Caselaw@GLC
EMPLOYMENT APPEAL TRIBUNAL
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Appeal No: EAT/1222/00
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APPEARANCES
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For the Appellants |
Ms A McCracken Solicitor |
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For the Respondent |
Miss M Fox, Solicitor |
LORD JOHNSTON:
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.