Appeal No. EAT/270/90

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 14 February 1992

	Before

	THE HONOURABLE MR JUSTICE PILL

	MR T S BATHO

	MR D A C LAMBERT

MISS A COLLINS	APPELLANT

(1)  MR T N NOBLE T/A RAFTERS                                  	  RESPONDENTS
(2)  MISS C COLLINS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

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

For the 1st & 2nd Respondents	NO APPEARANCE BY OR 	REPRESENTATION ON 	BEHALF OF THE 1st AND 	2nd RESPONDENTS

	

	MR JUSTICE PILL:  This is an Appeal by Miss Ann Collins against a decision of the Industrial Tribunal sitting at Newcastle Upon Tyne on 4 April 1990.  The Tribunal found by a majority that the Appellant had been dismissed fairly from her employment by the Respondent Mr N Noble t/a Rafters.  At the Hearing before the Industrial Tribunal the Respondent appeared in person.  Neither party is before us today.  The Respondent has not filed an answer to the Notice of Appeal.  The Appellant has provided us with written submissions and we approach the case on the basis of the contents of the Notice of Appeal together with the written submissions submitted and we consider the Reasoned Decision of the Tribunal in the light of them.

	The Respondent is a greengrocer.  Miss Collins was his niece and was employed by him as a sales assistant at his shop known as Rafters, in the centre of Newcastle Upon Tyne.  The Appellant's sister Miss Christine Collins was also applicant to the Industrial Tribunal.  She was found to have been dismissed unfairly and an assessment of compensation has been made.  There is no appeal by the Respondent against that finding of the Tribunal and there is of course no cross appeal in the case of Miss A Collins.

	There were two issues before the Tribunal.  The first was whether Miss Ann Collins had been dismissed.  The Second issue was that if they found she was dismissed, whether her dismissal was unfair.  The Respondent before the Tribunal was adamant that he did not dismiss Miss Ann Collins or indeed her sister.  He was invited by the Chairman to consider the possibility of making an alternative submission, namely that if there had been a dismissal contrary to his contention, there was a good reason for such a dismissal.  The Respondent himself declined to look at the matter in that way.  He was adamant that he did not dismiss Miss Collins.	The Tribunal however, having rejected his contention on that point and having found that Miss Ann Collins was dismissed, went on to find that the dismissal was fair.  That decision was by a majority, the Chairman dissenting.

	The issues are set out at paragraph 6 of the Reason Decision.  According to Ann she did not go into work on 20 September 1989 because she had flu and a sore throat.  She attempted to contact her uncle but was unable to do so.  When she returned to work she was told that she was on a week's notice.   When she said that she had been absent because she was ill the Respondent asked her whether she had been to an all night party and she replied that it was nothing to do with him.  The Respondent thereupon said, as the Tribunal found:
"I put her on a week's notice.  This was a manner of speech.  It's a family feud.  It would be forgotten about later.  She knows this for a fact."
	He added that giving notice to his nieces was a regular thing.

	The Tribunal found difficulty with the credibility of both parties saying that neither of them could be believed "outright" on their evidence in its entirety.  All members of the Tribunal considered that there was an element of unreliability in the Respondent's evidence.  We need not consider further the Tribunal's finding that there was a dismissal.  The findings as to the fairness or otherwise of that dismissal are set out in paragraph 9 of the Reasons.  Reference was made to the case of BRITISH HOME STORES LTD v BURCHELL [1978] IRLR 379 and the test to be applied when an employee is dismissed for misconduct.  The majority found that Ann Collins was dismissed for misconduct
	"in respect of telling untruths."

	BURCHELL provides that:
"In a case where an employee is dismissed because the employer suspects or believes that he or she has committed an act of misconduct, in determining whether that dismissal is unfair an Industrial Tribunal has to decide whether the employer who discharged the employee on the ground of the misconduct in question entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time."
	The majority found that the Respondent held in fact a belief in the misconduct.  They found second that there was sufficient material upon which he could hold that belief, namely evidence that the Applicant had been to an all night party.  Thirdly they considered that sufficient investigations were carried out.  They concluded that the decision to dismiss was 
"..within the band of reasonable responses to treat the telling of untruths as gross misconduct."
	We were immediately struck by the apparent oddness of this majority decision.  On the face of it it is difficult to reconcile the evidence of the Respondent himself that the point at issue was a family feud and would be forgotten about later with a belief on his part that there was such conduct as entitled him to dismiss and to dismiss without an allegation of unfairness.

	The Chairman of the Tribunal had the same difficulty.  His findings were as follows:
"..that the case must be decided within the ambit of the issues raised and the evidence given in the case.  The respondent was adamant that the words used were not meant and he never resiled from that position.  The Chairman thinks it is not open to the Tribunal to analyse the case on the basis of a reason which was never put forward.  He can illustrate what he considers to be the logical flaw in the majority argument by pointing to the finding in relation to the first Burchell guideline, "did the respondent hold in fact a belief in misconduct".
"The Chairman points out that the respondent was adamant that the using of the words were not something deriving from any misconduct but was only "a manner of speech"."
	In the written submissions Miss Ann Collins' case is put in this way:
"..the Chairman's view of the case is correct in that the first guideline of the Burchell case cannot be satisfied.  It cannot be satisfied because the Respondent in evidence did not have the fact of the belief nor did he believe it - it was only "a manner of speech"."
	It is important that we remind ourselves that it is the Industrial Tribunal which is the Tribunal of fact.  We should not readily interfere with their findings of fact.  Indeed recently in PIGGOTT BROTHERS & CO LTD v JACKSON [1991] IRLR 309 CA the Master of the Rolls held that:
"A decision of an Industrial Tribunal can be characterised as "perverse" only if it was not a permissible option.  In order to hold that a decision was not a permissible option, the EAT will almost always have to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the Industrial Tribunal."
	We keep in mind the very limited circumstances in which we should reverse a finding of the Industrial Tribunal.  However we are unanimously of the view that the finding of this Tribunal must in this case be reversed.  We find the reasoning of the Chairman wholly persuasive.  We do not consider that it was a permissible option, for the reasons given by the Chairman in his dissenting opinion, to find that the dismissal was fair.  In those circumstances this Appeal will be allowed.  There is only one possible answer in our view upon the facts and that is that the dismissal was unfair.  Accordingly we substitute that finding for the Tribunal's finding and remit the matter to the Tribunal so that they can consider the further remedy which Miss Ann Collins has.  The Appeal is allowed.