Appeal No.	 EAT/522/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 January 1997

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MRS T A MARSLAND
MR R H PHIPPS

MR A B COOPER	APPELLANT

A E HOBSON & SON LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

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

		MR JUSTICE MORISON (PRESIDENT):   The purpose of this hearing is to determine whether the Notice of Appeal discloses a point of law fit for hearing before a full division of the Employment Appeal Tribunal.  We can summarise the nature of the decision against which the appeal has been launched.  

	The Industrial Tribunal held at Sheffield had to determine whether the Applicant’s dismissal by his former employers was fair or unfair.  The brief facts were that the Respondent company was a small wholesale butcher.  The Applicant was a Director of that company.  There was a foreman within that company, a Mr Allsop, who took it upon himself, as the Industrial Tribunal found, to ensure that the stock control system was properly implemented.  He made a point of checking that all meat that was leaving the Respondent’s factory was properly accounted for.  He thought that he had discovered that meat which was leaving the Respondent’s premises under the control of the Applicant, had not been properly accounted for, and he reported his suspicions to the company.

	It appeared that there were in particular three orders which had left the premises but which were not accounted for.  The employers when informed of these suspicions made enquiries themselves, and then asked the police to investigate, which the police immediately did.  Subsequently on 9 August 1995 they arrested the Applicant, took him into custody and interviewed him.  The Applicant, having been arrested, was later released on police bail.  On 11 August a disciplinary hearing was arranged; that was inconclusive, but at the end of the interview, the employers decided that the Applicant should be dismissed.  He then appealed, and given the limitations of a small business, an appeal was organised.  The employers took the view that the Applicant’s explanations were incoherent and unconvincing.  The Industrial Tribunal said this in paragraph 6 of their Extended Reasons:
“... We suspect that they were much the same as the applicant’s evidence to us today and we can readily understand that the respondents were not convinced of the applicant’s innocence.  The result was that the appeal was turned down.”

	Having considered the evidence before them, they then concluded that the reason for the dismissal related to the Applicant’s conduct.  They asked themselves the questions which are suggested by the decision of British Home Stores v Burchell: did the Respondent believe in the Applicant’s guilt?  Did they have reason for that belief?  Had they made all reasonable enquiries?  They continued:
“7.	   ... We have no doubt that the respondents did believe in the applicant’s guilt.  Having heard the evidence of Mr Alsop who was the person who reported the matter originally to Mr Hobson we have no doubt that they had good reason for that belief.  We think too that they made all reasonable enquiries.”

	They then asked themselves the question which arose under Section 57(3) of the 1978 Act, as to whether a dismissal was within the range of reasonable responses and concluded that it was.  Therefore they rejected the application of unfair dismissal.  

	In support of the Notice of Appeal, the Applicant’s solicitors have invited us to consider their written submissions to this court, which we are happy to do.  They make two specific points which they have asked us to take into account.  First, they say, the Appellant was entitled to have meat free of charge for his own personal use and consumption.  The issue of free meat allowances is not mentioned in the Extended Reasons of the Tribunal.  

	We should say first of all that the Industrial Tribunal is not required to mention every part of every piece of evidence that is given to them and they are right to concentrate on those parts of the evidence which seem to them to have materiality to the decision which they have to arrive at.  But it seems to us further, that having regard to what is said in paragraph 4 of the Industrial Tribunal’s decision, the fact that there was a free meat allowance would have had no affect on the nature of the decision which they had to arrive at, because it is plain that the police, when they commenced an investigation, made enquiries of the people who were alleged to have been the recipients of the orders.  That, it seems to us, negates any possible suggestion that the meat when it left the Respondent’s premises was destined for the Applicant himself as part of his free meat allowance.

	The second point that the solicitors have asked us to take into account is that the allegation of theft against the Appellant related to three particular meat orders.  The Appellant did not dispute that he had received one order which was for his personal use; the second order had been received by the customer and we understand that the Appellant presented written evidence to the Tribunal to confirm this.  This evidence does not appear to have been accepted by the Tribunal, although there is no mention of it in their Extended Reasons.  In relation to the third meat order, the Appellant gave evidence that he had no knowledge of this order.  The Respondent could not produce any documentary evidence to support its assertion that the order had been placed, and the only evidence which contradicted the Appellant’s evidence was the evidence of the foreman, Mr Allsop.  In view of the Appellant’s length of service and his unblemished record, it is submitted that the evidence of Mr Allsop should not have been preferred to the evidence of the Appellant, who was a Director of the Respondent. 

	Again, it seems to us, that this is not a point of law as such.  This relates to the evidence and the way that the Industrial Tribunal approached the credibility of what they were told.  It seems to us, with great respect to the solicitors who make this submission, that there is a complete misunderstanding of what a point of law is.  The Industrial Tribunal was entitled to prefer the evidence of Mr Allsop to that of the Applicant, and it seems to us that that was a pure question of fact for them, with which this court cannot interfere.

	The third point which is made is simply a summary of the previous two points and it reads as follows:
“Accordingly on behalf of the appellant we would submit that the appellant’s Notice of Appeal raises a reasonably arguable point of law in that the Tribunal erred in law in perversely finding that the Respondent was entitled to conclude from the evidence before it that the appellant was guilty of the theft of meat from the respondent.”

We disagree.  Perversity is very easy to allege but it is only in exceptional circumstances that such an allegation is likely to succeed, because it is our experience in the Employment Appeal Tribunal, that Industrial Tribunals conscientiously approach the task which is set for them and it is rare only that it could be said that their decision was manifestly unreasonable.  

	In this case it seems to us having looked at the whole of the Industrial Tribunal’s decision, that it was one which they were well entitled to arrive at on the material before them.  The Tribunal was concerned only with the question as to whether the employers could reasonably have believed the Applicant had misappropriated the meat.  They quite rightly indicated that it was not for them to decide whether, as a matter of the criminal law, the Applicant was guilty of theft or not.  It seems to us in these circumstances that there is no arguable point of law raised in the appeal and we accordingly dismiss it.