Appeal No. EAT/715/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE,
STRAND, LONDON, WC2A 2LL

	At the Tribunal
	On 7 September 2001

Before
MR RECORDER LANGSTAFF QC
MR B GIBBS
MISS D WHITTINGHAM

MR A MAFFEI	APPELLANT

PETER BOIZOT (FRANCHISE) LTD 
KETTNERS RESTAURANT	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MR D BASU
(of Counsel)
Appearing under the 
Employment Law Appeal 
Advice Scheme 

MR RECORDER LANGSTAFF QC

1	This is an appeal against a Decision by the Employment Tribunal sitting at London Central, the Reasons for which were promulgated on 24 April this year.  That Employment Tribunal dismissed the Appellant employee’s complaints of unfair dismissal and unfair deduction from wages.  

2	The facts which the Employment Tribunal found were in essence these: the Appellant employee, who was the Assistant Manager in the Respondent’s restaurant, was found in January this year to have been using a card swipe machine in order to obtain cash sums.  This was a practice which had been forbidden officially by his employers since February 1999, and which, so the Tribunal found, had been observed without breach since that date.  

3	On 3 January of this year, the Appellant was told that he would be investigated.  On 5 January he was suspended, pending a disciplinary hearing.  On 9 January, that disciplinary hearing took place in front of a Mr Sanhaji.  In the course of that hearing it emerged that some £5,200 had been taken during December 2000 by the Appellant, and he freely admitted to this.  It was more than his salary had been for that month.  After only a few minutes’ consideration, Mr Sanhaji, despite the fact that the Appellant was an employee of some standing, and of long service, and about whom there had been no complaint that we know of previously, determined that he would dismiss the Appellant summarily.

4	The Employment Tribunal concluded in respect of this, in short paragraphs as follows.  Paragraph 6 reads:
“The Respondents have satisfied the Tribunal that the reason for dismissal was the use of the PDQ machine as a cash point by the Applicant.  At the time of the dismissal it was known that the applicant had withdrawn over £5,000 in a one month period.
The Tribunal concluded that the Respondents behaved reasonably in treating that as a reason for dismissal.  They alerted the Applicant to the problem once it was known.  They suspended him whilst they completed their investigation and allowed him an opportunity to attend a disciplinary hearing with a witness.  They made known the nature of those concerns before the meeting.  At the disciplinary hearing the Applicant acknowledged that he had withdrawn the monies.  He acknowledged that he had not asked permission to do so and the sums involved were significantly larger than those of any colleague.  In any event there was no evidence that any colleague had withdrawn monies after February 1999.  The Respondents were entitled to conclude that this behaviour was such as to justify dismissal.  The decision to dismiss falls within the reasonable range of responses which a reasonable employer can take.”

5	So far as the claim for unlawful deduction from wages was concerned, the Appellant employee claimed that at the time of his dismissal, he was due arrears of holiday both in respect of the current year (year 2000) and a period of days that he had held over from the year before.  

6	The Employment Tribunal set out the submission of the Respondents that they had overpaid for holiday.  It found, as a matter of fact, at paragraph 3 (vii) that:
“The Applicant, with other employees, was entitled to 20 days holiday each year.  During the year ending 31 December 2000 he took 15 days holiday.  He was unable to take his remaining 5 days.  There was no provision for carrying holiday forward.”

It goes on to say that 
“On 23 March 2001 after having carried out further investigation Mr Georgiou wrote …..with a cheque for £1149.17 which was stated to represent 24 days holiday including the 5 days carried forward from the year 2000 and an additional 18 days together with one outstanding bank holiday day.  The basis of calculation is contained in the letter.”

The conclusion to which the Tribunal came, in respect of the holiday pay issue, was at paragraph 8:
“The Respondents paid the Applicant both the 5 days unpaid holiday for the year 2000 and an additional 19 days holiday.  That total of 24 days exceeds the total entitlement for the year 2000.  There is no further holiday pay due.”

7	Against those decisions and that reasoning, the Appellant raises three arguments.  They have been put today before us by Mr Basu, who appears under the ELAAS scheme, for whose submissions we are very grateful.  He has, we think without doubt, encapsulated what are the strongest arguments that Mr Maffei might mount in support of an appeal.  

8	The first submission that he made to us was that the finding in respect of holiday pay was flawed.  The Appellant had, he told us, given evidence before the Tribunal which they had not fully understood.  That evidence was to the effect that he had been due not only the sums that were subsequently paid in March 2001 by the employer, but in addition, five days which were outstanding as a due payment from the year ending at the end of 1999.  Their failure to comprehend that there were these five additional days outstanding had caused the Tribunal to dismiss his claim.  

9	Mr Basu faces difficulties in respect of that submission.  The first is that it is not a ground of appeal and it would require leave if he were to raise it.  He has, in effect, invited us to give leave so that he might argue that point and, without prejudice to that application, has told us the grounds upon which it would be arguable in any event.  

10	We have considered first whether we should give leave to amend the ground of appeal of this issue; we have decided that we should not.  Our reasons are that although the Appellant has, throughout until today been unrepresented, he raised the holiday pay issue below.  He wrote substantially about the holiday pay issue before serving his grounds of appeal.  We have no doubt that if he had wished to appeal in respect of the holiday pay issue, it was sufficiently within his mind so that it could and should have been in his Notice of Appeal; we should add that his grounds of appeal are admirably succinct and focused.  

11	It therefore appears to us that there is not the degree of latitude in this case that we might exercise in the case of some unrepresented appellants, and accordingly, we think that this was a ground of appeal, which if it was to be raised, should have been raised in the original Notice.  However, we think that even if we were wrong so to exercise our discretion, that there would be no arguable appeal upon the point.  This is because the Employment Tribunal have found as a fact that there was no provision for carrying holiday pay forward from one year to the next.  We cannot see that that was necessarily an error; it is a finding of fact binding upon us.  If that is correct, as we must take it to be, there would be no basis for claiming any arrears of holiday pay where the holiday had not yet been taken.  Accordingly, if we had allowed the amendment of the Notice of Appeal, we would in any event have thought there was no arguable basis upon which that appeal could succeed.  

12	The second ground for attacking the Decision of the Employment Tribunal was that the Tribunal insufficiently set out why it was that the Appellant had lost and his employers had won the case.  This again is not a point which is taken formally in the Notice of Appeal, but in this case had we been minded to think that there was an arguable point of law, we would certainly have granted leave for an appropriate amendment.  It is very much bound up with the merits of the Appellant’s case in this respect.  

13	Mr Basu has argued that in the Extended Reasons there are only the terse paragraphs which I have already quoted at the start of this judgment.  The employee had raised mitigation. He had pointed out that he had personal problems and had paid the money, which he took, to American Express.  This was not a case of a dishonest employee.  This was a case in which the employer had suffered no loss.  Those points, said Mr Basu, merit a mention in the Employment Tribunal’s reasoning to show that they had taken the Appellant’s case on board, and had taken fully into consideration in answering the statutory questions that they had to address.  The decision was so uninformative, he submitted as to put this Tribunal into error of law.  For instance, the Tribunal did not say whether it accepted that the Appellant was or was not dishonest.  In concluding that the decision to dismiss fell within the range of reasonable responses, which a reasonable employer might make, the Tribunal had given no reasons.  The Appellant looking at this Decision could not see what in particular the Employment Tribunal had focused upon as justifying a reasonable employer taking the course this employer did.  

14	We have to remind ourselves, in dealing with this submission, that the Decision of the Employment Tribunal must be taken as a whole.  We have also to remind ourselves that it is not a requirement of the law that an Employment Tribunal should express itself so as to dot every ‘i’ and cross every ‘t’.  It is sufficient if, in broad terms, a party knows why they have won or why they have lost.  

15	In this case, part of the context within which the findings are made are the facts found by the Employment Tribunal.  At paragraph 3 (v) the Tribunal says this in relation to the letter of dismissal:
“The letter stated that the Applicant had taken it upon himself to remove the money without reference to others which constituted a breach of cash handling procedures and that he had abused his position as Manager.  The behaviour was described as gross misconduct.”

That was therefore the reason given in writing by the employer for the reaction which it took to the Appellant’s behaviour.

16	Secondly, the Employment Tribunal approached the question they had to resolve by setting out the relevant parts of Section 98 of the Employment Rights Act 1996 and correctly identified the questions that they had to address.  They then proceeded to set out the submissions not only for the Respondents but also for the Appellant and noted his submission that he had been a loyal employee who had done nothing dishonest.  I interpose to say that there is no suggestion in the Decision that this Tribunal thought, or had any basis for thinking, that the employee was dishonest and I take it that the Employment Tribunal were not concerned with any supposed, if there was, dishonesty on his part; he need have no fears in that respect.  He argued that, at worst, his conduct merited a reprimand and dealt with holiday pay.  It was thus in issue before the Tribunal, as they record, that this was a loyal employee and it was in issue that the penalty imposed by the employer was simply too severe for the conduct which was being considered.  

17	The Tribunal’s conclusions are undoubtedly terse.  It might perhaps have been better if the Tribunal had descended into greater detail in describing why it was that they thought conduct such as this Appellant’s could, though not necessarily would, merit a dismissal.  They expressed themselves simply in the terms that the Decision fell within the reasonable range of responses which a reasonable employer could take.  However, that conclusion is, in our experience, frequently expressed in such terms and it seems to us that in this case the context within which it was placed, the evidence which was being recited, looking at the reasons given by the employer which this Tribunal had examined against the background of the statutory test to which they had directed themselves, and having reminded themselves of the relevant submissions which are very much in line with that which has been submitted to us today by Mr Basu that the Tribunal came to a conclusion which they were entitled to reach.  They have, we think, sufficiently expressed themselves so that this Appellant knew in broad terms why it was that he had lost.

18	Although, as we indicated during the course of the hearing, we have had some sympathy with the Appellant, and although the Decision of the employer might perhaps be characterised as harsh, we think that the Employment Tribunal were a) entitled to concluded that it was within the band of reasonable responses, which a reasonable employer might make, and b) sufficiently expressed themselves so that the Appellant knew the basis for that conclusion.  

19	The third matter argued before us was that the Tribunal were biased against the Appellant.  The way in which that was put in the Notice of Appeal was at paragraph 5: that the conduct of the Tribunal was such as to prevent a fair hearing for the Appellant.  At the conclusion of the hearing before the Tribunal gave its Decision, the Chairman stated “I hate people appearing in front of me without a solicitor and not well acquainted with court proceedings”.  

20	In line with the guidance given by the President in the case of Facey v Midas Retail Security Ltd IRLR [2001] 287 the Appellant was asked to put his complaints on affidavit.  The sworn affidavit is a little different, perhaps significantly so, from the Notice of Appeal.  It says at paragraph 4:
“At the end of hearing, we returned to hear the Tribunal’s decision.  Before giving the decision the Chairman said that he was not happy for Applicants to appear in front of him without a solicitor, and with poor knowledge of court proceedings.  I was shocked by this remark.”

The affidavit also gives further particulars of the way in which the Chairman had dealt with the hearing and suggests that the Chairman was dismissive of the Appellant and had adopted, amongst other things, hostile body language; the attitude was summed up as being very negative.  The Chairman, invited to comment upon the affidavit, did not accept that he adopted hostile body language, denied making the remark attributed to him, and denied that he had displayed any negative attitude towards him.  

21	What we have to decide is whether there is any arguable case which should go forward to a full hearing that there was here bias, in the sense that there was a real risk that the Tribunal were so affected by bias that the Appellant may not have had a fair hearing of his claim.  On the face of it, the statement which is referred to in the affidavit of the Appellant, to which we have regard rather than the Notice of Appeal as we must, is equivocal.  It does not, in our view, clearly indicate such a degree of hostility towards the Appellant, as might suggest that the Decision had been reached on a basis more affected by personal considerations than by justice.  It may well be that the Chairman was expressing inevitable regret that he may not have fully appreciated, despite his best efforts, the points which Mr Maffei might have wished to make, because he was unrepresented, and he was aware of that fact.  

22	The words, if spoken, may equally have represented a degree of distress and anger that there was somebody who had chosen not to be represented, when he might have been represented.  There are a number of possible and obvious interpretations of the words.  We do not think that as they stand on the affidavit, they amount to a real risk rather than a fanciful risk of bias.  

23	We have been invited by Mr Basu to see those comments in the light of the other material disclosed by the affidavit so that they should be interpreted as hostile to the Appellant because of the way in which the Appellant had regarded the Chairman as dismissive of him, and adopting negative and hostile body language.  

24	The difficulty with body language, as indeed the President made reference in the case of Facey v Midas Retail Security, is that it is, of its nature, not really susceptible to any examination by the forensic process, being a matter of perception.  It must inevitably be the case that if a Tribunal is more inclined, to regard some points for one party as having greater force than the rival points of the other, that the Tribunal will give some indication of that.  That does not represent bias.  Indeed within the appellate process, it is frequently the case that it is an advantage to an advocate to know what is in the mind of the court before any final conclusion is made, so that it may be dealt with.  

25	We have looked with some care at what was said in the affidavit to consider whether there was, taken as a whole, such a picture of hostility from the Tribunal toward Mr Maffei, as might suggest that he did not have a fair hearing, or that the result was other than fair.  But we remind ourselves what was in issue in the case: it was not a question of credibility.  There was no disagreement significant on the evidence between the parties, save perhaps in relation to the holiday pay issue.  Credibility was not a matter of importance; personal judgment would therefore would pay very little part, if any, in this decision.  What was called for by the Employment Tribunal was a decision as to whether or not the employer had acted reasonably in treating the admitted conduct of the employee as a sufficient reason to dismiss.  That was a decision in which the type of personal bias, alleged, would play little significant part if it existed.  

26	For those reasons, we do not think that there was here any conduct which could amount to a real risk of bias, taking the case at its highest, as we do in deciding whether there might be an arguable case.  It follows that in each of the three arguments put to us by Mr Basu, we cannot find an arguable point of law and it follows that this appeal must be dismissed.