Appeal No. EAT/1143/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 March 2002

Before
HIS HONOUR JUDGE PETER CLARK
MS N AMIN
MR T C THOMAS CBE

TWINMAR LTD	APPELLANT

MR S M SALE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR M WEST
(of Counsel)
Instructed By:
Peninsula Business Services Ltd
Riverside
New Bailey Street
Manchester
M3 5BP	

JUDGE PETER CLARK:
1.	This is an appeal by Twinmar Ltd, the Respondent before an Employment Tribunal sitting at Reading under the chairmanship of Mr R Griffiths, against that Tribunal’s decision by a majority, the chairman dissenting, to uphold the Applicant, Mr Sale’s complaint of unfair dismissal.  That decision was promulgated with extended reasons on 13 August 2001.

2.	Put simply, this was a conduct case.  The Applicant, who was employed as Assistant Manager at the Respondent’s shoe shop in Reading was alleged to have dishonestly taken money from the store by purportedly issuing refunds to customers in respect of returned shoes, when no such shoes were returned.

3.	At paragraph 5 of their reasons the Tribunal directed themselves as to the well known 3 fold Burchell test, approved by the Court of Appeal in Post Office v. Foley [2000] IRLR 827, whilst on the face of it imposing a burden on the employer to satisfy them as to their genuine belief on reasonable grounds following a reasonable investigation in the guilt of the employee (of Boys & Girls Welfare Society v. McDonald [1996] IRLR 129)

4.	The issue came down to whether or not the Respondent had carried out a reasonable investigation into refund incidents which took place in particular on 18 December 2000 and 3 January 2001.  The chairman was just persuaded that the Respondent had carried out sufficient investigation; the lay members were not.  The majority’s reasoning on this aspect of the case is set out at paragraphs 11 and 12 of the Tribunal’s written reasons.  They conclude at paragraph 13:

“It is the quality and extent of the investigation that the majority find to be lacking.”

5.	In these circumstances, the dismissal was found to be unfair by the majority.  The chairman would have found it to be fair.  Mr West attacks the majority decision on these grounds:

(1)	the majority substituted their view for that of the employer impermissibly 
(2)	they imposed too high a burden on the employer
(3)	their conclusion was perverse

6.	Having considered Mr West’s submissions, we think the real question for determination today is whether or not it is arguable that in expressing their reasons in paragraphs 11 – 13 of the written reasons, the majority did impermissibly impose too high a burden on the employer in relation to the question of reasonable investigation.  In our judgment they did not.  It seems to us that without articulating their approach, it is plain that they ask themselves the correct question under section 98(4) of the 1996 Act, that is, whether a reasonable investigation was carried out in the particular facts of this case.  For reasons which we think cannot be faulted, they reach the conclusion that the employer had fallen below the standard of a reasonable employer in the amount of the investigation carried out.  That it seems to us was a permissible conclusion for this industrial jury, just as the Chairman’s conclusion that sufficient investigation had been carried out would also have been a permissible conclusion.  

7.	In these circumstances we are not persuaded that any arguable error of law is made out on the face of this decision and consequently the appeal must be dismissed at this preliminary hearing stage.