Appeal No.	 EAT/565/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 January 1999

Before
HIS HONOUR JUDGE C SMITH QC
MR E HAMMOND OBE
MR D J HODGKINS CB

MR J MORTON	APPELLANT

THE POST OFFICE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR OLDHAM
(Of Counsel)
Under ELAAS	

	JUDGE C SMITH:		This is an appication by the Appellant for leave to proceed to a full hearing of his appeal against a decision of an Industrial Tribunal sitting at Reading on 8 January 1998 - of which extended reasons were sent to the parties on 6 February 1998 - whereby the Industrial Tribunal held unanimously that the Applicant had been fairly dismissed by his employers, The Post Office, on the grounds of conduct.   

	We have reminded ourselves that we only have to be satisfied there is an arguable ground of appeal to allow the matter to proceed to a full hearing.   We will come on to the way in which the matter has been put by Mr Oldham, representing Mr Morton, in a moment, but we should just record that, as appears from the decision, the Industrial Tribunal held that the initial disciplinary investigation carried out by Mr Allen which resulted in the Appellant’s summary dismissal on 28 May 1997, arising from Mr Allen’s belief that the Applicant had been involved in dishonesty in relation to cheques, as alleged against him by the police, was seriously deficient and wholly inadequate.   They expressed strong criticisms of that investigation in paragraph 18 of the decision, as we were reminded in argument by Mr Oldham.   We do not need to set out what they found there:  they did not actually state, as was probably the case, that it was also in breach of contract and we will come back to that point in a moment.   What they did say was that they found the investigation carried out by Mr Allen was unreasonable, for the reasons they gave in paragraph 18, in the context of a claim for unfair dismissal.   That was the only claim which was in front of them.

	As appears from the Industrial Tribunal’s decision the matter did not end there because there was an appeal hearing, as the Industrial Tribunal found, on 7 August 1997, before the Respondents’ Appeal Manager, Mr Baker.   The Industrial Tribunal made important findings of fact in paragraphs 9 to 13 of their decision with regard to the procedure followed by Mr Baker in conducting the appeal.   They set out all that had happened during the appeal, as they found it to be, in those paragraphs.   Of course an important part of that factual framework was the matter of  the handwriting.  

	What it comes down to is that Mr Baker came into possession of a handwriting report which the police had commissioned.   He wrote to the Applicant on 8 October 1997 and the Applicant did not respond, although he was invited to respond, relating to the handwriting report.   On the findings of the Tribunal the Appellant simply said he had nothing else to say on the matter except that he was innocent of the charges and not guilty.   That was part of the procedure followed by Mr Baker in conducting the appeal.

	The Industrial Tribunal having, in our judgment, correctly  - subject entirely to our consideration of the points taken on appeal - set out the relevant legal principles in paragraph 17 then reached important conclusions in paragraph 19.    In particular they concluded that Mr Baker had carried out a full and proper investigation by way of a re-hearing of the whole matter and that his investigation, fairly carried out as it was, had cured and remedied the defects in the original investigation.   So the Industrial Tribunal concluded that the dismissal was fair, applying the statutory test of reasonableness laid down by section 98(4) of the Employment Rights Act 1996 and obviously having in mind British Home Stores v Burchell and Boys and Girls Welfare Society v McDonald, both of which they had cited in paragraph 17.   In so concluding, it should be noted that the Industrial Tribunal specifically took into account the fact that there had been some delay on the part of the Respondents in setting down the internal appeal and reverting to the Applicant with regard to the crucial handwriting evidence but, nevertheless, they concluded that this did not adversely effect the underlying fairness of the decision.   

So that really is a summary of the decision and the conclusion is really expressed in the last few sentences, in particular:

“The management were entitled to view with concern allegations against the applicant regarding stolen or fraudulently used cheques when numerous cheque books and cheques are despatched through the Post Office.   We therefore consider the decision to dismiss was within the range of reasonable responses a reasonable employer might have adopted in the circumstances.   Accordingly, unanimously this dismissal is fair.”

	Now there are two points taken on appeal.   First, it is submitted to us that the relevant part of the code as placed in front of us, very helpfully, in the bundle was a contractual document, in other words it was incorporated into Mr Morton’s contract of employment, and we will assume that to be the position since part of the code includes instructions as to how employees should behave out of hours - therefore it would appear to be a contractual document.   Thus reference is made to conduct code 11.2 as having ‘contractual effect’.   So it is submitted that the Industrial Tribunal, following the case of City of Westminster Council v Cabaj [1996] ICR 960 CA, should have found that there was a breach of contract, should have adverted to that, specifically, in paragraph 18 when they were criticising the way in which Mr Allen had dealt with the matter and it is submitted that had they done that, and approached that matter correctly, then it is arguable that a different conclusion would have been reached with regard to the overall fairness of the dismissal under section 98(4).

	We find we cannot accept that that submission gives rise to any arguable ground of appeal.   In our judgment the Industrial Tribunal correctly addressed the right principle, namely, whether the dismissal was fair having regard to the test in section 98(4).   It would have added nothing, in our judgment, to their assessment of that and their conclusion in relation to it to have found that the investigation by Mr Allen was also in breach of contract.   In our judgment the decision of Cabaj is a different case from the circumstances of this particular decision and accordingly we reject that ground of appeal as not being arguable.

	The second ground of appeal is along the lines that the Industrial Tribunal should have treated the complaint being made before them as not only a complaint of unfair dismissal but also a claim for breach of contract.   This is the self-same argument, really, that the initial disciplinary procedure was a breach of contract and so the Industrial Tribunal ought to have treated the matter as though there were a discrete, free-standing complaint in front of them with regard to breach of contract and gone on to make findings in relation to that and ask themselves whether perhaps any loss had flowed from that breach of contract, along the lines that had the first tier disciplinary investigation been carried out properly it would have taken a week or so longer - it is submitted - and thus there might have been a claim for a couple of weeks pay by way of damages for breach of contract.   It is pointed out to us that the Applicant did not have the benefit of legal representation and the Industrial Tribunal should perhaps have played a more interventionist role than might otherwise have been the case in being astute to notice that there may be a claim for breach of contract which they should also consider.   But in our judgment this really is a wholly unrealistic approach, with great respect to Mr Oldham.   The Industrial Tribunal were dealing with a claim for unfair dismissal.   That was the only claim that was put forward on the Originating Application and, in our judgment, it is far too late now to try and build up a claim for breach of contract.   Industrial Tribunals are entitled to assume that the matters which they have to deal with are correctly and exclusively set out in the Originating Applications before them and here, in box 1 of the Originating Application, the only complaint relied upon is one of unfair dismissal.   Accordingly, for those reasons, we do not think that either of the points skilfully taken this morning on behalf of the Applicant give rise to arguable points of appeal so this application will have to be dismissed.