Appeal No.	 EAT/1040/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 November 1998

Before
HIS HONOUR JUDGE H J BYRT QC
MR R JACKSON
MR J A SCOULLER

MR P DEL GROSSO	APPELLANT

TOM COBLEIGH PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	In person	

	JUDGE JOHN BYRT QC:		This is a preliminary hearing in an appeal against a decision promulgated on 23 June 1997 of an Employment Tribunal sitting in Hull. The Tribunal found that the Applicant had been dismissed unfairly because of procedural defects in the hearing, but they awarded neither a basic nor compensatory award.  Mr Del Grosso, the employee, appeals.

	The facts are as follows; Mr Del Grosso was employed since November 1997 as the manager of a public house, first of all known as Styles Bar, Little Queen Street, Hull and then re-named Sergeant Pepper’s.  In 1992 it was acquired by the Respondents.  In their reasons the Tribunal described the setting.  The public house consisted of a small rectangular room with a bar at one end where there were sited three tills.  There were three members of staff, Mr Woolmer, a male member of staff and a female, Mr Woolmer being the assistant manager.

	It seems that Mr Del Grosso did not to any extent work on the bar but primarily was engaged in being on the door.  On 2 April 1994 Mr Elgey, operations manager, visited the public house.  He had come to watch discretely the operation of the tills.  He bought a lager, and took a seat in a position where he could watch Mr Woolmer working.  He noticed during the time he was watching that Mr Woolmer was frequently pressing a particular button on the till labelled cordial dash.  Pressing that button suggests that there had been a purchase of a lemonade, a cola drink or some flavouring to another drink.  These cordial dashes cost only 30p and Mr Elgey’s suspicion was that people were buying drinks such as beers and spirits which were then being rung up as a cordial dash on the till.  A purchase of 30p was being recorded, whereas the purchase of the spirit would be something considerably more than that.  If Mr Elgey’s suspicions were justified, it would mean that at the end of the evening there was a lot more money in the till than had in fact been rung up by Mr Woolmer pressing the cordial dash.  Then the question arises as to where that money went if in fact it went anywhere.

	As a result of his observations, Mr Elgey, on instructions, seized the till roll at the end of the evening.  He found that there was excess cash in the till at the time that he did so.  When he accused Mr Woolmer of falsely recording the purchases, Mr Woolmer said “I have been making a lot of mistakes lately”.  In any event the area manager, Mr O’Donnell decided there should be a disciplinary hearing at which Mr Del Grosso would be called on to explain what was happening.  That hearing took place on the 18 April. Mr Del Grosso was accompanied by a friend Mr Butler.  When the charge of false registration on the till was put to Mr Del Grosso, he gave the explanation that the tills were mechanically faulty.  That was at the disciplinary hearing.

	Mr O’Donnell at that time had in his possession reports on the mechanical state of the tills.  One of those reports was obtained from Notts & Derby Cash Registry Ltd, an independent firm brought in to examine the relevant till.  It was found to be in sound working order.  City Cash was another firm brought in.  They also found the till was in working order.  So, at the hearing, Mr O’Donnell had on the one hand Mr Del Grosso’s explanation that the till was defective and on the other he had two reports saying that it was in sound working order.

	In any event as a result of what Mr Del Grosso had to say, Mr O’Donnell decided that the only appropriate course for the employers to take was to dismiss him.  He came to the conclusion that there was gross mismanagement, that is the way he phrased it, but in effect he was saying that Mr Del Grosso was allowing under-ringing to happen on a regular basis by Mr Woolmer.  In addition, he came to a finding that the tills were being moved around without any operational reason for them to be doing so, and he inferred from that that they were being moved so as to conceal the fraud being perpetrated. That was the finding of the disciplinary hearing.

	In due course Mr Del Grosso appealed but that also was dismissed.  He then took the matter to the Employment Tribunal.  He issued an Originating Application.  In his IT1, he repeated this defence that the under-ringing or the appearance of under-ringing was caused by the defects in the machine.  That indeed has been his defence throughout. It was quite apparent at the hearing before the Employment Tribunal that, when pressed, Mr O’Donnell was alleging that Mr Del Grosso was misappropriating the money over a period of time and that he was himself party to the fraud being perpetrated by Mr Woolmer.

	The Tribunal came to the conclusion that the investigation conducted by the employers was thorough, that Mr O’Donnell had a genuine belief which was reasonably held that Mr Del Grosso was party to the fraud.

	On the other hand, they came to the conclusion that the procedures before the disciplinary hearing were unfair and that in consequence the dismissal was unfair.  The basis for that conclusion was, as Mr O’Donnell frankly admitted that, prior to the disciplinary hearing, he had deliberately kept to himself the nature of the allegations which were going to be made against Mr Del Grosso.  He wanted to catch Mr Del Grosso unprepared with no time to manufacture a defence.  That way of proceeding is contrary to all the principles of a fair hearing.  One can infer from their ultimate finding that the proceedings were procedurally unfair, that they were not satisfied that defect had been cured by the appeal hearing.

	When it came to considering the question of remedy, the Employment Tribunal noted that the only defence put forward by Mr Del Grosso was that the tills were defective, and they concluded that even if he had been fully informed of the nature of the charges at the disciplinary hearing, it would have made no difference at the end of the day because Mr Del Grosso had had ample opportunity before the appeal hearing and also before the Employment Tribunal to know what the nature of the charges against him were and with that knowledge he had not altered his case at any stage. With that fact in mind, they came to the conclusion, that it was just and equitable to refuse him his basic award because he had been a party to a substantial fraud.  When they came to consider the compensatory award, they decided that he had brought about his own dismissal to the tune of 100% and accordingly they denied him any compensation under that heading.

	Mr Del Grosso has attended upon us to argue his case in person and he has raised two substantive grounds.  First, he says that all the important Tribunal findings are erroneous.  In fact he raises the ground of perversity.  Secondly, he says that the Chairman and a wing member of the Tribunal were biased and on that ground their decision should be set aside.

	So far as the allegation of perversity is concerned; Mr Del Grosso has to appreciate we cannot alter the facts found by the Employment Tribunal unless their findings are so clearly and obviously wrong that one could say they fly in the fact of logic.  It is always extremely difficult to satisfy the Employment Appeal Tribunal about a claim of perversity.  In the circumstances of this case, having read all the notices of appeal with great care, we are satisfied that there is no grounds which would enable us to say that the conclusions the Tribunal came to were arguably so wrong that we should set them aside.

	The second ground of appeal Mr Del Grosso relies upon does cause us considerable concern.  There is first of all the allegation against the wing member to the effect that, during the course of the case, he was displaying facial signs of disbelief at the case Mr Del Grosso was putting forward.  That allegation has been substantiated by Mr Del Grosso on affidavit and we have had no comeback from the individual wing member.  The allegation of bias however has been dealt with by the Chairman who has been sent Mr Del Grosso’s affidavit and his comments invited.  

	So far as the allegations against the Chairman are concerned, these are also set out in Mr Del Grosso’s affidavit.  This arises from an exchange which took place during the course of the Chairman giving the Tribunal’s decision.  The Chairman was stating in fairly plain terms that the Tribunal had found Mr Del Grosso guilty of fraud and during the course of his delivering that part of his judgment, something happened that caused the Chairman to stop.  He saw Mr Del Grosso reacting.  Mr Del Grosso recollects the exchange which then took place as follows:

“We find it a fact that the Applicant was a party to this fraud”, and then looking directly at Mr Del Grosso he said, “and if you don’t like it” and Mr Del Grosso then interrupted and said that “it is an alleged fraud” and the Chairman with a raised voice retorted, “we find as a fact that the Applicant was a party to the fraud,.  If this was a criminal trial we would say so and you would have been convicted.  We find a fact that you were guilty of fraud, like it or not, to that extent you are not going to get any basic award”.

	That is what is alleged by Mr Del Grosso to have been said.  He is describing a situation in which the Chairman would seem to be over reacting and coming out with statements which are inappropriate for a person in a judicial position to be making.  When those allegations were put to the Chairman, he very frankly accepted that he did say the words as recollected by Mr Del Grosso.  In his letter of comment, he says this:

“For my part, I do not dispute any of the comments allegedly made by me.  The only matter that I can and should add is that it was quite apparent to me, from his reactions and body language, that Mr Del Grosso did not agree with what I was saying when I said “The Applicant was a party to this fraud”.  It was for that reason I then said to him “if you don’t like it”.  I emphatically refute any suggestion that there was any question of bias.  I did, perhaps, myself over-react to the hostile reaction on the part of the Appellant, but I emphasise that the comments of which Mr Del Grosso now complains would not have been made if the Appellant had not interrupted the decision of the Tribunal, as he admits occurs.”

	That is the response of the Chairman.  The first observation we make is that we respect the frank acceptance of the allegation made by Mr Del Grosso both as to what was said and how it happened.  We have to assess whether this exchange is indicative of a danger that the Chairman and his members were biased in their decision.

	It is unfortunate that this outburst did occur.  It is always likely to catch a judge off guard if, during the course of his judgment, one of the parties demonstrate they are blatantly rejecting what he is saying.  It is apparent from what the Chairman says that he was provoked by Mr Del Grosso’s intervention.  It led him to re-emphasise what he had already stated namely that the Applicant was party to this fraud and he did so in unmeasured terms.  An Employment Tribunal’s hearing affords the employee who thinks he has been unfairly treated by his employers an opportunity to air his grievances.   It is an opportunity for him to put his case; it is the Tribunal’s function to listen to that case.  Whatever the outcome, the hearing should enable the Applicant to leave the Tribunal room feeling that he has had a fair crack of the whip before an impartial independent tribunal.  These remarks are of the sort calculated unfortunately to achieve the reverse.  They deprive the Tribunal of the opportunity to achieve its aim.  We are confident this Chairman now regrets his remarks, but we have to ask ourselves as to whether they raise an arguable point of law that should go forward to a hearing before the full tribunal.  We note that the exchange occurred at the stage when the Tribunal were giving their reasons for a decision they had already reached.  It arose in the heat of the moment and in those circumstances we do not think that the words used arguably demonstrate bias which would have undermined the integrity of the hearing itself.  

	Mr Del Grosso has supported his allegations of bias by saying that he was prevented from calling a number of witnesses or putting in an affidavit from a number of witnesses whom he feels would have called into question the integrity of the employers principle witness, Mr O’Donnell.  We have considered this allegation and have found that the Chairman’s conduct in disallowing that affidavit evidence was perfectly proper.  His decision was one which we cannot criticise in any way.  If allegations of dishonesty are to be made by any witness, it is encumbrant upon the party making those allegations to call the appropriate witness to prove those matters.  It is not good enough to expect that they should be levelled against him or her on affidavit only.  The decision not to call the witnesses was taken by Mr Del Grosso together with his professional adviser, Mr Potts who was representing him.  We think there is no criticism to be made of the Chairman in that respect.

	At a preliminary hearing, we have to be satisfied that there is a point of law here which should go forward as being arguable.  However on neither point Mr Del Grosso has argued before us, are we satisfied that there is an arguable point of law.  Accordingly, we think it appropriate to dismiss this appeal at this stage.