Appeal No. EAT/1399/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 May 2001

Before
MS RECORDER COX QC
MR P DAWSON OBE
MR P A L PARKER CBE

MR P ESERU	APPELLANT

BRITISH HOME STORES	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANT	

MS RECORDER COX QC

1.	This appeal comes before us today by way of a Preliminary Hearing.  The Appellant, who does not appear before us this morning and is not represented, is appealing from the decision of an Employment Tribunal sitting at London Central, promulgated on 28 September 2000, that the Appellant was not unfairly dismissed.

2.	The reasons for that decision, although described as “Summary”, were incorrectly so described, as is made clear from the letter sent to the parties from the Employment Tribunal, dated 18 October.  Nothing turns on that issue.

3.	The Employment Tribunal found that the Appellant was summarily dismissed by reason of gross misconduct on 23 March 2000, after an investigation leading to a disciplinary hearing and then subsequently to an appeal.

4.	The Appellant contends in his Notice of Appeal that the Employment Tribunal erred in law by approaching the matter, not by reference to the reasonableness of the employer’s actions and beliefs, but by reference to the Tribunal’s own judgment, deciding that he had committed theft and on what they would have done had they been the employer.

5.	The facts found by this Employment Tribunal appear in paragraphs 1-6 of their reasons and are fully set out there; I shall not repeat them here.

6.	In paragraph 8 the Employment Tribunal directed themselves as to the law and, in particular, as to the cases of British Home Stores v Burchell [1980] ICR 303 and Foley v The Post Office [2000] IRLR 827 and state, in our view correctly, that they have proceeded on the basis of the original approach in Burchell, which has now been restored to our law.

7.	This was the correct direction as to the legal test which should apply.  Further, we consider that they applied that test correctly to the evidence before them.  The Employment Tribunal were fully entitled to conclude, on the evidence, that the Respondents had carried out a full and proper investigation following their initial suspicions and that the employers were entitled to prefer the evidence of Mr Neale, the Security Guard, to the Appellant’s evidence.  It seems from their findings that the Appellant was certainly aware by the time of the Disciplinary Hearing, of full details of the charges which were being brought against him.  They rejected the Appellant’s suggestion of a vendetta having been conducted against him by Mr Neale and they rejected the Appellant’s criticisms of the disciplinary procedure.

8.	The main criticism of the Tribunal’s reasoning relates to their finding in paragraph 14 and in particular the final sentence of that paragraph where the Employment Tribunal say:

“We find that having found that the Applicant had committed a theft, the Respondent’s decision to dismiss fell within a band of reasonable responses of a reasonable employer”.

9.	The Appellant says that that indicates that the Employment Tribunal had themselves found that the Appellant had committed a theft.  We disagree with that contention, falling where it does in that paragraph and coming after the Tribunal had correctly directed themselves as to the Burchell test, in paragraph 8 and then reminded themselves of it again in paragraph 14.

10.	The clear meaning of the final sentence of that paragraph, in our view, is that the reference to the Appellant having committed a theft, is a reference to the Respondent’s own finding.  This is then followed by the Tribunal’s finding that the Respondent’s decision to dismiss, giving that finding, fell within the band of reasonable responses.

11.	Further, whilst the Employment Tribunal did not resolve the issue raised on the pleadings, as to the video evidence showing that the Appellant had entered the store with a bag and the fact that the Appellant did not himself ever see it, it is clear from paragraph 15 that that matter played little, if any, part in the Tribunal’s decision-making process, as to whether or not this Appellant did in fact take garments or whether Mr Neale had seen him with those garments.

12.	Finally, whilst the Tribunal did express some criticism of the fact that this Appellant should have been given full details of the disciplinary procedures when he joined the organisation and again before the Disciplinary Hearing, these matters were found in the event not to be material and clearly they found that he had had full details of the charges to be brought against him by the time of the Disciplinary Hearing.

13.	In all these circumstances, we can detect no error of law in the decision of this Employment Tribunal and we therefore dismiss this appeal.