Appeal No. EAT/176/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 14 September 1994

	Before

	HIS HONOUR JUDGE J HICKS QC

	MRS M L BOYLE

	MRS R CHAPMAN

BRITISH GAS PLC	APPELLANT

MR P MARKS	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR MANJIT S GILL
 (Of Counsel)
 The Solicitor
 British Gas Plc
 Segas House
 Katharine Street
 Croydon
 CR9 1JU

For the Respondent	MS ALISON RUSSELL
 (Of Counsel)
 Free Representation Unit

	MR JUSTICE HICKS:  Mr Marks, the Respondent to this appeal, brought a complaint to the Industrial Tribunal that he had been unfairly dismissed by his employers, the Appellants, British Gas Plc., for whom he had worked for some 22½ years.  He was employed at their old Kent Road Depot, generally in the driving of a lorry in which he delivered new appliances and collected old appliances and returned them to the Old Kent Road Depot for disposal.

	The employers say that they dismissed him because they had reasonable grounds for believing, after carrying out an investigation, that he had taken three old cookers which he was supposed to have returned to the depot and had delivered them to a shop in Catford, and they say that that amounted to gross misconduct in the misappropriation of those three appliances belonging to them.

	When that matter came to their attention, or rather when suspicion of that matter came to their attention, there was an investigation by them over several days, including the taking of photographs and those photographs, especially photographs taken on one of those days, 9 April 1992, showed, they said, his lorry unloading cookers at the Catford Shop and Mr Marks being involved in that.  

	It was never in dispute from the outset that the lorry shown in the photographs at the Catford shop was his lorry, but when first confronted at an investigatory interview on 14 April, he said simply, "I didn't do it".  There was then a full disciplinary interview on 22 April at which he simply said that the person concerned was not him and that he had nothing to do with the incident.  At the close of that disciplinary interview the responsible officer of the employees, a Mr Standing, summarily dismissed the employee, Mr Marks, for gross misconduct and advised him of his right of appeal, which he pursued, and I read from that point onwards substantially the whole of the rest of the Industrial Tribunals Reasons.  The appeal, they say in paragraph 3:

		"...... was conducted in accordance with the Respondents' disciplinary procedures before the District General Manager and a Senior Personnel Officer and one member of the Trade Union side of the RJIC.  It was at this interview that the Applicant said that he was now admitting that he was present at Catford but said that he had not been selling appliances to the shop which were the property of the Respondents.  His story was that relations and personal friends had asked him to take away cookers and he had as a favour to them removed them on his lorry not realising that this was a misuse of the Respondents' lorry.  The Applicant supplied a list [of course in these Reasons, "Respondents" relates to the employers, the present Appellant] of five names and addresses relating, not only to 9 April but to two other occasions on which the Applicant admitted disposing of cookers and said that in particular on 9 April, which is the matter for which the Applicant was dismissed he had disposed of cookers on behalf of his sister and on behalf of his nephew.  Mr Standing [that is the employer's representative) is recorded in the notes as having presented the Management's case and as saying that if the Applicant's story was true then nevertheless the goods being on the Respondents' vehicle they were to be regarded as the property of the Respondents.  Mr Standing also said that he had checked the job cards and had found that 18 cookers had been loaded on to the vehicle when it left Old Kent Road that morning and that only 16 had been unloaded on its return.  The reason for this Mr Standing said was that although it appeared that three cookers had been unloaded at Catford, one had been reloaded which had been left there on a previous occasion but had been returned as being no good.  The appeal hearing then heard more evidence on the actual events of 9 April when the Applicant said that he collected two appliances from his sister at Coldharbour Lane and a third one from his nephew in Sydenham.  He was also questioned as to the discrepancy between the number of cookers loaded at Old Kent Road and the number which had been returned.  He said that the paperwork at some of the depots at which he called was not satisfactory and it could easily have been the fact that the paperwork did not coincide with a number of cookers actually loaded.  The appeal hearing decided to uphold Mr Standing's decision to dismiss the Applicant.

		4.  The Applicant had a further right of appeal which he exercised and this was heard on 6 July 1992 before two persons from the employers' side and two from the Trade Union side.  This appeal sub-committee upheld Mr Standing's decision and that of the appeal committee which had heard the first appeal.  Evidence was also given on behalf of the Respondents by Mr Cotter the Personnel Officer who had only been present at the second appeal and whose evidence we do not think we need to repeat here.

		5.  The Applicant's evidence was that on 9 April he had been given a number of deliveries and collections to be done in South London and that he had first gone to Southwark where he had unloaded new cookers but did not collect any old cookers.  He then went to Coldharbour Lane where he saw his sister and collected two cookers and some furniture.  He delivered the furniture to her house and then picked up a cooker from his nephew in Penge.  He then went to Bromley where he picked up six old cookers, one from one of the Respondents' depot and signed for these cookers.  He then went to Orpington where he picked up three cookers and signed for them and then to Eltham where he unloaded some new cookers and picked up again three cookers.  He then went to Catford where he dropped off three cookers and picked up one but he denied ever having dropped off any of the Respondents' cookers.  He had then returned to the Old Kent Road Depot where he had been questioned by the Police and finally after investigations and disciplinary hearings had been dismissed.

		6.  This concluded the evidence which we heard in this case.  Our view on the matter was that had the matter ended with the investigations by Mr Standing then the Respondents would have satisfied us that they had carried out sufficient investigation from which they could reasonably have come to the conclusion that the Applicant had misappropriated three cookers.  It also cannot be disputed that on this evidence Mr Standing would have been justified in summarily dismissing the Applicant for gross misconduct.  We emphasise the point had the matter ended there because we are quite satisfied that if an employee persists in making a complete denial to allegations which are made against him then it is not incumbent upon the employer to investigate the matter further in case the employee might have some explanation to make.  If the employee has an explanation to make then it is for him to make it and not for the employer to make it on his behalf.  Consequently as Mr Standing was in possession of evidence which showed that the Applicant had been seen unloading three cookers at Catford from the lorry which he was assigned to drive on that day then he would have been entitled in the face of the Applicant's complete denial to regard the matter as concluded and to say that he was satisfied from the investigations which had been made that the Applicant had misappropriated three of the Respondents' cookers.

		7.  The matter however does not end there.  When the Applicant appealed he put forward a different story and supported this with the names and addresses of the persons from whom he had collected the cookers.  He said that although he admitted that he had now used the Respondents' van in an unauthorised manner this was all that he had done and that he had never misappropriated any property belonging to the Respondents.  The story which the Applicant then told is not so far fetched in our view to be incapable of belief and in our view it was incumbent upon the Respondents even though the story only arose at the appeal stage to carry out some investigations from which they could satisfy themselves whether or not there might be some truth in the story.  Having regard to this we find the dismissal to be unfair on the basis that attention must be paid by an employer even where the matter arises at a late stage of the disciplinary proceedings to any explanations put forward by the employee unless in any particular case the employee's explanation is so far fetched that no reasonable employer could possibly believe it.  This in our view was not the case here.  It is not unknown for employees driving lorries to oblige friends by picking up and dropping heavy loads for them.  While clearly this is something which the employer is entitled to prohibit, if an employee admits that this is all he has done then the employer must in our view investigate to determine whether or not there might be some truth in the employee's story.  This was not done here and in our view the Respondents, once this explanation was given, ought to have investigated in some fashion and came to a conclusion after investigation whether the Applicant's explanation was or was not believable.  Accordingly for these reasons we find this dismissal to be unfair".

	Then they deal with the remedy.  As appears from that recital Mr Marks was apparently charged by the police, but that was not treated as material to the present application and I mention it only because it explains the circumstances in which two statements were later produced.  

	It does not appear from the reasons of the Industrial Tribunal but is common ground that at the second appeal there was a short adjournment to enable Mr Marks to obtain by fax from his solicitors, and to produce, two unsigned statements or proofs of evidence from his sister and a second witness (I think a friend of hers rather than the nephew) and those statements appear on their face to amount to proofs of evidence which had been obtained for use in the Magistrates Court and they were unsigned.  

	The employers appeal from the decision of the Industrial Tribunal to this Appeal Tribunal.  We remind ourselves that, to quote from the judgment of Griffiths L.J. in Kent County Council  v  Gilham [1985] IRLR 18:

		"...... decisions of Industrial Tribunals should not be subject to minute linguistic analysis in an attempt to turn a factual decision into a point of law". 

That is part of paragraph 29 of his judgment and in paragraph 24 he says:

		"Now whether or not an employer has behaved reasonably in dismissing an employee is a question of fact and it is a question on 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 hang its hat for the purpose of bringing uniformity to the different decisions.  If we were to take this course it would have the very undesirable effect of encouraging innumerable appeals which raise no point of law but depended upon comparative findings of fact".  

That was a case in which one of the arguments had been that other Industrial Tribunals in comparable circumstances had reached different findings.

	We are also mindful of what was said by Lord Donaldson MR in the case of Piggott   v  Jackson [1991] IRLR 309.  In paragraph 17 of his judgment he said:

		"What matters is whether the decision under appeal, that is the decision of the Industrial Tribunal was a permissible option.  To answer that question in the negative in the context of employment law the EAT will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the Industrial Tribunal.  If it cannot do this it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as perverse"

	And later in paragraph 29 he says:

		"It is at this point that I think we are being invited to fall into another trap for unwary appellate courts namely to construe an Industrial Tribunal's reasons as if they were a statute or deed"

	And he quotes from his own judgment in an earlier case:

		"The purpose of reasons is to tell the parties in broad terms why they lose or as the case may be, win.  I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis.  This, to my mind, is to misuse the purpose for which reasons are given". 

	These being the boundaries within which we must approach this appeal we turn to the question, itself undoubtedly one of law, of the powers of the Industrial Tribunals in relation to the employer's decision to dismiss and we start, as we must, with Section 57 of the Employment Protection (Consolidation) Act 1978, which in subsection (1) provides:

		"In determining for the purposes of this Part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show -

			(a)	what was the reason (or, if there was more than one, the principal reason) for the dismissal, and

			(b)	that it was a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held"

	Included in subsection (2)(b) is a reason which relate to the conduct of the employee.	There is no dispute that this employer's reason was a genuine belief that the employee was guilty of theft of the employer's property and that that fell within subsection (2)(b).  Subsection (3) reads:

		"Where the employer has fulfilled the requirements of subsection (1), then [subject to certain matters which do not arise here] the determination of the question whether the dismissal was fair or unfair having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case."

	In approaching the issue of reasonableness, the Industrial Tribunal should ask itself whether the employer's response and conduct was within the range of possible reasonable responses, and not simply substitute its own judgment for that of the employer.  That is a proposition to be found and repeated in numerous cases.  I quote it here (simply because it was the context in which it came before us) from a note of the Scottish cases of Forth Ports Authority  v  Lorrimer noted in Industrial Relations Law bulletin.  

	Where there is an appellate process it is not in dispute that the position is accurately summarised in the headnote to the case of Whitbread  v  Mills [1988] IRLR 501 as follows:

		"Appeal procedures form an important part of the process of ensuring that a dismissal is fair and both the original and the appellate decisions of the employer are necessary elements in the overall process of terminating the contract of employment.  It follows that the fairness issue must be decided after the appeal procedure has been completed". 

	Against that background we return to the Industrial Tribunal's reasons in the present case.  We take the whole of those reasons into account, which is why I have cited them so fully, but clearly a key element in its decision is to be found in paragraph 7 in the following passages:

		"The story which the Applicant then told is not so far fetched in our view to be incapable of belief and in our view it was incumbent upon the Respondents even though the story only arose at the appeal stage to carry out some investigations from which they could satisfy themselves whether or not there might be some truth in the story".

	And then a little later:

		"Attention must be paid by an employer even where the matter arises at a late stage of the disciplinary proceedings to any explanations put forward by the employee unless in any particular case the employee's explanation is so far fetched that no reasonable employer could possibly believe it".

	And then later again:

		"In our view the Respondents, once this explanation was given, ought to have investigated in some fashion and come to a conclusion after investigation whether the Applicant's explanation was or was not believable". 

	The reference to a late stage and the brief and incomplete account given in the Tribunal's Reasons of the second appeal, some seven weeks after the disclosure of the Applicant's explanation, suggest that it may have been the events and the outcome of the first appeal which were uppermost in the mind of the Industrial Tribunal, but we should not and do not base our decision on that supposition.  

	The question, how far an Industrial Tribunal is justified in requiring that an employer has investigated an employee's explanation in order to have acted within the range of reasonable responses of reasonable employers, was considered by the Court of Appeal in British Gas  v  McCarrick [1991] IRLR 305, in which the facts were that Mr McCarrick was accused of stealing petrol from one of their pumps after a quantity of petrol was found in a van which he had been driving denied the allegations, and a disciplinary hearing resulted in a finding that the complaint had not been proved.  

	However, police investigations led to his being charged with theft.  He initially pleaded "not guilty", but at a late stage on counsel's advice he changed his plea to "guilty".  According to him, although he was in fact innocent he decided to plead guilty after being advised that a prison sentence was probable.  He said he was concerned that his family would suffer.  He was subsequently convicted and fined.  When the employers heard of the conviction they began fresh disciplinary proceedings, during the course of which he continued to maintain that he was innocent and had been pressured into pleading guilty.

	The disciplinary panel concluded that "the only reasonable response we can make to a guilty plea is to believe it".  An internal appeal against that decision failed.  According to the appeal body "innocent people do not admit guilt".  They therefore rejected Mr McCarrick's contention that he had been intimidated and pressured into pleading guilty, and concluded that he was in fact guilty of the offence.

	The Industrial Tribunal held that his dismissal was unfair.  The Tribunal found that a reasonable employer would have taken the view that the change of plea was made because of concern for his family.  A reasonable employer would have made enquiries from the employee's legal advisers regarding his unwillingness to plead guilty until the very last moment, and no reasonable employer would take the view that innocent people do not admit guilt.

	The Employment Appeal Tribunal allowed an appeal against that decision and substituted a finding that the dismissal was fair.  There was an appeal to the Court of Appeal.  In Paragraph 6 of the Vice Chancellor's judgment a little more detail is given on one point of relevance, and that is that at the disciplinary hearing Mr McCarrick not only gave evidence himself but called witnesses, all of whom were other employees of British Gas who had been present at the Crown Court and that they, to an extent, confirmed his version of what had occurred between himself and counsel to the effect that substantial pressure had been put on him to plead guilty.  

	In paragraphs 22 and 23 of his judgment the Vice Chancellor (and his judgment was agreed in by the other Lord Justices) said:

			"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.  Moreover, in the suggestion that a reasonable employer would have made enquiries of the Respondents' legal advisers regarding the circumstances in which he was unwilling to plead guilty, I agree with the Employment Appeal Tribunal, though for rather different reasons, that that was to impose far too high a burden on employers.  In this case there was the most meticulous disciplinary proceeding.  The accused employee was given the right to appear with his Trade Union representative and four witnesses.  He was given a right to appeal against the first decision.  He availed himself of those facilities.  He deployed the evidence that he wished to before the employers for the purpose of establishing whether or not that the pressure had been brought to bear on him cast doubt on the genuineness of his admission.  He did not adduce evidence from those who had been his legal advisers in the Crown Court.  In my judgment it is perverse to suggest that where an employee is given full facilities himself to bring forward information which is under his control, the employer has failed to make proper enquiries in not pursuing such enquiries himself".

	Considering the relevance of that passage to the facts of this case, there was here also a disciplinary proceeding and it is not suggested that it was deficient in any procedural way, the employee here as there was given the right to appear with his Trade Union representative and any witnesses he chose to bring, although he did not apparently bring any oral witnesses.  He was not only given a right to appeal against the first decision as in the case of McCarrick but in fact the right, which he exercised, of two stages of appeal of which he availed himself, and he deployed the evidence that he wished to before the employers.  That included at the second appeal, after a short adjournment allowed for the purpose, the witness statements relating to the supply of the cookers.  Again, to parallel words from the judgment in McCarrick ("did not adduce evidence ....") he did not call those witnesses or others on the subject in person. 

On the face of it therefore the principles stated by the Court of Appeal in British Gas  v  McCarrick apply.

	Ms Russell, in her very able argument for the Respondents, endeavoured to distinguish McCarrick, as we understood it, in two ways.  First, that in McCarrick there was not, as there was here, a change of story in the sense that Mr McCarrick, from the outset of the second disciplinary proceedings, asserted that his plea of guilty had been brought about by pressure.  

	It seems to us, however, that that does not assist the employee in this case.  If the hearing of 19 May had been final and the question had been whether an adjournment should have been allowed by the first appeal panel or sought by the employers, that might have been a relevant distinction, but that is not the situation here.  Although the employee's explanation here was not one he had given from the outset, it was certainly one which had been current for some weeks, or whatever is the exact length of time between the first appeal and the second appeal.  

	In so far as there is any relevance in that distinction it seems to us to tell, if anything, against the employee, because we do not see how it can be said that it is outside the range of reasonable responses of a reasonable employer to look with particular suspicion at an explanation which arises after a persistent attempt to deny the employee's presence at the scene, an attempt which is then abandoned and was, to put it bluntly, from the outset a lie.

	The second distinction which Ms Russell sought to draw was that in that case, McCarrick's case, oral evidence was actually called, but again in so far as that is relevant at all it is difficult to see why an employer who disbelieves after only two unsigned statements had been lodged should be judged more harshly than one who does so in the face of the evidence of, apparently, several oral witnesses.

	It is of course true that no two cases are identical on their facts, but we consider that the principles established by the case of British Gas Plc  v  McCarrick, in particular in paragraph 23 of the Vice Chancellor's judgment, which are binding upon us, are directly applicable to this case.  Mr Gill for the Appellant employers also referred us to the Scottish case of Forth Ports Authority  v  Lorrimer, which I have already mentioned in a different context.  There also is the question how far an Industrial Tribunal can effectively require that an employer conduct particular investigations into an explanation by the employee, is dealt with in the same way as in British Gas Plc  v  McCarrick, but I do not think I need to recite that in any detail, if only because the only record of it available to us is not a verbatim report but a note.

	We therefore conclude that this Industrial Tribunal has misdirected itself in law by substituting its own judgment for that of the employers.  The matter can perhaps be put in this way also, in addition to the manner in which we have dealt with it by reference to authority.  If by investigation "in some fashion", to use the words of the Industrial Tribunal, the Tribunal was genuinely leaving open the form and content of the investigation which a reasonable employer should institute, and remembering that a range of responses is potentially reasonable in such a context, then that ignores the employer's consideration of the tally of cookers loaded and unloaded, which was clearly a material and proper subject of consideration in investigating the employee's story, as also the second appeal tribunal's consideration of the witness statements which were lodged.  If, on the other hand, the Industrial Tribunal concluded (and it is the only additional step which suggests itself) that the employers should have interviewed the employee's friends and relations named by him, then that would be clearly, in our view, be in excess of the Industrial Tribunal's jurisdiction and a plain substitution of its own views for that of the employers.

	We therefore allow the appeal.  The question remains whether to remit it to the same or a different Tribunal or to substitute our own decision.  The Employment Appeal Tribunal in McCarrick took the latter course and were upheld by the Court of Appeal, and we consider that we should do the same, not simply because that was the course followed then but because, on consideration of the material before us in this case we feel that we are in a position to do so.  We have not only the Industrial Tribunal's Reasons, but also other documents which were before the Industrial Tribunal including notes of the four relevant internal hearings - the investigatory interview, the disciplinary interview and two appeals - and the two unsigned witness statements.

	We do not consider that any Industrial Tribunal properly directing itself could have concluded that the action of the Appellant employers was outside the range of reasonable conduct of a reasonable employer, and we therefore dismiss the employee's application.