Appeal No. EAT/545/92

	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 25 May 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MR P DAWSON OBE

	MR J H GALBRAITH CB

MR C J R PEMBLE	APPELLANT

PIRELLI GENERAL PLC	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A T FARRELL
(WELFARE ADVISER)
Southampton Unemployed
  Centre
11 Porchester Road
Woolston
Southampton SO2 7JB

For the Respondents	MR A G DYER
(OF COUNSEL)
Alsop Wilkinson
6 Dowgate Hill
London EC4R 2SS

	JUDGE HULL QC:		This is an appeal to us by Mr Pemble from a decision of the Industrial Tribunal, sitting under the Chairmanship of Mr I.A. Edwards at Southampton on 13 April and 18 May 1992.  Mr Pemble had complained to that Tribunal on the 12 August 1991 that he had been dismissed unfairly on the 15 July 1991 from his employment with Pirelli, the Respondents to this appeal, his employers.

	He was a long standing employee.  He had been with them since the 4 April 1970.  He is a man who was born in 1940 and is therefore now 53.  He had been for, I think, a year or less, working in a new occupation as the raw materials store co-ordinator at Chickenhall Lane, Eastleigh, which is one of no doubt many places where Pirelli carry on business.  This was part of Pirelli's special cables division.  

	It is alleged that there was a theft of copper from Pirelli's.  That copper finished up with an honest scrap merchant nearby.  He had bought it, apparently, from a Mr Willis.  Mr Willis lived at Cosham in Portsmouth.  What happened was that on the 10 or 11 July there was a question of disposing of some scrap compound, I think it is sometimes referred to as rubber compound.  Mr Pemble was in charge of that, as raw materials store co-ordinator.  He had to dispose of anything which was damaged or which had deteriorated in store, or had to be returned to the suppliers for any purpose.  This compound had deteriorated and was to be got rid of.

	Instead of disposing of it in a regular way, he decided to dispose of it to Mr Willis.  Mr Willis had a lorry, which he apparently hired: there appears to be no suggestion that anything else went out, but this material was loaded onto this lorry;  Mr Willis was evidently going to dispose of it.  A document was required, of course, to see the lorry past the gates, in case the security people there wanted to see what was on it, or at any rate to see the documents; he would be expected to produce a document.  Mr Pemble made a document which told an untruth on its face.  It said that the material was being returned to one of Pirelli's suppliers, who had in fact supplied material of that sort.  That was simply untrue.

	Mr Pemble told different stories about that.  He suggested to the Industrial Tribunal that it was a mistake, but having made the mistake he just went on writing.  He had suggested earlier that he had done it deliberately as a matter of convenience.  But at any rate, that was a false document.  It might of course be a matter of no importance whatever; with valueless material, simply a case of getting rid of it.  Again, it might have a sinister connotation.

	Mr Pemble left the premises at lunchtime and went all the way from Eastleigh to Portsmouth where he found himself in Cosham.  He visited the house of Mr Willis.  There he was arrested by Police, who were looking into matters.  The copper, as I say, had been taken from Pirelli's, apparently on some earlier occasion.  That copper had been found in the hands of an honest and regular scrap dealer.  That scrap dealer had paid cash in large sums and envelopes containing that cash were found in Mr Willis' house.  It appeared when the enquiries were made that the same lorry hired by Mr Willis, which had taken away this scrap compound from Pirelli's, was indeed the lorry which had been used to deliver this stolen copper to this scrap dealer.

	So there it was.  There was this irregularity on the face of it, possibly highly sinister, of making out a false delivery note in this way to get the vehicle past the gate, when the scrap material went out, possibly innocent, possibly sinister.  That vehicle was hired by Mr Willis.  There was little reason to doubt that Mr Willis was a dishonest person in connection with the copper transaction.  Here was Mr Pemble taking himself off down to Portsmouth, down to Cosham and calling on Mr Willis.  Small wonder that the Police asked Mr Pemble some questions, as we are told they did, and perhaps small wonder that they arrested him in the circumstances.  What Mr Pemble had to say about that was that he was going down to Portsmouth to talk about his yacht.  He had turned off the main road, he had got lost and it then occurred to him that he would call on his friend, Mr Willis, who had extended to him a standing invitation to call in whenever he happened to be that way.

	So that is the evidence as we understand it.  We must say at once that we have seen the evidence of only two witnesses and those possibly incidental, not going to the main point of the case, but we understand that that was the position.  Of course, it might well be, as a possibility, that there was an entirely innocent explanation for this bogus delivery note, and it might well be that there was an entirely innocent explanation for disposing of the scrap material in this way.  

	It might well be that there was an entirely innocent explanation for the fact that this was the same lorry that had been used by the dishonest man, Mr Willis, in connection with the copper and also of this story, which on the face of it is a remarkable one, as to how Mr Pemble came to be down in Cosham and calling on Mr Willis in the lunch hour.  It might well be that that story was perfectly correct.  On the other hand, whether one were a policeman, or whether one were an employer, it might well be thought that these were matters which should be enquired into very carefully to see whether there was indeed an innocent explanation, or whether most unhappily the true explanation was that Mr Pemble was acting improperly and unscrupulously and not in the interests of his employer.

	That was what the employers decided, not unreasonably, to enquire into.  The Industrial Tribunal set out part of this story.  They say that on the 11 July the employers were told that Mr Pemble was in Police hands, in custody, for questioning about the possible theft of copper.  That would be enough to make any employer think that it was something that had to be looked into to.  

	Then they set out the circumstances which I have mentioned about what was found in Mr Willis' house, and the scrap metal merchant who paid £5,000 in cash for copper rod which had apparently been taken from Pirelli's.   They talk about the tay bags full of the compound.  Mr Gobbi, from Pirelli's, travelled to Portsmouth and identified the cable at the scrap merchants as being of the type used at Pirelli's.  They record, of course, although they were not directly concerned with this, the fact was that the applicant was charged in connection with the theft of the copper, as was Mr Willis.

	Then, as they say, it was the duty of the employers to carry out an enquiry and they did.  They say that on the 12 July 1991, Mr Bailey, the Production Manager and Mr Carroll, the Personnel Officer, conducted a preliminary investigation with the applicant.  The applicant explained himself to them and they heard a number of witnesses.  The applicant had explained that he wanted to dispose of some pallets and Mr Willis, who was not one of the authorised contractors who normally disposed of pallets, was on site and spoke to the applicant and offered to dispose of pallets on his behalf.  

	About a week later he had in fact employed Mr Willis to dispose of some pallets and then Mr Willis offered to dispose of any scrap compound as well.  Then he wanted to dispose of this compound which had become bad in the tay bags.  He said that on the 10 July a driver, apparently instructed by Mr Willis, came to collect the compound but did not want to collect the pallets.  Then there was the story about how this bogus note, as I have called it, the goods returned note, came to be made out to one of the regular suppliers, although in fact that supplier had nothing whatever to do with it.    

  	I have referred to the different stories which Mr Pemble told about that, and how he changed his explanation or sought to explain the matter to the Industrial Tribunal.  He conceded to the Tribunal, did Mr Pemble, that the tay bags were in fact the property of the Respondents, and had not inconsiderable value in themselves.  He also told Mr Bailey and Mr Carroll this story of how he came to be in Portsmouth, in Cosham, when he had taken the wrong turning, and called on Mr Willis.

	That was what those two officers of the company heard together with, no doubt, very much other evidence, and as we have pointed out in the course of argument they of course knew the responsibilities of Mr Pemble, knew him well and knew of the circumstances of the factory or the depot, how it worked and so on.  The applicant was not represented and he was told that the hearing would investigate his admission that he falsified company documentation and that he had been implicated, as they put in, in the theft of the copper from the Company on the 10 July.

	He admitted that he had not followed the normal procedure in disposing of the scrap.  He admitted that he put a false name on the goods returned note, but he denied throughout being involved in any way of the theft of the copper.  He was suspended and then the employers had regard to what was said in the Handbook, which was that the dismissal, if there was to be a dismissal (which was recommended by these two officers) a decision could only be taken by the Divisional Corporate Manager.  The matter was put before the manager and the decision was taken to dismiss him.  There was a further questioning of Mr Pemble before that decision was taken.    

	Then Mr Pemble exercised his right to appeal.  That was taken by a Mr Barrett, the Senior Manager of another plant, and the Industrial Tribunal had the notes of appeal before them.  It was apparent that Mr Barrett went into the whole matter very thoroughly and allowed the applicant to raise any matters that he wanted to.  Apparently, no fewer than 21 witnesses were called in the course of this enquiry, before the employers.  The Tribunal were satisfied that the notes were accurate.  Mr Barrett gave his decision rejecting the appeal on the 23 July.  Again, there are notes of the meeting at which he did that.  In essence Mr Barrett concluded as follows, the Tribunal set it out:

"(1)The applicant has not given any acceptable answer as to why he had put the wrong address on the company dispatch documentation. 

		(2)It was more than a strange coincidence that the falsified documentation raised by the applicant happened to be linked to the vehicle which was used for the theft of copper from the company.

		(3)It was difficult to accept a further coincidence that on the following day the applicant turned up at the address of the man involved in the theft of copper at Portsmouth."

	Now it appears, from that, that none of these company officers who were involved in this, as the Tribunal found it to be, full and fair enquiry, were able to put an innocent construction on what I have described as the bogus document and the cock and bull story, as it might be regarded, about how Mr Pemble came to be in the neighbourhood of Mr Willis and calling on him.  Mr Barrett concluded that these circumstances and explanations were incredible and he could not believe the applicant's version. 

	The Tribunal went on to make certain comments.  They correctly directed themselves about their task in accordance with British Home Stores v Burchell.  They were not concerned themselves to try the question whether Mr Pemble was, or was not, guilty of what he was suspected of.  Their duty was to decide whether the employers entertained a reasonable belief in those matters; having conducted a proper and fair enquiry.

	They say in their paragraph 51:

"Applying this test, we are first of all satisfied that the respondents did have a belief in the misconduct of the applicant.  Secondly, we are satisfied that such a belief was based on reasonable grounds, ie the applicant had admitted that he had wrongly completed a document which, whether intentional or not, would have the effect of deceiving anyone who handled it.  Not only had the applicant used the name of a customer, he had also written on the form that the goods were "surplus to requirements".  The form itself was a goods returned note, and it would clearly give the impression to anyone seeing that document, and in particular to the security staff on the gate, that the document related to goods which were being returned to a customer.  The document itself was linked with a vehicle which had apparently been used to remove copper cable and rubber compound from the respondents' premises.  The applicant arrived at the address of a man involved in the apparent theft or receiving of stolen property, and the applicant gave an unconvincing story for this arrival there.

Mr Barrett, who took the appeal, found the circumstances and explanations by the applicant to be "incredible".

So far as the investigation is concerned we understand that 21 people were interviewed as well as the applicant, and no evidence has been put forward in the Tribunal today by the applicant which in any way suggests that had there been a more thorough investigation the conclusion of the respondents would have been any different.

We are therefore satisfied that in all the circumstances of the case that there was a reasonable investigation."

	They stressed again that they were not concerned to try these matters, it was for the employers.  

	The appeal is brought to us from their conclusion that the dismissal was not an unfair dismissal.  Mr Farrell has put before us one main point and argued it.  He points out that when we look at the part of the Tribunal's notes of evidence relating to the evidence of Mr Peter John Baker (he is a storeman for the Respondents, employed by them for 12 years) his evidence at the Tribunal was as follows.  He said that he was responsible for putting, under Mr Pemble's directions, this waste material in the tay bags onto the lorry which had called for it, which had been sent by Mr Willis evidently.  He described the lorry.  He said that the lorry had two sliding doors on both sides and a big shutter at the back:

"I took the tay bags out singly.  The lorry was empty.  I went back to the store to get the second bag.  The driver was in the back holding the shutter doors open.  I carried on with my salvage.  The applicant [Mr Pemble] came out and gave his paperwork and away he went.  The driver turned into the works.  I went into the influx store and he came past.  This was only 4 or 5 minutes later." 

	Mr Farrell quite rightly points out to us that in those circumstances, not only was there no evidence that the lorry was on this occasion loaded with stolen copper, but all the evidence was that it was not.  Of course that would be of vital importance if the case against Mr Pemble had been that on the same occasion, using the same lorry, he had loaded it, or allowed it to be loaded, with stolen copper as well as the scrap material in the tay bags.  As we understand what has been put before us, that was not the case at all.  So far from the copper being taken on this occasion, it had apparently been taken on some previous occasion.  Mr Willis had found time to deliver it to the legitimate scrap metal merchant.  He had received the cash.  All that was said was that it appeared, when enquiries were made of this scrap merchant, that the same lorry had been used.  

	So the obvious inference is that if the copper was stolen from Pirelli's, that had been on some previous occasion.  There was a connection, through the lorry, with Mr Willis, and it was legitimate to infer that Mr Pemble was very much concerned with Mr Willis and had been behaving very suspiciously when the tay bags went out.  The employers had therefore asked themselves whether they were right to infer, as apparently the Police may have done, that indeed Mr Pemble was concerned also with the illegitimate transaction, if I can call it that, with the copper.  Having heard all the evidence (we have read only a small bit) the employers did so infer and the Tribunal, having heard what was put in front of them, including evidence about the enquiries which the Company had made, decided - not themselves that that was the proper inference - but that it was reasonable for the employers so to infer.

	We cannot, on this or any of the other grounds which are put forward by the appeal, find here any error of law by the Industrial Tribunal.  It was for them and for them alone to say whether the employers did indeed entertain a reasonable belief in the guilt of Mr Pemble and whether they had arrived at that on reasonable grounds after conducting a fair enquiry.  They concluded that they had.  We cannot see any error in the reasoning of this Tribunal at all and most certainly we cannot find any error of law here and in those circumstances the appeal must be dismissed.