Appeal No.	 EAT/431/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 July 2000

Before
MR RECORDER BURKE QC
MR D J JENKINS MBE
MR R N STRAKER

ROBERT JOHN FLYNN	APPELLANT

ADEM YESILADA T/A ADEM'S MEAT LIMITED 	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MS C HULSE 
(of Counsel)
Free Representative Unit
Verulam House
Verulam Street
London 
WC1X 8LZ	

RECORDER BURKE QC:

1.	This is a preliminary hearing of an appeal by the Applicant, Mr Flynn, against a decision supported by extended reasons of the London North Employment Tribunal chaired by Mr Rabin, that decision having been promulgated on 24 February 2000, whereby the Applicant’s claim for unfair dismissal was rejected.  A claim for unlawful deduction of small amounts of wages and holiday pay succeeded, nothing now turns on that.  The Respondent employed the Applicant in the Tribunal below, now the Appellant, as a delivery driver from January 1998.  He was summarily dismissed on 2 June 1999.  

2.	As a delivery driver it was his job to deliver meat to and collect payment from the Respondent’s customers.  The customers usually paid by cash or cheque and the Applicant, used to check the counting of the money where cash was being paid, together with the customer, so that he, the Applicant, knew that he was receiving the right amount of money from the customer and there was no shortfall.  After the deliveries were finished for the day, the Applicant would return to the Respondent’s office and hand over the monies, and no doubt cheques as well, to the Principal of the Respondent’s business, Mr Yesilada or his wife or to the Applicant’s own manager, a man called Mr Kubasik. One of these would count the money in the Applicant’s presence for the Respondent’s own and the Applicant’s own security.  

3.	Prior to April 1999 it seems that, according to Mr Yesilada, the Applicant began to deduct small sums from money from the payments that he was receiving without permission, that he told the Respondent what he had done when the counting took place back at the office and was allowed to pay the money back out of his wages. Whether these events were in dispute or not is not clear and they are not of real importance in any event at this stage.  In May, after the Applicant had been off work for a period of sickness, there was a disagreement between the parties, which led to the Respondent’s giving the Applicant notice; but before that notice expired the Applicant began again to work for the Respondents as before and the Tribunal found that there was no break in continuity.     

4.	On 2 June the Applicant had to collect a total of £1,750.19 from customers, including £1,526.40 from one customer in Guildford who paid in cash, including, apparently, two hundred £1 coins.  When the Applicant returned to the office at the end of that day’s deliveries, Mr Yesilada was busy so the Applicant left the bag for Mr Yesilada to count and went home. Mr Yesilada subsequently counted the money and found that there was a shortage of £274.  Mr Yesilada had two other employees, including Mr Kubasik, the Applicant’s Direct Manager, checked the count; so it was counted three times, each time with the same result.  The Applicant was phoned and returned to the office and counted the money himself with the same result.  No explanation of the deficiency was forthcoming from him.  He also searched the van, which he had, apparently, previously cleaned out in any event and nothing was found.  

5.	Mr Yesilada at that stage contacted the customer in Guildford whom the Tribunal found Mr Yesilada to have believed to be totally honest; that customer said that he had counted out the money accurately in the Applicant’s presence and that the Applicant had put the money into a bag.  The shortfall was bigger than the difference between the amount collected from that customer and the total amount of money collected that day.  Therefore at least some of the shortfall represented money from that customer.  On what that customer said, which Mr Yesilada plainly believed, it seems to us that this case ceased to be a shortfall case and become one in which Mr Yesilada was wholly entitled to believe that the Applicant had been given the correct money in the course of his deliveries.  

6.	The Tribunal accepted Mr Yesilada’s version of what happened next, namely that Mr Yesilda told the Applicant that he would have to make up the money which he agreed to do, but then he refused to sign a document, confirming in writing that he would do so.  On the next day in a further conversation the Applicant said to Mr Yesilada words to the effect: “How do I know you didn’t take the money?”  Mr Yesilada then concluded, so the Tribunal found, that the Applicant was dishonest and that he had taken the money and dismissed him for that reason.  The Tribunal found that the reason for the dismissal was conduct and asked itself whether the Respondents had behaved reasonably in deciding to dismiss on the facts known to them at the time (see paragraph 29 of the decision).  

7.	It appears on the face of it to have asked itself the three questions which, in an appropriate case and Miss Hulse on behalf of the Applicant says that this is such an appropriate case, the Tribunal is obliged to ask itself along the guidelines set out in the case of British Homes Stores v Burchell.  I should interpose that Miss Hulse has referred to the recent cases in this Tribunal of Hadden and Maddon in which some doubt has been expressed as to the use which should be made of the Burchell test; but we have not been taken to those authorities in the course of this hearing because Miss Hulse has, very sensibly and wisely, accepted that her submission relies on the correct application of the Burchell test and that this is a case in which the Tribunal should have directed itself according to the Burchell test.  She says that it did not do so. 

8.	At paragraph 24 the Tribunal sets out the three fold aspect of the Burchell test and then in its conclusions it refers to each of those three questions to which Burchell gives rise, namely:
1)	Did the Respondent’s believe that the Applicant was guilty of the conduct alleged?  
2)	If so were there reasonable grounds in all the circumstances for that belief and 
3)	Had they made a reasonable investigation?  
Miss Hulse on behalf of the Applicant contends that the Tribunal did not apply that three-fold test correctly in that they did not direct themselves to consider whether or not there had been an adequate and reasonable investigation in all the circumstances of the case.  She says that a reasonable investigation would necessarily have required Mr Yesilada to consider and make enquiries as to whether or not monies had been left at the premises of one of the customers or had somewhere dropped out of the van or had somewhere been taken from the van by a third party; and she says no investigation could be a reasonable investigation, unless those steps had been taken.  

9.	That is the essence of Miss Hulse’s submission.  She puts it in two ways: 
1)	First of all that there has been a misdirection by the Tribunal and
2)	Secondly if they have directed themselves properly, they have reached a decision on the facts which is a perverse one.  
We are unable to see that there was any arguable misdirection by the Tribunal in this case.  It plainly asked itself whether or not Mr Yesilada believed that the Applicant was guilty of the conduct alleged.  It seems that he did not so believe until Mr Flynn the Applicant actually suggested that it might have Mr Yesilada whom had made off with the money but that converted what might before have been a suspicion into a belief.   It might be thought that, if that was Mr Yesilada’s state of mind, he had been quite generous to the Applicant before reaching that conclusion but that is the sequence of events that the Tribunal found to have happened. 

10.	The Tribunal equally plainly asked itself whether that belief was based on reasonable grounds.  It is important to note that in the case of Inner London Education Authority v Gravett  [1988] IRLR 497 this Tribunal chaired by Mr Wood J looked at the Burchell tests and set them out again and said this: 
“ It is important to stress that what follows is really only an indication of different facets of this one issue.  The employer must prove on the balance of probabilities - more likely than not -
(i) that he believed - again - on the balance of probabilities (not beyond reasonable doubt) - that the employee was guilty of the misconduct and
(ii) that in all the circumstances based upon knowledge of and after consideration of  sufficient relevant facts and factors he could reasonably do so. We use the word ‘sufficient’ because other relevant evidence may later come to light which may point one way or the other. Its existence will not of itself mean that insufficient evidence was known.
The situations which arise upon this second limb (and I interpose that in this case of Gravett,  Wood J chairing this Appeal Tribunal ran the second and third limbs of the Burchell test together for perfectly good common sense reasons and it makes no difference whether it is treated as one or two limbs) can and will be infinitely variable; at one extreme there will be cases where the employee is virtually caught in the act and at the other there will be situations where the issue is one of pure inference.  As the scale moves towards the latter end, so the amount of inquiry and investigation, including questioning of the employee, which may be required is likely to increase. The sufficiency of the relevant evidence and the reasonableness of the conclusion seem to us to be inextricably entwined.  However, it may be that some further inquiry is clearly necessary before the relevant evidence can be considered sufficient.”

11.	  That was not the view taken by the Tribunal in the present case.  It seems to us that Gravett’s case does not really add to Burchell, save by reminding Tribunals that the degree of investigation that is required may be different in a case where, on the face of it, the evidence is slight, as opposed to the case where the evidence is overwhelming; and there will be many stopping off points in between.  Nothing in Gravett’s causes us to believe that the Tribunal here misdirected itself. What we therefore have to consider is the alternative submission, namely, did they come, in concluding that there was a reasonable belief and not just a belief in this case and that there had been reasonable investigations, to a perverse conclusion i.e. a conclusion to which no reasonable Tribunal could have come. 

12.	We have to ask ourselves not whether perversity is established but whether there is an arguable case for perversity on this preliminary hearing.  We have considered this very carefully but have come to the conclusion that there is not an arguable case.  It is said that what should have happened in this case is that Mr Yesilada should have carried out some investigation, as we have said, to see whether the money might have been dropped or somehow left with a customer or filched from the van on route. But it is important in our view to point out that Mr Flynn, the Applicant, at no time suggested any of those possibilities.  He gave no explanation at all.  

13.	If he had said  “Well I think I may have left a bag of money in a telephone box along the route when I was phoning my mother” or anything of that type, then of course it would have been Mr Yesilada’s duty to investigate that as far as he could, although investigation would have been very difficult, it being highly unlikely on the hypothetical example that I have given that the money would have still been where it had been left if it had been there left.  But on the facts here it had been established that this was not a shortfall case, and no explanation of the missing money had been put forward at all, giving rise to a need to follow up such an explanation to see whether it was or might be true. 

14.	Further, when confronted by the position again on the following day, the employee, after he had a night to think about it, (although it is fair to say he was a young employee) did not say to his employers “Well look I have been thinking about this, it may have gone anywhere, perhaps I did this, perhaps I did that, lets see if we can chase it up”. Far from that, what the employee actually did was to suggest, if it was not an accusation and it may have been much more than a suggestion, that Mr Yesilada had stolen the money himself.  In other words he was indicating that there was nothing more to be investigated because on what he was saying the money had actually got into the office and had then gone missing.  

15.	It therefore seems to us that there is not an arguable case here that there was perversity.  The Tribunal asked itself the right questions, directed itself correctly in law and answered those questions on the facts and we cannot interfere with those findings of facts, absent perversity which in our view is not arguable.  I should close by saying that nothing that we have said today indicates that it is our view and we have no view about it, that Mr Flynn was guilty of theft, that is not of course the question that we have to consider.  He was dismissed in circumstances to which the three limbs of British Homes Stores v Burchell applied.  The Tribunal asked itself, the right questions and gave the answers in the terms, which it did.  Therefore this appeal is dismissed.