MR S BAKER v PLAY PLUS CROYDON LTD [2002] UKEAT 1041_01_2801

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1041_01_2801

Case No Appeal No. EAT/1041/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S BAKERAPPELLANT

PLAY PLUS CROYDON LTDRESPONDENT

Before

Lord Gladwin of Clee

Date 28 January 2002

[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON MR COMMISSIONER HOWELL QC In this appeal which is before us today for a preliminary hearing Mr Steffan Baker seeks to have set aside as erroneous in law the decision of the London (South) Employment Tribunal after a three day hearing in June 2001, set out in Extended Reasons sent to the parties on 2 nd July 2002 at pages 4-14 inclusive of the appeal file before us.

[2]The proceedings before the Tribunal had been brought by Mr Baker by an Originating Application dated 15 th January 2002 against his former employers, Play Plus Croydon Ltd, alleging unfair dismissal, unpaid wages and seeking other relief. They included an allegation that his dismissal on 18 th October 2000 after some two and a half years employment as the Deputy Manger in a playschool or childcare centre they operated had amounted to an act of victimisation against him following an earlier successful claim for sex discrimination he had made.

[3]The reason given to Mr Baker for his dismissal had been that he had been guilty of gross misconduct as he had been found to have been involved in a fraud perpetrated on the Respondents in the underreporting of the number of children present at the childcare centre at which Mr Baker worked. He and a Mr Foley, who was the manager to whom he worked, had both been suspended from duty on that account pending an investigation into the fraud. This involved the two of them allegedly benefiting financially because of the underreporting of the number of children for whom fees were being received.

[4]The decision of the Tribunal was that the entire Originating Application was dismissed and the allegations of unfair dismissal and victimisation were rejected. It is not necessary to refer in detail to the Tribunal's very full statement of findings and reasons but it is material to note that as recorded in paragraph 3 of the Tribunal's Extended Reasons they made extensive findings of fact, set out in the paragraphs that followed. These included the following passage at paragraphs 10-14 of the Extended Reasons, after recording that the Applicant had purchased a computer for £35 to help with the Centre's accounts:

"10. By the end of March or early April 2000 the Applicant realised the children's names were being removed from the accounts and the money disappearing. At around this time he believed that a fraud was being perpetrated - children who had attended the play scheme according to the register and whose parents had paid for the places according to the receipt book, were not appearing as having attended in the accounts. The accounts did not reflect the money that had been paid for them. Mr Foley agreed to provide £180 to the Applicant from money obtained in this way from the fraud to repay him for the cost of the computer and the work he had done on it and in devising an accounting system for the Centre. The Applicant was content to accept the £180 knowing how it had been come by, although in fact he did not receive it all. 11. On 21 June 2000 there was a row between Mr Foley and the Applicant as they were leaving work that evening. The next day Mr Foley went to the Head office of the Organisation and submitted a list of complaints about the Applicant, the essence of which was that the Applicant was difficult to manage and that there was a breakdown in the relationship between them and alleging one minor incident that had taken place with the children. 12. On the very same day the Applicant also went to the Respondent's Head Office intending to report the fraud and accounting irregularities in management. On arrival he saw that the Centre's minibus was outside the office and that Mr Foley must already be there. He therefore went away and came back after the minibus had gone. On arrival, he spoke to Sue Miller, the Manager and told her that she would know why he was there – assuming that Mr Foley had already told Ms Miller about the fraud and embezzlement. In fact he had not done so. The Applicant gave Ms Miller a 9-page statement of allegations about the omitting of children's names from the accounts in order that the money could be pocketed. 13. Sue Miller asked Ms Bellinfantie, the Accounts Manager, to do an audit for the period February to May 2000. She did so and, as part of her Audit Report, interviewed Mr Foley on 29 th June in the presence of Sue Miller. Immediately at the commencement of the interview Mr Foley confessed to his role in the fraud concerning the removal of children's names from the accounts in order to embezzle the fees that had been paid on the children's behalves and blamed the Applicant – he said that it had been the Applicant's idea and he had done it in order to reimburse the Applicant for the computer and to mask the fact that more children than the Centre was registered for by Social services had been entered at the Centre. 14. Sue Miller in consultation with the Chair of the organisation, Ms Horton, decided that both Mr Foley and the Applicant should be suspended and they were given letters on 30 June 2000 suspending them on full pay"

[5]The Tribunal then went on to record that Mr Foley had resigned the following month and no further action had been taken against him, while the Applicant remained suspended on full pay. He had than been asked to attend an investigatory interview but had refused unless certain assurances were met. Following this the Respondents decided to move to a disciplinary hearing writing to the Applicant on 14 th September stating the allegations against him and also asking for an explanation as to why he had failed to obey a reasonable instruction to attend the earlier investigation on 13 th September 2000.

[6]There was then a disciplinary hearing which took place on 20 th September 2000 when the Applicant was given a full opportunity to put his case and to meet the allegations made against him. At the meeting, as recorded by the Tribunal in paragraph 20 of their Extended Reasons, the Applicant denied having colluded with Mr Foley in the fraud and denied receiving any money for the computer or indeed the other equipment he had bought into the Centre. At the conclusion of the meeting Ms Horton who was the decision making officer who conducted it, agreed to undertake further examination of the records and following consideration of further correspondence which the Applicant sent to her she reached the conclusion that the Applicant had indeed been guilty of the misconduct alleged against him and should be dismissed.

[7]That conclusion was recorded in the Tribunal's finding of fact at paragraph 24 of their Extended Reasons as follows "The conclusion of Ms Horton was that Mr Baker was aware of the irregularities and that both he and Mr Foley were aware of the inappropriate accounting methods and that, irrespective of where the money had gone to or who was in charge, Mr Baker knew that it was wrong and should have advised Croydon Play Plus immediately. She concluded that on the balance of probabilities the Applicant was involved in inappropriate handling of money and accounting methods for a Deputy Manager. She wrote to the Applicant on 16 October 2000 informing him that she considered he had committed gross misconduct and should be summarily dismissed for his involvement in the removal of a number of children from the accounts and the use of their fees to pay him for the computer equipment, which resulted in inappropriate accounting methods and for failing to obey a reasonable management instruction in failing to attend the meeting on 13 September 2000". That letter also went further into the reasons why, on behalf of the employer, Ms Horton considered the explanations put forward by Mr Baker had been unsatisfactory. As recorded by the Tribunal in paragraph 25 of their Extended Reasons, there was then an appeal which Mr Baker was offered and took up. However this did not result in any change of the substance of the decision to dismiss which confirmed the two dismissal grounds already intimated to Mr Baker in the letter of 16 th October 2000.

[8]Before the Tribunal the Applicant contended that he had throughout been treated differently from the way that other members of the staff had been treated, and alleged that a fair procedure had not been followed in his case before he was dismissed. Further, as recorded by the Tribunal in paragraph 32, he considered that management had falsified the evidence, had colluded and lied about him and that the evidence that he had been in cahoots with Mr Foley had been fabricated. He also contended that he had been victimised for his previous successful complaint of sex discrimination against the organisation.

[9]Those two contentions, that the Respondents had fabricated evidence and had been acting for reasons other than genuine reasons in dismissing Mr Baker, were rejected on the facts by the Tribunal having heard the evidence. As they recorded in their conclusion in paragraph 49 and 50 on the issue of unfair dismissal"49. The Tribunal find that the Respondents have been able to show potentially fair reasons for dismissal - namely conduct. The Tribunal finds the investigation undertaken by the Respondents was fair and thorough, the Applicant had an opportunity to state his case, he knew of the allegations in advance and was represented at the hearing. There was evidence on which the Respondents could reach the conclusion that they did - namely the evidence of Robert Foley and the two refreshment workers.

50. The Tribunal next considered whether or not the decision to dismiss was reasonable in all the circumstances of the case. The Tribunal finds that the Applicant held a responsible post within the Organisation - Deputy Manager. He had known of the wrongdoings, by his own admission, approximately six months before divulging them to management. On the basis of the Respondent's reasonable belief that the Applicant had himself known of the fraud for this length of time and personally benefited from the fraud, the decision to dismiss was unexceptional. We have paid particular attention to considering reasonableness in this context. We took careful note of the Applicant's concern that he had been penalised for bringing the matter to management's attention, however management were entitled to reach he conclusion that the Applicant was also involved".

[10]Dealing with the allegation of victimisation, the Tribunal dealt with the suggestion that Mr Baker had been detrimentally treated by having his case handled differently from that of Mr Foley, but recorded in paragraph 55 of their Extended Reasons that " The Tribunal however declines to draw an inference that the reason for this difference in treatment is on grounds of victimisation. In effect what happened was that both men blamed the other and the Tribunal can well understand that the only appropriate response to the allegation and counter-allegation was to suspend both individuals - who after all together comprised the management team at the Gonville centre – and then conduct an investigation to try and get to the bottom of it".

[11]They then record in paragraph 57 that moving on to the central issue itself, the dismissal, the Tribunal had looked at all the evidence that they had heard over the three day period of the hearing to consider first whether the Applicant had been able to establish a difference in treatment and secondly the management explanations for the way he had been dismissed. As they expressly recorded in that paragraph "The Tribunal accept the explanation and the Applicant has not made out his case on victimisation. Again we have closely scrutinised management's explanation – particularly as the Applicant points out, he was dismissed after he had revealed the fraud voluntarily to management, and it is ironic that as a consequence he was dismissed. Given management's belief in his role in the fraud, which we find to be genuine, we do accept their explanation. We are strengthened in this view by the Applicant's evidence at the Tribunal that he revealed the fraud after the row he had had with Mr Foley and believing (wrongly as it turned out) that Mr Foley had already told Ms Miller about it first". For those reasons the Tribunal dismissed the Originating Application.

[12]Against that decision Mr Baker seeks to pursue an appeal based on numerous grounds he set out in his Notice of Appeal dated 9 th August 2001. In particular he alleged that the evidence against him had been falsified and that the Tribunal had been wrong to accept the explanations put forward by management and should, therefore, have held his dismissal not only to have been unfair but also to have amounted to an act of victimisation against him. He supplemented that in oral argument before us today with the aid of a further detailed skeleton argument, founding on two suggested errors of law in particular.

[13]First the disparity in treatment between himself and two other witnesses who he alleges also knew of the fraud but had not been disciplined in the same way that he had. We have been unable to see that that gives rise to a sufficiently arguable point of law to warrant directing the case to go forward to a full hearing on the fairness issue. In our judgment it is not material to the real question before the Tribunal, which was the reasonableness or otherwise of the employer's treatment of Mr Baker and his dismissal on the basis of the facts actually found by the Tribunal in relation to Mr Baker's own case. The Tribunal have adequately explained the reasons which led them to conclude that the treatment Mr Baker received had been justified on the facts they found and that, in our judgment, is sufficient for the purpose with which the Tribunal were concerned.

[14]Secondly Mr Baker argued that the Tribunal had been guilty of a discrepancy in relation to the reason for which they found him to have been genuinely and reasonably dismissed by the employer. His suggestion was that in the Tribunal's finding in paragraph 24 the reason put forward by the employer had been that he had actually been guilty of fraud, whereas when one got to the Tribunal's conclusion in paragraph 50 it was based on a different question which was simply the fact that he had known of somebody else's fraud and had failed to report it to management.

[15]We have looked carefully at paragraphs 24 and 50 but we have been left unpersuaded that they do contain any such discrepancy as the Applicant suggests, or any indication that the Tribunal in any way misdirected themselves as to the nature of the case before them. In particular paragraph 50 expressly refers to the Respondents having a reasonable belief that Mr Baker had personally benefited from the fraud. So paragraph 50 is not only based on the issue of knowledge and failure to report the admitted fraud. Also when one looks at paragraph 24, the early part of that paragraph before the sentence to which Mr Baker drew our attention in his argument makes it plain that the dismissal, which Ms Horton considered to be the right course given her findings in the course of the disciplinary investigation, was not based only on her conclusion that Mr Baker had been personally involved in the fraud. It also reflected her express finding as recorded in the first sentence in paragraph 24 that he, along with Mr Foley, had been aware of the inappropriate accounting methods and that Mr Baker had known that this was wrong and should have advised the employers immediately.

[16]We therefore have not been persuaded that there is any inconsistency at all between the way the Tribunal approached the matter in paragraphs 24 and 50 of their Extended Reasons. Reading those two paragraphs together leaves, in our judgment, no arguable doubt as to the reasons why the Tribunal found him to have been dismissed, and why they were satisfied that the employer's reason for that dismissal was genuine and that the employer's conduct in dismissing him had been reasonable in all the circumstances.

[17]Mr Baker's written submissions take numerous other points on the facts of the case but all of them, we have concluded, amount really to no more than attempts to reargue the conclusions on the facts and evidence in the case which the Tribunal have already determined, after what was obviou sly a through hearing into the evidence spreading over 3 days. Accordingly we have not been persuaded that the Tribunal misdirected themselves in law in any material way or that the conclusion they reached on the case was unjustified on the evidence before them. Their reasons are, in our judgment, fully and adequately explained in the documents sent to the parties.

[18]For those reasons we have not been satisfied that there is any arguable error of law to warrant this case being sent forward to a full hearing at the Employment Appeal Tribunal and we accordingly now dismiss this appeal.