Appeal No.	 EAT/399/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 June 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR J A SCOULLER
MR N D WILLIS

MS J POWELL	APPELLANT

CHESTERFIELD HOUSE MANAGEMENT LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR P OLDHAM 
(of Counsel)
Messrs Lawrence Graham
Solicitors
190 Strand
London WC2R 1JN	

	MR JUSTICE MORISON (PRESIDENT):   The purpose of this hearing is to determine whether an appeal in this case raises an arguable point of  law. The appellant is Mrs Powell who had been employed by Chesterfield House Management Ltd, as a building manager from 1st March 1983 until her dismissal on 8th January 1996. 

	She made two complaints, relating to her dismissal, against her employers. The first was that they had unfairly dismissed her. The second was that by not paying her her notice monies, they had committed a wrongful dismissal and she was therefore entitled to monies in lieu of notice.

	The decision of the Industrial Tribunal was that the dismissal was fair, but she was entitled to £7,000 by way of damages for wrongful dismissal. She wishes to appeal against the finding that her dismissal was fair.

	The Industrial Tribunal’s decision is contained in writing in extended reason form sent to the parties on 7th February 1997. 

	At the tribunal hearing, which occurred over a three day period, both parties had the advantage of being represented by Counsel. We have had the advantage of Mr Oldham appearing again on Mrs Powell’s behalf before us this morning.

	The essential facts relating to the dismissal may be shortly stated. There was a suspicion in the employer’s mind that Mrs Powell had not been properly dealing with cash and monies which came into her possession for transmission to other persons. The employers were suspicious about her activities, and they saw her and took the opportunity, having seen her, of dismissing her.

	There was much to be said on both sides in relation to the unfair dismissal allegation. Paragraph 12 of the decision records the fact, as one would have expected, that Mr Oldham made much of the serious procedural defects which surrounded the dismissal. He complained that there had been no proper investigation; no warning of the meeting or of the charges; no chance to have a friend present; no disclosure of sources or of written statements; and no provision for an appeal. He also argued that there was insufficient evidence to make it reasonable for an employer to conclude that she had taken any of the monies. Accordingly he said that the dismissal was unfair.

	On behalf of the employers, it was submitted that the tests set out in British Home Stores v Burchell were satisfied. It was argued that the procedure adopted was fair, having regard to the size of the respondents. Mrs Powell, it was submitted, knew what was in issue when she had her meeting and had a full opportunity to deal with it. Counsel submitted on behalf of the employers, that essentially in any event there was no conflict of evidence on the material facts, and the question for the employers was whether their assessment was one which a reasonable employer could make. 

	The tribunal agreed with the respondent’s contention that there was very little conflict of evidence as they note at paragraph 15 of their decision. However, they did have concerns about the way in which Mrs Powell was treated on the day on which she was dismissed on 8th January. They say this:

“16. ... The dismissal procedure seems to us to have been summary in nature. Mrs Powell was unaccompanied and our impression is that she was treated as a miscreant. However, we do not consider that that affected the outcome of the procedure. The essential facts and Mrs Powell’s explanation in the case of the Roche money were before Mr Fenwick [the decision maker] in a form which had not subsequently changed materially. Mrs Powell can still offer no real explanation of the short-fall on the Fenwick money.
17	The issue, therefore , on the question of unfair dismissal because whether on the facts, the Respondent’s decision to dismiss was one which a reasonable employer could take. ...”

	In his submissions, Mr Oldham makes three points. In the first place he criticises the sentence which suggests that the Industrial Tribunal may have asked themselves whether if the breaches of procedure had not occurred, it would have made any difference to the decision, instead of asking themselves whether in the light of the breaches of procedure the decision to dismiss became unfair.

	We do not consider that that is a fair analysis of what is said in paragraph 16 in the passage that we have recited. It seems to us that what the tribunal are saying is that Mrs Powell when she went to the meeting was being treated, in advance of putting forward anything that she had to say, as a miscreant. What they go on to say is but when that meeting took place the decision of the employers was perfectly reasonable because of the essential facts and explanations which she had made available to Mr Fenwick. In other words, in a sense his partial pre-judgment was fully borne out by the facts which were then considered by him and which justified his conclusion.

	Secondly, it was argued by Mr Oldham that in the light of the various breaches of procedure enumerated in the Notice of Appeal, no sensible tribunal could have concluded otherwise than the dismissal was unfair. 

	We do not agree. It seems to us that this was very much a judgment for the industrial jury and bearing in mind that both parties were ably represented and the tribunal had the contentions on behalf of the parties fairly put to them, we are not persuaded that this was a case where it could be said that the decision could be described as irrational or perverse.

	The third point which is made, is that the finding by the Industrial Tribunal that the respondents had not established that Mrs Powell was guilty of theft and accordingly that the dismissal was a breach of contract, was inconsistent with them, in effect, saying that the breaches in procedure would not have made any difference. 

	As it seems to us, that is not what the tribunal have been saying in paragraph 16 of their decision. What question they have asked themselves, as they should, is whether having regard to all the circumstances and what the employer did, it could be said to have been a fair decision that they arrived at that she should be dismissed. That question involves the Burchell tests, and we are satisfied looking at the decision as a whole, that the Industrial Tribunal have correctly directed their attention to those matters. Accordingly the premise on which the third submission was made to us, is, it seems to us, ill-founded for the reasons that we gave when dealing with the first submission which was advanced to us by Mr Oldham.

	Accordingly, we are satisfied that there is no arguable point of law in this appeal and it should therefore be dismissed.

	Mr Oldham has asked leave to appeal in this case. We are satisfied that it is not a case where leave should be given. There is no point of law or principle involved in this appeal, and it seems to us, that the matter should rest as it is.