Appeal No. EAT/778/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 21st July 1995

	Before

	HIS HONOUR JUDGE N BUTTER Q.C.

	LORD GLADWIN OF CLEE CBE JP

	MRS M E SUNDERLAND JP

CORY ENVIRONMENTAL MUNICIPAL SERVICES LTD	APPELLANTS

MR R JOULIN	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR P OLDHAM
(of Counsel)
Messrs Alsop Wilkinson
India Buildings
Liverpool
L2 0NH

For the Respondent	MISS C MURPHY
(of Counsel)
Messrs D J Griffiths & Co
Reliance House
3 Sherman Road
Bromley
Kent
BR1 3JH

	JUDGE BUTTER Q.C.:   This is an appeal by the employers against a decision of the Industrial Tribunal held at Ashford in Kent on 11th May and 23rd June 1994.

	The unanimous decision of the Tribunal was that the applicant was unfairly dismissed, that he contributed towards his dismissal to the extent of 25% and therefore his compensatory award should be reduced by that percentage under Section 74(6) of the 1978 Act, and that he should receive a basic award of £410.00.

	The background to the case is as follows. The applicant began his employment with the appellants as a refuse collector/driver in August 1991. His employment was terminated with effect from 8th December 1993. According to the issues referred to in the Tribunal's decision in paragraphs 4 and 5, 

		"4	The applicant alleges that he was unfairly dismissed by the respondent on the grounds of his conduct. He believed that the conduct for which he was dismissed was driving his car when he had reported that he had been away from work due to illness.

		5	The respondent alleges that the applicant was fairly dismissed on the ground of his gross misconduct in that he had lied to his Contracts Manager at a disciplinary hearing. The respondent considered that the applicant's lie had destroyed the trust and confidence between the employer and employee."

	The events which gave rise to the matter occurred on and after the 29th November 1993. The applicant reported sick. It so happened that there had been some rumours which led the employers to believe that the applicant when he reported sick was not sick at all, but was working and surveillance was therefore arranged.

	On the relevant day, 30th November 1993, the applicant was still away from work apparently sick, but he was seen driving a car in the morning for some distance and that led the employers to believe that he was, in truth, not sick.

	He was summoned to see Mr O'Hagan on 2nd December 1993, he was advised it was to be a disciplinary hearing. The applicant denied that he was driving the car, he was saying that Mr Matthews, who had been following the applicant, could not be right, the applicant denied that allegation. The disciplinary meeting was adjourned for Mr O'Hagan to consult with Mr Jarvis the regional manager Mr O'Hagan considered that the applicant was lying when he stated that he had not left his house, and he considered this to be a serious matter which affected his trust and confidence in the applicant. 

	After consultation with Mr Jarvis, Mr O'Hagan decided to dismiss the applicant for having lied at the disciplinary hearing which he considered to be an act of gross misconduct.

	There was a letter of dismissal which contains the phrase:

		"The reason for this decision was due to gross misconduct for failing to provide an adequate explanation as to why you were seen driving around Orpington on Tuesday 20 November 1993 ..."

	The applicant appealed the decision to dismiss. The appeal was conducted by Mr Mara the Regional Manager. The appeal was heard on 19th January 1994, at which the applicant was again questioned as to his movements on 30th November 1993, he confirmed that he had made a conscious decision not to tell the truth to Mr O'Hagan at the disciplinary hearing. The applicant stated that if he had known that he was likely to be dismissed, he would have told the truth, namely, that he had gone to buy nappies.

	Mr Mara confirmed to the applicant that his actions on 30th November were not gross misconduct, but that his failure to tell the truth was gross misconduct. The applicant disputed whether the misconduct was gross and warranted dismissal.

	When the matter came before the Tribunal, the Tribunal heard evidence, considered arguments on both sides, and in their decision, see paragraphs 35 onwards they dealt with a number of authorities and issues of law. In paragraphs 39 and 40 they correctly referred to the relevant provisions of Section 57 of the 1978 Act.

	The main part of the decision to which I should refer is to be found in paragraphs 42, 43, 44 and 45. Paragraph 42 stated:

		"42		Mr O'Hagan found at the disciplinary hearing that the applicant had lied and dismissed for that reason. The Tribunal find that the applicant was not made aware at the disciplinary hearing that he was liable to be dismissed for not telling the truth in the giving of his evidence."

	In paragraph 43, an important passage in our view:

		"43		The Tribunal finds that it was not reasonable to dismiss the applicant on the grounds that he had lied, and that to do so was not the actions of a reasonable employer, nor was it a reasonable response. The purpose of the disciplinary hearing was to consider a totally separate offence. Employers are often faced with conflicting evidence which suggests that one party is not telling the truth. The purpose of the disciplinary hearing is to assess the truth and, if appropriate, punish for the offence under investigation. The respondents did not punish the applicant for the offence under investigation and it is not, therefore, reasonable for an employer to dismiss in these circumstances. The applicant's sickness record was not raised at the disciplinary hearing."

	I pause to say that on this appeal that paragraph has been subjected to a criticism by Counsel on behalf of the appellants; we do not find there to be substance in that criticism.

	In paragraph 44:

		"44		The Tribunal find :-

			(a)	That the respondents dismissed the applicant on the grounds of his conduct in that he had lied at a disciplinary hearing on 8 December 1993.

			(b)	It was reasonable for the respondents to find that the applicant had lied on the basis of the evidence given by Mr Matthews.

			(c)	It was not reasonable for the respondents to treat that finding that the applicant had lied as sufficient reason for dismissal."

	Paragraph 45:

		"45		The Tribunal find that the applicant was unfairly dismissed. The Tribunal find that the applicant contributed to his dismissal by having lied at the disciplinary hearing. The Tribunal therefore order that the compensatory order be reduced by 25% under section 74(6). The Tribunal do not reduce the basic award."

	On this appeal Counsel for the appellants has raised a number of criticisms and presented a number of arguments which are summarised in his helpful skeleton argument. He suggests that there is obviously a requirement in misconduct cases for as much investigation into the matter as is reasonable in all the circumstances: see the well known case of British Home Stores v Burchell [1980] ICR 303 EAT, but he says there was no more information relating to the lie which could be garnered. In our view, however, it was open to the Tribunal to decide that it was necessary for the applicant to be made well aware of the allegation that he was facing and the consequences in relation to it. We think that there was scope for the view that further investigation in the sense of discussion, enquiries and so on should have taken place.

	In relation to the case of RSPB v Croucher [1984] IRLR 425, we think that that is distinguishable for the reasons which we have referred to in the course of argument. We do not believe that the Tribunal substituted its own view for that of the employer. 

	It is argued that the Tribunal erred, in that they failed to consider whether a fair hearing would have made any difference. Reliance is placed upon the case of Red Bank Manufacturing Co Ltd v Meadows [1992] IRLR 209. The Tribunal did, however, as we know, make a 25% deduction which suggests that they did take that matter into account and we are entirely unpersuaded that there was any significant error on their part in failing expressly to refer to whether a fair hearing would have made any difference.

	In relation to the contention that the 25% deduction was perverse, and should have been substantially greater, we have been referred to the case of Nairne v Highlands and Islands Fire Brigade [1989] IRLR 366. Here however, in our view, the Tribunal found not only procedural fault but substantive fault and in any event we are entirely unpersuaded that their decision was a perverse one.

	That leaves us with one comparatively small point to deal with, the fact that there was no deduction from the basic award. We can see reasons why the Tribunal reached the conclusion in the light of the provisions of Section 74(6) of the Act, and although it would have been better if they had specifically spelt out those reasons, we are not persuaded that this is a case where we should interfere with a their decision.

	In all the circumstances we are unanimously and clearly of the view that this appeal fails and must be dismissed.