Appeal No. UKEAT/0481/07/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 April 2008

Before
HIS HONOUR JUDGE REID QC
MR B R GIBBS
MR M WORTHINGTON

CARLSBERG UK LTD	APPELLANT

1) MR P CRAMP
2) MR D RABBITT	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR GARY TAIT
(Solicitor)
Messrs Tollers Solicitors
2 Castilian Street
Northampton
Northamptonshire 
NN1 1JX	
For the Respondent	MR KEVIN HARRIS
(of Counsel)
Instructed by:
Messrs Pattinson & Brewer Solicitors
34 Lime Street
London
EC3M 7AT	

SUMMARY
Unfair dismissal – Procedural fairness/automatically unfair dismissal
Respondents dismissed.  Employment Tribunal held that there had not been “adequate” inquiry to establish guilt.  Substituted its own view for “reasonable band” test.  Appeal allowed.  Remitted for re-hearing.

HIS HONOUR JUDGE REID QC

1.	This is an appeal from a decision of an Employment Tribunal held at London (South) on 1 and 4 June 2007.  The judgment was sent to the parties and noted in the register on 11 June and the reasons were sent to the parties and entered on the register in 26 July 2007.  The appeal is by the employer Carlsberg and the issues arise out of the dismissal of the two Claimants Mr Cramp and Mr Rabbitt who were employed by Carlsberg.  

2.	The facts are fairly short and simple.  The two employees were delivering for the employer out of an outbase operation in Lenham near Ashford in Kent.  They would load up their vehicles with about 11 tonnes of beer a day deliver and collect empties from customers before returning to the out base.  

3.	On 16 November 2006 a customer reported that some kegs were missing.  By the time that this had been reported the two employees had finished work for the day and parked up their lorry at the Lenham outbase about 1.00 pm.  Two senior managers Mr Shaikh and Mr Noble then went down to the Lenham base from Croydon.  They arrived there at about 4.30 and conducted a search taking some 2 ½ hours.  They searched not only the lorry the employees had been driving but the only other lorry which was at the outbase and they also searched around the out base to see if there was any sign of the missing kegs.  As a result of the investigators failing to find the missing kegs the employees were suspended and then, following that the investigation, called to a disciplinary hearing.  

4.	In the meantime, the following day, statements had been taken both from the landlord who was involved and the bar manager of the particular public house.  There was some discrepancy as to precisely what was missing but it is common ground that at any rate two barrels of Toby and one barrel of Fosters were said to be missing.  There was an issue as to whether a fourth barrel which it was said was missing was a barrel of Guinness or of Stella Artois.  

5.	The disciplinary hearing did not permit of cross-examination of either of the two inspectors.  There was subsequently an appeal hearing and again there was no direct cross-examination permitted and indeed no evidence on either occasion was given by either of the inspectors in the presence of either of the employees though in relation to one of the employees evidence was given in the presence of the experienced union representative who was representing them.  The employees were dismissed and the employer then dismissed their appeals.  

6.	Before the Tribunal the issue was very much narrowed down.  At paragraph 5 the Employment Tribunal said this:

“The issue was narrowed down considerably by both parties to the consideration of whether the Respondent had conducted adequate investigations into the respective culpability of each Claimant in accordance with the first limb of the Burchell test.”

That is clearly a slip because the Burchell test is as follows: 

“First of all it must be established by the employer the fact of that belief, that the employer did believe it, i.e. the alleged dishonest conduct or misconduct, secondly that the employer had in his mind reasonable grounds from which to sustain that belief and thirdly, we think, that the employer at the stage of which he formed that belief on those grounds at any rate of the final stage at which he formed that belief on those grounds and carried out as much investigation into the matter as was reasonable in all circumstances of the case.”  

We think that the Tribunal intended to refer to the third limb of the Burchell test which they characterised as conducting adequate investigations.

7.	The Tribunal then went on and criticised the investigation at paragraph 9.  It said: 
“As already, the focus of the Tribunal’s consideration was on whether the Respondent conducted adequate investigations.  There were many points that were made by the Claimants which were not of significance in the Tribunal’s view.  For that reason, on grounds of proportionality, those are not dealt with in these reasons.  However the Tribunal found one particular aspect of concern.  The point was made that the Respondent should not have conducted a search of the lorry at Lenham due to inadequate lighting conditions.  The Respondent’s answer is that the lighting conditions were not relevant as the Managers needed simply to ascertain if there were kegs which contained some product as opposed to being empty.  This point led the Tribunal to give very close consideration to the evidence which was produced by the Respondent in each case about the nature of the search and on the statements of Mr Noble and Mr Shaikh and also on the information from the pub.”

It noted that it was not in dispute that the employees took one Fosters and two Toby kegs.  They criticised the fact that no opportunity was given to question the two inspectors and they then concluded in effect that there was an inadequate investigation.  

8.	Before us what is said is that in so doing the Tribunal fell into an error of law in that what they determined was whether in their view the investigation was adequate.  That is the wording that they use both in paragraph 5 of their decision and in paragraph 9, rather than using the wording which appears in Burchell “as much investigation into the matter as was reasonable in all the circumstances of the case”.  They evidently took the view that there should have been a further investigation in daylight and that there should have been perhaps more thorough investigation with the landlord and that there should have been further opportunity for examination one way or another by the two employees of the two inspectors.  

9.	In our view, in so doing, they fell into error.  They were substituting their own view as to what was an adequate investigation, a proper investigation, the investigation that they would have liked to have seen done for the decision that they should have made as to whether the investigation fell within the range of reasonable responses.  It has been clear law since Sainsbury’s Supermarkets Ltd v Hitt that “the range of reasonable responses” test or, to put it another way, the need to apply the objective standards of the reasonable employer applies as much to the question whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for conduct reasons.  

10.	In our view, therefore, the Tribunal fell into error.  It applied the wrong test in law.  It substituted its own view as to what should have been done by way of investigation instead of asking whether or not the investigation fell within the band of reasonable responses and for that reason the appeal must be allowed.

11.	We will now hear submissions as to what the consequences of that decision is and as to whether the order should simply be of the appeal be allowed and the two applications be dismissed or whether the case should then be remitted and if so whether to the same or to some other Tribunal.

[Discussion]
12.	Despite the submission as to proportionality, it does seem to us that it is not possible on the material that we have got (particularly as it is clear that there were other matters not expressed within the decision) to say that it would inevitably have been the case that, had the Tribunal asked itself the right question, it would have come to a different answer to that which it did when it asked itself the wrong question.  In those circumstances we think that the matter has to go back.  We also think that in all the circumstances it is appropriate that the matter should go back to a different Tribunal.  It is now some considerable time since the original Tribunal heard matters.  It is inevitable that their views would be coloured by the decision they have already reached and they are likely to have only a partial memory of other matters.  In those circumstances we take the view that the appropriate course is to send the matter back to be reheard before a fresh Tribunal.