Appeal No.	 EAT/534/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 September 1999

Before
HIS HONOUR JUDGE J HICKS QC
MS S R CORBY
MR L D COWAN

MR P ANDREWS	APPELLANT

PRUDENTIAL ASSURANCE CO LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON	

	JUDGE J HICKS QC:	Mr Andrews, the Appellant, was employed as a Financial Adviser by the Respondent, Prudential Assurance Co Ltd, from 21 July 1990 until he was dismissed, according to the decision of the Employment Tribunal, at an effective date of 10 June 1998.  He tells us that the date was in fact July 1998, but that is of no real materiality.

1	There had been a complaint by a customer, Mr Mythen, in March 1998 that certain shares had been cashed without his knowledge and there was an interview on 6 March about that, in which Mr Andrews’ explanation was that he trusted Mrs Mythen to get her husband’s signature and, in the event, no action was taken at that time on that complaint.  But on 3 April 1998 he was interviewed again after a further report from Mr Mythen, and there followed an investigation which involved looking into some 50 of Mr Andrews’ most recent transactions which, in the employer’s view - certainly in the view of their Compliance Unit - showed irregularities as to six customers, one of which involved an allegation of forgery of a customer’s signature.

2	There was a disciplinary hearing on 8 May 1998 and after hearing Mr Andrews’ response to the allegations there was an adjournment to 26 May, when the hearing was further adjourned to 10 June 1998, on which date it was concluded and a dismissal decision reached, which was communicated by a letter of the same date.

3	Mr Andrews appealed, it appears, against the penalty imposed of dismissal rather than against the finding of misconduct, but however that might be the appeal hearing was conducted on 7 July 1998 and his appeal rejected and that is, no doubt, why Mr Andrews takes that date as being the effective date of dismissal.  He made no application for a final review under the Respondent’s procedures but complained to the Employment Tribunal of unfair dismissal.

4	The Employment Tribunal dealt with the history at some length.  Their Extended Reasons run to 8½ pages in 42 paragraphs.  They accepted the evidence of the employer’s witnesses as to the way in which the enquiry had been conducted, and the decisions of the disciplinary hearing and the appeal hearing reached, and found that the reason for dismissal was conduct; that is not in dispute.  They also found that the employer acted reasonably in carrying out a sufficient investigation and concluding on reasonable grounds that Mr Andrews’ misconduct had taken place and, in those circumstances, they found the dismissal fair and dismissed Mr Andrews’ complaint of unfair dismissal.

5	In order to succeed on an appeal to us Mr Andrews has to show that the Tribunal erred in law.  He has advanced a number of reasons in support of his contention that they did, but none of those contentions amounts to any suggestion that the Tribunal misdirected itself, asked itself the wrong questions, or did not understand the statutory requirements.  They all, to put it broadly, amount to reasons why either the employer in its investigation, or the Tribunal in its hearing, ought to have arrived at different factual conclusions and that is not a basis on which we can interfere, because that discloses no error of law.

6	I shall briefly mention the points that were raised.  Mr Andrews first points out that the letters communicating the dismissal decision and the appeal decision of the employers make no mention of a particular customer, a Mr Pepper, who was concerned, in the conclusion of the employer as presented to and accepted by the Employment Tribunal, as one who had received documentation which was not a true copy of that in the possession of the Company or vice versa.  But those letters do not spell out in detail all the names of individual customers, except in the one case of alleged forgery, and that is plainly an evidential and factual matter and not one going to errors of law.

7	Mr Andrews points out that one of the complaining customers, in fact I think the one concerned with the alleged forgery, had initially told the Compliance Unit investigators that Mr Andrews had seen her only once, whereas he said it was five times and on further interview she accepted that it was some three times or perhaps more, but that was a matter that was clearly before the Tribunal, went to the credibility of that customer and the weight that the employer should have given to what she told them and was plainly taken into account by the Employment Tribunal and does not show any error of law on their part.

8	There were then two matters as to which in effect, as we understood him, Mr Andrews was seeking to introduce before us additional evidence, although there has been no application for leave to introduce additional evidence.  The first example was a report from a handwriting expert.  It was certainly canvassed before the Tribunal, at some length, that one of the defects in the employer’s procedure which Mr Andrews relied upon was that they did not obtain any expert evidence as to the signature of the customer which was alleged to be a forgery.

9	We see no ground on which, if an application for leave to adduce this evidence were made, it could succeed.  In the first place there was absolutely no reason, since the matter was plainly in Mr Andrews’ mind, why he could not himself have obtained such evidence to place before the Tribunal.  Secondly the report that he has now obtained, which we have looked at simply to see what the nature of that evidence would be, if admitted, refers to three documents identified as Q1, Q2 and Q3, of which Q1 and Q2 Mr Andrews tells us are forgeries, as he says, of his signature and Q3 is the very disputed signature of Mrs Hewitt which was in issue but not, as we read this report, the original, because the handwriting expert, very understandably, stresses that it is important to have originals and that the Q3 put before him is far from ideal.

10	We do not see therefore how, quite apart from the question of availability before the date of the Employment Tribunal, this particular report could be of any materiality or any significant materiality to the question whether Mrs Hewitt’s signature was genuine, as Mr Andrews’ case before the Tribunal and the employers was, or was a forgery.  For that purpose a proper comparison, if expert evidence was to be given at all, was required between the original of that disputed signature and the originals of at least one, and preferably a number, of genuine original signatures of Mrs Hewitt.

11	So there is no ground whatsoever for believing that a case could be mounted that the Tribunal was in error in law through failing to have that evidence before them.  Nor, in so far as it is pursued, do we consider that they erred in law in their conclusion that the employer did not act outside the band of reasonable behaviour of reasonable employers in not itself obtaining expert evidence before dismissal.

12	The second category of additional evidence which, by inference, Mr Andrews seeks to put in and therefore to apply for leave to admit, is his approaches to the six customers since the date of the Employment Tribunal.  He says his reason for not doing so before the Tribunal was, as we understand it, a common form of restrictive covenant in his contract which forbade approaches to former customers for 14 months after employment ended but in fact, as we understand it, the 14 months had still not expired when he approached them between the date of the Employment Tribunal and the hearing before us and, in any event, had he wished to obtain their evidence for the Employment Tribunal the obvious course was to seek a direction from the Employment Tribunal that they could be interviewed.  So we do not accept that that evidence could not reasonably have been obtained before the hearing.  In any event this evidence, so far as Mr Andrews briefly outlined it to us, would also not in our view have satisfied the test of being likely materially to have affected the result.  There were six customers.  One was not approached.  Two did not respond to a letter.  Three were (according to Mr Andrews) prepared to say that he always gave them appropriate paper work, but it was not for the Tribunal, and certainly is not for us, to decide yes or no whether they got the right paper work.  The question for the Tribunal was “did the employer conduct a fair investigation into this, among other, matters” and we do not consider therefore that the possible application to admit this further evidence could possibly raise an arguable ground that the Employment Tribunal erred in law.

13	Finally, Mr Andrews pointed to some other matters of detail in the Employment Tribunal’s reasons.  He emphasised the devastating effect, as we can understand, which this decision has had on his career and we fully appreciate that, as we are sure the Employment Tribunal did, but the Employment Tribunal had to perform its duty of considering whether the dismissal was fair and the effects on Mr Andrews, although they understood them, could not and should not have swayed them into reaching a decision against their proper judgment on the issues before them.

14	Mr Andrews points out that the disputed signature had already been passed, not only by him but at several other levels in the Prudential before being questioned by the Compliance Unit during its investigation, but that is absolutely irrelevant as far as we can see to the validity of the Employment Tribunal’s decision on the issues before it.  He suggests that a particular memorandum of 16 March 1998 should have had more emphasis but that is, on its face, a question about evidence and fact not of error of law and the same is true about the arguments which he raised about points mentioned, but he says not sufficiently taken into account, by the Employment Tribunal.  Finally he refers to a letter from his own Solicitor to him which expresses a view, but that can be of no relevance either.

15	We therefore see no error of law in the decision of the Employment Tribunal and must dismiss this appeal.