Appeal No. EAT/393/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 17th December 1992

	Before

	HIS HONOUR JUDGE J HICKS QC

	MR P DAWSON OBE

	MR R H PHIPPS

BESTWAY CASH & CARRY LTD	APPELLANTS

MRS G L SEHGAL	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR D O'DEMPSEY
(Of Counsel)
Anthony Oberman & Co
11/12 Granville Street
Bloomsbury
London
WC1N 1LZ

For the Respondent	MR D CURWEN
(Of Counsel)
Gummer & Singh
Amber House
279/287 High Street
Hounslow
Middlesex
TW3 1EH

	JUDGE J HICKS QC:  This is an appeal by the employers Bestway Cash & Carry Limited against the decision of the Industrial Tribunal that the employee, Mrs Sehgal, was unfairly dismissed.  In view of the decision that we have unanimously reached, and our reasons for it, I can deal with the background very shortly.

	Mrs Sehgal was allegedly attempting to remove from her place of employment, a retail establishment at which she worked at a till, goods belonging to her employer without payment.  There was a disciplinary hearing.  The manager who conducted that disciplinary hearing came to the conclusion that she should be dismissed.  She appealed to a Mr Turpin, a manager of the same rank - but whether or not that accorded with the precise terms of the disciplinary code is not, and was not, a substantive issue.  He conducted an appeal and confirmed the dismissal.  

	The Industrial Tribunal after a hearing of six days came to the conclusion, at some length, that it preferred the Applicant as a witness to the employers' witnesses and then gave reasons, after directing itself as to the guidelines laid down in British Home Stores v. Burchell [1980] ICR 303, why it concluded in paragraph 13 that although the employers, as it accepted, believed that the employee had attempted to do what the employer alleged, and although the employer had in mind reasonable grounds on which to sustain that belief, the employer nevertheless did not satisfy the third limb of Burchell because it did not carry out as much investigation into the matter as was reasonable.  The Industrial Tribunal, therefore, came to the conclusion that that limb of Burchell was not satisfied and that the dismissal was therefore unfair.

	 Their decision in that respect is criticised by Mr O'Dempsey, for the employers, on a number of grounds, but when they came to deal with the appeal before Mr Turpin the Industrial Tribunal said simply this:
"Finally, we find the conduct of the appeal to be unsatisfactory.  This is of course a minor matter since by this time the decision to dismiss had been taken, but we find that again there was a failure to inquire properly into the discrepancies in the evidence in any detail and too ready an acceptance of what the respondents' witnesses were saying about the matter.  There were also again, in our view, a failure to have a competent interpreter in order that the respondents could be completely satisfied that the applicant understood in detail exactly what was being alleged.  To conduct these proceedings in English without a translation into Punjabi for the benefit of the applicant was, in our view, wrong and was not in accordance with the standards of fairness to be expected of the reasonable employer.  The provision of a cleaner of poor intelligence and little knowledge of English was not satisfactory."

As to the second half of that paragraph, the reference to an interpreter, it seems plain that there is some confusion or, at least, ellipsis in the Tribunal's reasons because the truth of the matter, as is not in dispute, is that there was at the disciplinary appeal a Mr Nath, an interpreter provided by the employers, and as we understand it no criticism has ever been made of his competence.  There was also present a Mr Walliat, not as an interpreter but as the Applicant's representative, and he seems to be the person who is referred to in the last sentence of that paragraph:
"The provision of a cleaner of poor intelligence and little knowledge of English was not satisfactory."

It is not in dispute that he, in fact, was chosen by the Applicant herself and the only part the employers played in his attendance was that, since he was a fellow employee, they had of course to make the necessary administrative arrangements to ensure that he could be present.  Therefore it is, in our view, difficult to see how the Industrial Tribunal, had they had in mind the facts about Mr Nath, the interpreter, and Mr Walliat, the representative, could have made that criticism.  It is perfectly true that when one looks at the evidence before them as to the conduct of the appeal proceedings there was evidence to show that the interpreter was not called upon to interpret for substantial parts of the proceedings, but that is not the criticism that they make in this paragraph.  To say that there was a failure to have a competent interpreter there, on what on agreed submissions to us was the case, is simply not correct.

	Before I deal with the only other matter which the Industrial Tribunal criticised in regard to the appeal, the failure to enquire properly into the discrepancies in the evidence, I should refer to the case of Clark v. Civil Aviation Authority [1991] IRLR 412 because it is common ground that that gives guidance as to the correct way to approach matters when there has been an internal appeal.  It is sufficiently summarised in the headnote:
"In normal circumstances, failure to follow a fair procedure will be sufficient alone to render a dismissal unfair.  However, the law is now established that a faulty procedure during the initial stages can be rectified by a full and proper hearing on appeal, in effect, a re-hearing.

In the present case, therefore, the Industrial Tribunal were entitled to find that, notwithstanding the procedural defects in the employers' original decision to dismiss, in the end the appellant suffered no injustice because on appeal there had been a proper and sufficient hearing and investigation and she had been given every opportunity of presenting her case and making her points."

What is said by the Appellant, by way of an amended paragraph 6 of the Notice of Appeal, is that the Tribunal failed to have regard to the principles in Clark,  failed to consider properly, or at all, the Applicant's appeal to Mr Turpin, and failed to consider what information was before Mr Turpin and what opportunity the Respondent had for making observations and comments on statements provided to her.  The Tribunal also failed to consider the investigations conducted by Mr Turpin, of which there was evidence before them.  In our view that criticism, unfortunately, is well founded.  This Tribunal, as I have said, conducted a hearing lasting six days;  plainly they conducted the matter with a great deal of care and consideration and the earlier parts of their reasons are extensive, but in regard to this matter it does not seem to us that they directed themselves properly in saying:
"This is of course a minor matter since by this time the decision to dismiss had been taken"

If, as Mr Curwen submits, notwithstanding that, which if it stood by itself would plainly be indefensible, they had gone on to consider the appeal in such a way as to show that they had not really approached the matter in the light of those words, but had in substance applied the Clark test, then that might be a sufficient answer to this criticism, but having given what, on the face of it, must be a misdirection the rest of the paragraph, so far from dispelling that approach, seems to us to show that they were indeed approaching the matter as a minor one and not giving full consideration to the procedure and conduct of the appeal.

	I have already dealt with what they say about the interpreter.  The only other matter they criticise in the conduct of the employer's appeal was the failure to enquire properly into the discrepancies in the evidence in any detail and an undue readiness to accept what the Respondents' witnesses, that is the employers' witnesses, were saying about the matter. 

	We have been taken through the evidence of Mr Turpin, who conducted the appeal, and it is not, of course, for us to substitute our view of what happened on the appeal for that of the Industrial Tribunal.  It suffices to say that the Industrial Tribunal could not, in our view, have said as little as what they said about those matters and said it in those terms if they had seriously addressed themselves to Mr Turpin's evidence and had evaluated it in the light of the principles laid down in the case of Clark.

	For those reasons we are unanimously of the view that this appeal must be allowed, and that the application should be remitted for hearing before a differently constituted Tribunal, and in those circumstances we do not find it necessary to deal with the other grounds of appeal relating to the initial disciplinary hearing.  We therefore wish to make it absolutely plain that we are expressing no view one way or the other about that aspect of the appeal and we leave the matter there.