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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ackerley v Tate Ford (Manchester) Ltd [1995] UKEAT 485_94_0906 (9 June 1995) URL: http://www.bailii.org/uk/cases/UKEAT/1995/485_94_0906.html Cite as: [1995] UKEAT 485_94_906, [1995] UKEAT 485_94_0906

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BAILII case number: [1995] UKEAT 485_94_0906

Appeal No. EAT/485/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9th June 1995

Before

HIS HONOUR JUDGE C. SMITH Q.C.

MISS D WITTINGHAM

LORD GLADWIN OF CLEE CBE JP

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MR B ACKERLEY          APPELLANT

TATE FORD (MANCHESTER) LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MISS T GRACE

(of Counsel)

Messrs Holt & Longworth

Solicitors

65 Bank Street

Rawtenstall

Rossendale

Lancashire

BB4 7QN

For the Respondents NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE           RESPONDENTS


 


JUDGE SMITH Q.C.: This is an appeal by Mr Ackerley against a decision of an Industrial Tribunal sitting at Manchester on 11th February 1994, when they held that the appellant's dismissal by the respondents, Tate Ford (Manchester) Ltd, was fair.

The appellant before us was represented by Miss Grace of Counsel, the respondents did not appear and were not represented making it clear that they relied upon the original decision of the Industrial Tribunal as being correct.

The respondents own a motor repair garage, and the appellant had been employed since 1989 as a mechanic. On 26th April 1993 the appellant was summarily, indeed instantly, dismissed for alleged gross misconduct, namely alleged pilferage of company property, namely a tow bar which had been placed in a skip outside the repair shop.

The evidence before the Industrial Tribunal was that the procedure within the respondents was that property in the skip would be sold as scrap. It was understood that permission had to be obtained before anything could be taken from the skip. It was also clear on the evidence that permission was very often given when requested.

On the day in question, the appellant, who was engaged in repairing a car, asked an apprentice, Mr Barrett, to take the appellant's car over to the skip and remove a tow bar and put it in his car. Mr Barrett was seen doing this by Mr Previn, the manager, who told him to put it back. Mr Previn questioned Mr Barrett about it, who of course explained that he was acting on behalf of the appellant, and Mr Previn then required the foreman, Mr Smith, to fetch the appellant. The appellant at once admitted that he had asked Mr Barrett to put the tow bar in his car, and was summarily dismissed. Later the same day, the appellant telephoned a director, Mr Duce, about the matter and asked to come and see him about it. We have seen a note made by Mr Duce of that conversation which was before the Industrial Tribunal. We understand that the contents were not agreed, but it is quite clear even from Mr Duce's note that Mr Duce was saying, in effect, that it was extremely unlikely that the appellant would get his job back when the appellant asked if he could come to see Mr Duce about the matter. The appellant did not go and see Mr Duce.

It was against those facts that the Industrial Tribunal held, in paragraph 4 of the decision, that Mr Previn had a reasonable belief that the appellant had attempted to steal the tow bar and thus was guilty of gross misconduct. The Industrial Tribunal went on to hold that there was a reasonable investigation in the circumstances, and, although the appellant had not expressly been informed of his right of appeal, he had the company handbook setting out the right of appeal, and had spoken to Mr Duce about the matter.

Three points are taken before us, which it is submitted either individually or collectively demonstrate that the Industrial Tribunal on this particular occasion mis-applied Section 57(3) of the 1978 Act and the Burchell test to the evidence before them. Those three points were:

1. There was no evidence before the Industrial Tribunal as to the reasonable belief of Mr Previn that the appellant was attempting to steal the tow bar since Mr Previn did not give evidence before the Industrial Tribunal.

(We pause to note that there is no doubt that pilferage is a euphemism for stealing. Stealing involves a dishonest intent. Thus the respondents needed to establish a reasonable belief that the appellant was trying to steal, but the first submission that was made to us is that they did not do so on the evidence.)

2. There was in fact no sufficient investigation to amount to a reasonable investigation, contrary to the finding of the Industrial Tribunal. The submission was that everything was done in an instant, and there was no proper questioning of the appellant, in circumstances where the observed facts were equivocal.
3. In the light of what happened, and particularly with regard to the telephone conversation with Mr Duce, the appellant was denied a proper appeal procedure. The submission was made that it was clear that he was trying to exercise his right of appeal, and that the effect of the telephone conversation with Mr Duce was to deny him that right.

Those were the submission that were made to us by Miss Grace in outline.

We should state first of all that we agree entirely and sympathise with the Industrial Tribunal's very realistic and correct general statement and approach to situations where there are clear cases of theft by employees. Matters can and should then be dealt with in a summary fashion and nothing we say in this particular appeal should affect that very proper approach to such situations.

However, here, in our judgment, the primary facts were equivocal. What had been seen could be stealing or an attempt to steal, but equally it could simply be taking without permission, without any dishonest intent.

Clearly only the first, that is to say, stealing or attempting to steal could amount to gross misconduct, not simply taking without permission.

Having looked at the matter as carefully as we can, we consider that in this particular appeal all three submissions made to us are correct, and do have the result here that unfortunately on this particular occasion the Industrial Tribunal did misapply the Section 57(3).

In our judgment, there was no sufficient evidence before the Industrial Tribunal of a reasonable belief on the part of the respondents, and of course that means Mr Previn in this case, of a reasonable belief on Mr Previn's part, that the appellant was attempting to steal. Mr Previn did not give evidence before the Industrial Tribunal and there was simply no material before the Industrial Tribunal upon which they could base their finding of reasonable belief. The facts, as we repeat, being equivocal.

Secondly, in our judgment, although of course there is absolutely no need for a state trial or anything approaching it in situations of this kind, there was not a sufficient investigation by Mr Previn, on the crucial aspect of dishonesty.

Thirdly, and perhaps most importantly, there was, in our judgment, clearly a total denial of the appeal procedure to the appellant, which was entirely contrary to the express right conferred upon the appellant, of a right of appeal to a senior executive set out in the handbook.

In the light of all those matters here, we must conclude that the appeal should succeed and we allow the appeal and direct that this matter will have to be remitted to a fresh Tribunal to re-hear the appellant's complaint of unfair dismissal.