Appeal No. EAT/619/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 6th July 1992

	Before

	HIS HONOUR JUDGE B HARGROVE OBE QC

	MRS M L BOYLE

	MR A D SCOTT

MR A THOMAS	APPELLANT

GELPACK EXCELSIOR LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR R CLAYTON
(Of Counsel)
Messrs Thorpes
Solicitors
Aubrey House
26/28 Aubrey Street
Hereford
HR4 OBU

For the Respondents	MRS A RUFF
(Lay Representative)
Wyvern Personnel Advisory Service
14 Woodfen Crescent
Leominster
HR6 8SS

	JUDGE HARGROVE QC:   Mr Thomas was suspended from his work as a machine operator with the Respondents on the 22nd May 1990, whilst under suspicion for a "clocking" offence, that is stamping absent employees' time cards.  He was dismissed on the 23rd May following a hearing.  He appealed to the Operations Director and that appeal was dismissed He was dismissed on the grounds of gross industrial misconduct, that being confirmed finally on the 30th May.

	He further appealed to the Industrial Tribunal, and by reasons given on the 5th October, his case there was dismissed and from that decision he comes to this Court.  That this is a sad a case as is possible to imagine is indisputable.  Mr Thomas had been with the Respondents since 1976 on their case, 1975 on his.  He was well regarded.  He was 64 at the time he was dismissed. 

	The evidence against Mr Thomas was that on the 19th May when a Mr Balderson was two hours late, Mr Balderson was clocked-in at 5.38, Mr Thomas clocked-in at 5.37.  On the 20th May when Mr Balderson was one hour late, both were clocked-in at 5.39.  Going back further, on the 22nd April, when Mr Balderson's son had telephoned saying that he, Mr Balderson, was unwell, he was apparently clocked-in at 5.36. 

	When questioned Mr Thomas could give no explanation but from those facts and from his demeanour both Mr Derby, who first questioned him, later Mr Craddock and finally Mr Heath, the Operations Director, all formed the view that he had been guilty of "clocking" offences.  Mr Heath goes as far as saying he was convinced that he had carried out the improper "clocking".

	The Industrial Tribunal decision is attacked on a number of grounds and we summarise them as follows.  First of all that there was a fatal flaw in the reasons of the employers, they believed that having found two cards, which were clocked at the same, or almost the same time, one belonging to an absent employee and one belonging to a present employee, that was evidence upon which an employer could form the conclusion that the present employee was "clocking" his colleague's card.  The fallacy of that argument is that although there may be other explanations it does not prevent a fact being some evidence, particularly when seen in a context of other factors.  It is not seriously challenged that the employers carried out a sufficient enquiry, nor that they honestly believed that the Appellant had been guilty.  It is said that there is an objective stand of reasonableness which the employers did not reach, that is a threshold of reasonableness and that there was no evidence and therefore the Industrial Tribunal erred in finding that the employers had in mind reasonable grounds upon which to sustain that belief.

	It is said that in relation to each of the four main factors the Industrial Tribunal found innocent explanations for each of them.  The coincidence of the timings has already been mentioned.  The second is that the employers' belief that the guilty employee would clock-on two cards together, and it is said that other persons from the night shift could have done it.  Thirdly, the question of demeanour, which was explicable because of the novelty of the situation in which Mr Thomas found himself.  Finally, that the Appellant could give no explanation is, so it is said, answered by the Industrial Tribunal view that even an innocent man could not do so because he would have been ignorant of the facts alleged against him.

	One of the difficulties with these arguments is the admissions made by Mr Thomas that if he was faced with the facts and stood in the place of his employer, he would have considered that the facts pointed towards him.  The high point of this appeal was put upon the basis that if there is no independent evidence than the facts cannot satisfy the objective test of reasonableness.  As a proposition that obviously cannot be correct.  One has to look at the manner in which the Industrial Tribunal was addressing the issues in order to see the way in which they were juxtaposing the various arguments for and against.  Although it may take some time I propose at this point, to turn to paragraphs 15 and 16 of the Reasons.  It says as follows:
"We do not propose to rehearse the provisions of section 57 of the Employment Protection (Consolidation) Act 1978, nor of the Burchell Test which is well understood.  In brief terms we have to ask whether in concluding that the applicant was guilty of the offence alleged the employers reached an honest conclusion for which they had reasonable grounds following a proper enquiry.  The penalty imposed must fall within that band of reasonable responses which is available to a reasonable employer."

Just pausing there, there could not be a clearer exposition of the relevant test, it continues:
"We have concluded (as did Mr Thomas) that Mr Craddock and Mr Heath reached an honest conclusion.  They honestly believed that Mr Thomas was guilty of a clocking offence.  They had some reasons for coming to that conclusion.  They were reasons which would not have persuaded everybody.  They were certainly not conclusive reasons.  It is is however not for us to scrutinise those reasons to decide whether in an objective sense they lead to a particular conclusion.  The question is whether it was material on which an employer could reach such a conclusion.  We think it was.  This is not to say that we think Mr Thomas was guilty.  There is nothing to show that someone else did not do it, possibly someone on the night shift.  However, on three occasions his card had been clocked at the time which was near or nearest to that of Mr Balderson.  The managers obviously felt that some perpetrating such an offence would clock two cards together.  That is not necessarily true but is what they thought was probable.  They also placed some importance on his demeanour at the meetings.  They were entitled to reach that conclusion although like Mr England we believe that they had never seen him in a similar predicament before.  It is one thing to argue a point of principle at a steering committee on behalf of a workforce as a whole;  quite another to find oneself in the dock facing a charge serious as fraud.  They also attached some importance to the fact that he   could offer no explanation.  We suppose that on the usual Burchell principles they are entitled to that point of view.  It is not one we would share.  As we pointed out to them at the time, an innocent man could not possibly have any explanation because he would not know any more than they, what had been done or how.  They appear to have attached some importance to the two other instances of identical clocking time (although of course they had no evidence to suggest that the two mean had not clocked on together).  As to procedure we think that they carried out an adequate enquiry.  It could have been done better but we think it was sufficient.  They gave Mr Thomas the opportunity to put his point of view.  Likewise not everyone would have imposed the penalty of dismissal, particularly in extenuating circumstances where an offence has been committed (if it was) without any purpose of gain by a man who a previous exemplary record - moreover by someone who was within a few months to retire.  They said they took into account the fact that he was retiring soon. In that event we agree with Mrs Ruff that not every employer would have dismissed but that a reasonable employer might have.

In the circumstances we have concluded, not without hesitation and certainly not without reluctance, that the decision is unimpeachable.  We were not persuaded however that these employers were as compassionate as they claimed.  They clearly did have a discretion to impose a lesser penalty but chose not to do so despite the bitterness and hurt which this inflicted on a man whom they described as "one of the old school".  There can be few more unhappy circumstances in which to end a lifetime of work than to be dismissed on the ground of dishonesty.  It is not a charge which we ourselves would have levelled against Mr Thomas on such flimsy evidence.  Regrettably however that consideration is unimportant."

	The Tribunal is indicating views of the evidence with the reservations indicating that they were viewing that evidence through their own eyes, but they found that the decision of the Respondents passed the necessary tests and that the dismissal was within the range of reasonable responses.  We share all the reservations of the Industrial Tribunal, but we reject the argument that because they put the evidence in a balanced fashion they were, in fact, negating each fact.  It is the employers' view, not the Tribunal's own, which is of relevance.  The Tribunal's comment that the evidence was "flimsy" is not one which in our view makes the decision perverse.  The Tribunal's finding is one of fact, we remind ourselves of the decision in Gilham v. Kent County Council (No.2)  [1985] ICR 240E, where Lord Justice Griffiths, as he then was, gave the following approach:
"Now whether or not an employer has behaved reasonably in dismissing an employee is a question of fact, and it is a question upon which different people, looking at the same set of circumstances, may reasonably come to different conclusions.  It is therefore endemic in a system where there is no appeal on fact that from time to time different industrial tribunals will give different answers to broadly similar situations, and neither decision can be challenged.  It is therefore important that this court should resist the temptation to seek to overturn a factual decision with which it may not agree by searching for some shadowy point of law on which to hand its hat for the purpose of bringing uniformity to the differing decisions.  If we were to take this course, it would have the very undesirable effect of encouraging innumerable appeals which raised no point of law, but depended upon comparative findings of fact."

Bearing that direction in mind, we take the view that this is an appeal which must be dismissed.