Appeal No.	 EAT/402/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 July 1999

Before
HIS HONOUR JUDGE PETER CLARK
MRS J M MATTHIAS
MR A D TUFFIN CBE

MR R WAINWRIGHT	APPELLANT

G R WRIGHT & SONS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR UNDERWOOD
(of Counsel)
APPEARING UNDER
EMPLOYMENT LAW
APPEAL ADVICE
SCHEME
(ELAAS)

	JUDGE CLARK:	The appeal as presently constituted before us is brought by Mr Wainwright, the Applicant before the Stratford Employment Tribunal sitting on 3 December 1998, against that Tribunal’s substantive decision promulgated with Extended Reasons on 1 February 1999, dismissing his complaint of unfair dismissal against his former employer, the Respondent, G R Wright & Sons Ltd.

1	The background is as follows.  The Appellant was employed by the Respondent from 24 August 1990 until his summary dismissal on 3 September 1998.  He began as a driver, but ultimately, from early 1997, worked as a loader.  The Respondent is a family owned flour-milling company. In early 1998 management became concerned at the scale of losses of flour.  For example, in the first 29 weeks of 1998, bags of flour to the value of some £22,000 could not be accounted for.  The perception amongst the work force was that there was large-scale theft taking place.  

2	On 4 August 1998 an employee, Mr Gater, was stopped at the factory gates and a spot check of his vehicle revealed three bags of flour in his car.  Mr Gater was interviewed by outside investigators and he told them that this was one of many instances of theft of flour in which he had been involved and that other employees involved were Mr Hammond and the Appellant, Mr Wainwright.  The investigators carried out further enquiries and as a result, a picture was built up of a dishonest ring operating within the business consisting of Mr Hammond, a packer, Mr Wainwright, the Appellant, and a driver, Mr Bundock.  

3	The Appellant was further implicated in the dishonesty by two other employees, Mr Canty and Mr Pinner.  Following those investigations, an investigatory meeting with the Appellant was conducted by two directors of the company, David Wright and Alan Cave.  They put the allegations to him and found his responses to be unsatisfactory.  As a result, a disciplinary hearing took place on 3 September 1998 at which the Appellant was summarily dismissed for gross misconduct – that is, theft from the company.  He was advised of his right of appeal but did not exercise it.  

4	In their substantive decision, the Tribunal concluded that applying the three-fold Burchell test, the Respondent had an honest belief based on reasonable grounds following a reasonable investigation, that the Appellant was indeed guilty of dishonesty.  In those circumstances they found that dismissal was a response reasonably open to the employer and concluded that the dismissal was fair.  

5	Against that decision, Mr Wainwright appealed and set out his own grounds of appeal attached to a notice dated 6 March 1999.  It was that appeal which was listed before us today for preliminary hearing.  Mr Underwood, who appears on his behalf under the ELAAS pro bono scheme, does not seek to advance the appeal against the substantive decision and accordingly, we shall dismiss that appeal.  However, his submission has focused on the Chairman’s subsequent review decision promulgated by way of a letter dated 16 February 1999.  Following promulgation of the substantive decision, the Appellant made application for a review and as part of that application included a hand written statement, apparently signed by Mr Gater, dated 13 February 1999 which reads as follows:

“I Trevor Gater was caught stealing 3 bags of Royalty at 32K from G R Wright and Sons Ltd that Bob Wainwright was not involved in any way that the stealing that went on in any way that David Wright persuaded me to say what not true.  I was visited by Mr Andy Samthou.  He told me on behalf of David Wright and ask me about the people at work and Bob King as Number 1 and also Mr David Wright said if I didn’t sign this bit of paper your pension would be at lost the paper being the statement that he wrote.”

It is right to say that Mr Gater refused to sign the statement prepared for him on behalf of the Respondent.  

6	Mr Underwood submits that the Chairman was wrong to dismiss that application summarily under rule 11(5) of the Employment Tribunal Rules of Procedure because of the statement apparently made by Mr Gater.  He acknowledges that he has a difficulty in that there is currently no Notice of Appeal against the review decision and that any Notice of Appeal lodged now would be out of time.  However, we indicated that we would deal with this point on the basis of a pro forma Notice of Appeal and an application for leave to appeal out of time.  He submits that although the statement by Mr Gater does not comply with the New Evidence Requirements under rule 11(1)(d) of the Tribunal Rules of Procedure, nevertheless, in the interests of justice under rule 11(1)(e), the Chairman ought to have at the very least, directed a full review hearing.  In our judgment that proposed appeal is doomed to failure.  

7	It was made clear by Mr Justice Phillips in Flint v Eastern Electricity Board  [1975] ICR 395, that rule 11(1)(e), the interests of justice ground for review, is a “residual category of case designed to confer a wide discretion on industrial tribunals”.  However, his Lordship went on to say that where the application arises primarily under one of the earlier grounds in rule 11(1) (in this case rule 11(1)(d)), it will only be on rare occasions that a party who fails on that ground will succeed in obtaining a review under paragraph (e).  

8	We bear that dictum in mind in considering Mr Underwood’s submission in this case.  It seems to us that is was plainly open to Mr Wainwright to call Mr Gater to give evidence at the substantive hearing on 3 December 1998, to the effect, either that he did not tell the investigators what they alleged he had said about Mr Wainwright, or, that in some way he was coerced into making such a statement.  It would then be a matter for the fact finding Tribunal to determine whether that evidence from Mr Gater was accepted and if so, whether that undermined a finding that the Respondent genuinely believed, on reasonable grounds, that Mr Wainwright was guilty of the dishonesty alleged.  

9	That that was not done seems to us to be an end to the review application.  In these circumstances, we shall dismiss the application for leave to appeal out of time against the review decision and accordingly that is an end of the matter.