Appeal No.EAT/441/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 19th November 1993 
	Judgment delivered on 20th December 1993

	Before

	HIS HONOUR JUDGE B HARGROVE OBE QC

	MRS E HART

	MISS J W COLLERSON

SOUTHERN CITY LEISURE LTD	APPELLANTS

MRS C BLADES	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR S SCHAW-MILLER
(of Counsel)
Messrs Baileys Shaw & Gillett (Solicitors)
17 Queen Square
LONDON WC1N 3RH

For the Respondent	Ms S BRADFORD
Free Representation Unit
45-51 Bedford Row
LONDON WC1R 4LR

HIS HONOUR JUDGE HARGROVE QC      After a hearing on 2nd April 1993 the Industrial Tribunal decided that the Respondent had been unfairly dismissed.  The dismissal took place on 13th January 1993.  The circumstances of the dismissal were that the Respondent was the manageress of an amusement arcade.  On 4th December 1992 she was at the arcade with a Miss Vickers until 4 p.m. .  She then left and the evening manageress, Mrs Mahoney took over.  The arcade closed at 10 p.m.  Thereafter there was a burglary and a float of £575 was stolen.  The alarm system was defective at the time and the view was formed that that defect was caused by the sensor having been tampered with by removing a lens.

	It was suggested that a member of staff had been an accessory to the burglary by tampering with the sensor.  It was impossible to decide, from the Appellants' point of view, who had been guilty, but it seems that they decided that one of the three employees mentioned above must have carried out the interference with the alarm and they decided upon a "blanket dismissal".  In the event such dismissal only affected the Respondent and Miss Vickers.  The other employee had already left.

	The Appellants who liaised with the police and with ACAS are aggrieved that the Tribunal found that the dismissal was unfair.  They rely on Monie v. Coral Racing Ltd [1981] ICR 109 and Parr v. Whitbread & Co. [1990] ICR 427.

	The Tribunal held:
		"9.  There is clear legal authority that where two or more employees are suspected of dishonesty and the employer, despite investigation cannot discover who is to blame, it may be fair to dismiss all the suspects on reasonable suspicion short of actual belief.  The authority is the decision of the Court of Appeal in Monie v. Coral Racing Ltd [1981] ICR 109.  In this case the respondents have chosen not to call any evidence before the Tribunal and have relied on their written representations.  No evidence has been called which can be tested in cross-examination and the Tribunal finds that the respondents have not shown that they had reasonable suspicion that the applicant was an accessory to the break-in.  The Tribunal has not been able to hear any evidence from Mrs Sandra Breach about the earlier incident when the applicant was called to the shop because Mrs Mahoney had been drinking.  The Tribunal is not satisfied that the respondent had any reasonable grounds for believing that that was on the night before the break-in.  If they had so believed then obviously they would have had much stronger grounds for suspicion than if the applicant, who had been a good and satisfactory employee for several years, turned over to Mrs Mahoney in the normal way at 6 p.m.

		10.  The respondent has chosen not to produce evidence from witnesses on oath who are available for cross-examination, and although we have taken their written representations fully into account we are not satisfied that the respondent has shown that they had a reasonable suspicion that the applicant was involved in the dishonesty and was an accessory to the break-in.  The Tribunal therefore finds that to dismiss the applicant on grounds of conduct was not within the range of responses of a reasonable employer and we unanimously find that the dismissal was unfair."

	The initial complaint by the Appellants is that the Tribunal is in error in failing to distinguish between the reasons for dismissal under S.57(1) and the test under S.57(3), whether the employer acted reasonably or unreasonably in treating the S.57(1) position as a reason for dismissing the employee.  This in turn produces another error in that the Industrial Tribunal placed the burden of proof under both section 57(1) and S.57(3) upon the employer. It is clear from the language used that the Tribunal did stray into that error.  It is an understandable error because the only case that they were asked to consider was Monie.  The law as stated in that case was correct upon the legislation in 1981.  Section 57(3) changed the law and now leaves the burden of proof in a neutral position.

	The second area of error was that the Tribunal failed to follow the guidance laid down in Parr v. Whitbread & Co [1990] ICR 427 at 432 where Wood J. indicated the position as follows:
		In an attempt to analyse the Monie principles where dishonesty is involved together with the Whitbread principles where mere incapability was involved, we ourselves would suggest that a possible approach is as follows, and in setting it out I have had the benefit of the views of the industrial members with their experience.  If an industrial tribunal is able to find on the evidence before it: (1) that an act had been committed which if committed by an individual would justify dismissal; (2) that the employer had made a reasonable - sufficiently thorough - investigation into the matter and with appropriate procedures; (3) that as a result of that investigation the employer reasonably believed that more than one person could have committed the act; (4) that the employer had acted reasonably in identifying the group of employees who could have committed the act and that each member of the group was individually capable of so doing; (5) that as between the members of the group the employer could not reasonably identify the individual perpetrator; then provided that the beliefs were held on solid and sensible grounds at the date of dismissal, an employer is entitled to dismiss each member of that group."

	We bear in mind that the five headings are only guidance but if they are followed some errors can be avoided.  Here, apart from finding that the employers had not shown that they had a reasonable suspicion that the Appellant was an accessory to the break-in, the Tribunal made no findings touching the vital issues and upon that one heading the finding was irrelevant.  Once there is an honest belief that the employee is one of the group containing the possible offender and that each of the group could have committed the offence, there need not be any belief in the guilt of any particular member of the group.

	The Respondent's counsel has urged upon us that although the manner in which the Tribunal expressed itself was unfortunate, the general sense of the findings was that the employers had not shown that they had reasonable grounds for believing that the Respondent was a member of the "possible offender group".  Attractively as this argument was put we find, with regret, that such an interpretation would do violence to the plain terms used.

	There is a further difficulty in that the Tribunal had little assistance from the Appellants.  There were plain conflicts between the evidence of the Respondent and of the Appellants' letter of 2nd February 1993.  Apart from a short passage in paragraph 9 of the Reasons, the Industrial Tribunal did not resolve the conflict of evidence by preferring one party to another.  Again, the Respondent's counsel has urged, on the basis of commonsense, that although the Appellants' letter was taken into consideration as the Tribunal indicated, it should be taken that the Respondent's evidence was accepted on all points of conflict.  Again, we can see the attractiveness of this approach but we are unable to agree with it.

	The "fall-back" position of the Respondent is that if the Tribunal erred in law, the appeal should be refused on the basis of Dobie v. Barnes International Security Services (UK) Ltd [1984] ICR 813 where the decision of the Tribunal was plainly and unarguably right.  Strong though the Respondent's case before the Tribunal appeared to be on the merits, we do not think that it reaches the level required by the Dobie case.

	We have reached the reluctant view that on each of the Appellants' points set forth above the Tribunal was in error.

	We have decided that we have to remit this matter to a different Tribunal.  We reach that decision to remit after considering a bizarre result which such remission will produce.  If an appeal court would have refused to permit an appellant to call fresh evidence then it will be wrong to send back a case for rehearing before a fresh Tribunal so that such evidence can be called there.  In Kingston v. British Railway Board [1984] ICR 781 at 797, Dillon L.J. held -
		"The Appeal Tribunal directed a fresh hearing at the Board's expense before a differently constituted tribunal so that the Board could call constable X and any other police evidence.  With the greatest respect to the Appeal Tribunal I think that that was wrong in principle.  It was giving the Board an opportunity to call further evidence which was available at the time of the hearing before the Industrial Tribunal and which the Board had, in fact, deliberately decided not to call for the reasons which Mr Marr-Johnson has explained to us.  To allow further evidence would be contrary to the principles which the Appeal Tribunal has accepted in National Graphical Association v. Howard [1983] ICR 574, that is to say that the Appeal Tribunal acts on the ordinary principles on which Court of Appeal admits fresh evidence in civil litigation.  A fortiori, if the calling of fresh evidence before the Appeal Tribunal would be wrong, it would be wrong to allow a wholly new trial to permit the fresh evidence to be given.  ..."

	We believe that this case comes within the position considered by May L.J. at p.796 of the Kingston case:
		"... In my experience, however, the appeal tribunal has never remitted a case to an industrial tribunal to enable a party to call a witness on an issue which was clearly relevant to the first hearing before the tribunal, and who could have been called at that hearing, where such evidence is not within the principles of Ladd v. Marshall [1954] 1 W.L.R. 1489.  If the evidence is not admissible before the appeal tribunal on appeal, then I can see no justification for remitting the case to the industrial tribunal for a rehearing solely to achieve the same result.  There may be good reasons to justify remission in other cases, but, where this is the sole reason, I do not think that a case should be remitted."

	It appears therefore that the employer, who declined to give evidence before the Tribunal, will be able to do so before the later Tribunal.  We note that to a small degree that injustice to the respondent may be lessened if the Appellants abide by the indication which has been given before us that it would not be their intention to give evidence beyond the matters set forth in the letter of 2nd February 1993.

	The appeal is therefore allowed and the case remitted to another Tribunal.

	This is a unanimous decision.