Appeal No.	 EAT/326/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 May 1998
Judgment delivered on 15 June 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR J R CROSBY
MR P R A JACQUES CBE

MR J P GIBBONS	APPELLANT

SOUTHERN FINANCE CO LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR T CARTER
(Representative)
Southampton & District Unemployed Centre
11 Porchester Road
Woolston
Southampton
SO19 2JB	

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing is to determine whether there is an arguable point of law in a Notice of Appeal which Mr Gibbons wishes to advance against a decision of an Industrial Tribunal held at Southampton on 19th November 1997. The decision was sent to the parties on 8th January 1998. It is a majority decision and that, in our judgment, has some significance.

	The applicant had lodged a complaint of unfair dismissal against his former employers, Southern Finance Co Ltd, who are a finance house which provides money on loan at a rate of interest to those wishing to buy motor vehicles. He was employed from 4th January 1993 to 4th July 1997 in a job which was essentially to secure new business and to collect monies owing by borrowers.

	One of the borrowers was a Mr G Smith who had borrowed about £3,000 to purchase a Ford Sierra motorcar. He fell into arrears. The applicant had been asked to collect those arrears from Mr Smith. There is then a dispute as to precisely what happened and, more particularly, what the applicant told his employers had happened.

	From the employers’ perspective, the applicant had told them that he had managed to persuade Mr Smith to pay £700 on the basis that Mr Smith retained the car, which was a wreck, and worth very little money. Mr Smith wanted to retain to car to sleep in as he had no fixed abode and was living out of a suitcase. Apparently the applicant told the employers Assistant Collections Manager, Mrs Hill, that the car was worth about £500.

	It was also the employer’s case that the Collection and Litigation Manager, Mr A’Court, on the basis of what he had been told, recorded the fact that £700 was the best the applicant could get and that there was no chance of finding Mr Smith again. Shortly thereafter the applicant accounted to the respondents for £700.

	On 19th May 1997, about three weeks or so later, the applicant who had been asked to chase up the then balance of arrears, reported to Mr A’Court that Mr Smith had lost his job at the George Hotel in Andover and that the applicant had no idea where he was living. A fortnight later the applicant told Mr A’Court that he thought that Mr Smith had gone back to Scotland and that the respondents were very unlikely to find him.

	The picture which eventually emerged was very different. Mr Smith had not gone to Scotland and had not lost his job. That was discovered in June 1997. Mrs Hill was told that Mr Smith said that he had given the car to the applicant; that the applicant had told him that the arrears would be written off; and also said that the car had been in very good condition, as to which there was some apparently corroborating evidence. 

	A check was made at the DVLC at Swansea. That recorded the name of the then registered keeper and on enquiries from them, the employers were told that the car had been purchased for some £1,500. A gentleman called Mr Shilton subsequently faxed Mrs Hill a document headed “Used Car Sales Invoice” showing the transaction involving the sum of £1,500. The purchaser also faxed to Mrs Hill a copy of the letter which apparently the applicant had requested of the Collections Manager in April which confirmed that the Company had no further interest in the motorcar. In other words, the applicant had on the employer’s case, procured the writing of a letter on the basis of the allegedly false story to which I have referred.

	Mrs Hill referred the matter upwards to the Managing Director, Mr Tracy, who summoned the applicant to a meeting. They asked him for an explanation. He produced a copy-receipt and it was a receipt showing payment of £700, not by Mr Smith but Mr Shilton the purchaser.

	The applicant was suspended from work immediately pending further investigation. The applicant was invited to and made representations as to what he said had happened. Those are set out at paragraph 10 of the tribunal’s decision.

	Mr Tracy formed the view that the manuscript account from the applicant contained a number of statements which were plainly contradicted by the documents, by the records of the respondents and by the statement of respondents’ staff. Those discrepancies are mentioned in paragraph 11 of the tribunal’s decision.

	In paragraph 12 the tribunal said this:

“12	Mr Tracy said that there was not only evidence that the Applicant had failed to account for at least £300 but that he had told “all manner of untruths concerning the transactions to cover his tracks”. Without seeing him again, Mr Tracy proceeded to dismiss the Applicant by letter dated 3 July 1997. In that letter he stated “We find no support for your version of the key issues in this matter and your Contract of Employment is therefore terminated”.”

	Evidence was given to the Industrial Tribunal. In paragraph 16 the tribunal noted that:

“16.     What Mr Tracy knew prior to dismissal was that the applicant had made a number of representations namely:
(a)	that the vehicle was a wreck;
(b)	that Smith had been dismissed from his job at the George Hotel at Andover and was moving to Scotland and,
(c)	that Smith had offered and paid £700 on account of his indebtedness.
When the Applicant made his manuscript statement, he told a different story. He said that the £700 had been paid not by Smith but by a car dealer, one Shilton. He confirmed that at the end of April when he had been asked by Mr A’Court to try and collect some more money he had told A’Court that Smith had moved to Scotland.”

	The tribunal went on to say in paragraph 17:

“17.     The Applicant whilst working for the Respondents had been in a position of trust. We instance that he had a Company cheque book with authority to sign cheques for up to £10,000. By 3 July 1997 Mr Tracy knew that the Applicant had told untruths and misled the Respondents”

	Those were the findings of the whole of the Industrial Tribunal, but at this stage they disagreed amongst themselves. Two of the members of the tribunal, namely the Chairman and one of the two lay members formed the view that having regard to equity and the substantial merits of the case the respondents had acted reasonably in treating the applicant’s breach of trust as their reason for dismissing him, and that dismissal was well within the band of responses of a reasonable employer. Accordingly, they found that the applicant’s claim failed. The Industrial Tribunal held specifically that the majority agreed with Mr Tracy that “no useful purpose would have been served by a further consultation with the Applicant”.

	The dissenting lay member noted the absence of the disciplinary procedure; noted that at the initial interview the applicant had been suspended in an acrimonious manner; noted that there were no disciplinary rules; noted that the applicant was not warned that he faced dismissal; that he was not confronted with the evidence collected during his suspension; that there was no disciplinary interview to review the evidence but rather he was summarily dismissed on the same day as the last piece of written evidence was received; and there was no appeal. In the circumstances of the case, the minority member came to the view that there was a denial of natural justice which rendered the dismissal unfair.

	The minority member went on to say:

“21.     Further, there were a number of discrepancies in the evidence given by the parties which, if properly investigated in an open and non-prejudicial way by the Respondents, might have lead either to reasonable doubt regarding dismissal or to more incontrovertible evidence to support an objective decision.”

	On behalf of the appellant, in a conspicuously able argument, Mr Carter sought to suggest that the decision of the majority was perverse and/or they had properly failed to consider whether the procedural defects noted by the dissenting lay member, were such to render the dismissal unfair.

	It seems to us, with great respect to the argument which was presented to us, that this decision of the Industrial Tribunal was full and fair. The facts were not really in dispute. It was what conclusions should be drawn having regard to those facts and having regard to the procedural defects referred to.

	We can well understand some Industrial Tribunals taking the view of the minority member and others taking the view of the majority. This was, to use a colloquial expression, a case where the result could have gone either way. It was ‘a 50/50 ball’. 

	In such circumstances we cannot interfere with the decision. It is precisely this sort of case where the Employment Appeal Tribunal should be particularly slow to intervene. It is clear, having regard to the dissent, that the tribunal very much had in mind the possibility that the dismissal could have been rendered unfair as a result of the procedure which had been adopted. That was simply a judgment for the industrial jury. The fact that there was disagreement amongst the jury does not renders its verdict unsafe or in any way unsatisfactory. On the contrary, the fact that there was, as there must have been, healthy debate between the members of the tribunal as to the result in this case, makes us confident that it would be inappropriate for the Employment Appeal Tribunal to intervene in that debate. It is not obvious to us that the decision of the minority member was perverse any more that it is obvious to us that the decision of the majority is perverse. We have to say that the appeal is no more than a attempt to re-litigate the facts as was demonstrated by Mr Carter’s acceptance that if we were to permit the case to go forward, the tribunal would have to have all the Notes of Evidence available to it before it could do justice between the parties. In other words, he wants a second bite at the cherry. 

	Accordingly, we dismiss this appeal.