Appeal No: EAT/1222/00
At the Tribunal On:29 March 2001




For the Appellants

Ms A McCracken Solicitor
Messrs Levy & McRae
266 St Vincent Street

For the Respondent

Miss M Fox, Solicitor
Govan Law Centre
47 Burleigh Street


1. In this appeal the appellant employer challenges a majority decision of the Employment Tribunal to the effect that the respondent employee had been unfairly dismissed.

2. The background to the matter was an allegation that during a drinking session on the employers' premises, conducted with their permission, the respondent allegedly threatened another employee by indicating he would stick a lighted cigarette in his ear. The employer constituted a disciplinary investigation and determined upon the basis of that, that the employee fell to be dismissed.

3. The majority decision of the Tribunal is in the following terms:-

"The first issue which has to be established is what the respondents' reason was for dismissing the applicant and more particularly, whether it was for one of the qualifying reasons set out in Section 98 of the Employment Rights Act 1996. It is clear that in this case, the respondents dismissed the applicant because they believed that he had threatened to stick a lighted cigarette in a fellow employee's ear and patently, this, if established, relates to the applicant's conduct which is a qualifying reason for dismissal in terms of Section 98 (2)(b) of the 1996 Act. The question which has exercised us, to the extent that we are split in our conclusion, is whether the respondents have established to our satisfaction they were reasonably entitled to their belief. In the view of the majority, the respondents have failed to establish either that the applicant threatened a fellow employee or that the threat was carried out. The majority found Mrs Mackie's evidence to be lacking in credibility and her investigation and management of the disciplinary hearing biased and lacking in objectivity. They considered the applicant to be more credible though less articulate. At the hearing before us the applicant consistently disputed Mrs Mackie's version of what had been said at the disciplinary hearing and the majority preferred his evidence to that of Mrs Mackie and Mr Watson. From the information supplied by the witnesses (which included Mr Wylie) the applicant would have had to stand up and take a step towards Mr Wylie and lean behind his back to stub out a cigarette in the right ear. Nobody present in the room saw anything of the incident other than Mr Wylie jumping to his feet and brushing ash from his ear. The manager present did not believe Mr Wylie until he showed him the burn in his ear. Mr Wylie "felt giddy" with the drink he had consumed and had no recollection that the applicant had threatened him by saying he would stick a cigarette in his ear.

Mrs Mackie claimed in giving evidence to the tribunal that two out of five statements she had received from members of staff who had been present in the canteen had indicated the applicant threatened Mr Wylie (in the IT3 she claimed one out of five). No written evidence of this or indeed anything else was produced at the tribunal hearing. Neither were any of these witnesses called to the hearing.

The respondents' witnesses Mrs Mackie and Mr Watson claimed that during the disciplinary interview the applicant had confessed to issuing a threat to Mr Wylie that he would stub out a cigarette in his ear. Indeed this was the single fact they relied on for the dismissal. No minutes were made of the meeting. The majority found neither Mrs Mackie (who changed her story to suit the questions she was asked by the tribunal) or Mr Watson to be credible witnesses and found the applicant's account of the events to be more credible.

The respondents' paper apart in the IT3 tried to paint a picture of a "Staff Drink" where nobody was "in a state of extreme inebriation". The applicant's version was that, with half the company drinking very little, the rest had enough to drink to be more than merry. In these circumstances the majority felt that it was not impossible that the incident was accidental. The respondents never gave this any thought as they had already decided that the applicant was guilty of a violent act.

Before any investigation had taken place Mrs Mackie had been told of the incident and the alleged past behaviour of the applicant. The Managing Director had told her the applicant was violent. "It was fairly evident it was Mr McGhee who was responsible", Mrs Mackie said."

4. Ms McCracken, appearing for the appellants, submitted that while generally the Tribunal had the important case of British Home Stores Ltd v Burchell [1978] IRLR 379 before them, the majority view had not directed itself properly to the test to be applied by that case, namely, whether the employer reasonably believed that a threat had been made but rather concentrated upon whether or not they were satisfied the threat had been carried out. Furthermore, she criticised the statement by the majority that they did not find the investigation satisfactory with particular reference to Mrs Mackie's letter. The decision of the majority, she submitted, appeared to be influenced by the fact that they were under the impression that the employer had decided the matter upon the basis that the applicant was guilty of a violent act.

5. Miss Fox, appearing for the appellant, simply submitted against the background of the Burchell test, that the Tribunal, in a majority, had applied its mind to the correct issue and had held itself not satisfied that the Burchell test had been passed. In addition she referred to Linfood Cash & Carry Ltd v Thomson [1989] IRLR 235, John Lewis plc v Coyne [2001] IRLR 139 and Piggott Brothers & Co Ltd v Jackson [1991] 309.

6. We have to say at once looking at the reasoning of the minority Chairman, that there is considerable force in the position he takes up and we can understand the reason for his dissent.

7. However, that is not the question for us. The question for us is simply whether or not the majority have been shown to fall into any error of law and we do not consider that can be stated. The issue is one of fact to be determined by them against the background of evidence before them and they have simply held themselves dissatisfied upon the evidence that they can hold that the employer reasonably believed the threat had been made. They are not impressed by the way the investigation was carried out and therefore decided the issue on the basis of credibility or the lack of it and therefore the lack of acceptable evidence.

8. This is an approach that we have to accept at this level being a matter of consideration of evidence. We do not therefore think this decision discloses in the majority decision any error of law nor is it perverse on the facts apparently before it, for it to hold, in fact the negative is established. The reference to the actual act having being committed does not seem to us to bear upon the matter.

9. In these circumstances this appeal must be refused.