Appeal No. EAT/674/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 13th June 1995

	Before

	HIS HONOUR JUDGE SMITH Q.C.

	MISS C HOLROYD

	MR D A C LAMBERT

BERNARD WARDLE & CO LTD T/A WARDLE STOREYS	APPELLANT

MR C HEAP	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ANTHONY CREAN
(of Counsel)
Messrs Southern Cooper & Partners
Solicitors
Mackenzie House
68 Bank Parade
Burnley 
Lancashire
BB11 1UB

For the Respondents	MR R LAMB
(TGWU OFFICIAL)
Mr Jim Bolde
T & G North West
40/42 Abbey Street
Accrington
Lancashire
BB5 1EB

	JUDGE SMITH QC:   This is an appeal by the employers, Bernard Wardle & Co Ltd who were respondents before the Industrial Tribunal against a decision of an Industrial Tribunal sitting at Manchester on 15th April 1994 when, by a majority decision, the Chairman dissenting, the Industrial Tribunal held that the respondent employee Mr Heap had been unfairly dismissed, on the ground that the employers had failed in all the circumstances to undertake a reasonable investigation into the allegation against Mr Heap, that he had defrauded the appellants by claiming and receiving monies under appellants' sickness scheme, when the reality was, so the allegation went, that he was well and fit enough to resume work.

	The appeal which has been very well argued by Mr Crean on behalf of the appellants, is put before us on the basis that the majority of the Industrial Tribunal misapplied Section 57(3) of the 1978 Act to the evidence before them, and instead of judging the appellants' conduct by the standard of reasonableness and deciding whether it was within the band of reasonable responses of an employer, which they should have done, submitted Mr Crean, they set a wholly unreasonable standard for the appellants to comply with. In that way it is submitted the majority of the Tribunal misdirected themselves in law.

	Mr Lamb, who appeared on behalf of the respondent, submits that the majority decision was a reasonable and correct application of Section 57(3) of 1978 Act in all the circumstances.

	The facts as found by the Industrial Tribunal were somewhat unusual. We do not think it necessary to recite them in detail, but of course reference can always be made to the relevant paragraphs in the decision of the Industrial Tribunal, particularly at paragraph 3 where they are set out in considerable detail. What we have to say now is no more than a summary. 

	The respondent, Mr Heap, commenced work in 1987 as an embosser, but due to an injury at work in 1991 his employment was changed by agreement to that of a "spreader", a less arduous employment. It was found as a fact, as we interpret the Industrial Tribunal's findings that Mr Heap suffered from an arthritic condition to his neck, but that he was able despite that, to work as a spreader, until he had a further injury at work at the end of April 1993 which the Industrial Tribunal found aggravated his neck condition. Following this the respondent was off work and produced sickness notes, presumably from his General Practitioner, indicating that he was unfit to return to work until 17th May 1993.

	However, it is the events in the interim with which we are principally concerned to deal. What then occurred was that on 1st May 1993, two police officers were called to a disturbance at the respondent's home, and on the findings of the Industrial Tribunal it is clear that a fracas had ensued with the respondent, who was apparently drunk at the time, which resulted in one officer being knocked unconscious and the other suffering a broken nose after being head butted by the respondent. The respondent was charged with committing assaults occasioning actual bodily harm on the two police officers concerned.

	On 6th May 1993 the appellants, it appears from the findings of the Industrial Tribunal, became aware of the incident, and set in train a disciplinary enquiry and an investigation into the matter. 

	It must be emphasised, in our judgment, that the appellants were not concerned to enquire into the respondent's conduct in allegedly assaulting the officers, as conduct in itself entitling them in any way to take disciplinary action against the respondent. They were concerned to investigate as to whether the respondent's conduct in relation to that incident gave the lie to his entitlement to receive monies under the employers' sickness scheme since it was the appellants' belief that if he could assault the police constables he must be fit for work.

	What happened was that a disciplinary hearing took place on 10th May 1993, notes of which are set out at pages 1 and 2 of the bundle R1 (which is included within our bundle) from which it is clear that, contrary to what the appellants' state in their IT3 at page 20 of the original bundle, a decision was taken there and then to dismiss the respondent and he was in fact dismissed. In the IT3 it is incorrectly stated that the respondent was suspended. We should point out that the appellants' accordingly dismissed the respondent before the result of the criminal proceedings was known, and when the allegation of assault on the police was no more than an allegation. However, what then happened was that there was an appeal hearing which commenced on 10th May 1993, the same day as the hearing at first instance, which was adjourned on 11th May 1993, the following day, on the terms of a letter sent to the respondent at page 10 of the bundle R1 dated 12th May 1993. That letter is from Mr Mowbray and is in these terms:

		"Dear Mr Heap

		May I confirm the outcome of your appeal against dismissal heard by Mr Mills, Manufacturing Manager, on 11th May 1993. At the appeal you were represented by l Brannigan and you were informed that the Company was [the word "not" was omitted, plainly a typographical error] prepared to reinstate you as an employee.

		You were informed that you would be suspended from work until you court case had been heard. During this suspension you would not be paid by the Company and would ineligible to claim Company sick pay. You would be paid Statutory sick pay by the Company upon receipt of a doctor's certificate.

		Once the Court has decided on your case, then the Company will be able to again consider your position. Should it emerge that you have been involved in an incident which is in conflict with your absenteeism, then the Company will have no other option than to terminate your employment."

	It is clear from the first line of that letter that he had in fact been dismissed at the original hearing on 10th May 1993.

	On 21st June 1993 the respondent Mr Heap pleaded guilty before the Magistrates to two counts of assault occasioning actual bodily harm against the police officers, and was ordered to perform some hours of community service and to pay compensation and costs.

	In consequence his appeal to the appellants was dismissed without any further hearing and a letter was sent to him confirming this, which is at page 11 of the bundle R1, which I need not read in full. However, it is recorded in that letter in the first paragraph as follows:

		"... The Company has reached this decision [which is to summarily dismiss Mr Heap] based upon your admission [as they put it] that you assaulted two police officers whilst absent and claiming Company sick pay.

		This action indicates that you have defrauded the Company sick pay scheme - an act of Gross Misconduct, warranting Summary Dismissal."

It is in those circumstances that the Industrial Tribunal came to reach their conclusions which are stated, as regards the majority, in paragraph 6 and 7 of the full reasons and with regard to the Chairman's dissenting judgment at paragraph 8 of the full reasons.

	We consider it clear as a matter of inference that the Industrial Tribunal concluded that the reason for dismissal was conduct, namely defrauding the appellant's sickness scheme and that the appellants held a genuine belief that that is what had happened.

	However, by paragraph 6 of the full reasons, the majority concluded that the appellant's had failed to undertake the appropriate investigations which a reasonable employer would have carried out in all the circumstances, and in paragraph 6 a number of reasons are listed for that conclusion. The Chairman, on the other hand, considered that the dismissal was fair on the application of Section 57(3). We should make it clear, that it is quite apparent from the terms of paragraph 6 that the majority of Tribunal were addressing themselves expressly to the question of fairness within Section 57(3) of the Employment Protection (Consolidation) Act 1978 which they there cite.

	It is right to say, and this had been the subject matter of criticism on behalf of the Counsel for appellants, Mr Crean, that the majority gave a number of different reasons in paragraph 6 for finding the dismissal unfair on application of Section 57(3), and we accept there is considerable force in the criticisms which were made of some at least of those reasons. Thus we agree on the evidence the appellants did carry out such investigation as they reasonably could in to the circumstances of the incident, having regard to the fact that that matter was sub judice on 10th May 1993.

	We are prepared to accept further that there may not have been evidence justifying a finding that the respondent was not aware of the purpose of the hearing of 10th may 1993, and it may well be that there was nothing further that the respondent himself could have placed before Mr Mills on 21st June 1993, when his appeal was dismissed. However, we do consider that the majority were entitled to criticise the appellants' procedure, as we consider they, inferentially at any rate, did, in deciding to dismiss before the criminal case was decided. But that, in our judgment, is in no way the central issue on this appeal.

	The real issue, in our judgment, is whether the majority of the Industrial Tribunal were justified in finding, as they did in paragraph 6(b) of the reasons, that no reasonable employer would have dismissed Mr Heap without first enquiring into the medical situation in much more detail than the appellants did. In our judgment, if that was a good reason for finding unfairness in the appellants' investigation and accordingly finding that the investigation was not a reasonable investigation in all the circumstances, then it matters not that the other reasons were not proper matters for which to criticise the appellant employers.

	The contrast between the majority approach and the Chairman's approach can be seen when one compares and contrasts the majority's reasoning in paragraph 6(b) with that of the Chairman in paragraph 8(e) and (f).

	We have looked at this matter with care, and we remind ourselves that the Industrial Tribunal had to be of the view, acting as an industrial jury in effect, that the appellants' investigation was inadequate in the sense that it was outside the reasonable investigation which any employer acting reasonably would have conducted.

	In our judgment, in order for the appellants fairly and reasonably to decide whether they reasonably believed that the respondent was defrauding their sickness scheme, we can see great force in the argument that it was essential for the appellants to look into the medical position. The respondent had medical certificates certifying him unfit to work from the end of April 1993 when on the findings of fact of the Tribunal he had suffered this aggravating injury, until 17th May 1993. In our judgment, if the appellants wish to challenge the bona fides of those certificates, it was not reasonable for the appellants to rely upon a layman's response to the circumstances of the assault on the police officers. In our judgment, it was necessary in order for the appellants to act reasonably that they should obtain a medical opinion, perhaps of a forensic nature to support this conclusion, if such could indeed be supported that in committing the assault on the officers the respondent had demonstrated, against his own interests, that he was medically fit to work. In our judgment that determination was not a matter for a layman, even an intelligent layman, but was a matter which called for medical opinion.

	In those circumstances, although of course we fully accept that an employer acts reasonably if his response to given circumstances, and in particular with regard to the degree of reasonable investigation he carries out, is within the range of reasonable responses, we consider that it must be for the Industrial Tribunal, sitting as an industrial jury to de-limit the boundaries of what is a reasonable response of an employer in all the circumstances and what is not. In our judgment, the majority of the Industrial Tribunal were fully entitled to conclude, in what was in essence a matter of medical opinion, that it was unreasonable for the appellants not to have investigated the respondent's medical records and, if necessary, to have obtained a medical opinion, and in that way to have looked properly into the medical side of the matter. Accordingly, for those reasons the appeal is dismissed.