribunal set out in paragraphs 3 and 4 of the decision their findings of primary fact as to the Appellant's procedures for disposing of residents' abandoned property. None of these findings is challenged before us. The Employment Tribunal then set out the circumstances in which the Respondent said in her evidence that she had taken the tablets. That evidence they accepted. The Tribunal then went on in paragraphs 7 and 8 to relate the process of the disciplinary investigation. Again, none of this is contentious. The decision then continues as follows, from paragraph 9:
"9 The applicant was entirely open about the matter throughout. She saw the matter differently from the respondent. She made no attempt at concealment of what she had done. 10 We find that the applicant did not feel that she was acting dishonestly. It was common ground that the medication taken by the applicant would ultimately have been disposed of. We also note that the other member of staff Mrs Gibson volunteered that she had received the paracetamol when she discovered that an investigation was taking place. She confessed what had happened, handed in the medication, and was not disciplined in any way. Plainly, the respondent has established that the reason for the dismissal of the applicant was misconduct."
In paragraph 11 of the decision the Employment Tribunal then sets out the terms of Section 98(4) of the Employment Rights Act 1996 . They then reach the conclusion which is challenged in this appeal in paragraph 12. They say this:
"We have considered the terms of the subsection. Our unanimous view is that the employer cannot be said to have acted reasonably in applying the sanction of dismissal to the applicant in the light of the circumstances as we have set them out in our reasons, and in the light of the applicant's record and in the light of the fact that her fellow employee was not disciplined at all. The respondent appears to have given no weight at all to the fact that the applicant appeared to have acted honestly and that she was a long serving employee with an excellent record."
[4]The appeal as to the finding of unfair dismissal there set out is mounted on the basis that the Employment Tribunal substituted its own views for that of the Appellant employer and therefore applied the wrong test as to fairness. We do not agree. Before us the representative for the Appellant has accepted, as indeed he was compelled to do by the authorities, most recently Post Office v Foley [2000] IRLR 827 , that paragraph 12 of the decision itself cannot be criticised as a statement of the proper test for fairness in accordance with the words of Section 98(4) of the 1996 Act. He argues however, that by its findings in other earlier parts of the decision, most notably the finding that the Respondent did not feel she had been acting dishonestly, the Employment Tribunal were demonstrably not applying the test correctly, even though they had correctly stated it in paragraph 12. Again we do not agree. The Employment Tribunal was entitled and indeed bound to make findings of fact from the evidence, including findings as to the Respondent's state of mind which would be relevant to arguments as to contributory fault. Having been referred today to the notes of the disciplinary hearing and to the terms of the letter of dismissal it is also quite apparent that the Appellant never alleged or found that the Respondent believed that she had been acting dishonestly. In our view the Employment Tribunal applied the correct test as to fairness and were entitled to reach the conclusion they did having applied that test to the facts as found. The appeal against the finding of unfair dismissal therefore fails.[5]As to contributory fault, the Employment Tribunal said this in their paragraph 13:
"We have considered whether any award of compensation should be reduced to take account of contributory fault on the part of the applicant. Our unanimous view is that it should not. We repeat, that at no stage did the applicant feel that she was doing anything wrong. She felt that what she was doing was in accordance with generally accepted practice namely that items left behind by residents were dealt with by giving them to members of staff, giving them to charity or disposing of them. The applicant cannot be said to have contributed to her dismissal by the respondent."
As was made clear in the case of Hollier v Plysu Ltd [1983] IRLR 261 by the Court of Appeal, this Employment Appeal Tribunal is not entitled to interfere with an Employment Tribunal's conclusion as to the question of contributory fault unless the Employment Tribunal has gone wrong in law or has reached a conclusion which no reasonable Tribunal could have reached on the evidence.[6]The Appellant's representative argues before us, as set out in paragraph 13 of his skeleton, that this conclusion of the Employment Tribunal was perverse in the sense that it was not a permissible option for the Tribunal to find that there was no culpable conduct in the case. But the issue under Section 123(b) of the 1996 Act as to contributory fault is not whether the employee has done anything wrong, is culpable, but whether she has caused or contributed to the dismissal. That is a matter which is for the Employment Tribunal to determine on the facts before them. In this case it cannot be said that their finding was wrong in law or perverse. The appeal as regards that finding therefore also fails.