Appeal No. EAT/144/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 4 November 1992

	Before

	HIS HONOUR JUDGE J HULL QC

	MRS M L BOYLE

	MR J C RAMSAY

ROBERT McBRIDE DETERGENTS LTD	APPELLANTS

S F REAVEY	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR C GARSIDE
(OF COUNSEL)
Messrs Kuit Steinhart Levy & Co
3 St Mary's Parsonage
Manchester
M3 2RD

For the Respondent	MP P JOHNSON
(SOLICITOR)
Oldham Law Centre
Prudential Buildings
79 Union Street
Oldham OL1 1HL

	JUDGE J HULL QC:  This is an appeal by the employers, Robert McBride Detergents Ltd, against a decision of the Industrial Tribunal sitting at Manchester on 5 December 1990, when they unanimously upheld a complaint by Mr Reavey, the employee, that he had been unfairly dismissed.  

	Mr Reavey was dismissed because he was suspected, by his employers, of having committed a theft.  He was a skilled fitter employed at a factory near Manchester where there was a large number of employees.  He was on the night shift and on the night in question, Wednesday 25th/Thursday 26th April 1990, he was working a very long shift from 4.00 pm until 8.00 am the next morning.  He had that night complained that his car battery needed recharging and, apparently, he was allowed to do something rather unusual which was to take his car around to the back of the workshop where the battery could be charged.

	What happened that night was that - not for the first time - some valuable valves made of stainless steel were stolen from a locked workshop at the premises.  We do not need to go into all the details but whoever did it would have had to climb a partition, get through some barbed wire, go down into the workshop, detach the valves from the structure to which they were connected (this would take half an hour) and then carry them away.  It was thought they would have to have been carried through the fire escape door in the workshop and the suggestion was that Mr Reavey was guilty of that theft.

	The main basis of the accusation was information given to the employers by an informant who wished to remain anonymous, he was referred to as "Bill" but eventually his identity did become known to Mr Reavey.  What Bill told the employers was that on that night he had seen Mr Reavey with a truck (which was like an old-fashioned porters' barrow) and on it he had seen the six stolen valves and Mr Reavey was taking them to his car where, it was suggested, he put them into the boot.  The employers were informed of this in the morning when the theft was discovered.  The obvious course would have been to search Mr Reavey's car but he had driven out of the works before that could happen.  He said that he had taken his car to a public house car park opposite at 6.30 am because when he left at 8.00 am, he always found it very difficult to get out with workers on the day shift coming in - so the car was not on the premises and the employers were unable to carry out the first elementary step.

	The employers informed the police and the police made some enquiries and for a short time arrested Mr Reavey.  Those enquiries took place the first day, Thursday 26 April, and on Friday the employers began their enquiries, the police having said that they were not minded to proceed with the matter after making various investigations.  The police did help the employers by telling them what they had found out.  Mr Reavey denied entirely having anything to do with the stainless steel valves.  He said that he had loaded up his car quite heavily that night.  He had found some builders' sand which he understood was surplus to requirements.  Because his brother needed some sand for flag-laying in his garden and because he, Mr Reavey, had been allowed to take sand away on previous occasions, he had taken the liberty of scooping up this sand and putting it into sacks.  He said that it was the sacks that were on the truck when Bill passed him and they were what was weighing down the boot of his car.  The next day he took the sand around to his brother.

	Among other things, there was the question of whether there was sand in the car boot and the police had actually found that there was some sand.  The truck was looked at by the employers and it was found that there was a great deal of grease on it but no sand and there were marks on it consistent with its having been used to carry these valves.  Mr Reavey did not claim that he had gathered up all the sand and so the employers went round to see if there were any traces of sand left on the ground, and there were not.  The employers spoke to various employees and the employees said that there had not been any sand there.

	Plainly there were different views that might be taken of all this.  It might be said that Mr Reavey had told a cock-and-bull story.  On the other hand, it might be said that it was an innocent explanation of what had happened.  However, before one got to reflections of that sort the first and foremost consideration must be, what did one make of the "evidence" of Bill.  

	The employers carried out an investigation.  First of all Mr Allen, the personnel officer, carried out an investigation and then he adjourned the matter for further enquiries.  There was an enquiry at which Mr Reavey was present with his union representative and he was told the general nature of what was being said, that is, that he had been seen taking away these valves on that particular night on the truck;  an allegation which he flatly denied.  Mr Allen came to the conclusion that Mr Reavey was indeed guilty of the theft alleged and he was summarily dismissed.  

	Mr Reavey exercised his right of appeal and appealed to the manager, Mr Dibben.  Mr Dibben interviewed witnesses, made his own enquiries, verified matters as far as he could and again heard Mr Reavey with two trade union representatives;  the appeal was dismissed.  
	When the matter came before the Industrial Tribunal that Tribunal, having set out the facts much more fully than I have, turned to considering whether this dismissal was fair.

	First of all, they referred to the leading case of British Home Stores v Burchell.  Where an employee is charged with an offence and the employer has to deal with it, he is not required to conduct a criminal trial.  If the employer is to justify dismissal, as in this case on the ground of theft, then the employer must show first of all that he believes in good faith that the employee is guilty of the alleged theft.  Secondly, that belief must be based on reasonable grounds and thirdly, he must have conducted a reasonable and fair enquiry.

	Those requirements, particularly the latter requirements of reasonable grounds and a reasonable enquiry, must depend on the facts of each case.  The Industrial Tribunal are not to put themselves in the position of the employers and say what they would have done; they are required to consider what has been done by the employers and say whether a fair and reasonable employer would or would not have acted in the way which the employers did.  The question is whether what the employers did fell within the band of responses which a reasonable employer might show.  Employers have different ways of dealing with different situations and there will inevitably be variations; what the Industrial Tribunal has to do, in accordance with Burchell, is to say whether what has been done by the employers falls within that band, which may be very wide, of reasonable responses to the situation which has arisen.  

	The Tribunal, dealing with that, gave their judgment as follows:
"6.	The Tribunal were unanimous in their concern that in all the circumstances the investigation carried out by the employers and the grounds on which the applicant had been found guilty of dishonesty were unsatisfactory.  They bore in mind that the applicant had been employed by the respondents for some five years, that he had a previously unblemished character and indeed the respondents had spoken highly of him so far as his job performance and ability and personality were concerned when working for them for this not inconsiderable period of time.  They also bore in mind that the allegation was one of theft, clearly a serious charge, and that the evidence must be persuasive for an employer to condemn an employee on such a serious charge, especially after considerable satisfactory service.  The points that troubled the Tribunal principally were firstly that the only real evidence against the applicant was that of the anonymous informer who said he had seen him wheeling valves on a pipe fitters truck in the course of the night in question.  This person had desired to remain anonymous, and apparently was not prepared to be involved in the disciplinary proceedings as he thought this might lead to acrimony, and the employers had respected this and made no attempt to call him to give evidence before the accused at the disciplinary hearing on the 30 April and the 1 May 1990.  In the event therefore the applicant was not faced with his accuser, and the evidence on which they had finally decided that he had been guilty was entirely untested by cross-examination, either by him or by his representatives on his behalf.  The Tribunal considered this most unsatisfactory and that in such an important matter a witness should not be allowed to hide behind anonymity, and the desire to avoid acrimony, so as to prevent the applicant or his representatives having a fair opportunity to test the evidence on which the employers proposed to rely, by cross-examination.  It will not be by any means always the case that employers should call witnesses before the accused or his representatives at a disciplinary hearing.  Employers are not conducting Courts of Law and are not expected to behave as such, but they are expected to behave fairly and reasonably and where an employee is denying an offence as serious as theft, which after all is a criminal offence, and it should be borne in mind that the police had dropped any question of criminal charges, the applicant should have an opportunity of cross-examining the witness on whose evidence the employers were contemplating his dismissal.

7.	It was also unfortunate that the employers had not conducted their enquiries more promptly....."
	If that really means "unfortunate" then that is a view that is perfectly open to the Tribunal but we do not think, if they were intending to criticise the employers thereby, that they were entitled to.  The employers had informed the police promptly, in accordance with their duties as ordinary citizens and their interest as employers, and the police were making enquiries.  It seems to us that for the employers to hold their hand while the police were making their first enquiries was the only rational course for them to take.  To try to interview witnesses while the police are interviewing them and, indeed, the man himself when the police are interviewing him, would be to run the risk of obstructing the police and interfering with the course of justice.

	They go on to say:
"8.	For these reasons therefore the Tribunal concluded firstly that they were not satisfied that there had been a full enough investigation since while numerous witnesses had been seen by the employers this had not been conducted promptly enough at the outset to insure that the facts available were properly investigated by examination of the applicant's car, while secondly they considered that to find the applicant guilty of such a serious matter on evidence untested in cross-examination was unfair and that the applicant should have been faced with his accuser.

9.	For these reasons the Tribunal considered that the respondents had not satisfied the Burchell test and were therefore not satisfied that they had behaved reasonably in dismissing the applicant for the reasons stated.  Accordingly the Tribunal took the view that this was a case of unfair dismissal and turned to the question of remedy."
	Mr Garside, who conducted the appeal for the employers, said:  certainly there are cases in which a Tribunal is entitled to conclude that an employer should actually have the witnesses there and say to the employee "if you want to ask them questions, you may do so.  Here is your accuser and here are some other witnesses for you to ask questions of, if you wish".  What is not the rule, he said, is that there is any general duty on employers to do that, indeed, it is possible to cite numerous cases where such a course has not been followed and where not only Industrial Tribunals but higher Courts have held that it is perfectly fair.  Here, the Tribunal were asserting a general sweeping principle that where there is an accusation of theft the witnesses should be produced so that the accused employee should be able to question them, even if the employee has never asked for that.  He makes the point that Mr Reavey never had asked for these witnesses to be produced for cross-examination, neither had his union representatives.

	Mr Garside referred us to Linfood Cash & Carry -v- Thomson & Others [1989] ICR 518, where this Appeal Tribunal had to deal with a case in which an anonymous informant was involved.  This Appeal Tribunal was presided over by the President, Mr Justice Wood, and felt great concern about such cases and endeavoured to lay down general principles for the guidance of Industrial Tribunals, employers and employees.  They did so at p.522 G onwards and say:
"Every case must depend upon its own facts, and circumstances may vary widely-indeed with further experience other aspects may demonstrate themselves-but we hope that the following comments may prove to be of assistance:"
	They then set out a list of requirements which every employer should have careful regard to.  He will have to decide whether, in the circumstances of a particular case, he should follow all of them or certain of them.  The Appeal Tribunal say:
"1.	The information given by the informant should be reduced into writing in one or more statements.  Initially these statements should be taken without regard to the fact that in those cases where anonymity is to be preserved, it may subsequently prove to be necessary to omit or erase certain parts of the statements before submission to others in order to prevent identification.  
	In other words they should be taken naturally and without censorship in the first place.
2.	In taking statements the following seem important: (a) Date, time and place of each or any observation or incident. (b) The opportunity and ability to observe clearly and with accuracy.
(c) The circumstantial evidence such as knowledge of a system or arrangement, or the reason for the presence of the informer and why certain small details are memorable. (d) Whether the informant has suffered at the hands of the accused or has any other reason to fabricate, whether from personal grudge or any other reason or principle."
	To be fair to the employers in this case they had endeavoured to find that out from the man "Bill".   The Appeal Tribunal go on:
"3.	Further investigation can then take place either to confirm or undermine the information given.  Corroboration is clearly desirable.

4.	Tactful inquiries may well be thought suitable and advisable into the character and background of the informant or any other information which may tend to add to or detract from the value of the information.

5.	If the informant is prepared to attend a disciplinary hearing, no problem will arise, but if, as in the present case, the employer is satisfied that the fear is genuine, then a decision will need to be made whether or not to continue with the disciplinary process."
	They then go on with other matters.  

	Here, as Mr Garside concedes, the statements of the various witnesses, in particular the man Bill, were not reduced to writing in the way which this Appeal Tribunal has indicated is desirable.  This Appeal Tribunal was dealing with the misgivings which inevitably must be experienced where the informant is anonymous and they were dealing with a case where the desire for anonymity was due to fear.   

	Here, it does not seem that the employers did satisfy themselves of the true reason for Bill not being prepared to be named, or not coming forward if necessary.  The desire to avoid acrimony is mentioned and it might be thought in a serious case that that was not sufficient; and that the employers should have gone further and found out if he was frightened of Mr Reavey or whether there was a more sinister reason.  Did the employers feel that the unwillingness to come forward might be evidence of a rather unsatisfactory approach by this man, and did it make his whole evidence suspicious?  That does not seem to have been looked into and the true reason for Bill's anonymity does not seem to have been examined, and so there were certain causes for concern.  

	In those circumstances, the guidelines in the Linfood case having been departed from to that extent, it might be thought that the Tribunal were entitled to feel extra anxious about this case.  They said it was a case about a man with a five year work record and nothing against him at all.  In those circumstances, they directed themselves, on the basis of Burchell, as to whether the enquiry had been fair and they formed the conclusion that an opportunity to cross-examine should have been given.  It was conceded by Mr Garside that there will be cases in which it is proper for the employer to say that the accused must be given the right to cross-examine and an enquiry in which that right is not accorded will not be a fair enquiry.  In this case, he says, the Tribunal were asserting a general rule that in cases of theft such a right should always be accorded, undoubtedly an untenable proposition.

	I have already read the passage that is critical to this case and it should be said that it is preceded by more than two pages in which the Tribunal patiently set out the facts in the case.  They then come to their finding and it will be seen from what I have read in paragraph 6 of their decision that they make it very clear that they are dealing with the facts.  They say: 
 "The points that troubled the Tribunal principally were firstly that the only real evidence against the applicant was that of the anonymous informer who said that he had seen him wheeling valves on a pipe fitters truck in the course of the night in question.  This person had desired to remain anonymous, and apparently was not prepared to be involved in the disciplinary proceedings, as he thought this might lead to acrimony, and the employers had respected this and made no attempt to call him to give evidence before the accused at the disciplinary hearing on the 30 April and the 1 May 1990.  In the event therefore the applicant was not faced with his accuser, and the evidence on which they finally decided that he had been guilty was entirely untested by cross-examination, either by him or by his representatives on his behalf.  The Tribunal considered this most unsatisfactory ...."
	Up to that point they deal entirely with the facts of the case before them, having referred correctly to the Burchell judgment, and say that in such an important matter a witness should not be allowed to hide behind anonymity and the desire to avoid acrimony - again, a reference to the facts in this particular case - so as to prevent the applicant or his representatives from having a fair opportunity to test the evidence, on which the employers propose to rely, through cross-examination.

	They then go on to make it more clear still that they were dealing with the facts of this particular case, by saying:
"It will not be by any means always the case that employers should call witnesses before the accused or his representatives at a disciplinary hearing. .."
	They then come to the passage of which Mr Garside makes particular complaint:
".. Employers are not conducting Courts of Law and are not expected to behave as such, but they are expected to behave fairly and reasonably and where an employee is denying an offence as serious as theft, which after all is a criminal offence, and it should be borne in mind that the police had dropped any question of criminal charges, the applicant should have an opportunity of cross-examining the witness on whose evidence the employers were contemplating his dismissal."
	Having dealt with other matters which were relevant tangentially, i.e. the delay and so on they continue:
"For these reasons the Tribunal considered that the respondents had not satisfied the Burchell test ..."
	It seems to us, with great respect to Mr Garside's careful and very fair argument, that he has misread the sentence on which he relies.  It seems to us that the whole passage is shot through with references to the facts of this particular case and the mere fact that the Tribunal permitted themselves a rather sweeping remark, in dealing with those, is not to be taken as a mis-direction to themselves that in all cases of theft anonymity is to be condemned and a trial which respects that is an unfair trial by the employer.  

	Mr Garside indeed complains that in that very sentence there is a reference to the fact that the police had dropped any question of criminal charges, and he makes a separate complaint of that.  That shows that in that very sentence the Tribunal are thinking of the facts of this particular case.  We think that the Tribunal were correctly addressing their minds to the facts of the case and were entitled to form the view that this was a case in which cross-examination should have been invited by the employers in the course of their enquiry, notwithstanding that it was not requested by the employee.

	It was a case in which the man Bill was anonymous and the only reason given for his anonymity was that he desired to avoid acrimony;  and in which the statements of the witnesses had not been reduced to writing and therefore could not be handed with the necessary deletions to the accused.  The Industrial Tribunal, in our view, were fully entitled to say that in such circumstances this man should have had an opportunity to cross-examine.

	He might very well, and this is purely speculation, have sought to show that the anonymity was not due to a modest desire to avoid acrimony but was due to something more sinister.  

	Mr Garside also makes complaint of the reference to the fact that the police had dropped any question of criminal charges, and rightly says that the employers were concerned with a quite different procedure.  The fact that the police decide not to proceed merely means that, in the view of the police, the evidence is insufficient to satisfy a jury beyond reasonable doubt after all the formalities have been gone through.  Or may be a matter of policy;  the police may not wish to prosecute a matter in which they feel that there will be a disproportionate expenditure of public funds.  There may be some other reason for not bringing a prosecution.  It is quite a different situation from that of the employer who is concerned to decide whether,  after a fair hearing, he is satisfied that the employee has committed the offence with which he is charged.

	We do not think, again with respect to Mr Garside, that his criticism is justified.  It appears to us that the Tribunal, who had in mind the delay that had followed after informing the police, were bearing in mind that now that the police had decided not to prosecute there would be no embarrassment or difficulty either to the witnesses or Mr Reavey himself if he cross-examined them.  There would no longer be any fear of interfering with the course of justice; there would be no fear on Mr Reavey's part of incriminating himself; there would be no fear by the witnesses that they might later have to give this evidence on oath at a trial.  Therefore, we think that that reference is not one that shows that the Tribunal were misdirecting their minds.  This was an exceptional case and we think that the Tribunal regarded it as such.

	These were questions of fact and degree for the Tribunal themselves.  The Tribunal heard the witnesses; the Tribunal were able to assess all the evidence in a way which we cannot do and all we can say is that, as a matter of law, our unanimous view is that this Tribunal were entitled to reach the conclusion which they did and accordingly the appeal must be dismissed.