Appeal No. EAT/106/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 June 1998

Before
HIS HONOUR JUDGE PETER CLARK
DR D GRIEVES CBE
MR W MORRIS

MR W DAVIES	APPELLANT

ABI BUILDING DATA LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS E LAING
(Of Counsel)
Messrs Aaron & Partners
Solicitors
Grosvenor Court
Foregate Street
Chester
CH1  1HG	
For the Respondents	Mr N GINNIFF
(Of Counsel)
Messrs Silverbeck Ryman
Heywood Buildings
5 Brunswick Street
Liverpool
L2  OUU	

	JUDGE CLARK:   This is an appeal by Mr Wayne Davies, the Applicant before the Liverpool Industrial Tribunal sitting on 6 November 1997, against that Tribunal’s decision by a majority to dismiss his complaint of unfair dismissal, brought against his former employer, the Respondent, ABI Building Data Ltd.  Extended Reasons for the Tribunal’s reserved decision were promulgated on 2 December 1997.

	The background was as follows.  The Appellant commenced employment with the Respondent in May 1994.  He was a Production Assistant working with three or four others at a site some two miles from the Company’s Head Office, sending out documents to customers within and outside the U.K.  

	On 27 May 1997 the Appellant was arrested, together with his brother, after the address at which they were staying was raided by Customs Officers and a quantity of controlled drugs found.  Others were also arrested, including one man who was alleged to have dum-dum bullets in his possession at the time of his arrest.  Those arrested, including the Appellant, were charged with conspiracy to export controlled drugs.  That was a serious charge.

	In the course of their investigation Customs Officers raided the Company’s premises at which the Appellant was employed and conducted a search.  Initially the Appellant was remanded in custody.  After being granted bail he returned to work on 9 June.  He was interviewed by Mr Denis McLinden, Research and Distribution Manager and suspended from duty pending a disciplinary hearing which was to take place on 11 June.

	The disciplinary charges against him, which Mr McLinden warned might lead to his dismissal, were formulated in a suspension letter dated 9 June 1997 in this way:
“1.	The gravity of the offence has led to a loss of trust that must exist between employer and employee, particularly as you often work unsupervised and hold keys to the Production Unit.
2.	Due to Bail restrictions, the ability to perform your job will be seriously impaired, as the nature of your work requires flexibility in your working hours, which may include evenings and night work.
3.	Due to the gravity and nature of the offence, it is considered that the Company’s reputation is at stake, both internally and externally, particularly following the visits by H.M. Customs and the Police and the disruption to business caused by this.  It is also felt that your continued employment could compromise other staff working with you.”

	The disciplinary hearing took place on 11 June.  Following that hearing Mr McLinden decided to summarily dismiss the Appellant for the following reasons set out in a dismissal letter of that date:
“1.	Due to bail restrictions the ability to perform your job is seriously impaired, as previously outlined to you.  Although the Company recognises that these conditions may possibly be relaxed in the future, as you are aware this was not the only area of concern for the Company as outlined in the following points 2, 3 and 4.
2.	Due to the nature and gravity of the offence you are charged with, as an exporter the Company does not think it would be a responsible act to continue to give you keys to the Company buildings, nor to allow you to work alone.  Having worked here for three years, you will be aware that this would be essential to enable you to continue to carry out your duties effectively.
3.	As stated both in your suspension letter and at your hearing, your continuing employment due to the nature and gravity of the offence, could well endanger the Company’s reputation both to its staff and customers, by association with you and leave us open to the possibility of further investigation by the Police/H.M. Customs, with the resulting further disruption of business.
4.	Furthermore, as a responsible employer, we consider the safety of our staff to be of primary importance, therefore we cannot allow the possibility of any staff working with you to be endangered or compromised in any way, by continuing to employ you.”

	Thereafter the Appellant exercised his right of appeal to the General Manager, Mr Ruth.  Before that appeal was heard on 30 June, a Personnel Officer, Steve Lawson, had attended at the Magistrates Court on 27 June, when the Appellant’s bail restrictions were relaxed.  He also heard how the case was put at that stage on behalf of the Crown.  It was alleged that 13 kgs of drugs with a street value of about £¼ million had been found under the bed in which the Appellant’s brother was sleeping at the flat where they were arrested.
	Following the appeal hearing Mr Ruth wrote to the Appellant on 30 June upholding the decision to dismiss on points 2 and 4 of the reasons given by Mr McLinden.

	The Industrial Tribunal found that the reason for dismissal was some other substantial reason, a potentially fair reason for dismissal.  They accepted Mr McLinden’s evidence that he had not wished or attempted to reach a view as to whether the Appellant had committed the criminal offence alleged against him.  The reason for dismissal as found by the Industrial Tribunal was expressed in paragraph 16 of their reasons in this way:
“.....  The reason in this case for dismissal can properly be described as the perception by the Company of the appropriateness of Mr Davies remaining in position, in the light of the surrounding circumstances.”

	As to the reasonableness of the dismissal under Section 98(4) of the Employment Rights Act 1996 the Tribunal were divided.  The majority set out their view of each of the four original grounds for dismissal at paragraph 20 of the reasons.  Having expressed their view they concluded that a reasonable employer might well have decided to dismiss in these circumstances and accordingly the dismissal was fair.

	The minority member took a different view.  He found, having looked at and analysed the four reasons set out in Mr McLinden’s dismissal letter, that his conclusions were not supported by the evidence.  

	The majority view prevailed and the complaint was dismissed.

	In this appeal Ms Laing seeks to persuade us that the Industrial Tribunal majority fell into error in one of two ways.  The first error of law is formulated thus:
“(1)  the majority of the Industrial Tribunal has erred in law in holding that an employer may dismiss an employee simply because he has been charged with a criminal offence without being under any duty to evaluate the evidence critically”

The second ground is one of perversity.

	In developing the first ground of appeal Ms Laing’s central submission is that it was not open to the Respondent to dismiss for a reason connected with the criminal offence with which the Appellant was charged, without forming a view as to whether or not the Appellant was guilty of that offence.  Quite simply, we cannot accept that submission.

	The reason for dismissal was not the employers belief in misconduct, the facts of which also gave rise to a criminal prosecution, compare Harris v Courage (Eastern) Ltd [1982] ICR 530, to which we were referred.  The reason for dismissal consisted principally, and exclusively, at the conclusion of the appeal stage, in the employers loss of trust and confidence in the Appellant as a suitable employee at the place where he was employed, and as a necessary key-holder there in circumstances where he faced a serious criminal charge and in the perceived risk to employees by continuing to employ the Appellant.  That did not mean, as Ms Laing submits, that the Respondent disregarded the Appellant’s denial of involvement in the criminal conspiracy, rather, they were not convinced by it, and perceived that as a result of the charge and all that that involved, the Appellant’s continued employment was no longer appropriate.

	The question for the Industrial Tribunal was whether that reason was a sufficient reason for dismissal.  The majority found that it was, the minority that it was not.  The test here is whether dismissal fell within the range of reasonable responses.  The Industrial Tribunal was not precluded from finding that it did simply because the employer had reached no view on the criminal guilt or innocence of the Appellant.  The majority of the Tribunal was entitled to conclude that a reasonable investigation had been carried out in the circumstances of this case without the employer reaching a view as to the Appellant’s guilt or innocence.

	Having by a majority found that the Respondent’s decision to dismiss fell within the range of reasonable responses, and in the absence of a patent mis-direction of law, which we find to be the case, can it be said that the decision was perverse?  By whichever of the epithets collected by Mummery J in Stewart v Cleveland Guest Engineering Ltd [1996] IRLR 440/443 we choose to judge the majority decision, we are each of us quite satisfied that the decision cannot be characterised as perverse.  Contrary to Ms Laing’s submission no point of principle is raised in this case.  It was a permissible option open to the Industrial Tribunal to find, as the majority did, that the dismissal was fair on the facts of this case.

	That being so, we can discern no error of law in the majority’s approach and accordingly the appeal must be dismissed.