Appeal No. EAT/0994/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 July 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR P M SMITH
MISS D WHITTINGHAM

MR C J ROSS	APPELLANT

FREEMANS PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANT	

JUDGE PETER CLARK

1.	This appeal came before a division presided over by Judge Pugsley for preliminary hearing on 17 January 2001 and was then adjourned to enable the Appellant, Mr Ross, to pursue an application for legal aid.  In the event, legal aid was not granted and the matter has been restored for hearing before us today.  Mr Ross has indicated that he would not be attending today.  In these circumstances we have proceeded to consider the case on the papers, taking into account his skeleton argument, originally dated 7 February 2000, a copy of which was enclosed with his recent letter received by the Employment Appeal Tribunal on 12 July 2001.

2.	This is an appeal against the decision of the Ashford Employment Tribunal promulgated with extended reasons on 4 July 2000, dismissing Mr Ross’ claim of unfair dismissal, brought against his former employer, the Respondent, Freemans Plc.

3.	The Respondent is a large mail order firm.  The Appellant was employed by them at their Rochester distribution centre from November 1993 until his summary dismissal on 30 November 1999.

4.	The incident leading to his dismissal occurred on 9 November 1999.  On that day two television sets, worth nearly £1,000 each, were stolen from the premises.  CCTV footage taken in the area of the theft was viewed by three members of staff including a Security Officer, Miss Wilkinson.  Those viewing the videotapes concluded that it was Mr Ross who could be seen going to the television sets, loading them onto a barrow and taking them out of the premises through a door which he had previously raised.

5.	Miss Wilkinson called the police, in accordance with the Respondent’s usual procedure, and reported the matter to the Depot Manager, Mr O’Leary.  The police attended and took witness statements and departed with the videotape.

6.	Mr Ross went off sick until 15 November.  On his return he was told of the investigation and was suspended.  He was then arrested by the police and interviewed.  During the course of that interview he was shown the relevant tape.  The police had the only copy and would not release it, nor a further copy to the Respondent.

6.	At an investigation hearing on 24 November the Appellant said nothing on the advice of his solicitor.  Mr O’Leary decided to hold a full disciplinary hearing the next day.

7.	On 25 November the Appellant attended with his Trade Union representative.  An adjournment was sought whilst he produced letters supporting an alibi for the time in question.

8.	That application was granted and the disciplinary hearing resumed on 30 November.  The Appellant produced letters to show that he was at home in Chatham by 5.45pm on 9 November and therefore must have left the Respondent’s premises by 5.30pm when he clocked off.  However, it was established that the clocking machine was running 5minutes fast and from the video evidence it emerged that the theft took place between 5.23 and 5.30pm.  Mr Ross had in fact clocked off at 5.19pm and had then entered the tea room.

9.	The Appellant admitted that a theft took place, but denied that it was he who was depicted on the tape.

10.	Mr O’Leary accepted the evidence of the witnesses who had seen the tape, that it was in fact the Appellant.  He was on the premises at the time and the witnesses, who knew him, described his distinctive gait and his hair, tied up in a ponytail by an elastic band with metal on it, which glinted in the light.

11.	In these circumstances Mr O’Leary summarily dismissed the Appellant.  The Appellant appealed to the Regional Manager, Mr Gallagher.  That appeal was heard on 12 January 2000 and adjourned for further enquiries.  Following those enquiries Mr Gallagher decided to reject the appeal.

12.	On these facts the Tribunal concluded that the Respondent had reasonable grounds for their belief, following a reasonable investigation, that the Appellant had stolen the television sets, following a fair procedure.  That was misconduct for which the penalty of dismissal was not simply permissible, it was inevitable.  The dismissal was fair.

13.	In this appeal Mr Ross, in his skeleton argument, focuses on the enquiries made by Mr Gallagher following the appeal hearing.  On 19 January he posed a number of questions to Mr O’Leary arising out of the appeal meeting held on 12 January.  His responses to those questions are recorded at pages 24-29 of our bundle.  Mr Ross submits that this did not represent an adequate investigation, limited as it was to questioning Mr O’Leary.

14.	This argument was addressed to and recorded by the Tribunal at paragraph 21 of their reasons.  They considered it but concluded that in all the circumstances of the case the Respondent had carried out a fair investigation.  That is a question of fact for them with which we cannot and will not interfere.

15.	Secondly, Mr Ross refers to the ACAS Code of Practice and the well-known Burchell test.  It is plain to us that the Employment Tribunal had that test well in mind and applied it properly to the facts of the case.  We note that both parties were represented by Counsel below.

16.	In short, we can see no error of law in the Tribunal’s approach.  Consequently, this appeal is dismissed.