United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D E CANNON (Industrial Relations Manager) Office Cleaning Services Ltd 28-34 Eagle Street London WC1R 4AN
For the Respondents	MR G N WOOD (OF COUNSEL) Messrs Stephen Irving & Co 45 Breck Road Anfield Liverpool L4 2QS


 


SIR DAVID CROOM-JOHNSON: This is an appeal by the Office Cleaning Services Ltd against a decision by the Industrial Tribunal held at Liverpool on 9 June 1989. The Industrial Tribunal had come to the conclusion that the Applicant, Mr Jones, had been unfairly dismissed by the Office Cleaning Services Ltd.

The background of facts out of which the whole case arose was this; that Mr Jones and a Mr Hagan had both been working for some years, although not all the time together, for the Office Cleaning Services Ltd and were in effect, a two man team. They had to go round various places of work cleaning windows and cleaning offices, although one of the places which they had been to but which was not one of their regular ports of call, was the premises of a company called Plessey Crypto. Just before Christmas 1988 they were in the van together and they called at Plessey Crypto at the instigation of Mr Hagan. It does not appear to have been one of the places that they were due to go to.

What happened when they got there was that Mr Hagan got out, saw the security guard who knew that the firm itself, Office Cleaning Services Ltd, came regularly to Plessey Crypto for office cleaning and Mr Hagan then went to the place in Plessey Crypto where the office cleaning company kept their materials. It was part of their system, understandly, that they would keep their materials at different places where there were regular visits so that they did not have to bring everything with them every time. Mr Hagan then took a Hoover cleaner from that store and took it back to the van. Mr Jones also got out, but was not a party to the removal of the Hoover.

Mr Jones' explanation of why Mr Hagan had done what he did, was that Mr Hagan wanted to take the Hoover to do a job for a friend over the holidays. It was an ordinary domestic Hoover and the only identification that it belonged to Office Cleaning Services Ltd was some sort of sticky label or something attached to it which could quite easily be removed, after which nobody could tell that it had ever belonged to Office Cleaning Services Ltd.

What then happened was, that the next time that the employer's regular visiting team went to Plessey Crypto, lo and behold the Hoover was missing, and so they reported it to Mr Garrard who naturally enough started an enquiry. He got hold of the security guard at Plessey Crypto. The security guard was able to give a description of one of the men which clearly indicated Hagan, and as Hagan and Jones had been the team out together at that time they were both interviewed by Mr Garrard.

What happened when they were interviewed was the subject of a diversity of evidence. Mr Hagan, on being asked, denied that he had taken the Hoover, but on being asked to attend an identification parade, agreed that he had been there and had taken it. Originally Mr Jones denied, so Mr Garrard said, that he had been there but again, according to Mr Garrard, agreed that he had been there and eventually it came out that Hagan had taken the Hoover.

One of the matters which was examined in the course of the whole case was "which of the two men, Hagan or Jones, was the senior?". The system as was put before the Tribunal and as relied upon by Mr Garrard, was that Jones was the senior of the two, who was called not the Foreman but the Leading Hand. He was the man who did the paperwork, who dealt with the bills, who had to sign for the van and did the driving. All this was gone into in some detail before the Industrial Tribunal but they came to the conclusion that the evidence did not indicate that either Mr Hagan or Mr Jones had been the Leading Hand. What the men did was, that they divided up their wages between the pair of them and the system was that in such cases the Leading Hand was entitled to take an extra sum of money to compensate him for the responsibility of being the Leading Hand. But it seems to be the fact here that that is not what happened between Hagan and Jones. They simply divided the money and that was that. It also seemed to be the fact, as one would expect, that Hagan and Jones took turns at driving the van and what was in the mind of Mr Garrard when he was making his investigation into this case was that Jones was the Leading Hand and it was accordingly up to him not to agree to Hagan's request to turn into these premises and to prevent Hagan from taking the Hoover. We say taking the Hoover because there was a well known system apparently, which does not seem to have been challenged, that the materials belonging to the company could not be borrowed for private work except under very well known conditions. Ordinary ladders and things like that which were used for cleaning windows were kept in the van. They could be used by the people for cleaning their own windows but they were not allowed to have a charge for private practice.

There was material in the central store of the employers which could be borrowed for private use, but only with express permission from someone in authority and there was the material, such as the Hoover, kept at the private premises of customers like Plessey Crypto, which was never issued for private use and it was therefore Mr Garrards view, and put forward as such, that when these two men went to Plessey Crypto to remove the Hoover, that Jones knew what Hagan was doing was wrong. The whole point really arose upon whether he knew that what was happening was a theft of the Hoover by Hagan, rather than a borrowing, which was what he said. In the Respondent's answer, the company's answer to Mr Jones' case, they said this:-

"In the Applicant's case, the Respondents took the view that, even if he had not actively participated in the theft or share in the proceeds, he had been present throughout. He knew that Hagan had no authority for what he was doing, and must have been aware that he was, in fact, stealing the cleaner. Furthermore, as the Senior Hand, it was his duty to prevent Hagan's act, or, if he could not dissuade him from it, to have reported the matter at once to his Window Cleaning Manager."

In the end there was no dispute or no issue that Hagan had intended to steal the cleaner. He did not return it after the holiday, in fact it was quite a long time before he did return it, and when it came back the company's identification had been removed and Hagan was, on 10 January, after an appeal, dismissed for theft from the service of Office Cleaning Services Ltd.

The position with regard to Jones was not quite the same. He was not the prime mover in what Hagan had undoubtedly done in stealing the Hoover. On the other hand he had been there and what Mr Garrard concluded was that in view of various inconsistent explanations put before him by Jones, that Jones had known perfectly well that Hagan was stealing and that the explanation which Hagan had given him of merely borrowing the Hoover was wrong. Mr Garrard also came to the conclusion that Jones was the Leading Hand, it had been his duty to his employers first of all to prevent Hagan from stealing the Hoover, or taking the Hoover at all, and secondly, to have reported it to Mr Garrard that that had been done.

Accordingly after an appeal on 10 January 1989 Mr Jones was also dismissed, not on the basis that he had actually taken part in the theft; it was put I think, or regarded very loosely as "aiding and abetting" but it is accepted by Mr Cannon, who has argued this very well on behalf of the employers, conniving in what was being done by Hagan and that as he was the senior man in charge, that he had connived at a theft, that he too should be dismissed and dismissed he was. He brought proceedings for unfair dismissal and the Industrial Tribunal found that he had been unfairly dismissed.

The findings of the Industrial Tribunal were that they did not necessarily conclude on the evidence which evidence they accepted, that of Jones or that or Garrard as to whether there was knowledge on the part of Jones that Hagan was stealing things. The Tribunal directed itself impeccably on the law by considering the case of Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 dealing with the proper approach to Section 57 of the act on Unfair Dismissal and they had to consider whether in all the circumstances, the nature of the employee's short-comings, that is to say Jones' short-comings, was such that a reasonable employer carrying on that business would have regarded the dismissal as being a reasonable response and whether the dismissal was carried out in a fair way.

They did it on the basis that they thought that there was no material before Mr Garrard which justified him finding, or thinking that Jones was the Leading Hand. They came to the conclusion, so far as was relevant, that this was a 2 man team, that neither of the men were senior to the other and accordingly that he was not in an extra position of trust requiring him to prevent Hagan doing what he did. I said the extra position of trust because of course, everybody working for the employers, particularly in a business like window cleaning and office cleaning, is in a position of trust. They have to be in a very great position of trust to the customers and they have to be whiter than white in order not to let their employers down but the Tribunal came to the conclusion that this was not the position of extra trust by Mr Jones being the Leading Hand.

They had to consider whether there was really any evidence, or sufficient evidence as to whether Mr Jones knew what Hagan was intending to do when he took the Hoover. He would clearly have known, and it has been forcefully put before us by Mr Cannon, he would clearly have known that Mr Hagan had got no business to be going into these premises and removing the Hoover even for a short time to do a job for a friend over Christmas but if that was all that Mr Jones had reason to believe or suspect, that that would not have justified his being dismissed.

The Tribunal said in Paragraph 7:-

"..It seems to us that the respondent was very ready to tar the applicant with the same brush as Mr Hagan on the basis that he (Jones) was "in charge" of what went on and therefore owed a duty to the Company either to have tried to prevent what happened at all or at least of reporting it. Accepting Mr Garrard's evidence it is quite clear and the Company, as it were, "nailed its colours to the mast"; Mr Jones was dismissed for "aiding and abetting" Mr Hagan in his nefarious activities. Whilst Mr Garrard may not have been using those words in a precise and legal sense at the time when he uttered them, we have to look at the matter in that way. In broad terms that must mean that the applicant took an active part in the theft, well knowing what Mr Hagan's real intentions were, but nevertheless going along with what he did. That is a large assumption to make, and a very serious one. We do not, in fact, see the position in that way having looked at all the available evidence. As we have said above, that equipment is borrowed to do jobs is, it seems to us, far from unusual practice. It should be done with formal consent but we have no doubt in our minds that the rule is, in fact, more honoured in the breach than the observants (sic). Therefore, in that context, there need have been nothing unusual at all about the initial removal of the machine. It is capable of an innocent as well as a criminal explanation. The crucial fact here seems to have been that Mr Jones was, thoughout (sic), viewed as being in a position of authority. As a leading hand or foreman. That rather blinkered view of matters obviously dominated the thinking of Mr Garrard."

They came to the conclusion on that basis that the dismissal of Mr Jones had been unreasonable and had been wrongful.

The grounds upon which the appeal has been put before this Tribunal were four. The first was that there were reasonable grounds for Mr Garrard to have a genuine belief of guilt. We have dealt with that because the grounds apparently were mistaken grounds which Mr Garrard ought not to have appreciated were good enough. There was no job specification. There was no particular reason why Mr Jones should have known what Hagan was up to. Mr Cannon submits that Jones' belief in what Hagan was up to - merely borrowing the Hoover - was not a reasonable belief but the Tribunal have not found that to be so.

Mr Cannon's second ground was that the Tribunal was perverse in its finding that the two men were of an equal status and that Jones was not the leading hand. There was no Job Specification issued to these men as the Tribunal found. The position of who was senior and who was junior was vague in the extreme.

The third ground and fourth ground really go together, which was that the Industrial Tribunal first of all substituted its own view of what should have been done for that of Mr Garrard because what Mr Garrard did, the decision he made, was within the range of the reasonable response of an employer put in the position in which Mr Garrard was. What the Tribunal has said is:

"..because no evidence has been given to us which would serve to convince us in any way that Mr Jones was, in fact, in the dominant position and therefore under an obligation to his employer to report what went on, if he was suspicious of it. Our concluded view is, therefore, that Mr Jones was, unfortunately, caught up in a situation not of his instigation or making, and not knowing, at the time, what Mr Hagan's real motive was. His role was passive rather than active and, in the circumstances, with further consideration and investigation, we conclude that a reasonable employer would not have imposed upon him the penalty of dismissal. It follows that we find this dismissal unfair."

The Tribunal had therefore come to the conclusion that what Mr Garrard did was outside the range of the reasonable employer's behaviour and in view of the way in which they directed themselves on the law, and the great care they clearly gave to consideration of the evidence which was given before them, it is not possible for this Tribunal to say that the Industrial Tribunal was not entitled to come to the conclusion which it did and in those circumstances we think that this appeal should be dismissed.