Appeal No.	 EAT/358/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 May 1998
Judgment delivered on 15 June 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR J R CROSBY 
MR P R A JACQUES CBE

MR R J ARMSTRONG	APPELLANT

HALLAM ADMINISTRATION SERVICES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	<B><U>APPEARANCES</B></U>

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      <TD VALIGN=top><FONT SIZE=2>For the Appellant</FONT></TD>
      <TD VALIGN=top><FONT SIZE=2>MR CHRISTOPHER BAMFORD<BR>(of Counsel)<BR>Messrs Carter Devile<BR>Solicitors<BR>592 Green Lane<BR>Goodmayes<BR>Ilford<BR>Essex<BR>IG3 9SG</FONT></TD>
   </TR>

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      <TD VALIGN=top><FONT SIZE=2>&nbsp;</FONT></TD>
      <TD VALIGN=top><FONT SIZE=2>&nbsp;</FONT></TD>
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	<B><U>MR JUSTICE MORISON</U> (PRESIDENT)</B>:	The purpose of this hearing was to determine whether there is an arguable law in a Notice of Appeal against an Industrial Tribunal decision following a hearing on 2nd December 1997. The decision was reduced to writing and sent to the parties on 9th January 1998 and was unanimous.

	The tribunal concluded that the respondents, Hallam Administration Services Ltd, the employers, did not unfairly dismiss the applicant, Mr R J Armstrong, and therefore, his complaint was dismissed.

	Mr Armstrong wishes to appeal that decision.

	The brief facts relating to this case can be taken from the Industrial Tribunal's decision. The applicant was employed by the employers who are managing agents of various properties. In his capacity as a senior property manager, Mr Armstrong had access to materials which were supplied for the purposes of refurbishing the premises for which they were responsible as the managing agents. In 1996 one of those properties had some carpet installed which cost something like £45 per metre. There was more carpet delivered than was required, and the applicant took a quantity of the carpet and had his own property re-carpeted. During the week beginning 17th March 1997, that is about a year later, the property owners, following a flood, wanted to use some of the surplus carpet which they believed would have been available as a result of the earlier purchase. It was discovered by the managing director that the carpet had been taken by the applicant and used in his own home.

	There was no dispute between the parties that the applicant had indeed taken some of the carpet to his home and re-carpeted his own premises, but he said that it was an event which occurred a year before and that although the present managing director might have been unaware of it, his predecessor, the then acting managing director, Mr Peter Reed, had become aware of it and had reprimanded him accordingly. Therefore, in so far as this was an incident to be relied on, he was saying, first of all, that it had occurred a very long time ago; and secondly, it was over and done with.

	The case for the employers was that Mr Reed had not been aware of the taking of the carpet, had not ticked the applicant off, and the matter only came to light in the circumstances which I have described.

	The employers effectively gave the applicant little or no opportunity to put his side of the case. A question arose as to whether the procedural defects rendered the dismissal fair or unfair. Therefore, there were two questions at issue. (1) when did the employers first know that he had  taken the carpet without permission; and (2) did they investigate the matter in a way which could justify them concluding that he should be dismissed.

	The Industrial Tribunal having heard the evidence and read witness statements, Mr Reed having departed for New Zealand, found as a fact that it was only when Mr Graham, the new managing director, had spoken to Mr Reed that Mr Reed had told him that the applicant had never sought his position to take the carpet material and that the applicant had not informed him at any subsequent time that he had done so. Furthermore, the Tribunal thought it significant that the applicant did not tell Mr Graham when first confronted about this in 1997 that it was all over and done with, or that Mr Reed was aware of it and had not considered it serious enough to warrant any disciplinary action against him.

	The Industrial Tribunal noted that the first confrontation in 1997 took place on 19th March and that between 19th March and 21st March the applicant firstly, proffered no explanation or mitigation to Mr Graham for taking the carpet material; secondly, that the absence of the carpet material was a source of considerable embarrassment; and thirdly, the employers are a small company which employed, apart from Mr Graham and Mr Glass who are the two directors, the applicant, and two other named individuals together with a part-time surveyor and an occasional typist.

	In paragraph 6 of the decision the tribunal note that:

<B>"6     The Applicant's case in a nutshell is that the dismissal was procedurally unfair. He was given no opportunity to state his case. The decision to dismiss was made before the dismissal meeting on 21 March 1997. The previous Managing Director (Mr Peter Reed) has been made aware of the fact and had decided not to take any action against the Applicant. There had been a hidden agenda. Mr Graham had never wanted the Applicant in the Respondent company in the first place and had used the carpet issue as an excuse to get rid of him."</B>

The employers' case was that there was no hidden agenda, that it had not come to light in 1996, it had not been dealt with by the employers in 1996, and that it was a serious piece of gross misconduct.

	The tribunal's conclusion is set out at paragraph 9 of its decision. The record:

<B>"9 ... The Applicant's action came to light ... only as a result of the flooding [</B>at the premises in Hallam Street<B>] in March 1997. The matter was not, therefore, the resurrection of "ancient history" as contended for by the Applicant. When confronted by Mr Graham, the Applicant admitted that he had taken the carpet material ... and he proffered no explanation or mitigation for his action on that day, nor during the following two days prior to his dismissal. ..."</B>

The tribunal found specifically:

<B>"Mr Graham was entitled to accept Mr Reed's statement that the Applicant had not sought his permission prior to taking the carpet (the taking was not in dispute), and that the Applicant had not subsequently told him of his action. Prior to his dismissal on 21 March 1997 the Applicant had not told Mr Graham that Mr Reed had been made aware of his action. In the circumstances, Mr Graham did not need to carry out any further investigation, nor hold any further meeting with the Applicant, before he reached the decision to dismiss the Applicant. As Mr Graham was the Respondent's Managing Director, any appeal process would have been meaningless. Bearing in mind the small size and administrative resources of the Respondent company, there was no procedural unfairness in the dismissal. Mr Graham was entitled to take the view that, bearing in mind the Applicant's important position within the company, and the embarrassment caused to the company in its relationship with its client, the relationship of trust and confidence between the employer and the employee had broken down. Dismissal, in the circumstances of the case, was not outside the band of reasonable options open to the Respondent."</B>

	In an able submission, it was suggested to us that the Industrial Tribunal erred in law in two respects. Firstly, in relation to the finding of fact as to the knowledge of Mr Reed. It is asserted roundly that there was effectively no evidence to support the finding of fact that Mr Reed had not subsequently become aware of the removal of the carpet. What was said by Counsel was that the Industrial Tribunal have confused two things, that is, Mr Reed's knowledge that the carpet had been taken at the time when it was taken and, secondly, his knowledge of it thereafter. It was accepted that he did not know at the time when the carpet was taken that it had been taken, but it is said that there was no evidence to support the tribunal's finding that Mr Reed never discussed the matter thereafter with the applicant.

	It seems to us that that is an unsustainable contention in the light of the passages of the Industrial Tribunal's decision to which I have referred. They were entitled to infer from the silence of the applicant on 19th March 1997 that the applicant had not been dealt with for this matter by Mr Reed. That was a sufficient piece of evidence from which they could draw the inference that indeed he had not raised it with Mr Reed. 

	Furthermore, there was some evidence given by Mr Graham. There is a dispute in the skeleton argument as to precisely what he said, but we are not at all persuaded that the evidence of Mr Graham entitles the applicant to argue that there was no material which the tribunal could draw the conclusion that Mr Reed had been unaware of the theft in 1996.

	In relation to the procedure. This was very much a judgment for the Industrial tribunal to take. It is clear that they have considered the submissions which were made to them about the procedure, and they have carefully analysed whether the procedural unfairness, if such there was, rendered the decision to dismiss itself unfair.

	We are unable to conclude on the material before us that the Industrial Tribunal's conclusion on this issue was manifestly wrong or perverse. Accordingly, despite the ability with which the applicant's arguments were presented by Mr Bamford, we are not persuaded that there is, in truth, any arguable point of law fit for hearing before a full panel, and accordingly the appeal will be dismissed.