Appeal No. EAT/346/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 10th June 1993

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MRS T MARSLAND

	MISS A P VALE

COMPLETE GARDENERS LIMITED	APPELLANTS

MR W CHANDLER	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J IRONSIDE
Of Counsel
Messrs Whitemans
33-37 Brunswick Road
Gloucester
GL1 1JQ

For the Respondent	MR V NELSON
Of Counsel
Messrs Luttons
55 Brunswick Road
Gloucester
GL1 1JS

	MR JUSTICE WOOD (PRESIDENT):  By an Originating Application dated 21st October 1992, Mr Wayne Chandler complained that he had unfairly dismissed by his employers, Complete Gardeners Limited.  His case was heard by an Industrial Tribunal sitting at Bristol on the 4th March 1993.  He succeeded and was awarded £8,833.00 compensation.

	Mr Nelson, who appears for him today, appeared for him in front of the Tribunal.  Mr Ironside appeared for the Company as he does as the Appellants today.

	This Company is a small Company, it has some six employees, two directors, it was formed as long ago as 1958 and its speciality is in the design and construction of swimming pools and thereafter the maintenance of those swimming pools, by the provision of chemicals, the clearing and the maintenance of the pumping equipment and other items.  It has very small offices in some stables in Gloucester, the vehicles underneath, the offices above.  It is therefore a small concern, it is clearly a friendly concern, we note that the Applicant was addressed, even in the letter of dismissal, by his christian name.  Sub-contracted labour is brought in as necessary for the heavier work.

	The problems which gave rise to the present decision arose during July 1992.  The Applicant had been employed for some 13 years by the Company and during July it was anticipated that he might be promoted to being a services engineer.  In that capacity he would, in particular, be responsible for the after service in the general maintenance of the swimming pools at the homes of the various customers.  During July he was involved in the completion of a swimming pool for a customer called Mrs Boehm.  One of the directors, Mr Nick Bodman, had a brother, Mr Gerald Bodman, and he on the 15th July 1992 heard the Applicant say to Mrs Boehm that he could supply her with services and chemicals and could leave her his telephone number.  Mr Gerald Bodman was satisfied that by saying that to Mrs Boehm there was an indication that there was a personal approach by the Applicant, which would of course, cut out the Company from its after service in respect of that pool.  

	Mr Gerald Bodman spoke to his brother, who in turn spoke to the Managing Director, Mr McKenzie.  Naturally the two directors took a serious view of the situation.  Mr McKenzie rang Mrs Boehm.  During that conversation, as the Tribunal found, she confirmed, but reluctantly confirmed, that the Applicant had approached her in the way in which it had been suggested.  Mr McKenzie took advice, and took the view that the conduct was sufficiently serious to merit the dismissal, but felt that the Applicant should have an opportunity to state his case.

	On the 23rd July, at the end of the working day, we are told about 5.30 pm, Mr McKenzie and Mr Nick Bodman, the two directors, called the Applicant into the office.  At that time, as the Tribunal found, the Applicant had had no prior warning or any indication that this was to be a disciplinary meeting, nor indeed had it been suggested that he might have a colleague or a friend with him.  Yet again, as the Tribunal found, there was a failure even in a small Company to make the distinction between an investigation and a disciplinary meeting.  The Tribunal, in paragraph 6, then describe what happened at the meeting.  They say this:
		"The meeting was clearly a short one and we have been faced with a complete conflict of evidence as to what was said.  Mr McKenzie said that the applicant initially denied the allegation but later volunteered that he had approached not only Mrs Boehm but also a Mr Hoole and Mr Clink, neither of whose had previously been mentioned by the company.  Mr Nick Bodman supported that.  The applicant denies that he made any admission at all and he can offer no explanation of the company's evidence to us that he did."

As a result of that meeting, and after a short adjournment, the two directors informed the Applicant that he would be summarily dismissed on the basis of setting himself up in competition with the Company's business and there was a lack of trust and confidence in those circumstances.  As a result a letter was written dated 24th July 1992 it reads:
		"Dear Wayne,

		I am writing to confirm our decision after yesterday's interview at this office.

		Your admission of trying to influence customers away from our company does amount to gross misconduct and I am afraid we have no alternative but to confirm your instant dismissal."

and then there is enclosed a payslip and a cheque and a P45.  The cheque is in the sum of £128.61.  Then Mr McKenzie concludes:
		"I am willing to provide a reference as to your working ability if required."

and indeed he did so.

	Mr Chandler, the Applicant, consulted solicitors who on the 5th August wrote saying that they had been consulted and denying the allegation which was made against him, and in particular, denying that any admission had been made, as alleged.  They also sought the names of those involved.  Ultimately those names were disclosed during the pleading stages for the hearing in front of the Industrial Tribunal.  So that, as the Tribunal itself found, there was a direct conflict of evidence.  Pausing there, if in fact those facts to which we have referred already had been true, namely, that Mr Gerald Bodman had overheard that conversation, that the conversation had been confirmed by Mrs Boehm and confirmed reluctantly, that that had been properly put to the Applicant at a meeting and that he had not only admitted that but had also added the names of two other customers who had not even been mentioned to him by the directors, if all those matters had been established and were true, then apart from the procedural aspects, to which we will refer later, it seems to us difficult to say that the directors were not entitled to reach the view that in fact the Applicant had been guilty of the misconduct which was alleged against him.  No one has suggested that it would not have been reasonable grounds for dismissal.  However, that would involve the necessity of deciding whether those facts were true or not.

	In paragraph 12 of the decision the Tribunal deal with those matters and approach those matters on the basis of the well known case of British Home Stores Ltd v. Burchell [1980] ICR 303.  It is given as a note after the well known decision in the Court of Appeal of Weddel v. Tepper.  The Tribunal say this, and I am citing from paragraph 12 of their reasons:
		"We have concluded that on the basis of Mr Gerald Bodman's report and the conversation which he had with Mrs Boehm, Mr McKenzie did indeed believe that the applicant was trying to influence customers away from the company.  In our view those reports which he received could have constituted reasonable grounds for that belief if substantiated after reasonable investigation.  Apart from the phone call to Mrs Boehm he made no further investigation of the facts once he had secured what he considered to be an admission.  On the evidence we have heard we cannot conclude that it was reasonable to rely on what the applicant may have said at that short and, for the applicant, unexpected meeting.  We cannot confirm what Mrs Boehm may have reported.  There is no sensible explanation of the suggestion that the applicant admitted approaching Mr Clink who we know he did not in fact approach and in our view a reasonable employer could not safely rely on the alleged admission in such an important matter.  Mrs Boehm was not approached to put anything in writing.  Neither Mr Hoole nor Mr Clink were approached at all.  No record was kept of the alleged admissions by the applicant which he could easily have been asked to confirm and to sign.  In our view the company failed to make reasonable investigations to support the belief that they formed."

What the Tribunal have not done is to find whether or not the admission was made.  If the admission was not made then, it seems to us quite clear, that further investigation would have been required because all that Mr McKenzie had before him was Mr Gerald Bodman's report and Mrs Boehm's telephone conversation.  But with the admission and the addition of two new names the whole picture becomes quite different.  It seems to us, therefore, that Mr Ironside's submission that it was essential that the Tribunal should make a finding as to whether or not that admission had been made, is well founded and that until the facts are found upon which Mr McKenzie was able or not able, reasonably, to reach a belief that the  misconduct had occurred, until those facts are found it is impossible to reach a judgment on whether or not this employer, in these circumstances, acted within the reasonable band of response in reaching the belief which he said he held.  In so far as no finding of fact on that score was made, it seems to us that there was an error, an error of law, in this Tribunal's finding.

	However, that is not the end of the matter because there is a second reason which the Tribunal gave for reaching its conclusion that the dismissal was unfair and that relates to the procedural aspects of the way in which this matter was handled.  The paragraph to which we have already referred indicates the start of its criticisms, namely, that it was a short meeting and an unexpected meeting in the offices of Mr McKenzie on the 23rd July.  It is also, as we have already commented, not clear that the Applicant was told whether this was merely investigative or whether this was a disciplinary meeting.  The Tribunal sum up their own views also in paragraph 14 thus:
		"This was a small company and we would not expect elaborate disciplinary procedures.  There were however no disciplinary procedures of any sort.  The applicant was not given an opportunity to have a friend or colleague with him despite the fact that the allegations to be made were extremely serious and that the company had already been advised that dismissal may be appropriate.  In our view the applicant did not have a proper opportunity to consider his position and put his case.  A summary dismissal does not mean a hasty dismissal."

So the Tribunal there give their views, we have added two other comments of our own which are criticisms of the procedures.  They took into account the fact that this was a small Company and all the surrounding circumstances and they decided that this dismissal procedurally unfair.  Mr Ironside has tried manfully to argue that that was a perverse decision but it was a decision which this Tribunal were clearly entitled to reach and in our judgment were correct in reaching in the circumstances of this case and that being the second reason they decided that the dismissal was unfair.

	Therefore, although we find an error in the first of the reasons, that second reason is, in our judgment, is valid and must stand.  It follows therefore that the decision that the dismissal was unfair must stand.  

	However, the Tribunal went on to consider compensation and it seems to us that when considering compensation it is going to become essential that again, the Tribunal must decide, whom they believe.  If in fact the Applicant, Mr Chandler, did make that admission then that, in our judgment, would be a factor which the Tribunal might wish to take into account in considering the issues on compensation.  If they find that he did not make that admission then their present decision can no doubt be allowed to stand.  However, it seems to us essential that that decision of fact must be found.  In the circumstances, therefore, we reject the appeal that this was an unfair dismissal.  That in the light of the conclusions and the way we have reached it we are satisfied that the issue of compensation must be reconsidered.  We therefore remit that issue only to the same Tribunal to decide whether or not the present finding on compensation stands and that, in our judgment, must depend to some extent, if the Tribunal consider it relevant and it is a matter for them, on the finding whether or not that admission was made on that occasion.  In the circumstances therefore that is the order on this appeal.