Appeal No. EAT/295/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 October 1996

Before
HIS HONOUR JUDGE J HICKS QC
MR P R A JACQUES CBE
MR J A SCOULLER

KWIK SAVE STORES LTD	APPELLANTS

MR R CLERKIN	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MISS J TRACY-FORSTER
(of Counsel)
Messrs Bullivant Jones & Co
Solicitors
State House
22 Dale Street
Liverpool
L2 4UR	
For the Respondent	MR J KENDALL
(of Counsel)
Messrs David Levene & Co
Solicitors
235-239 High Road
London
N22 4HF

	JUDGE HICKS QC:   Miss Tracy-Forster applies for an order that we call for the Chairman’s notes of the evidence of the applicant, now the respondent, Mr Clerkin, in order that we may resolve the ground of appeal raised by paragraph 6(i) of the Notice of Appeal, in which it is alleged that the tribunal reached findings of fact unsupported by any evidence. The relevant finding was that Mr Clerkin’s superior, the area manager, Mr Hex had instructed him to clock staff out after they had completed 39 hours in any one week. There is no doubt that in the Notice of Application Mr Clerkin had raised this issue, although in terms of an instruction, apparently, in a document “from the POS” (meaning Point of Sale and referring to someone immediately under Mr Hex and acting on his behalf) of Mr Hex. It is conceded by Miss Tracy-Forster that there was some evidence in support of that at the hearing before the Industrial Tribunal, the POS in question being a Sue Throssle, but the appellant’s case is that there was no direct evidence of an instruction from Mr Hex himself to found the finding to that effect by the tribunal. It clearly would assist in resolving that issue if we had the Chairman’s notes, and for that reason Mr Kendall really cannot and did not oppose this application on its merits. Indeed, it was an application that had been made on behalf of his client earlier in the year. The issue really is whether we should accede to this application now, with the inevitable adjournment of the hearing of this appeal, in the light of the fact that the point was raised by the Notice of Appeal on 28th February, that no application then or subsequently was made at an interlocutory stage by the appellant for these notes, that it knew and tacitly supported the respondent’s application to that effect, but then knew when it was informed of the Registrar’s letter of 3rd July that that application had been refused, and still made no application of its own until the hearing before us. We have come to the conclusion that in those circumstances it is now too late to make such an application, and that it ought to be refused, and we reject it.	

JUDGE HICKS QC:   Mr Clerkin had been employed by Kwik Save Stores Ltd for 3¼ years when he was dismissed for misconduct, and his position at the date of dismissal was that of store manager. Because of the issues raised by the employer’s appeal against the finding of the Industrial Tribunal that he was unfairly dismissed it is necessary to recite the facts as found by the tribunal fairly fully.

	Having set the scene in an introductory paragraph 1, the Industrial Tribunal has a long section from paragraphs 2 to 18 headed “The material facts.” It seems plain to us that that section is intended to embody their findings of fact on matters in dispute as well as a simple recital of the history which was common ground. It begins as follows:

“2.	The Applicant had worked for the Respondents for 3¼ years starting as Assistant Manager in the Respondents’ Acton branch and moving to the Respondents’ Cricklewood branch as Assistant Manager. He was promoted to Manager and moved to the Fulham branch and subsequently to the Holloway Road branch. When he joined the Respondents the Applicant was given a copy of the Respondents’ Management Training Programme.
3.	The Respondents’ statement of conditions of employment of store management and supervisory staff set out the disciplinary procedures. The procedure was set out in three parts dealing with less serious misconduct, dealing with gross misconduct and dealing with appeals. The gross misconduct section of the Handbook is merely entitled gross misconduct and does not say anything further on the matter.”

I interpose at that point that it was one of the submissions made by Miss Tracy-Forster for the employers that that last finding, when one looks at the handbook, was plainly incorrect, and we accept that it was, but we find that that error on the part of the Industrial Tribunal played no significant part in the conclusions which they ultimately reached and is not itself therefore a material element in the questions we have to decide. The rest of that paragraph goes on to deal with the disciplinary code both of managerial staff and of junior staff and ends with a summary of Mr Clerkin’s duties as manager:

“3.	... Mr Clerkin’s duties as Manager included the day to day running of the store, handling cash, code checks, unloading lorries and staff rotas. Mr Clerkin had an exemplary disciplinary record for over three years and whilst at the Cricklewood branch of the Respondents he was awarded a Customer Service Award.
4.	For the Duration of Mr Clerkin’s employment, his Area Manager was Mr Hex. Mr Hex promulgated budgets which included the number of hours allocated to staff in the store over a four week cycle. Non-management staff were required to clock in and details of the hours worked was submitted to Mr Hex. The instructions of Mr Hex to Mr Clerkin were that he should tell staff to clock out after they had completed 39 hours’ work in any week and allow them to work for nothing after the 39 hour period had been completed.”

I pause again there, because that was plainly a very important finding of fact by the Industrial Tribunal. It was one which in the Notice of Appeal was challenged as not having any foundation in the evidence. But the tribunal refer to the evidence later on on which they base that finding, and for reasons which we gave at the time we have rejected an application by Miss Tracy-Forster for the Chairman’s Notes of Evidence, and she accepts that in that situation that ground of appeal falls away. We have that finding of fact on the part of the Industrial Tribunal.

	The reasons continue as follows:

“5.	On 17 February 1994 [1995] Mr Clerkin was assaulted in his store by two shoplifters and was severely bruised and sustained an injury to his elbow. ...
7.	Mr Clerkin returned to work on 27 February 1995 which was earlier than his doctor advised him to return. ...
8.	When he returned to work he found that the Holloway Road store was in a mess. The reason for this was that the Kentish Town Store had closed and the stock from this store had been deposited in the Holloway Road branch. The Respondents allowed a team of workers to work overnight to clear this stock but this proved to be insufficient. Mr Clerkin spoke to Mr Hex who would not allow further hours to be spend in clearing the Holloway Road branch. It was, however, necessary for the back area of the Holloway Road branch to be cleared and for the stock to be placed on the shelves of the store.
9.	Mr Clerkin took a decision to go over his allocated hours to have the stock cleared. He told his staff not to clock on for Friday 10 March 1995 and proposed to carry over the hours worked on that day into the next week.”

Pausing there, the background to that finding, as we understand it, which may not be developed very fully or explicitly in the reasons but is not in dispute, is that by Thursday night the allocation for the four-week period which would end on the following day had already been exceeded and, as the tribunal have just found in the preceding paragraph, Mr Hex was not allowing any extra hours to be charged, as it were, to deal with the situation. The reasons continue:

“9.	... The Applicant had no intention of falsifying the hours worked. Mr Clerkin understood that this was common practice within the Respondents’ organisation and this was confirmed by the evidence of Mr Samson another Store Manager of the Respondents.
10.	Mr Clerkin was on holiday the following week but instructed the supervisor and his Assistant Manager , Mr Hartley that the hours should be charged to the following week when the workload would be less. This would have been reflected in the computer printouts from Head Office and Mr Hex would have known of the number of hours done in each week.”

That also was an important series of findings of fact, that Mr Clerkin had no intention of falsifying the hours worked, which must of course be understood as meaning the total number of hours worked, because manifestly the failure to clock in on Friday would be false as far as that day itself was concerned, but in the context of the reasons as a whole, it is quite clear what the tribunal mean by that.

	After that recital of the essential history, the tribunal then go on to deal with the disciplinary process. I think I need not read  that in full. They record - and it is not in dispute that they were entitled to find these facts - that there were at least two, and perhaps more, rather unfortunate failures by the employers to keep Mr Clerkin apprised of the position. In particular the letter which gave him notice of what was to have been a disciplinary hearing was wrongly addressed and never reached him. He was suspended on his return from holiday by Mr Hex and thereafter the disciplinary process went ahead, including a number of investigatory interviews. Eventually there was a disciplinary hearing of which he had had notice on 4th May 1995.  The tribunal, after saying that he was kept waiting for some 2½ hours, continue:

“14 ... When he was called in Mr Travers [he was another area manager who was conducting the hearing] asked Mr Hex for his [Mr Clerkin’s] personal file. Mr Hex told Mr Travers that it was in his car and Mr Travers said that it did not matter. In evidence the Applicant stated that he thought Mr Travers had no interest in his case and that he could not have a fair hearing and get his job back.”

Having reached that stage, the tribunal then, perhaps a little confusingly, go backwards in time to record two earlier matters; how they come to be germane to the disciplinary hearing will appear later. The first finding is that:

“15.	Mr Clerkin wrote to Mr Hex on 5 April 1995 as he had been unable to telephone him.”

That letter, which was before the tribunal, included the following paragraph:

“I do not believe I did anything which justifies my suspension or any disciplinary action. I was acting in what I saw was the best interests of the company and following a practice which is used in other stores and I believe was accepted practice.”

It is quite plain, therefore, that as early as 5th April 1995 Mr Clerkin was bringing to the attention of the employers, in the person of his immediate superior, that part of his case, namely that he was following a practice which he believed was in the best interests of the company and, perhaps more specifically, he was following a practice which he understood to be used in other stores and to be accepted.

	The tribunal refer to a further letter:

“16.	On 24 April 1995 Mr Clerkin wrote to Mr Hughes the Operations Manager in Prestatyn regarding his suspension and explaining the matters surrounding his assault on 17 February. ...”

Then they go on to quote from the letter. Taking an extract rather fuller than the one actually set out in the reasons, it includes the following:

“My store was a mess. Kentish Town was closed and we received their stock. This added to our already heavy workload my supervisor informed me on 10-3-95 we had gone over hours so I asked her to ask the staff not to clock on that day and if they refused to let them clock on and the others would be paid the next week when the hours would be dramatically down. It is not a new practice and Mr Hex knows it is being done. Mr Hartley my assistant Manager told Mr Hex I carried over the hours. A week passed and then I was interviewed on Monday 27-3-95 by Mr Stott and Mr Baker about what had happened and I was suspended. Since then Mr Hex has made no attempt to contact me with regard to the procedure they were following as I have mentioned earlier.”

That again is a clear communication, to what we take to be quite a high level of management, of that aspect of Mr Clerkin’s case. Later in the letter he raises another point which has not been mentioned hitherto:

“	At a MANAGERS MEETING in Tottenham on Monday 10-4-95 Mr Hex told the Managers that I was sacked and that another manager was also. I personally don’t think he had any right as my hearing had not come up.”

Returning to the tribunal’s reasons, that point is taken up in the next sentence, after their quotation from that letter, as follows:

16.	... In evidence, Mr Clerkin confirmed that Mr Phil Osmond, the Manager of the Wood Green branch who attended the managers’ meeting had told Mr Clerkin that Mr Hex had said that Mr Clerkin had been sacked.”

That particular sentence of course records only the evidence rather than the tribunal’s finding on it, but it is clear from a later passage in their reasons that they accepted that evidence, that is to say the Mr Osmond had told Mr Clerkin that. They do no make an explicit finding as to whether the alleged meeting and the alleged statement by Mr Hex actually happened, so this point is material to the state of Mr Clerkin’s mind when he attended the disciplinary hearing but does not go beyond that.

	The reasons continue:

“17. Mr Travers finding at the disciplinary hearing was that Mr Clerkin should be dismissed for gross misconduct for falsifying clock cards. Mr Clerkin was told of his right to appeal.
18.	Mr Clerkin wrote to the Respondents on 8 May 1995 as follows:
	“I do not agree with the decision that was taken to dismiss me from the Company. It was 	totally unfair . I can see no point in appealing. I wouldn’t get a fair hearing anyway.”

	Having then reached the end of the section headed “the material facts”, the tribunal go on to a single paragraph headed “The reason for the dismissal”, and find that the reason given was gross misconduct in falsifying clock cards and that that was a reason relating to conduct within Section 57(2)(b) of the Employment Protection (Consolidation) Act 1978, and that there was no other reason for the dismissal. None of that section of the tribunal’s conclusions is in question. 

	They then go on to deal with the fairness of the dismissal as follows:

“20.	Under Section 57(3) of the Act, the determination of the question whether a dismissal is fair or unfair, having regard to the reason shown by the employer, depends on whether the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. [That is not in dispute as being an accurate summary of the relevant part of Section 57(3).]  The Tribunal is bound by the decision in British Homes Stores v Burchell and must be satisfied that the Respondents had a genuine belief in the conduct complained of, reasonably held and based on a reasonable investigation. The Tribunal must not substitute its own findings for those of the Respondents but must determine whether the decision to dismiss falls within the band of reasonable responses. In determining whether the Respondents acted reasonably or unreasonably in all the circumstances, the Tribunal took the following matters into account:
[Then there is a series of matters lettered (a) to (l), of which for present purposes it is sufficient to read six.]
	(a)	Mr Clerkin told us in evidence that Mr Hex told him to require staff to clock out 	after 39 hours per week and to finish their work in their own time.
[Again that on its face is simply a recital of the evidence, but it is apparent from the earlier part of the reasons that the Tribunal has in fact accepted that evidence, and found that to be a fact.]
	(d)	Because Mr Clerkin had not heard from Mr Hex he wrote to him on 5 April asking 	what procedure was to be followed.
[That therefore, as we understand it, means that the Tribunal is taking into account the contents of that letter.]
	(g)	Mr Clerkin felt he was not making any progress resolving the matter of his 			suspension and so he wrote to Mr Hughes the Operations Manager in Prestatyn on 		24 April 1995 setting out the surrounding circumstances. He never received a reply 		to this letter and in evidence Mr Travers confirmed that it was not taken into 			account at the disciplinary hearing.
	(i)	It was for the respondents to familiarise themselves with all the circumstances of 		the incident and the background of Mr Clerkin. Mr Clerkin had a good 			employment record and had won a Customer Service Award at the Cricklewood 		branch. The Tribunal were satisfied that Mr Travers did not have a copy of Mr 		Clerkin’s personnel file before him at the disciplinary hearing nor did he have a 		copy of Mr Clerkin’s letter to Mr Hughes dated 24 April 1994. The notes of the 		hearing indicate that no account of Mr Clerkin’s record was taken and in evidence 		Mr Clerkin said that Mr Travers indicated that the absence of his personnel file 		would not matter.
[That again, although referred to there as a matter of evidence, has been dealt with by a finding of fact earlier in the reasons.]
	(k)	The Tribunal was satisfied that Mr Clerkin had no intention to defraud the 			Company or the staff of the Respondents. In not booking hours to the week ending 		10 March and booking then to the subsequent week, the Applicant was not doing 		anything for his own financial gain although in evidence he admitted that his action 		was wrong.
[It is important again, to digress, to note that that is a finding not only as to lack of financial gain and lack of intention to defraud the company, neither of which, as we understand it, was seriously alleged by the company, but also of no intention to defraud or deprive the staff of the respondents, because there is a question as to whether that was in the mind of the company in dismissing Mr Clerkin and to that point we shall return.]
	l)	Mr Samson gave evidence to the Tribunal that the practice of booking hours to a 		subsequent week was common practice within the Respondents’ organisation.
[There is no indication, and the tribunal do not find, that that was put before the disciplinary hearing, but of course what were before the employers, although not before Mr Travers, were the letters of 5th and 24th April in which Mr Clerkin had plainly raised that point.]
In the circumstances the Tribunal find that although the Respondents had a genuine belief reasonably held that the Applicant was guilty of the conduct complained of, this belief was not based on a reasonable investigation. The Tribunal was satisfied that the Respondents’ decision to dismiss the Applicant did not fall within the reasonable range of responses.”

Then on that basis they find that the conditions of Section 57(3) of the Act were not satisfied and unanimously reach the decision that Mr Clerkin was unfairly dismissed.

	They then deal with contribution as follows:

“22. Mr Clerkin had an opportunity to put forward his defence to the Respondents in the investigation and at the disciplinary hearing before Mr Travers. Mr Clerkin did not speak up in his own defence at either of those meetings and did not refer to the letter he had sent to Mr Hughes dated 24 April 1995 in which he set out the grounds why he felt his suspension was unfair. The reason given by the Applicant for failing to draw these matters to the attention of the Respondents at the meetings was that he did not think he would have a fair hearing.
23.	Mr Clerkin did not appeal against the decision to dismiss him because he did not feel he would have a fair hearing.
24.	It is the unanimous decision of the tribunal that it is just and equitable that a percentage reduction of 40% to the basic and compensatory award should be applied pursuant to the provisions of section 74(6) of the Act.”

Those are the facts as found by the tribunal and their reasons for the decision which they reached.

	The principal error of law alleged by the employers, in the way in which their case was put most ably before us by Miss Tracy-Forster, was that there was a misdirection, in that the finding that the employers believed Mr Clerkin to be guilty of the conduct complained of, and in particular that they reasonably held that belief, was incompatible with their conclusion that that belief was not based on a reasonable investigation, as the matter is put at the end of paragraph 20 of the tribunal’s reasons. She says that that flows from the way in which the tribunal had earlier had put to themselves the question of fairness or unfairness under Section 57(3) of the Act at the beginning of paragraph 20, where they had summarised the effect of the decision in British Homes Stores v Burchell as being that the respondents must have a genuine belief in the conduct complained of, reasonably held and based on a reasonable investigation. Miss Tracy-Forster’s submission is that that, following what she accepts is or was the traditional way of putting what is commonly called the Burchell test in three parts, is in fact logically faulty because in her submission parts 2 and 3 cannot be taken separately. If a belief is not based on a reasonable investigation, she says, then it is not reasonably held. 

	It is therefore necessary to look at the relevant authorities. We were referred to them. First, British Homes Stores Ltd v Burchell [1978] IRLR 379. The relevant passage in the judgment is delivered by Arnold J in paragraph 2 of the report. Having summarised the effect of Section 57(3) in one way, as it were, Arnold J went on:

“... That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at that stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. ...”

	For our part we are unable to accept that there is any logical incompatibility in expressing those as three separate matters, and therefore no logical incompatibility in a finding that the second stage is satisfied by the employer but the third is not. The important words are “had in his mind” - “Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.” It seems to us quite manifest that it is perfectly possible for an employer to have a belief, for that belief “in his mind” to be based on reasonable grounds, and yet for it not objectively to be reasonable, because he has not conducted the necessary investigation. That indeed may be the very reason why he believes it and why in his own mind he reasonably believes. And that, as we understand it, was the view adopted by the Court of Appeal when dealing with the matter in the case of Weddell & Co Ltd v Tepper [1980] ICR 286, because in that case the facts are summarised in the headnote were as follows:

“ ... A stock check at the end of the day revealed that some meat was missing. The employers resolved to dismiss the employee if no satisfactory explanation of the transaction was forthcoming. On July 19 the employee was interviewed and told that he was to be dismissed for gross misconduct. When he was asked whether he had anything to say, he said he had done nothing wrong. ...
 [Then, after referring to criminal proceedings which are irrelevant to the present point.]
	On a complaint by the employee that he had been unfairly dismissed, an industrial tribunal held by a majority that the dismissal was unfair since, although the employers’ belief that the employee had acted dishonestly was reasonable, they had acted unreasonably in not giving the employee a fair chance to defend his hitherto good name. The employers’ appeal to the Employment Appeal Tribunal was dismissed.”

And a further appeal to the Court of Appeal was also dismissed. The conclusion of the Court, again in the headnote, is summarised as follows:

“Held, dismissing the appeal, that the industrial tribunal was entitled to find that although the employers had believed on reasonable grounds that there was a good reason justifying dismissal, their conduct in failing to give the employee a proper chance to refute the allegations against him before his dismissal amounted to an unfair procedure and was unreasonable in the circumstances of the case.”

The Court went on to say that great assistance could be derived from the test formulated by Arnold J, in British Homes Stores and, interestingly, the compiler of that headnote summarises it in this way:

“ ... that the employer must establish the fact of that belief, that he had reasonable grounds on which to sustain it and that, at the stage at which he had formed it, he had carried out as much investigation into the matter as was reasonable in the circumstances of the case.”

So that by omitting the reference by Arnold J to what was in the mind of the employer it is possible that the compiler of the headnote, and perhaps even the members of the Court of Appeal, if the headnote accurately summarises what was said, had as it were left the formulation open to the attack which Miss Tracy-Forster has mounted, which cannot properly in our understanding be mounted against Arnold J. What is absolutely clear is that that decision of the Court of Appeal is authority, and indeed as far as we are concerned binding authority, that a tribunal does not err in law if it follows the route formulated by Arnold J in British Homes Stores v Burchell, even if following that route results in a finding in favour of the employer on points 1 and 2 but against the employer on point 3. That really suffices to dispose of Miss Tracy-Forster’s main point. 

	She referred us very properly to the case of ILEA v Gravett [1988] IRLR 497, in which this tribunal said, in effect, that it may not always be necessary to follow the precise three stages of Burchell, that it may be perfectly proper to look simply at two questions: (a) belief, a genuineness of belief; and (b) whether that belief is based upon knowledge and consideration of sufficient relevant facts. One can well see the common sense and force of that, because to ask questions two may often be academic if the employer fails to satisfy limb three; the dismissal will be unfair regardless of whether in ignorance the employer reasonably believed in the misconduct. However that may be, we are not concerned with whether it would be proper, as it may be plainly, to depart from the three stages of Burchell; we are concerned whether it is improper to follow them, and it is not.

	The only criticism that can legitimately be made, in our view, of the tribunal on that score, is that they do (and, as we have pointed out, in this following very eminent predecessors) summarise the second ground as being reasonable belief, rather than setting out Arnold J’s full words. We have no doubt whatsoever that they understood and applied the test correctly, even if by way of summary they stated it in a way which as a matter of grammar might be open to some criticism. 

	In the grounds set out in the Notice of Appeal grounds 6(a) and (c), as we understand it, raise a point which Miss Tracy-Forster did pursue before us, which perhaps can be summarised in this way, that Mr Clerkin’s failure to put forward any serious defence before the disciplinary hearing, in particular the full defence that he advanced in the Industrial Tribunal, not only, contributed to his dismissal, which the Industrial Tribunal found that it did, but went further and, as it were, exonerated the employer from any further enquiry. Miss Tracy-Forster says that an employer faced with an employee who admits the basic facts of the wrong-doing, in this case the instruction not to clock on the relevant Friday, is not obliged to carry out as much investigation as one who has a full statement of the nature of the employee’s defence.

	There are a number of answers to that criticism, in our judgment. The first is that the case that we referred to in dealing with the Burchell point, Weddell & Co Ltd v Tepper, is itself a case where a rather similar situation obtained, in that the employee simply said “I have done nothing wrong”, and that, in the view of the Industrial Tribunal in that case, upheld by the Employment Appeal Tribunal and the Court of Appeal, was sufficient to entail that the employers should have carried out a fuller investigation. But, coming to the facts of this case, in our understanding it is first of all not by any means the fact the employers had no indication of the nature of Mr Clerkin’s defence. It is true that by the time it got to the hearing before Mr Travers he said very little - although even then it is not true that he said nothing - but it is the dismissal by the employers that is in question, not the integrity of Mr Travers. Mr Travers did not know, but the employers did know, what Mr Clerkin had written in his letters of 5th and 24th April 1995. Mr Clerkin’s failure to produce those letters at the hearing, as the tribunal rightly found, went to contribution the employers’ failure to brief Mr Travers fully beforehand (or alternatively, if he was to come to the disciplinary hearing with, as it were, a blank mind, to place them before him at the hearing) was a failure on the employers’ part to carry out a full and proper investigation, and the tribunal clearly had that point in mind in their references, in particular, to the letter of 24th April 1995 (although they do also refer to that of 5th April) in their recital of the matters that they took into account in dealing with unfairness. Moreover it was not just those letters dealing with the point about whether it was an accepted practice to carry hours forward. There was also; on the other point of whether Mr Clerkin was in dereliction of duty in leaving employees unpaid, the evidence before Mr Travers at the disciplinary hearing in the form of statements which went to that issue. As is clear from the Industrial Tribunal’s reasons, the case of Mr Clerkin before the Industrial Tribunal was that when he was about to go on holiday for the following week in a situation where a number of members of staff had not clocked in and would therefore, if nothing was done about it, not be paid for the work they had been done on the Friday, he instructed his assistant manager and the supervisor to make that up in the following week. Well, the employers had taken statements in their investigatory process from among others that supervisor, and she had told them that on the Friday morning Sandra (presumably one of her staff) had worked out the figures and found them to be over by 100 hours. “I checked the figures”, the superviser says, “and confirmed that we were over. I then called Mr Clerkin and confirmed to him the figures. He had a think about it, and then said ‘tell them all not to clock in’, so I did.” A little later she was asked “Have all the staff been paid for that day?”  Answer “No, I have just put some through this week for payment.” This was an interview on 1st May 1995. A little later she says “Mr Clerkin told me to write on last week clock cards ‘pay total hours owed’, the hours for each of the four that I did last week.” Then there was also a statement from a Miss Susan Clifford, a cashier - one of the unpaid staff - “I was going home” she says “Margaret the supervisor said to me ‘you won’t get paid for today, we owe you seven hours and will give you a day off next week’”. A little later in her statement, she also refers to another conversation in which “Margaret” said “Speak to Mr Clerkin. Don't worry, you will get paid next Friday.” So that on that point also, as to whether Mr Clerkin had left his own staff, as it were, in the lurch, there was clearly material before Mr Travers that showed what Mr Clerkin’s case was, namely that the persons who would have to deal with the pay next week when he was away knew perfectly well that the intention was to make it up.

	In those circumstances we see no error of law on the part of the Industrial Tribunal in concluding that, notwithstanding the failure of Mr Clerkin to put his case fully to Mr Travers at the disciplinary hearing, (a) there was material before Mr Travers which went to at least one of the points relied on by Mr Clerkin at the Industrial Tribunal and (b) there was material before the employers, and by their fault not laid before Mr Travers, which went to another and perhaps even more important part of Mr Clerkin’s defence.

	A third area of criticism by the appellants of the Industrial Tribunal can be summarised, as we understand it, by saying that they failed to recognise the seriousness of what Mr Clerkin had actually done, even absent any element of financial gain to himself or financial deprivation to his employers. We think, first of all, that it is fanciful to suppose that an experienced Industrial Tribunal could approach such a case on the basis that any alteration of clock records was other than a serious matter. But as to that, of course, they had to weigh the question as to how serious it was, and also how serious it should have appeared to a reasonable employer. We have already referred to three of the elements of that: first of all whether it involved financial gain to Mr Clerkin, which apparently was never suggested by the employers themselves, secondly whether it involved any defrauding of the employers, which again was manifestly not the case and not suggested by the employers, but thirdly, whether it deprived the staff of their entitlements. Of course it deprived them of getting the pay when it should have been due, and that was apparent. But whether Mr Clerkin was involved in any dereliction of duty in failing to ensure their being paid in due course, and if possible in the following week, was a matter before the Industrial Tribunal. Not only was it a matter before the Industrial Tribunal but it was a matter which, as far as we can see, whatever the employers may say now, they were relying upon at the time of the dismissal and pursuing in their response to Mr Clerkin’s application as being something that should be found against him, because in their Notice of Appearance to Mr Clerkin’s application, in paragraph 5, the employers say:

“At the conclusion of the hearing Mr Travis concluded that the applicant was fully aware that what he was doing was wrong and that it was totally unexceptable for a Manager to fail to pay his staff for the hours they worked.”

And that that was indeed one of the factors in Mr Travers’ mind, although it is not reflected in the formal letter of dismissal, appears from his own summary at the conclusion of his notes of the disciplinary hearing, where he says under point 3:

“17 years in any retail business, you would know people only happy at work when getting paid, and that by not paying them for up to three weeks we had unhappy staff.”

So that on the face of it, Mr Travers is holding against Mr Clerkin not simply the failure to have the staff paid in the very week in which they did the work, but is holding against Mr Clerkin the failure to make it up in the following period. As we have indicated the Industrial Tribunal found, and had evidence on which they were perfectly entitled to find, that Mr Clerkin had taken reasonable steps to deal with that matter and, moreover, that Mr Travers had evidence before him from the relevant supervisor and at least one member of staff that corroborated that.

	We therefore reject this submission that the Industrial Tribunal, as it were, should have taken a more serious view of Mr Clerkin’s misconduct than they did.

	Paragraph 6(d) of the Notice of Appeal is the allegation of findings of fact unsupported by any evidence, of which part (i) is the matter of the finding that Mr Hex had instructed Mr Clerkin to clock staff out after they had completed 39 hours, and for the reasons we have already given, in the absence of the Chairman’s notes that allegation is not one that can be sustained; the tribunal make a clear finding on the point, and refer to evidence which they state as justifying it. The second part of that is an allegation that there was no evidence to support the finding that Mr Clerkin had booked the hours to the subsequent week. That seems to us to be a misunderstanding of the tribunal’s decision. It is quite plain that the tribunal did not suppose, and did not find, and that Mr Clerkin never suggested, that he himself had booked the hours to the subsequent week. The issue plainly was whether, being about to go on holiday, he had left what he believed reasonably to be instructions to the persons who would deal with the matter to ensure that that happened. There is therefore nothing in that ground of appeal.

	That deals with the finding of unfair dismissal. It is therefore dismissed.

	There is then an appeal, and there was originally a cross-appeal, against the tribunal’s decision on contribution. Mr Kendall, recognising the difficulty of defending the tribunal’s proportion as against Miss Tracy-Forster’s appeal, but also saying they got it entirely wrong for the purposes of Mr Clerkin’s cross-appeal, abandoned the latter. We have, therefore, only to deal with the appeal on that point.

	The basis of this appeal is that the Industrial Tribunal took into account only Mr Clerkin’s failure to put forward his defence in the investigation and at the disciplinary hearing, and his failure to pursue his rights of appeal, and did not take into account the admitted misconduct of falsifying the clock cards. 

	We have a little difficulty in seeing precisely how this ground of appeal is put. First of all, it is quite plain that potentially there might have been a submission that even had the employers carried out a full and reasonable investigation there was a chance that Mr Clerkin would still have been dismissed, and that on the basis of the well-known decision in Polkey it would be right in those circumstances for the Industrial Tribunal to take into account that chance in assessing compensation, but it is common ground that no such submission was made; certainly no such complaint is pursued in the Notice of Appeal, and it is not on that basis that the level of contribution is criticised. If that approach is excluded one is therefore faced with this position so far as the misconduct is concerned, that the tribunal - admittedly in paragraph 20 dealing with the unfairness point rather than in paragraphs 22 to 24 where they specifically address contribution, but nevertheless in their reasons - do expressly find that the dismissal was not within the band of reasonable responses of a reasonable employer. It seems to us that can only reasonably and fairly be interpreted as being a finding that on the tribunal’s findings of fact, including their findings as to the seriousness of the misconduct, and on their findings as to Mr Clerkin’s case put forward in diminution of the seriousness of that misconduct, that misconduct, although admittedly wrong and in breach of procedures, was not such as to justify dismissal - not only not such as to justify dismissal in the mind of the tribunal, but the tribunal go further and say not such as to justify dismissal in the mind of any reasonable employer. That being so, it seems to us that the tribunal have made an express finding which excludes the possibility that that misconduct had contributed to the dismissal, because it simply did not justify the dismissal. As I have said, there is of course a separate question whether, had the Polkey point been raised, it might have resulted in some percentage reduction on that basis. 

	We do not therefore find any error of law in that respect on the part of the tribunal, and no attack is made, as we understand it, or could be made, on their assessment of the percentage which seemed to them to be appropriate for the contributory conduct which they did take into account. Therefore the appeal against the finding as to contribution is also dismissed.

	Legal Aid taxation for the respondent granted.