Appeal No.	 EAT/978/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 March 1997

Before
THE HONOURABLE MR JUSTICE KEENE
MR J A SCOULLER
MR N D WILLIS

MR J ERSKINE	APPELLANT

LONDON BOROUGH OF HACKNEY & MR F PEACOCK	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR SIMON THOMPSON
(of Counsel)
Messrs M U Samuel Egole & Co
Solicitors
2nd Floor
Brighton House
9 Brighton Terrace
Brixton
London
SW9 8DL	

	MR JUSTICE KEENE:   This is a preliminary hearing into this appeal held for the appellant to show that there is an arguable legal point in his appeal which merits the matter being allowed to go further.

	The appellant was employed by the first respondent as a night watchman, the second respondent being the Head of Administration of the first respondent. In his application to the Industrial Tribunal, the appellant complained both of unfair dismissal and of racial discrimination. The tribunal unanimously dismissed both claims.

	The appellant is a member of a black ethnic minority. As night watchman he would be the person in charge of the security of the respondent Council’s Town Hall in Hackney. Burglaries and thefts had been occurring there on a regular basis at the time with which we are concerned. 

	The layout of the building was such that from the front hallway of the Town Hall two corridors led off, one to the left and one to right. These corridors then stretched around the building. Access to each corridor was controlled by a secure door. Those doors could be opened from the outside only by means of a ‘swipe card’ issued to authorised personnel or by a buzzer which could be operated from the hall keeper’s desk, a desk which as we understand it would also be occupied at night time by the night watchman. It was regular practice, the tribunal found as a fact, for that buzzer to be used to admit persons recognised as authorised, so avoiding the necessity for the swipe cards to be used. Use of the buzzer allowed a very short time within which the door could be opened, and it was not possible for one person both to operate the buzzer and to gain access to the corridor.

	At 10 p.m. on 17th February 1994 the appellant, Mr Erskine, came on duty. He was required in the exercise of those duties to carry out a regular patrol of the premises and to record both the fact of the patrol and the time when it had been carried out. The minimum number of patrols required in a shift was three, but because at that time the alarm system was not operational, more were considered appropriate. There was no supervision of the night watchmen but they were trusted to discharge their duties faithfully. Mr Erskine left work at 7 a.m. on 18th February and went home. Shortly after that, it was discovered that during the night a burglary had taken place. Three rooms had been entered by breaking external windows, significant damage had been done and property, notably computer equipment, had been stolen. The total cost was estimated at £37,000.

	There was a computer record maintained of the use of swipe cards in gaining access to the two corridors which led off the entrance hall. An examination of that computer log for the night of 17th/18th February revealed that none of the controlled doors to those corridors had been accessed during the night. However, when Mr Erskine’s hand-written log was checked, it purported to indicate that he had carried out an initial inspection of the premises shortly after coming on duty, and that thereafter during the night three patrols had been carried out by him.

	On the day following the burglary, an engineer was summoned to the premises to carry out a check of the system and he reported that all was in working order. There was nothing to indicate that the system was other than in proper working order. A check of the computer log showing the night when a Mr Brown, another night watchman, had been on duty 48 earlier, revealed that all doors had been regularly accessed during that night and that the card used for that particular purpose was registered to Mr Brown the night watchman.

	Those enquiries led to the suspicion that Mr Erskine had not carried out any of the checks of the premises during the night in which the burglary had occurred and, furthermore, that he had completed a false log of his night’s work. Mr Erskine’s swipe card was removed from him on 21st February. It was not checked until 8th March, but when it was checked it was found to be in proper working order.

	A disciplinary hearing then took place conducted by the second respondent. One matter relied on at the hearing by the appellant’s representative was that the computer printout showed no use of swipe card at all during the night of 17th/18th February, even though the cleaners had entered on two separate occasions between 5.30 a.m. and 6 a.m.. The method used by the cleaners to obtain entry was not specifically investigated, and the Industrial Tribunal commented:

“i.	... Had it not been for the abundant evidence, available to Mr Peacock, that the system was in proper working order, we would have regarded this failure as a material failure in the duty to carry out a proper investigation.”

But the tribunal acknowledged that:

“i.  ...Mr Peacock was aware of the practice of using the buzzer to admit personnel and it was his conclusion that this explained the fact that the cleaners  did not appear on the activity log. Given the evidence then available to him, this was a reasonable conclusion to have reached. Whilst it will always be possible for machines to malfunction, this possibility was, on the evidence available, so remote as to justify rejection of it.
j.	Mr Peacock decided that the complaints had been proved and he determined upon summary dismissal as the appropriate response. It was his bona fide belief, after a full and sufficient investigation, that Mr Erskine had not carried out patrols  claimed for, that he had falsified his record for the nights activities and had lied in his explanation to the investigator. He [Mr Peacock] regarded that as gross misconduct ...”

	The tribunal found that in this decision Mr Peacock had been wholly uninfluenced by the fact of Mr Erskine’s race. They concluded that Mr Peacock would have dealt with a white man in exactly the same way. They went on to comment that the penalty of summary dismissal was richly merited. They said that Mr Erskine’s failure, and his dishonest attempt to cover it up, struck at the very heart of the contract which he had undertaken to perform. They also made a comment, which we will refer to later, about his persistence in insisting right through to the tribunal hearing that he had carried out his duties as claimed.

	The tribunal finally concluded as follows:

“4	Conclusions:
There is no issue of law which arises in this case. We are satisfied, by the respondents, that the reason for this dismissal was related to Mr Erskine’s conduct, a potentially fair reason for dismissal. We consider that the respondents conducted a sufficient enquiry into the allegations and reached a bona fide conclusion, on abundant evidence. The penalty imposed was wholly within the range of responses open to the reasonable employer. We do not consider that the process adopted, nor the decision arrived at was, in any way, tainted by racism. For these reasons, both complaints against both respondents are dismissed.”

	The appellant now seeks to challenge that decision on a number of grounds. Some of these are, in our view, not capable of giving rise to a point of law, such as ground 3 in the Notice of Appeal which asserts that the tribunal Chairman accepted as facts matters introduced in evidence without documentary backing. It is trite law that there does not have to be documentary backing for the tribunal to be able to reach a finding of fact. It can arrive at such a conclusion on the oral evidence which has been put before it.

	There is also an allegation of bias against the tribunal Chairman. This is not one which has been pursued orally before us by Mr Thompson, who appears on behalf of the appellant, and it was not originally supported by the affidavit sworn in this matter by the appellant. We adjourned this hearing, which began on 19th February 1997, partly so that a further affidavit supporting the allegation of bias could be sworn and filed. Since the earlier part of this hearing, two affidavits have in fact been filed. Only one of them, the second affidavit sworn on 26th February 1997, seeks to deal with the topic of bias. It alleges bias in a number of paragraphs when it is clear that the appellant means something quite different, such as an alleged error of law on the part of the Chairman. The second affidavit also contains some very general allegations of bias on the part of the tribunal Chairman, but produces no firm or detailed evidence of such bias, or indeed of any appearance of bias. The line being adopted by the appellant in that affidavit seems to be that the tribunal reached certain conclusions unfavourable to the appellant, and consequently, one should thereby conclude that the tribunal was biased. We say straightaway that there is no reason why such a conclusion should of bias be derived from the conclusions which were reached by the tribunal in this case. We can see no evidence of bias by the tribunal Chairman and no arguable point of appeal existing on that basis.

	The main thrust of the appellant’s case is that a proper investigation was not carried out by the employer into the allegations against the appellant. In particular, reliance is placed on behalf of the appellant on the failure of the respondent, and in particular the failure of Mr Peacock who conducted the original investigation, to interview the cleaners so as to ascertain with certainty how it was that they obtained access to the locked corridors. Mr Thompson submits that the cleaners’ evidence could have been crucial on this aspect of the matter, and he draws attention to the fact that at the internal appeal hearing Mr Peacock himself said that he would have done further investigation, had been aware of the cleaners’ presence on the premises that morning. Mr Thompson consequently submits that there was no direct evidence before the tribunal below to support the finding of fact that the cleaners gained entry by someone pressing the buzzer. He accepts that it was not for the tribunal to investigate the alleged misconduct, and that it was itself directly concerned with the evidence as to how the cleaners gained entry, but he then makes the same point in relation to the investigation carried out into this aspect of the matter by the employers. He also points out that the swipe card belonging to Mr Erskine was, once it had been removed from him, not checked for some days. 

	The appellant’s explanation of the absence of any computer record of him gaining access to the corridors through use of his swipe card during the night was, on the evidence that was available, inherently difficult to accept. His explanation was that the system must have broken down on that night of 17th/18th February. Yet there was evidence that it was functioning properly 48 hours earlier when Mr Brown, as another night watchman, was performing his functions in the same premises, and it was also found to be functioning properly on the 19th February without any repair work apparently having been carried out during that period. There was evidence, which we have been shown, evidence which was placed before Mr Peacock who carried out the respondent’s investigation, from the well-known firm of Chubb, that there had been no break in the service and that the swipe card system was functioning during the period in question. That evidence appears at page 89 of the appellant’s bundle. Moreover the appellant was driven to allege that his swipe card must have been deliberately tampered with after it had been taken from him “in order to negate his evidence”. There was no evidence to support that allegation.

	The test as a matter of law in cases such as this, where allegations of misconduct are made, is not whether the employee was in fact guilty of the alleged misconduct, but whether the employer genuinely believed and had reasonable grounds for believing, after adequate investigation, that the employee was guilty of misconduct. See British Homes Stores Ltd v Burchell [1978] IRLR 379. That was the approach adopted by the Industrial Tribunal here. It cannot be said that it adopted an incorrect test as a matter of law. The question which arises is whether on the evidence it was entitled to reach the conclusion which it did, namely, that the employer met those criteria.

	The tribunal accepted that the investigation conducted by the Council could have been better. It was clearly not perfect in that there was no enquiry made of the cleaners. The failure of the investigating officer to interview the cleaners was patently taken into account by the tribunal below. It took the view that it would have been better if Mr Peacock had interviewed them and so conducted a more comprehensive investigation. But the tribunal also concluded that in the circumstances the investigation was adequate, because there was ample evidence that the system was working properly at the time. That was the evidence which the tribunal referred to as being abundant. We have to say that in our judgment the tribunal below was entitled to arrive at the conclusion that the investigation was adequate, even though it may not have been perfect. 

	So far as the swipe card is concerned, the tribunal was well aware of the fact that Mr Erskine’s card was not checked for some days after it had been taken from him. The tribunal clearly considered that, because it refers to it in paragraph (h) of its conclusions, and it then concluded that nothing turned on it. We can understand that, because if the swipe card had not been working at that time, then it would seem difficult to see how the appellant could have obtained access to the corridors as he asserted that he did. There was no allegation in this case that the employer did not have a bona fide belief in the misconduct on the part of the employee. All that was at issue was whether it had reasonable grounds as an employer for believing in the misconduct after adequate investigation. There was evidence on which the tribunal could conclude that those two criteria as to reasonable grounds and adequate investigation had been satisfied in this case. That is a finding of fact with which this appeal tribunal will only interfere if there was no such evidence or if that conclusion was perverse. We do not find that there was no evidence, nor do we find that the conclusion reached by the tribunal was perverse. We therefore do not see that there is any arguable point raised on the first of the allegations in this particular case, which concerns the allegation of unfair dismissal.

	So far as the question of racial discrimination is concerned, the point which is relied upon by Mr Thompson is that evidence was put before the Industrial Tribunal that there were a number of comparators, that is to say other cases with which comparisons could be drawn, where it seems that the employer had treated those employees more lightly, even though there had been misconduct on their part. The tribunal was certainly well aware of that because it comments on it. In some cases it commented that the lenient treatment which had been administered to those employees was so lenient as to defy comprehension. Nonetheless, it concluded that that did not demonstrate there had been any policy which had been broken or that the decision to dismiss Mr Erskine had been racially motivated. It did not disregard those comparators; it quite clearly took into account that particular evidence, because it deals with it. But those employees were employees in different departments of the Council and had different responsibilities from those of the appellant. In our judgment the Industrial Tribunal was entitled to take the view which it did, which was the respondents had given a credible explanation for their action in dismissing the appellant in the circumstances which arose here. The tribunal heard the witnesses and we can see no legal basis for challenging its conclusion, which was one of fact, that the decision was not tainted in any way by racism on the part of the employer.

	It follows from this that no arguable point of law is disclosed in this appeal.

	We would only add a comment on one aspect of the matter. We found it unnecessary for the Industrial Tribunal to have commented as it did in paragraph (k) of its conclusions on the appellant’s persistence in maintaining his innocence up to and including the tribunal hearing . Anyone is entitled to pursue his claims before an Industrial Tribunal without that being held against him, and in any event, the conduct and attitude of the appellant after the events which formed the basis for his dismissal could have no bearing upon the justification for or fairness of that dismissal. We regard that as an unfortunate comment by the Industrial Tribunal.

	Nonetheless, in our judgment the tribunal reached its conclusion in this matter after having approached it in a proper way as a matter of law, and in those circumstances this appeal will have to be dismissed at this point.

	Legal Aid taxation granted to the appellant.