BEACONS OF LIGHT LTD v MR R K BELTON [2009] UKEAT 0359_08_1505

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0359_08_1505Case No Appeal No. UKEAT/0359/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BEACONS OF LIGHT LTDAPPELLANTMR R K BELTONRESPONDENT
Before
His Honour Judge SerotaDate 15 May 2009
[1]APPEARANCES For the Appellant MR E RECCHIA (Representative) Beacons of Light Ltd 15 Allerdean Walk Heaton Mersey Stockport Cheshire SK4 3RP For the Respondent MR R K BELTON (The Respondent in Person) SUMMARY UNFAIR DISMISSAL: Reasonableness of dismissal The issue for the Employment Tribunal was whether the Respondent was reasonably entitled on the basis of the material before it to be satisfied on the balance of probabilities that the Claimant had smacked a child in its care. Despite directing itself to the contrary, that it was not substituting its own views for those of the Respondent, that is precisely what the Employment Tribunal did. Furthermore the decision by the Employment Tribunal that the Respondent was unreasonable to have accepted the evidence of a witness it found to be honest and credible although contradicted by other evidence, was perverse HIS HONOUR JUDGE SEROTA QC Introduction This is an appeal by the Respondent from a decision of the Employment Tribunal at Manchester presided over by Employment Judge Goodman. The Decision is dated 2 July 2008. The Employment Tribunal found that the Claimant had been unfairly dismissed. The appeal was referred to a preliminary hearing by HHJ Ansell on 12 August 2008. On 16 October 2008 a preliminary hearing before HHJ Burke QC referred the appeal to a full hearing. Factual background[2]We have largely taken the factual background from the Decision of the Employment Tribunal and the Chairman's notes but we note that the Employment Tribunal, in considering the material available to the Respondent when taking the decision to dismiss, has not necessarily been set out correctly or in full. We also refer to material relevant by way of background which was available to the Employment Tribunal.[3]As this case concerns a vulnerable child who is in the care of a local authority we shall adopt the method of the Employment Tribunal in referring to the child as "J" and the witnesses to the events leading to the Claimant's dismissal as "Mr N" and "Ms W". We shall refer to the parties as Claimant and Respondent respectively.[4]The child J was aged seven at the time of the matters giving rise to these proceedings. He was in care under a care order and thus was a "looked after child". He had previously been on the Child Protection Register under the headings of physical and emotional abuse. He was clearly a disturbed and vulnerable child. He had been in no less than seven placements, including a placement with the Respondent within a period of six months. His behaviour was described in the local authority's statutory meetings as unsettled and he would display extremely challenging behaviour. Shortly before the incident in question his mother had failed to attend a contact session and his behaviour had deteriorated. He displayed aggression and was indeed suspended from school for two days. It is a matter of some relevance that at a previous placement J had complained of being smacked and when the foster carer admitted having smacked, he was removed from his placement. His social workers considered that he was unhappy about leaving that placement.[5]The Respondent operates a children's home for children in care. The Respondent is owned by its directors, Mr and Mrs Recchia. Mr Recchia acted as advocate on behalf of the Respondent.[6]The Claimant has been employed as a social worker in residential care since 1976. Until the events that gave rise to these proceedings he had an unblemished career. He began his employment with the Respondent on 27 July 2005. Physical punishment at the Respondent's care home is strictly prohibited. It is common ground and, as the Claimant has conceded, any form of corporal punishment by a non-parent is unlawful and there is no issue that the use of corporal punishment by an employee against one of the children in care would be regarded as gross misconduct for which dismissal would be an appropriate remedy. The National Minimum Standards for Residential Children's Homes prohibit the use of corporal punishment.[7]On 15 July 2007 there is little doubt that J was displaying challenging behaviour. He was taken to his school by the Claimant together with Ms W, who we understand to have been a relatively young employee of the Respondent. She had since left the employment of the Respondent and had not responded to an invitation to attend the disciplinary proceedings. Mr N is a gentleman with experience working with children. He has some relationship (we are not certain what) with the school attended by J. Mr N is an official scout/cub helper. He claims to have witnessed the Claimant, whom he apparently knew by sight, delivering a smack to J. He mentioned this informally a few days later to the school secretary who referred the matter to Mr Recchia, who, in accordance with his statutory obligations, informed the Social Services department of the relevant local authority and on 23 May 2006 the Claimant was suspended on full pay pending the outcome of an investigation. Both the investigation and disciplinary proceedings were found by the Employment Tribunal to have been protracted by reason of the Claimant's illness and deteriorating health. On medical advice the Claimant was unable to attend various meetings.[8]On 24 May 2006 the local authority obtained a short witness statement from Mr N (see page 53 of the bundle). He described what he saw on 15 May. The Claimant was holding J by the left wrist and there was a discussion going on between J and the Claimant (who was not named in the statement). J was seen to be pulling back but Ms W (unnamed in the statement) did not appear to be saying or doing anything. Mr N recalled that she may have been a few yards ahead of the Claimant and J. Mr N could not be sure if the Claimant changed hands or continued to hold J's wrist but he saw the Claimant smack J in the region of the lower buttocks and top of the leg. He recalled that the Claimant's hand was open as he smacked J and that after being smacked J stopped and appeared to have registered the impact of the smack. The Claimant had hold of J's wrist at this point and J walked with him.[9]The local authority naturally took very seriously an allegation that a vulnerable child in care had been smacked by one of his carers and a strategy meeting was held on 30 May 2006 after which the local authority undertook an investigation under Section 47 of the Children's Act 1989 . That meeting recommended that the Claimant's suspension be continued, that accounts be obtained from the Claimant and Ms W and that J be interviewed to ascertain his wishes and feelings. J was interviewed by social workers at the Respondent's home on 1 June 2006. The social workers mistakenly (unless the minutes are incorrect) asked J about an incident on his way back from school as opposed to on the way to school. Mr Recchia was present for part of the interview. The view expressed by the social workers was that J knew what incident he was being asked about but he did not wish to respond and indeed refused to do so. Further attempts to obtain information from J failed because he would not discuss the matter. The view of his social workers was that a possible reason for J choosing not to say anything was because he was happy in his placement with the Respondent and had been moved from a previous placement after his carer had admitted smacking him and that he would not want to risk being moved again; see also the assessment report of 30 June 2006 of the local authority's team leader at page 59 of the bundle. The Employment Judge's notes record that during her cross-examination Mrs Recchia had suggested that J's failure to corroborate the allegation against the Claimant was understandable because he had been relocated following an earlier incident when he had reported an assault and in those circumstances J might well have believed he would be "punished" if he confirmed that he had been smacked by the Claimant.[10]At some point in time (and we would presume that this was prior to 7 June) the Claimant provided a witness statement in response to the allegation. This is at page 57 of our bundle. The Claimant explained that J was demonstrating challenging behaviour because having lost his school sweatshirt he was going to school without the correct uniform and the Claimant held onto his wrist to prevent him from running away. The Claimant continued, "As J continued to complain about the sweatshirt he was wearing, I gently (our italics) scooped my arm around J's back (with my hand open) to bring him to a halt so that I could talk to him. Any contact I had with J would have been on his back…"[11]On 7 June 2006 Mr N was interviewed by Mr Recchia at J's school. Mr Recchia was aware that the Claimant maintained he had scooped his arm around J but had not smacked him. He therefore asked the Claimant whether he was sure it was a smack and whether it could not have been a push forward. Mr N is recorded as saying "it was not a push, it was a definite smack." Mr Recchia then asked whether it could have been a move to scoop J around that might have appeared like a smack from where Mr N was. Mr N responded, "No. I have absolutely no doubt it was a definite strike. Also J reacted to it like it was a significant smack." He told Mr Recchia that he had reported it to one of the teachers from the school when he had seen them at the weekend and was then asked, "Why wait until then?" Mr N responded, "These things happen, I know how children can be, I didn't want to make too big a thing out of it." He told Mr Recchia that he had never made allegations of this sort before and that he had no doubt as to what he had seen. Mr Recchia noted that Mr N was known to the school personnel as a reliable person of good character. We should also note that Mr N stated he was approximately 30 feet away from J and the Claimant and they were walking towards him and facing him.[12]On 9 June 2006 Ms W produced a witness statement in her own handwriting. This appears to be the only evidence that she provided either to the local authority or to the Respondent. She confirmed being present with the Claimant on 16 May taking J to school. She described how J became agitated and she saw the Claimant take hold of his hand to keep him under control as his behaviour was escalating. She heard the Claimant raise his voice. The statement concludes, "I did not witness Roy hitting or being abusive towards J." The Claimant has maintained that he gave evidence to the effect that Ms W actually saw the incident when he scooped J and thus she was able to say categorically that he did not hit J. Ms W could easily have said in her witness statement that she had witnessed the incident as described by the Claimant but she does not do so. We can find no reference in the Employment Judge's notes of evidence to what the Claimant said Ms W had seen. We mention this because the Employment Tribunal took the view that Ms W had "categorically" stated that the Claimant did not hit J. We shall come to this at a later stage. Mr Recchia had a number of meetings with the Social Services department, but minutes of the relevant meetings were not supplied to the Claimant on the grounds of confidentiality; they were, however, available for hearing at the Employment Tribunal and Mr Recchia was insistent that he wished at all times to carry out a wholly independent investigation and had not sought in any way to rely upon what had been said to him by the local authority.[13]On 4 May 2007 Mr Recchia conducted an investigatory meeting attended by the Claimant and a witness, Mrs Lee. The Claimant explained that J was trying to pull away from his hold on his wrist and shouting that he did not wish to go to school. "In order to calm the situation I stooped down and scooped the child around with my hand around the child's back to bring him facing me and any contact would've been lightly on his back, that was all…" Mr C maintained that Mr N was mistaken as to what he had seen. (At page 65 the Claimant appeared to suggest that he was 30 yards from the Claimant as opposed to 30 feet). The note continues, "I don't think he was deliberately lying, he just assumed that I had smacked him because of the way my hand was travelling." Mr Recchia said, "So it was a pure and simple mistake of what he saw?" The Claimant replied, "Yes, it was just a misinterpretation. I don't think he was malicious in any way and I don't think he was deliberately lying, because of the way my hand was moving he assumed that I must have hit him." During the course of the interview the Claimant stated that Ms W was either level or one or two paces ahead of him at times, "But when the incident happened she was no more than one pace ahead…" Later in the interview the Claimant was again asked where Ms W was at the time of the incident and the Claimant replied that he, "Was more concerned with dealing with J but probably she just turned when I stopped because she had realised that I stopped".[14]A disciplinary hearing was held on 19 June and adjourned over to 29 June (the Employment Tribunal makes no mention of 19 June). On this occasion the Claimant was asked about Mr N's statement. It was put to him that Mr N was certain of what he saw. The Claimant is recorded as having said,:
"According to the position of Mr N walking towards us, and the position we were in walking towards him, according to his statement and interview, he could not have seen my hand touch J when I scooped him with my hand and put two and two together. He was mistaken due to the position of myself."
[15]The Claimant added that he was not suggesting Mr N was lying but he could not understand how he had seen anything. He also said that Ms W was never more than one or two paces ahead of him, and at times on the walk she was level and at other times a few paces ahead, but he really did not know as he was not looking at the time. He confirmed, however, that when the incident happened she was one pace ahead. The disciplinary hearing was then adjourned to 29 June 2007 and a number of persons were invited to attend including Ms W and Mr N. The hearing took place at the Alma Lodge Hotel and the Claimant was accompanied by Ms Lee. Mr N attended the meeting and was extensively questioned by and on behalf of the Claimant. Mr N drew a map of the area where the incident had taken place and explained his position relative to the Claimant, Ms W and J. He agreed that he was approximately 30 feet away and that Ms W was walking a little ahead of the Claimant and appeared to be frustrated and fed up. Mr N then added, "I've got no pleasure in doing this, Roy. I imagine the lad was being awkward because when I saw him Roy's arm was fully extended backward and J was trying to pull in the opposite direction. I feel the smack was from frustration to get him into line. The lad registered and there you go."[16]Ms Lee suggested that he could not see what was happening behind their back when he was walking towards them and Mr N insisted that he saw a smack. "Mrs Lee said, "But you're walking towards him." Mr N replied, "I saw a smack." Mrs Lee said, "But you weren't side on, how could you?" Mr N replied, "We are talking about 30 foot, that's all, that's like at the end of this room. I know what I saw." Mr N added, "I think it may have been less than 30 foot. I think it was 30 foot when I first saw them walking towards me, it may have been less than that when it actually happened." Mr N again insisted he had seen a smack and Mrs Lee said, "I'm suggesting you couldn't have seen that." Mr N replied, "Then you're suggesting that I'm a liar." Mrs Lee replied that she was not saying he was a liar but that he could not have seen what was going on behind J's back if he was facing him 30 feet away. Mr N replied, "OK, that's what you're saying. I'm suggesting that what you're suggesting is wrong. A smack is a smack." Mrs Lee said, "But I fail to see how someone can see what's happening when you were facing them?" Mr N said, "I know what I saw. A smack is a smack."""[17]Later in his evidence Mr N again stated:
"He registered a smack. He stopped pulling in the opposite direction and then you guided him in the direction you wanted him to go in."
The Claimant then said:
"The thing is I've been a Social Worker for 30 years. Your insistence that I actually smacked him could actually result in my dismissal."
Mr N responded, "I'm fully aware of that, Roy." The Claimant then said to Mr N that he did not smack him and suggested that what Mr N had seen:
"Was the action of me scooping him round, which yes, is a smack action for the arm, but it was only to guide J's back towards me. As I then bent down my hands would have been level with the top of his legs and his buttocks but they were not in contact with them. So I put it to you again that you thought you saw a smack because of the action of my hand and your brain thought smack."
Mr N replied:
"If I was going to guide someone along I wouldn't do it from the back of someone's legs or bottom. In my opinion, Roy I'm sorry, but it's a smack."
Mr N added that he had to say to the Claimant that he was not comfortable in this position because he was fully aware of the Claimant's position as he would not like to lose his job over it. Mr Recchia intervened to say that the consequences of his evidence was for others to deal with and Mr N commented:
"I know, but I am. I am very aware of the situation and I can't believe that an off the cuff comment to a secretary could come to this, to someone losing their job."
[18]Although Ms W had been invited to attend the meeting she did not respond to the invitation or indeed attend. Mrs Lee put to Mr Recchia that Mr N could not have seen what he claimed from a distance of 30 feet, but J was known to be a child with difficult behaviour and would have most likely reacted differently to being smacked and would have told about it. Mr Recchia drew attention to the reason postulated in the assessment report that might prevent J from speaking out. Mr Recchia in response to questioning from the Claimant accepted that the Claimant had never reacted violently despite receiving abuse from J. He also mentioned that he knew the Claimant had worked for a long time in social care with no record of allegations against him. On 9 July 2007 by letter Mr Recchia notified the Claimant that his explanation had not been accepted:
"The statement of Mr N was presented and you were invited to ask questions of him. Both Mrs Lee and yourself asked questions of Mr N who confirmed that he had seen the event from a distance of approximately 30 feet and was adamant that you had smacked the child. He did not accept the suggestion that you had scooped him round towards you. He believed that you had smacked the child and that the reaction of the child supported him in that belief."
Mr Recchia stated that he was not able to accept the Claimant's explanation, "The evidence of an independent witness who was a member of the local community and official helper with a scout group was compelling and believable. I believe that the child was exhibiting difficult behaviour on that morning and as you were holding the child by his wrist and the child was being non-compliant, you struck the child on the lower buttocks area. Although accompanied by another member of staff she was walking ahead of you and so did not witness the incident. The child reacted in a manner consistent with a smack being administered. I also believe that your actions were not in character and were the result of frustration." However, having regard to the gravity of the allegation the Claimant was dismissed with immediate effect for gross misconduct.[19]The Employment Tribunal noted that in paragraph 44 of his witness statement M Recchia had said this, "I considered all the issues in this case and the most striking feature was how credible Mr N was as a witness, even under cross examination. In my opinion there was no reason why Mr N would have made up the story and as Mr N admitted he did not want to get anyone into trouble. Overall I concluded that Mr N's version of events was right and the Claimant had assaulted the child. An assault upon a child is unacceptable and is an act of gross misconduct under the disciplinary rules (page 23). In my opinion, the Claimant's conduct justified dismissing him." The Employment Tribunal went on to say that in cross examination Mr Recchia conceded his focus on why Mr N would have made up the story was not consistent with the Claimant's contention that Mr N was genuinely mistaken rather than deliberately fabricating a false allegation. Mr Recchia informed the Tribunal he did consider this possibility but the Employment Tribunal noted there was no reference to any such consideration in either the dismissal letter which he sent to the Claimant or in his witness statement before the Tribunal.[20]On 11 July 2006 the Claimant invoked his right to appeal and after a delay (reasons for the delay are not known to the Employment Appeal Tribunal) the Appeal was not heard until 30 April 2008 when it was adjourned to 5 June 2008. The Appeal was in any event dismissed.[21]The Appeal was convened by Mrs Recchia and the main thrust of the appeal was that there was insufficient evidence to justify the conclusion that it was more likely than not that the Claimant had smacked J in the light of what was said to be inconsistencies in Mr N's evidence, the Claimant's vehement denial of any assault and the absence of any corroborative evidence of Ms W to support the allegation and the fact the child had not made any complaint despite being encouraged to do so. The Employment Tribunal also note that Mrs Recchia in her evidence before the Tribunal had accepted she knew the child in question was much more likely to respond angrily to any perceived injustice than to keep this to himself. We have also, however, noted what the Employment Tribunal did not mention in its Decision that she had given evidence as to the view of the social workers' concern as to why J may not have made any disclosure. In a letter dated 18 June 2008 Mrs Recchia dismissed the Appeal. She concludes, "After carefully considering all the documents in this case and the issues raised in your appeal, I have concluded that this company carried out a reasonable investigation into the alleged assault and on balance I believe that the assault probably did take place. I believe that the incident occurred out of frustration. The reason I have reached this conclusion is that there is no reason why an independent witness of good character would have made up this incident, particularly when the person concerned has experience in child care. I fail to see what motive Mr N has to have made up the incident…" The Decision of the Employment Tribunal[22]The Employment Tribunal set out the relevant facts. We note, however, that at paragraph 10 the Employment Tribunal refers to Ms W's statement in which the Employment Tribunal maintain that she "categorically denied" that she had seen the Claimant strike the child or being abusive to the child. The Employment Tribunal states that it has applied "the well established principle set out in Burchell " (see paragraph 20). It then went on to conclude on the basis of the evidence presented that the true reason for the Respondent's decision to dismiss the Claimant was that the Respondent took the view the Claimant was guilty of gross misconduct. This was a potentially fair reason for dismissal as set out in Section 98 of the Employment Rights Act 1996 (see paragraph 22). At paragraph 23 the Employment Tribunal was satisfied, as conceded by the Claimant, that on being notified by the school secretary of what Mr N had reported Mr Recchia formed a genuine suspicion that the Claimant might have been guilty of some serious misconduct and accordingly the Respondent was justified in suspending the Claimant on full pay. At paragraph 24 the Employment Tribunal conclude that although there were certain alleged shortcomings in the investigatory process conducted by the Respondent, the Employment Tribunal was satisfied:
"that looked at as a whole the investigation carried out by Mr Recchia was reasonable and sufficiently thorough in all the circumstances. The extent of the investigation was certainly sufficiently to meet the criteria that a reasonable employer would require in these circumstances."
[23]The Employment Tribunal then had this to say:
"25. The Tribunal is mindful that it must not judge the fairness or otherwise of the claimant's dismissal on the basis of how the members of the Tribunal might have reached a decision had they been conducting the disciplinary hearing or the appeal hearing. Having said that the Tribunal is of the unanimous view that no reasonable employer could properly have concluded on the basis of the evidence presented to Mr Recchia and Mrs Recchia that it was more likely than not that the claimant had smacked the child in question. The key - and only - evidence upon which the respondent relied to support such a contention was the information obtained from Mr N. However in reflecting on this information it is clear that both Mr Recchia and Mrs Recchia appear to have asked themselves the wrong question, i.e. "why would Mr N make up a story that was not true" rather than "could Mr N have been mistaken as to what he genuinely believed he saw"
. It was common ground that Mr N did not make a report of the alleged incident immediately after it had occurred but simply mentioned it conversationally a few days later not intending this to lead to any formal investigation or disciplinary action. Furthermore - and notwithstanding Mr N's assertions in the course of interrogation at the disciplinary hearing - it is clear from the notes of the interview conducted by Mr Recchia that Mr N was not entirely clear as to whether the claimant had changed hands in the course of the incident. Also there was unchallenged evidence that at the time Mr N was walking a new dog he had just acquired which was acting in a fairly frisky manner and he was at least thirty feet away when he allegedly witnessed the claimant smack the child. 26. There is no corroboration of Mr N's version of the incident. On the contrary, it is not only denied by the claimant but also by the claimant's colleague who was much closer to the claimant than Mr N at the relevant time. The child in question did not make any complaint. Although there are inferences in certain documents to which we were referred that the child may have been reluctant to make any complaint for fear of getting into trouble himself, this is not supported in any way by the evidence of Mrs Recchia who conceded without qualification that the child had a history of complaining quite vociferously whenever the child felt any injustice had been perpetrated. In those circumstances we consider that the respondent should have regarded the failure of the child to make any complaint or comment as more corroborative of the child not having been smacked."[24]At paragraph 27 the Employment Tribunal noted that the Respondent knew or should have known that the Claimant had extensive experience and an exemplary disciplinary record and that there was no evidence to suggest that he had previously demonstrated a propensity to inflict any sort of corporal punishment on a child.[25]The Employment Tribunal went on to conclude, "28. The Tribunal accepts that the respondent was confronted with a very difficult situation. Nevertheless it was incumbent upon the respondent to treat the claimant fairly. Whilst a reasonable employer might have been entitled to accept as a possibility based on the evidence of Mr N that the claimant might have administered a smack to the child no reasonable employer could properly have concluded that it was more likely than not that the claimant had administered a smack to the child based on the totality of the evidence before the respondent. Furthermore we are satisfied that both Mr Recchia and Mrs Recchia misdirected themselves when evaluating the credibility of Mr N by asking the "wrong question" (see paragraph 25 above). On the basis of their approach to this credibility issue it is not surprising that they concluded that Mr N's evidence was credible. However a reasonable employer asking the right question as suggested by the claimant would almost certainly based on the evidence available have concluded that it was more likely that Mr N had made a genuine mistake in believing that he had seen a very experienced and well respected Social Worker in this sector physically assault a young child in a fit of temper." The Notice of Appeal and Submissions and Support[26]The Notice of Appeal firstly raised issues as to the approach to the facts by the Employment Tribunal. The Employment Tribunal, it was submitted, had not set out the factual material before the Respondents during the disciplinary process either fully or accurately. It was submitted that the Employment Tribunal was wrong to place its own gloss on Ms W's witness statement; she certainly did not "categorically" deny that the Claimant had struck J. She could, of course, have stated (but did not) that she had seen the Claimant "scoop up" J. The Employment Tribunal did not make mention of the social workers' view as to why J may not have been prepared to discuss the incident and that Mr N (who unusually had attended for cross-examination at a disciplinary hearing although not connected with the Respondent) had unequivocally stated on a number of occasions that he could not have been mistaken.[27]Mr Recchia then referred to the Decision by the Employment Tribunal that no reasonable employer could properly have concluded on the basis of the evidence presented to the Respondent that it was more likely than not that the Claimant had smacked the child in question; see paragraphs 25 and 28. He categorised that Decision as being perverse.[28]Finally he submitted that it was clear that the question of whether or not Mr N was mistaken was very much in his mind and that of Mrs Recchia even if not expressed in their reasons. The entire basis of the case put forward by the Claimant was that Mr N was mistaken and that a "scoop" or a "gentle scoop" was being misconstrued as a smack. That was the whole thrust of the defence, so as to speak, and it is unconceivable, therefore, that it was not considered by both Mr Recchia (who confirmed that it was) and by Mrs Recchia. Mr Recchia was sufficiently concerned that he had raised the issue of the mistake with Mr N at the investigation meeting, questioned whether he might have been mistaken and the matter was also investigated fully during the disciplinary hearing. Mr Recchia submitted that the fact Mr N came forward from a sense of duty and was most reluctant to become involved made him a more credible witness. There was no evidence to show that he was mistaken. Mr Recchia submitted that he considered the possibility of a mistake to be quite remote so in fairness to the Claimant he also focused on Mr N's credibility. He also stressed he did not rely upon the Social Services' investigation but wanted to see Mr N for himself to get the flavour and form his own view of the credibility. The Claimant's Response[29]The Claimant submitted that the Decision of the Employment Tribunal was correct and that no consideration had been given to the possibility of Mr N being mistaken. He asked forensically how Mr N could have seen whether he had smacked J or scooped him having been 30 feet away or more. No reasonable employer could have concluded that he had smacked J.[30]The Claimant maintained that he had said that Ms W had turned round and seen the incident and had seen that he was not abusive to J. He drew attention to the passage from which we have quoted at page 65 in our bundle. He also submitted that J's silence should not have been regarded as corroborative (we do not believe that it was but in any event this would seem to be a matter for the Respondent). The Claimant also submitted that Mr Recchia should have challenged the error in the note of the social workers' report as to their attempts to elicit information from J where J was apparently asked about an incident on his way back from school as opposed to on his way to school. It was submitted that this rendered the whole disciplinary process flawed; this is not a submission we are able to accept.[31]Finally, the Claimant submitted to us that a very high standard is required in relation to a perversity appeal and that this judgment was not perverse. The Law[32]Much has been said about the principle in British Home Stores Ltd v Burchell [1980] ICR 303 . It is, therefore, helpful if we set out the relevant passage from the judgment of Arnold J:
"British Home Stores Ltd v Burchell Arnold J at 1980 ICR 303 at 304 B-G The case is one of an increasingly familiar sort in this Tribunal, in which there has been a suspicion or belief of the employee's misconduct entertained by the management, it is on that ground that dismissal has taken place, and the tribunal then goes over that to review the situation as it was at the date of dismissal. The central point of appeal is what is the nature and proper extent of that review. We have had cited to us, we believe, really all the cases which deal with this particular aspect in the recent history of this Tribunal over the three or four years; and the conclusions to be drawn from the cases we think are quite plain. What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would itself have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being "sure," as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter "beyond reasonable doubt."
The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion."[33]It is also helpful to have regard to the conclusion in Harvey on Industrial Relations and Employment Law paragraph D1461 in which various cases after Burchell are considered in the context of Section 98(4) of the Employment Rights Act :
"So in the context of s 98(4), the three relevant elements would seem to be: had the employer reasonable grounds on which to sustain his belief; had he carried out as much investigation as was reasonable; and was dismissal a fair sanction to impose?"
[34]We also refer to the judgment of Clarke LJ in Scottish Midland Co-operative Society Ltd v Cullion [1991] IRLR 261. At paragraph 11 he had this to say:
"Having regard to the findings of the Industrial Tribunal, I am satisfied that they were fully entitled to hold that there was a belief on the part of the Appellants that the Respondent had been guilty of the misconduct in question. It was not seriously disputed that the Industrial Tribunal were entitled to conclude that there had been a breach of proper till procedure, either by failing to make any record of the transaction, or by ringing up £1.35 rather than £2.70, consistent with dishonesty. The real question was whether the Industrial Tribunal could reasonably have concluded that the Appellants were entitled to hold that the Respondent was the person who served Mrs Menteith and who operated the till on that occasion. This raises a matter of identification. On this issue the Employment Appeal Tribunal did not differ from the Industrial Tribunal. I agree with both of them that the delay of three days between the alleged incident and the Respondent being questioned about the matter was unfortunate but no hard and fast rule can be laid down in this regard, and it is not possible to hold that delays of a particular length are fatal to a dismissal. As was observed by Browne-Wilkinson J (as he then was) in Marley Homecare Ltd v Dutton [1981] IRLR 380 in para. 10, what is fair must depend in each case on the facts of the case. No doubt one possible way of preventing any possible injustice would be for the procedure suggested by Browne-Wilkinson J to be adopted, but there is no rule of law which requires such a method of investigation to be used. The Industrial Tribunal considered very carefully the evidence which was relied upon from the point of view of identification, and they recognised that neither Mr Maclean (the store manager) nor Mr Baillie (the personnel manager) had any doubts about the sufficiency of the identification of the Respondent. Moreover when it was put to them during their evidence before the Tribunal neither accepted that the description fitted the other employee who was the only other employee who, on the evidence, could possibly have been involved. The disciplinary hearing on 14 March took place before Mr Hughes (the former personnel manager). He too stated that he had no doubt on identification. In my opinion for the reasons given by the majority of the Industrial Tribunal they could not reasonably conclude that a reasonable employer was not entitled to take the view that the shop assistant who had carried out the test transaction with Mrs Menteith was the applicant. The majority took the view that they could not criticise the Appellants for not confirming the identification by Mrs Menteith by a face-to-face confrontation between Mrs Menteith and the Respondent before taking the decision to dismiss. They held that there were no grounds for holding that the Appellants had failed to carry out a full investigation. The majority of the Industrial Tribunal appear to me to have applied the correct test as laid down in British Home Stores Ltd v Burchell [1978] IRLR 379 ; British Leyland UK Ltd v Swift [1981] IRLR 91; Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 ; and ILEA v Gravett [1988] IRLR 497. Unlike the Employment Appeal Tribunal, the Industrial Tribunal appear to me to have applied the correct tests and to have recognised that they were not entitled to determine by an objective standard whether the Appellants' belief that the Respondent had been in breach of the proper till procedure was well-founded; the Industrial Tribunal correctly appreciated that the question for them was whether the Appellants believe that the Respondent was guilty of these failures, and were entitled, having regard to the investigation carried out, so to believe."
[35]We also draw attention to paragraph 13:
"At the end of the day it appeared to me that what Mr Truscott was inviting us to do was to commit the same error as the Employment Appeal Tribunal, and to substitute our own views for those of the Industrial Tribunal. Mr Truscott's final point was that in the circumstances no reasonable employer would have decided to dismiss the Respondent having regard to her record of employment, her length of service, the amount of money involved, and the statement by the Respondents to the Industrial Tribunal to the effect that there was no suggestion of dishonesty. In my opinion, however, these were all matters for the Industrial Tribunal to determine, and this Court would not be justified in substituting its views for those of the Industrial Tribunal. It is plain from what the Industrial Tribunal say that any breach of till procedure was regarded by the Appellants as a serious matter, and the Appellants had always so categorised it. It cannot be suggested that it was unreasonable for them to do so. There was a whole body of evidence supporting the view that a breach of this kind, whether dishonest or not was a serious matter, and it was recognised that it was liable to lead to dismissal. The Respondent herself stated that failure to follow till procedures was very serious. All the matters which were favourable to the Respondent including her length of service, her absence of disciplinary record, and the fact only a small sum of money was involved, were considered both by the Appellant and in turn by the Industrial Tribunal."
[36]Mr Recchia also drew our attention to the Decision of British Gas PLC v McCarrick [1991] IRLR 305 , a decision of the Court of Appeal. In that case the employer was faced with an employee who had pleaded guilty to stealing petrol from one of its pumps. During the disciplinary procedure he asserted that he had only pleaded guilty to avoid the possibility of an immediate prison sentence whereas in fact he was wholly innocent. The Employment Tribunal had held that dismissal was unfair because a reasonable employer would have taken the view that the change of plea to guilty was made because of concern for his family following the advice of the likelihood of a prison sentence and that a reasonable employer would have made enquiries of the employee's legal advisors regarding his unwillingness to plead guilty until the very last moment and that no reasonable employer could take the view that innocent people do not admit guilt. Browne-Wilkinson VC had this to say at paragraph 22:
"In my judgment it was an error of law for the Industrial Tribunal to seek to reopen the factual issues on the basis of which the domestic tribunal had reached its conclusion. If the procedure had been faulty, that would have been a failure by the employer to act reasonably. But on the evidence before the internal domestic body it was for that body to reach the decision of fact whether or not they were satisfied of the guilt of the charge of theft. In my judgment, therefore, there was a genuine error of law by the Industrial Tribunal."
Conclusions[37]Regrettably we have come to the conclusion that in this case the Employment Tribunal has fallen into error. It is clear from the authorities we have cited that it is not for the Employment Tribunal to review and form its own view of the evidence before the employer but that is precisely what the Employment Tribunal has done in this case. It is crystal clear to us that the question as to whether or not Mr N was mistaken as opposed to dishonest, was clearly understood and considered by Mr Recchia and Mrs Recchia. This was, after all, the thrust of the defence and it had been raised on a number of occasions by the Claimant and Mrs Lee and had been put to Mr N both by the Claimant and by Mr Recchia.[38]It is important to bear in mind that Mr Recchia had the benefit of seeing Mr N give his evidence and was able to form a view of his credibility. The Employment Tribunal did not have this opportunity.[39]Mr Recchia's criticism of the approach of the Employment Tribunal to the factual background is well founded. As we have said, it is not for the Employment Tribunal to review and form its own view of the evidence before the employer. It is not for the Employment Tribunal to revisit and give prominence to some evidence available to the Respondent and to suggest that other evidence was of less value. The issue for the Employment Tribunal was whether the Respondent was reasonably entitled on the basis of the material before it to be satisfied on the balance of probabilities that the Claimant had smacked the child J. Despite directing itself to the contrary, that it was not substituting its own views for those of the Respondent, that is precisely what the Employment Tribunal has done.[40]Moreover, the decision that no reasonable employer could reasonably have concluded that the Claimant had smacked J based on the totality of the evidence before it seems to us to be plainly wrong. To suggest that it is unreasonable for an employer to accept the evidence of a witness it found to be honest and credible when it is contradicted by other evidence, as here, is perverse. Up and down the country day in and day out employers and judges have to take just this kind of decision. While it is certainly true that the points raised by the Employment Tribunal may have justified the Respondent in taking another view of the evidence, it cannot be said to be irrational or unreasonable that the Respondent chose to have accepted as credible and reliable the evidence of Mr N. We recognise the high standard required to demonstrate that a decision of an Employment Tribunal is perverse. A very strong or indeed overwhelming case must be made out; however, this is one of those rare cases.[41]In the circumstances, therefore, this appeal must be allowed.