Appeal No. EAT/1140/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 15 February 1995

	Before

	THE HONOURABLE MRS JUSTICE SMITH

	MR J R CROSBY

	MR J D DALY

DAVID WILLIAMS	APPELLANT

ALLIED BAKERIES LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

	NO APPEARANCE BY OR 	ON BEHALF OF THE 	APPELLANT	

	MRS JUSTICE SMITH: This is the preliminary hearing of an appeal from the decision of an Industrial Tribunal sitting at Newcastle-upon-Tyne in January and March 1994 in which they held that the dismissal of the Appellant Mr David Williams by his employers Allied Bakers Ltd had been fair.  The Appellant has been unable to attend the hearing of this appeal due to bereavement.  However, he has indicated by telephone that he wishes the appeal to be considered in his absence.  

	The Appellant was employed by the Respondent, Allied Bakeries at their premises in the Team Valley Trading Estate, Gateshead from 1981 until his dismissal on 28 September 1993.  During his service with the Respondent, the Appellant was regarded as having an excellent character.  He was well thought of by management, particularly by Mr Richard Green, the Distribution Manager and Mr Longley, the Chief Executive.  At the time of his dismissal, he was working as a stand in supervisor in the despatch department as management were testing his aptitude for promotion.  At about 4.30am on 18 September 1993, Mr Tatters who was in charge of the bakery stores, was working in the Flour Store when he saw two men, each carrying an unopened box of molasses.  The men emerged from the adjacent hopper room and walked across the stores towards the van parking area, beyond which there is access to the despatch department.  Mr Tatters challenged them and both men ran into the van parking area and disappeared.  Soon afterwards Mr Tatters found one of the boxes just inside the parking area and the other was discovered underneath a parked van.  Mr Tatters believed from the outset that one of the men was a person who acted as stand in supervisor in the despatch department.  He did not know the name of that person.  

	At about 5.00am that morning, Mr Steel, the Shift Operations Manager, telephoned Mr Noble, the Bakery Manager, at home, and told him that he had just been approached by the Appellant and a man named DC and that the Appellant had told him that Mr Tatters had just caught the two of them with molasses.  

	When Mr Noble arrived at work later in the morning, he saw Mr Tatters, who recounted what he had seen and described the man he called "the stand in supervisor on the despatch department".  That description was later reduced into a written statement.  Mr Noble then consulted with the Security Manager and the Distribution Manager, Mr Richard Green.  A confrontation was arranged between Mr Tatters and the Appellant in order to see whether Mr Tatters confirmed the identification he appeared to have made.  That confrontation took place on 20 September and Mr Tatters identified the Appellant as being one of the two men whom he had seen taking the boxes of molasses.

	Mr Richard Green then interviewed the Appellant in the presence of Mr Noble and Mr Weddle the Security Officer.  He was told the nature of the allegation which he denied and he was suspended from work with pay.  After that, Mr Green made some enquiries of personnel who had been on duty on the night of the alleged misconduct.  He also spoke at length to Mr Tatters.  At some stage, Mr Steele approached Mr Green and told him about the conversation which he alleged he had had with the Appellant at 5.00am on 18th September.

	On Friday 24 December there was a disciplinary interview.  The Appellant was represented by his trade union representative Mr Keegan.  Mr Keegan asked to see a copy of Mr Tatter's statement, which contained a description of the man alleged to be the stand in supervisor of the despatch department.  This request was refused and the interview proceeded without Mr Keegan or the Appellant seeing that statement.  During the interview, the allegation was put again and denied by the Appellant.  Mr Keegan referred to four witnesses who might be able to provide relevant information amounting to an alibi, in respect of the Appellant's whereabouts at the relevant time.  However, at the end of that meeting Mr Green told the Appellant that he was dismissed with immediate effect.  Mr Keegan objected that the matter had been prejudged because the four potential alibi witnesses had not been seen.  Shortly after the meeting, Mr Green accepted that he had acted precipitately.  He rescinded his decision and informed Mr Keegan that he would make the necessary enquiries.  The Tribunal formed a view that was a genuine and well-intentioned move on his part.  Thereafter, Mr Green interviewed three out of the four witnesses named by the Appellant but none was able to provide alibi evidence of real assistance to the Appellant.  

	On 28 September the disciplinary process was resumed.  A further interview took place, again in the presence of Mr Keegan, and Mr Green told the Appellant that the witnesses had been interviewed but had not provided helpful information.  The Appellant was given another opportunity to add anything else that he wished to say.  He was them summarily dismissed and told of his right of appeal.  

	The appeal was conducted by the Chief Executive, Mr Longley.  The Tribunal considered that it was a very thorough re-hearing of all the issues. They considered that Mr Longley formed an independent view and acted very fairly.  There is no criticism of that finding in this appeal.  

	Having found the facts as we have indicated, the Tribunal declared that they were satisfied that the reason for the Appellant's dismissal was Mr Richard Green's genuine belief that he was one of the two men, who in the early hours of the morning of 18 September had dishonestly appropriated two boxes of molasses.  They then turned their attention to section 57(3) of the 1978 Act and referred themselves to the case of British Home Stores Ltd v Burchell [1980] ICR 303. They considered that Mr Green had carried out a reasonable investigation into the allegation of misconduct.  They analyzed the procedures which had been followed.  They concluded that Mr Green had reasonable grounds for reaching the conclusion which he had reached.   Also they considered that the procedures which had been followed were fair.  They were in no doubt that summary dismissal was an available option if the conclusion that the Appellant had been guilty of dishonesty was a reasonable and honestly held conclusion.  So far as the appeal was concerned, they considered that the complete re-hearing was comprehensive and fair.  They concluded by finding that the Appellant's dismissal was fair.

	The notice of appeal contains two related grounds.  Both are concerned with the refusal of the Respondent to provide a copy of Mr Tatters' written statement at the first disciplinary hearing.  The first ground complains that the Tribunal ought to have found the procedure unfair on account of the Respondents' refusal to provide to the Appellant a copy of the written statement made by Mr Tatters.  Complaint is also made of the Respondents' failure to allow the Appellant to hear the evidence of the witnesses.  

	In our judgement this ground of appeal reveals no error of law by the Industrial Tribunal.  The Tribunal did consider the refusal of the Respondents' to disclose Mr Tatters' statement.  They did so in the following terms:

			" We considered with some care the import of our view that Mr Keegan had asked for a copy of Mr Tatter's Statement but had been denied the same.  We decided that this did not make the dismissal unfair: the applicant knew the details of Mr Tatters' contention and although the statement would have revealed particulars of the description with which the applicant could have taken issue, bearing in mind all the evidence that we heard we do not think that the dispute would have been fruitful, productive or particularly relevant."  
	It seems to us that the view the Tribunal took on the refusal of the Respondents to allow the Appellant to see this statement was that it might have been of some little use to him in the conduct of the disciplinary hearing but they did not think that the effect of that refusal was serious enough to make the procedure unfair.  We consider that that was a conclusion which they were entitled to come to on the evidence and we do not think that any error of law is revealed.  

	As to the second complaint, that it was unfair not to allow the Appellant to hear the evidence of the witnesses during the disciplinary procedure, it is not clear to us from the decision whether that point was argued before the Tribunal.  However even if it was argued and was not mentioned by the Tribunal in their decision, we do not consider that there was any error of approach by the Tribunal.  There is no rule of law that a disciplinary hearing must entail a confrontation of the accused person by the witnesses and an opportunity for cross examination.  Some employers, it is true, have disciplinary codes which provide for such a quasi judicial procedure but these employers did not.  There is no requirement of law or indeed of natural justice that all employers should follow such a procedure.  The requirements of natural justice, in a situation of this kind, are that the person accused should be told the nature of the allegation against him and should have the opportunity to answer it.  Both of those requirements were satisfied in this case.  

	The second ground of appeal suggests that the Industrial Tribunal have erred in the passage in which they deal with Mr Tatters' statement in that they have followed what is described as the "forbidden reasoning", identified in the case of Polkey v A E Dayton Services Ltd [1988] ICR 142.  We have had some difficulty in understanding the allegation made in this ground of appeal.  The forbidden reasoning identified in the Polkey case is concerned with the situation in which the Tribunal finds that there have been procedural irregularities in the conduct of the disciplinary procedure.  Some Tribunals had in the past found that those procedural irregularities had made no difference to the result and dismissal was fair.  That reasoning is disapproved in the Polkey decision. But it is not the reasoning which has been followed by this Industrial Tribunal.  This Industrial Tribunal has considered the effect of the Respondents' refusal to disclose the statement and has concluded that the refusal was not unfair. Thus the situation is quite different from that which is envisaged in the "Polkey" decision.  

	We are quite satisfied that the passage complained of does not disclose any misdirection of law by the Tribunal.  Accordingly it seems to us that this appeal has no prospect of success and must be dismissed.