Appeal No.	 EAT/1199/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 January 1997

Before
THE HONOURABLE MR JUSTICE KIRKWOOD
MR P DAWSON OBE
MRS J M MATTHIAS

MR M EVANS	APPELLANT

SUPERDRUG PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P GREANEY
(of Counsel)
Carter Bentley & Gundhill
33 Ropergate
Pontefract
W Yorks
WF8 1LE
	
For the Respondents	MR P MOONEY
(Consultant)
Irenicon Ltd
Airport House
Purley Way
Croydon
CRO OXZ	

	MR JUSTICE KIRKWOOD:	This is an appeal by Mr Evans from the decision of an Industrial Tribunal at Leeds registered on 27 September 1996 dismissing his complaint of unfair dismissal.

	The backgrounds facts as found by the Industrial Tribunal can conveniently be taken from the Tribunal’s Extended Reasons.  

a.  Mr Evans had worked as a warehouse operative for the respondent from 30 April 1990 until 29 April 1996 when he was summarily dismissed.
b.  He had transferred within that organisation from Southampton to the South Elmsall depot in 1992.
c.  On Friday 26 April 1996 there was a security ‘blitz’ for want of a better word and Mr Evans raised the suspicions of a security guard.
d.  Mr Evans was followed to the toilets and was seen to exit one of them.  Upon the security guard checking that toilet some razors, which were company property, were found.
e.  The conclusion was reached that Mr Evans had misappropriated them and he was reported.
f.  Mr Stephen Binns, a shift manager was told of this on the Monday morning, Mr Evans having been suspended with Mr Knight’s permission on 26 April.  On Monday 29 April Mr Binns had before him various statements from security officers and so on and he conducted a disciplinary hearing at which Mr Evans was accompanied by Mr Taylor who took notes.
g.  The hearing was then adjourned from the morning to the afternoon so that Mr Binns could check certain matters and it concluded with Mr Evans being dismissed and told of his right of appeal whereupon he produced a letter already written asking for an appeal.
h.  It was accepted by Mr Binns in evidence that there were a number of failures in the procedure at that disciplinary hearing which rendered it unreasonable and procedurally defective.
i.  On appeal Mr Brian Knight carefully went through matters and many of those matters that had been unfair in the original appeal were put right.  However, the appeal itself also raised certain questions of unfairness in the procedure.”

	Having decided those facts the Industrial Tribunal expressed its decision in these terms:

“5.  It would be very easy to get lost in this situation and at the end of the day none of the procedural defects would have necessarily assisted the applicant because the ultimate question was were the security officers to be believed or was Mr Evans to be believed; that was a straight issue, a matter which had to be decided by management and could be decided one way or the other and, in the event, the management decided against Mr Evans on this occasion.  Having decided that he had misappropriated company property it followed, in the circumstances, that it was reasonable to dismiss Mr Evans.

6.  The tribunal says that the applicant was dismissed for a reason related to conduct and that the respondents actions in dismissing him fell within a broad band of reasonable responses.”

	Mr Evans appeals from that decision of the Industrial Tribunal.  Fundamental to his appeal, as presented in the written skeleton argument, was this assertion:

“15.  That approach was wrong in law and/or was perverse.  Having reached the conclusion that there was procedural unfairness, the Industrial Tribunal ought to have concluded that the dismissal was unfair.  The question of whether that unfairness would have made any difference was a matter which went only to compensation.”

	We unanimously reject that argument and, indeed, it has not been pursued by Counsel for the Appellant in the course of oral argument.  Unless the appeal procedure of investigation is conducted with the strict formality of a criminal trial, it will very commonly be possible by analogy, to point to some supposed flaw in it.  The task of the Industrial Tribunal, as we perceive it, is to identify such flaws as it finds relevant and then to go on to consider whether, in the light of all the material before it, the process was so flawed as to vitiate its conclusion so that the finding of unfair dismissal cannot stand.  That is what this Industrial Tribunal did and properly did.  

	It became clear, in the course of argument, that the Appellant’s case was not as set out in the skeleton argument in the passage I have quoted, but that in fact there were flaws in the appeal procedure which were so fundamental as to undermine its validity and that the Industrial Tribunal should have found that, in the light of those flaws, the dismissal was unfair.  

	First, it is said, on the Appellant’s behalf, that he was not provided with copies of statements on which the employer relied, nor with full detail of their content, nor with written notes of the original hearing.  As to the latter, the Appellant was attended at the original hearing by a witness, Mr Taylor, one of whose rights was to make notes of the hearing and as the Industrial Tribunal found, he did so.

	During the course of the appeal procedure the Appellant, we are told, was supplied with copies of those notes and, it is to be remarked that towards the conclusion of the hearing by Mr Knight, the Appellant was asked, “Is there anything else?” and his reply was, “I think I’ve raised all my points”.  As to the former, the failure to supply the Appellant with copies of the statements, the lay members sitting with me are clear that it is not normal or necessary practice to supply witness statements; it is also abundantly clear that the material points were put to Mr Evans by Mr Knight in the appeal hearing.  He clearly knew the case against him and the relevant detail of it.  

	Secondly, it is said, that the Appellant was not present when witnesses were interviewed, nor could he question them.  Similarly, the usual investigation procedure does not involve the presence of an employee when witnesses are interviewed, nor the process of cross-examination.  Counsel for the Appellant has accepted the Respondents’ argument that it is well established that employees have no right to cross-examine a witness at a domestic enquiry.

	The third point relied upon by Counsel for the Appellant is that Mr Knight interviewed only two of the numerous witnesses named by Mr Evans.  The two witnesses who were named by Mr Evans and interviewed by Mr Knight, were Mr Shepherd, whose evidence went to the course of events in the toilets, and Diane Newbound, whose evidence went to a key point in the defendant’s case as to why he had gone to the office of Sharon that afternoon, even after it was closed.  Those witnesses were interviewed and statements taken from them.  

	The three other witnesses named by Mr Evans were Wayne, the attendant in the toilets, whose evidence, as we understand, went to substantially the points addressed by Mr Shepherd’s evidence; and Mr Taylor and Mr Lamb, whose evidence was to have gone to the same point (as I think) as to the movement of security officers, and it is to be noted that Mr Taylor was present throughout the original hearing and the appeal hearing and whilst he intervened on some matters in the appeal hearing, was silent on this aspect.

	Furthermore, we have in mind that management, conducting such an investigation, have to make a judgment about which witnesses it is appropriate and helpful to see and that is clearly something that was done in this case.  When there is reference in the skeleton argument to numerous witnesses that is a reference to an assertion by Mr Evans that there were a large number of people in a particular category, unnamed and unidentified by him, who could speak to certain aspects of the detail of the events and it is said that it is open to the management to ascertain who those were.

	On these aspects of the case the Respondent submits in writing in these terms:

“5  ...  the Appellant complains that he was not allowed to cross-examine witnesses or to make a closing statement.  It is well established that employees have no right to cross-examine a witness at a domestic enquiry.  All that natural justice requires is that the person accused should know the accusations made, should have an opportunity of stating his case and the tribunal should act in good faith. ... In this case the Appellant was well aware from the outset of the nature of the accusations against him.  He was also made aware of the nature of the evidence against him.  Various statements were read out to the Appellant at both the original hearing and at the appeal as stated in the notes of both proceedings.  He was also invited to state his case on each occasion and given every opportunity to make a further statement especially in his appeal ...  He also walked through the alleged events with Mr Knight.”

	That argument is one with which we agree.

	The fourth ground of irregularity argued on the Appellant’s behalf is that Mr Knight, who conducted the appeal, had earlier involvement in the matter.  Mr Knight was, in fact, the member of senior management who was consulted over the telephone on the evening of the events that were in issue and who approved, over the telephone, the suspension on full pay of Mr Evans pending investigation.

	While views may differ as to whether Mr Knight was the appropriate person to hear the appeal, it is as well to remember that this was a matter before the Industrial Tribunal.  It is well to remember too that suspension on full pay in such circumstances is essentially a neutral act and it is important to remember that Mr Knight himself expressed his determination to conduct a full and independent investigation.

	Mr Knight’s investigation by means of a re-hearing plainly was a thorough, careful and conscientious one.  Mr Evans clearly knew the case against him.  He was told the important points of the evidence and had the opportunity to dispute it, to give his own account and to argue his case.

	The Industrial Tribunal heard oral evidence of material witnesses and formed its own impressions of them and of the procedure adopted by the employers in dismissing Mr Evans.

	It is argued that it was not open to the Industrial Tribunal to reach a conclusion that the procedure followed, being flawed, it would not have made any difference if it had not been flawed.  I indicated earlier in this judgment that the Industrial Tribunal must establish such flaws as it considers relevant.  The mere fact that there is one or more minor flaw neither vitiates the procedure nor disentitles the Industrial Tribunal from holding that the dismissal was a fair one.  

	That is the approach this Industrial Tribunal adopted and, having given the fullest consideration to these papers in this appeal and to the arguments, we have formed the unanimous conclusion that there is no substance in the appeal and that it must be dismissed.