Appeal No.	 EAT/52/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 May 1998

Before
 THE HONOURABLE MR JUSTICE LINDSAY
MR L D COWAN
LORD GLADWIN OF CLEE CBE JP

W G BOWERS & A J BOWERS	APPELLANTS
T/A TLP EXPRESS DELIVERY

MR JOHN DALE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR R ASHTON
Solicitor
Messrs Hacking Ashton
Solicitors
Berkeley Court
Borough Road
Newcastle Under Lyme
Staffordshire
ST5 1TT	
For the Respondent	IN PERSON	

	MR JUSTICE LINDSAY:     We have before us, by way of a final hearing, an appeal by the employers, or erstwhile employers, William George Bowers and Alexandra June Bowers t/a TLP Express Delivery, in the matter J. Dale against those individuals.

	TLP Express Delivery employed Mr Dale as a van or lorry driver in relation to their business of delivering goods as carriers for other people.  There was a hearing on 16 October 1997 which led to a decision promulgated on 11 November 1997.  It was a decision of the Industrial Tribunal at Shrewsbury, under the chairmanship of Mr D.P. Thompson, and the unanimous decision of the Tribunal was that the Applicant had been unfairly dismissed and the employer was ordered to pay the Applicant compensation in the total sum of £4,820.

	It is necessary to look a little into the background to the case.  On 10 June 1997 Mr Dale lodged his IT1 claiming unfair dismissal.  The dismissal claimed was one as at 6 June 1997, so his complaint was very prompt.

	On 26 August 1997 the employers answered with their IT3, which asserted, firstly, that there had been a final warning given to Mr Dale on 7 May.  It had been given to Mr Dale and had been preceded by earlier warnings, and, secondly, that there had been a loss of two parcels from Mr Dale’s vehicle on 6 June, and, quoting from the IT3:

“As a result of this, and the previous warnings .... the applicant was dismissed for gross misconduct.”

	As the dismissal was on 6 June and the loss of parcels was on 6 June, it was plainly a summary dismissal for gross misconduct that was being alleged by the employer.  As I mentioned earlier, on 16 October there was a hearing before the Industrial Tribunal and the decision was promulgated on 16 November.  It was a case in which Mr Dale had not been represented below but the Respondent employer had been represented by a Solicitor.

	The Industrial Tribunal held that the written warning of 7 May 1997, although sent by the employer, had not been received by the employee, Mr Dale.  What they said on that was this:

“4.  ...There is a dispute about that letter as indeed about the letter of 7 May 1997 [that letter being a reference to an earlier warning] because on the one hand Mr Hancock says he sent them to the Applicant and the Applicant says he never received them.  That is a conflict that we really do not have to resolve.  We accept that the Applicant never received them, but equally we have no evidence to the contrary to suggest that Mr Hancock did not send them.  We accept that the letters were sent but we also accept that they were not received.”

	So that, not having been received by Mr Dale, the written warnings there spoken of could really have no weight against Mr Dale.  But the Industrial Tribunal found that the reasons for the dismissal were, with one exception, as the employer had specified them to be in a letter of 10 June 1997.  They say at their paragraph 4:

“The reason for the decision to dismiss was an accumulation of reasons which were given in evidence by the Respondents and which were set out in their letter to the Applicant dated 10 June 1997.”

	The real reasons for the dismissal were thus those in the letter of 10 June, but less some allegations in relation to tachograph misdemeanours, in respect of which no real ground of complaint could usefully be pursued in the sense that the tachograph rules had seemed to be honoured more in the breach than in the observation.

	So the Industrial Tribunal then had to turn to looking into the grounds, as specified in the letter of 10 June by the employer, less the tachograph points, and they concluded that the reasons there specified were at least potentially fair reasons.  What they say in paragraph 6 is:

“The reasons are ‘conduct’ within the meaning of section 98(2) of the 1996 Act, and they are potentially fair reasons.”

	When conduct is the ground upon which an employer relies in order to justify the fairness of a dismissal, then there comes into play the well known two or three-part test suggested by such cases as British Home Stores Ltd v Burchell [1978] IRLR 379 and that test can be formulated either in three parts or in two, but, taking it as three, it raises the questions firstly, did the employer believe the misconduct had taken place?  Secondly, did he have reasonable grounds to sustain that belief and thirdly, had he carried out such an enquiry as was reasonable in the circumstances of the case.  One might knock numbers two and three together and ask instead whether the employer had reasonable grounds which were arrived upon, or sustained after, a reasonable enquiry.  As to that, the Industrial Tribunal directed itself in its paragraph 7.  What they say there is this:

“We then have to decide whether or not this dismissal was fair in accordance with section 98(4) of the Act.  We have a number of cases that interpret that section, one of the most important of which is British Home Stores Ltd v Burchell [1978] IRLR 379 which states that we have to be satisfied that the Respondents came to a genuine belief on reasonable grounds after proper and adequate investigation.  This is subject, of course, to the observations of His Honour Judge Clark in Boys and Girls Welfare Society v McDonald [1994] IRLR 129.  Another matter that we have to take into account is whether the decision of the Respondents, the employers, came within a range of reasonable responses of a reasonable employer, or does it fall outside that range?”

	In terms of the adequacy of that, as a direction to themselves, we have heard nothing to suggest that it was a direction that in any way erred in law, and the Industrial Tribunal then went through the various events that had been complained of in the letter of 10 June.  The first event of any substance was the loss of Moorcroft Pottery on 24 December 1996.  As to that, the Industrial Tribunal preferred the evidence of Mr Dale.  What they said there is “We accept the evidence of the Applicant on that matter”, but there is, in any event, no indication in the evidence, in relation to the loss of Moorcroft Pottery, that in any way there had been an adequate investigation on the employer’s part.  The fact that Mr Dale had been warned in relation to the loss of the Moorcroft Pottery was, no doubt, later borne against him in the sense that it could have been complained of by the employer that he had had a warning given to him relating to it and had not taken any steps to have it set aside on appeal.  But against that, it appears in the reasoning of the Industrial Tribunal that the company had no written disciplinary procedure and there was no reason, therefore, why Mr Dale should have known that he could have appealed.  In turn, of course, that meant that his failure to appeal against the warning would have had little or no weight against him.

	The second matter complained of was one that concerned the loss of some video tapes and the conclusion of the Industrial Tribunal there was:

“We consider that this is another occasion where the warning given to the Applicant was unjustified and [one has to notice the ‘and’] there was an inadequate investigation preceding it.”

	So, again, no adequate investigation.  

	The third allegation concerned either the theft of pallets or the use of company vehicles or a company vehicle and company fuel and so on in relation to the movement of pallets.  The pallets themselves were held not to have belonged to the company.  The Industrial Tribunal held:

“The pallets were in fact not owned by the Respondents but by customers who had asked the Applicant to dispose of them.  The Applicant shared the money received with the customers’ representatives.  Explanations were given by the Applicant, and he did not admit any theft.”

	If the accusation made to Mr Dale had been that he had stolen the pallets, then it was manifestly untrue, but it may be that the complaint was simply (to quote what is said) that Mr Bowers, on the employer’s part, had said words to the effect that:

“It’s my wagon, my tyres, my fuel, my time and that’s theft.  Fetch the police in.”

	But it is quite evident from the setting out of the circumstances that this was an incident that involved shouting and swearing by Mr Bowers (who, we should add, did not give evidence to defend his position or explain it) and there is no indication whatsoever or suggestion that Mr Bowers had come to the view that there was theft, as he shouted out, with the benefit behind him of any investigation at all.  The point seems not to have been investigated but was a matter of immediate reaction on Mr Bower’s part.

	The fourth and last complaint that was dealt with concerned two vases and the Industrial Tribunal dealt with that at paragraph 15:

“We then come to the final incident [and it is always interesting to concentrate on the final incident because this is, no doubt, viewed by the employer as the last straw] which is the loss of two vases on 6 June 1997.  Again, the Applicant drew us a map and we accept the Applicant’s evidence of what occurred on that occasion.  We think that the reason that these goods went missing was because there was an open invitation to anybody with criminal intent, since there was no adequate lock on the back door of the van when it was left parked.  We accept that Mr Dale complained to the Respondents about the absence of an effective lock, and that nothing was done about it.  It is the Respondents’ fault if these items went missing.”

	Again, there is no suggestion of any enquiry being undertaken before the complaint against Mr Dale was pursued and the suggestion there is that if only the employers had enquired they would have found a good reason, namely that that there was no lock or effective lock on the back of the van.  More generally, the Industrial Tribunal concluded:

“Wherever there has been conflict, we prefer the evidence of the Applicant to that of the Respondents.  We do not consider, in all the circumstances, that the Applicant is guilty of any contributory fault by way of any blameworthy conduct.  It would not be just and equitable that there should be any deduction from any amount of compensation.  We ought to say that when an employee is branded a thief by his employer, he is really making it virtually impossible for his employee to get another job.  Therefore we find that this dismissal was unfair both procedurally and substantively.”

	And they also held this:

“Overall we consider that the Respondents have totally failed to convince us that they came to a genuine belief on reasonable grounds after a proper investigation.  We do not think there was any proper investigation.  We do not think there were any reasonable grounds for their conclusions.  We consider that the decision to which the Respondents came was outside the range of reasonable responses of a reasonable employer and they were unreasonable in treating their reason as a sufficient reason for dismissing the Applicant.”

	That is the background and now we turn to the Appellants’ Notice of Appeal and the argument addressed to us on the Appellants’ behalf by Mr Ashton.

	The first ground of appeal concerns the finding that one or more letters had been sent by the employer but had not been received by the employee.  The skeleton argument says that it was “illogical, perverse and contrary to law” so to conclude and the Notice of Appeal seeks to build upon that.  It seems to us it cannot possibly be said that no tribunal can ever conclude that a document was sent but not received and once one has got to that stage then whether it is a correct finding or not is essentially a matter of fact for the Industrial Tribunal which saw and heard the witnesses giving it.  They are entitled to believe one version or another and, indeed, they are entitled, as they did here, to believe both sides, in the sense that it was believed that documents had been sent but it was also believed that they had not been received.  There is, in our view, no error of law in that conclusion, at all events unless it was shown to us that on the material that they had in front of them no Industrial Tribunal, properly instructing itself could have come to the conclusion to which this one came.  Given that the conclusion to which this one came involved believing both sides on their respective oaths it is hard to see how that could possibly be argued.  We see nothing in that ground.

	As part of that ground, it is urged that there should be some reliance upon the Post Office Inland Post Scheme 1989 which was said to impose an obligation on the Post Office to return any letter which cannot be delivered.  There was no evidence that this letter could not be delivered, rather that it was not, and there was specific evidence as to whether it was posted and whether it was received.  The notes of Appellants’ argument say:

“There was no evidence of either of the letters which it was found had not been received having been returned as not having been delivered.”

	But it seems that, equally, there was no evidence that they were not returned; in other words there was no evidence either way.  We would be very loth to put any weight on the Post Office Inland Post Scheme Regulations in the light of express evidence on the subject, but, even if weight was appropriate, the argument would have had to have been backed up by specific evidence, and there was none.

	Another point taken in support of this first general ground is that, in contract law a postal acceptance takes effect when the letter is posted and Mr Ashton relies on Chitty on Contracts at paragraph 2-029.  But there is, of course, a huge difference between acceptance of a contract and the giving of a warning to an employee.  The whole point of a warning is that it is intended to make an impression on the mind and the future conduct of the recipient.  If the recipient does not receive it, then that impression is never made.  Conversely, contractual acceptance is chiefly concerned with the state of mind of the acceptor who is accepting by letter, so his state of mind is complete when he sends the letter.  There is no adequate analogy between the two positions.

	It is claimed that the fact that the Respondent claimed that he had received some but not others of the letters sent to him should have caused the Tribunal to doubt the Respondent’s credibility as a witness.  However, so far as concerns credibility, the Industrial Tribunal specifically indicated that where the two versions differed they preferred the version of the Applicant employee and that is, of course, a matter for them and which no point of law relates to.  So we see nothing on that first broad head of argument on the employer’s behalf.

	The second broad head argues that the Tribunal, having accepted that the employee was a very small company, (and we have been told it has something like only 12 persons engaged in it) should not have been arrived at findings critical of the company’s behaviour in relation to its procedure.  If the Industrial Tribunal had held that it was only the absence of notes of disciplinary meetings or the absence of a written appeals procedure alone that had caused the dismissal to be unfair, then, perhaps, we would have had to look more deeply into this accusation because it could be that if that had been urged then there had not been sufficient weight given to the smallness of this undertaking.  But the Tribunal did not rely, to any substantial degree, on any such procedural grounds.

	As we have quoted from its reasoning, the Industrial Tribunal’s conclusion was chiefly that there were no reasonable grounds that subsisted after reasonable investigation.  It was, in particular, the failure to investigate that led to the decision that the dismissal was wrongful.  It was not simply procedural issues relating to the absence of notes or the absence of an appeal procedure that led the Tribunal to its conclusion.

	Mr Ashton at first invited us to look at Mackellar v Bolton [1979] IRLR 59, but that case was not pursued and he preferred to draw our attention to an early NIRC case, Tiptools Ltd v Curtis [1973] IRLR 276, but we found nothing in that to advance his appeal.

	Then there is a point taken (and it is a point that is frequently raised in cases such as this) that the Industrial Tribunal had substituted its own views for the views of the employer at the time.  We see nothing of substance in that accusation, because, to reiterate a point we have already made a number of times, it is the absence of investigation that is the chief ground here for finding the wrongfulness of the dismissal.  True it is that, on a number of occasions the Industrial Tribunal investigate what the position would have been had there been an adequate investigation, and conclude in Mr Dale’s favour but, it is the absence of the investigation which is chiefly the matter referred to.

	The skeleton argument next says:

“Until March 1997 the Appellant could have dismissed the Respondent with impunity as he had less than two years service.  It was wrong therefore and contrary to the evidence for the Tribunal to find that the Appellant dealt with the Respondent ‘in a very cavalier and reprehensible fashion’.”

	Which is, indeed, what the Industrial Tribunal had held.  The nub of that decision, on that point, was that there had been an accusation of theft without any reasonable investigation.  The Industrial Tribunal said:

“When an employer is accusing somebody of theft, he cannot just write a letter and say, ‘You’re accused of theft’.  It is a very significant matter affecting people’s lives and livelihoods, and the Respondents have dealt with this matter in a very cavalier, and reprehensible fashion.”

	It seems to us not a point of any substance to complain that until March 1997 the Appellant could have dismissed the Respondent with impunity, as he had less than two years service, because whether or not that position existed, it cannot be right for an employer, without any investigation or any adequate investigation, simply to accuse a Respondent employee of theft.  The fact that the law provides that there is no complaint for wrongful dismissal in the first two years confers no licence to go about accusing men of theft without an adequate prior investigation, and it was that that the Industrial Tribunal was dealing with.  We see nothing in that point in the Appellant’s favour.

	A final point that is spread over a number of sub-points in the Notice of Appeal is that the Tribunal erred in law in finding the Respondent was not guilty of any contributory fault by way of blameworthy conduct and that it was not just and equitable there should have been no deduction from the amount of compensation.  Contributory fault and deduction is not a scientific area in which careful measurement can be made; it is very much a matter for the Industrial Tribunal, as “the industrial jury” as it is frequently called, on the basis of the evidence which it hears.  It was here found that the employer was significantly responsible for a shortcoming, because what the Industrial Tribunal held at paragraph 12 was this:

“What astounded the Tribunal was that during the course of evidence relating to this incident it transpired that for some 18 months the Applicant’s lorry or van had never had a lock on it, and when he did get a lock that was inadequate and for a lot of the time inoperative.  It is not surprising that things went missing from vans from time to time.  When Mr Hancock was asked about this, it was quite clear that he had very little or no knowledge to impart about the locks and the impression we got was that all he really had to say was, ‘Well, if that’s what he says, I can’t really say that that’s not true’.”

	So that one can see that there was a situation in which more than usual blame could be laid at the employer’s door and it also has to be borne in mind that, on the facts of this case, every time there was a difference in the evidence between that of the employer and that of the employee, the Tribunal indicated that it preferred the evidence of the employee.  Questions of contributory fault and deduction from compensation are matters of fact and degree, best left to the Industrial Tribunal that heard and saw the evidence.  

	Finally, we ought to mention a point that is raised in the Notice of Appeal that indicates there was no evidence that any of the other drivers had suffered any similar problems with regard to the loss of goods from their vehicles.  We asked Mr Ashton on this and, I think, the position on which we have to proceed is that there was no evidence, either, that the other drivers had never lost anything.  We cannot fault, in a point of law, the conclusion of the Industrial Tribunal that there should be no deduction.

	All in all, therefore, doing the best we can with this appeal, we see it appropriate to dismiss the matter without having called upon Mr Dale.