United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 414_93_0510

Appeal No. EAT/414/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5th October 1993

Before

HIS HONOUR JUDGE J HULL QC

MR J C RAMSAY

MR S M SPRINGER MBE

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HARRODS LTD          APPELLANT

MR G JAMES          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR A SENDALL

(of Counsel)

Mr J W Daw

Employee Relations Manager

Harrods Ltd

Knightsbridge

LONDON SW1 7XL

For the Respondents MR N BACON

Free Representation Unit

Tindall Chambers

Onslow House

Chancellor Place

Broomfield Road

Chelmsford CM1 1SW


 


HIS HONOUR JUDGE HULL QC Mr James, the Respondent to this appeal, was employed by the Appellants as a sales assistant at their well-known store in Knightsbridge, beginning on 9th October 1989 when he was 25. He was dismissed on 1st May 1992, after an altercation with a woman customer, and complained to the Industrial Tribunal held at London (South) that he had been unfairly dismissed. In their Decision dated 14th April 1993 the Industrial Tribunal upheld the complaint, finding in addition that Mr James contributed to his dismissal to the extent of 10%. This was a majority decision: the Chairman dissented from the conclusions of the majority and would have dismissed the application.

Concerning the primary facts there was little if any dispute between the parties, and the members of the Industrial Tribunal were unanimous. The following account of the facts is taken from their extensive and careful decision, and from the agreed documents.

In April 1992 Mr James was employed in the Pet Shop at Harrods. On 27th April, a Monday, Harrods' Personnel Director, a Mr Stephen Taylor, received a telephone call from the woman customer to whom we have referred above, who was very irate. She complained that she had received very poor service and rudeness from Mr James. She said that she had attempted to pay for a purchase but that she was completely ignored by Mr James. In order to find a helpful sales assistant, she had wandered around and unwittingly entered a private area; she said that she was chased by Mr James who shouted at her. She felt threatened, but she was eventually served by another assistant. While she was being served, Mr James had approached the till and, she said, demanded that the other assistant take her name and address.

Mr Taylor attempted to placate the customer and promised to investigate the matter and contact her again. He then spoke to Mr Kirby-Pugh, an assistant Personnel Controller, and asked him to investigate the complaint.

Mr Kirby-Pugh held a formal disciplinary meeting with Mr James on Tuesday 28th April. Mr James admitted that he had talked to the customer "quite heatedly", that he could have spoken to her more calmly, and that he could have handled the situation better. Mr Kirby-Pugh told Mr James that it was not his place to speak to any customer in the way he did. He said that he would issue a final warning to Mr James, in accordance with Harrods' disciplinary procedures, and he also told Mr James that he would be required to sign a letter of apology to the customer. The Applicant agreed to do so. Mr Kirby-Pugh drafted a letter of apology the same day. The letter read:

"I write concerning the incident which occurred on the 27 April in my department, the Pet Shop, on the second floor.

I must apologise for my lack of acknowledgement when you arrived at the cashdesk and for my subsequent comments which were uncalled for.

I realise such behaviour was not of the standard expected of Harrods' sales assistants, and I hope that this will not deter you from visiting the store in the future."

In the event, Mr James refused to sign this letter, and in view of his earlier agreement to do so this took Mr Kirby-Pugh by surprise and he told Mr James that he would see him again later that day and that he would be required to sign the letter. Mr James did not at this stage say that there was anything wrong with the wording of the letter, or that he would be prepared to sign a differently worded letter.

Later the same day, Mr James attended a further formal disciplinary hearing with Mr Kirby-Pugh, where he was given a further opportunity to sign the letter; he still refused to do so. He told Mr Kirby-Pugh that the customer should be apologising to him. Mr Kirby-Pugh told Mr James that he would be suspended on full pay and that he should attend a further formal disciplinary hearing the following Friday. He then issued Mr James with a final warning. He told Mr James that the sending of the letter was company procedure, regardless of whether the customer was right or wrong, and that his refusal to sign the apology letter would be interpreted as a refusal to carry out a reasonable instruction. Mr James repeated that the customer was in the wrong, that he was in the right, and that he therefore expected an apology from the customer. After Mr Kirby-Pugh had repeated his warning about the failure to sign the letter, Mr James refused to sign, saying that it was a matter of principle. Mr Kirby-Pugh left the matter by saying that Mr James was being given an opportunity to reflect and change his mind, and he left Mr James in no doubt that if he persisted in his refusal to sign the letter he would be dismissed.

The third disciplinary meeting duly took place on Friday 1st May. Mr James again refused to sign the letter despite a further explanation from Mr Kirby-Pugh about company policy and a further warning that he would be dismissed if he refused to sign. Mr Kirby-Pugh then dismissed Mr James and wrote him a letter explaining, as he had already done orally, that the reason for dismissal was misconduct, in that Mr James had failed to carry out a reasonable instruction.

Mr James exercised his right of appeal under the company rules. These rules provided that the first appeal would be heard by the Controller, Personnel and Management Development or his authorised representative. Then there was provision for a second appeal to be heard by the Controller, Employee Relations and Compensation and Benefits or his authorised representative. The rules then provided that if the second appeal was rejected the matter "may be referred to the personnel director whose decision is final".

In the event, the appeal was heard by Mrs Ebsworth, Assistant Personnel Controller; she had had no previous involvement in the matter. At this appeal, Mr James put forward a new point: he said that he did not sign the apology letter because it did not make any reference to the fact that the customer was also in the wrong. He admitted speaking to the customer in a raised voice, but not to shouting. He also admitted that whilst his colleague was attending to the customer, he had asked the colleague, in the customer's presence, to get the customer's name and address. He also said, again for the first time, that he would be willing to sign an apology letter if the wording was altered to meet with his approval.

Mrs Ebsworth concluded that it would detract from the proposed apology if the letter contained a reference to the fact that the customer was wrong, and she concluded that the appeal should be dismissed.

Mr James decided to appeal again, as he was entitled to. There was apparently a gap in the management structure between Mrs Ebsworth and Mr Taylor, the Personnel Director, so that the provision for a second appeal to the Personnel Manager was not practicable; and so the appeal went straight to Mr Taylor.

Mr Taylor heard the appeal on 8th July. The only new point which Mr James made was that the customer had used expletives. He agreed that he had raised his voice and he told Mr Taylor that he had not given Mr Kirby-Pugh any reason why he would not sign the letter. After due consideration, Mr Taylor informed Mr James that he had decided to uphold the decision to dismiss him. He reminded Mr James that he had agreed to sign the apology, and then refused to do so. He therefore upheld the decision that Mr James' employment should be terminated for failing to carry out a reasonable instruction.

As we have said, the facts which we have set out above were the subject of unanimous findings by the Industrial Tribunal. The majority of the Tribunal, that is to say the two industrial members, proceeded to make further findings.

First, the majority found that the customer had indeed used expletives, commenting that Mr James' evidence about that was unchallenged because the customer had not been called to give evidence and Harrods had not taken any statement from her. The majority took the view that Mr James was entitled to protection from an abusive customer.

The Chairman, in his dissenting judgment, said that he was not prepared to find that the customer had used expletives simply because Mr James' evidence was unchallenged. He observed that the customer had given full details of her complaint in her telephone conversation with Mr Taylor and, more important from the point of view of the present appeal, the Chairman commented that it was not the task of Industrial Tribunals to make superfluous findings of fact on matters irrelevant to the case, especially where that involved adverse findings against uninvolved third parties who had not been called to give evidence on the basis that that evidence would be irrelevant to the issues in the case. Mr James had admitted discourteous behaviour and owed the customer an apology regardless of whether or not she had been rude to him. The customer's alleged use of expletives was irrelevant to the question of the reasonableness of the instruction to sign a letter of apology. Although Harrods had a duty to protect their employees from abusive customers, that was not the issue. Furthermore, Harrods assistants were trained to cope with a degree of rudeness from customers and were not expected to retaliate. Different considerations would have arisen if this had been a dispute between colleagues.

Mr Sendall, who appeared before us for Harrods, said that the majority finding on this point, as well as other findings to which we shall refer presently, indicated that the majority were directing their attention to the rights and wrongs of the dispute with the customer, rather than to the true issue which was whether the order to sign a letter of apology was, in all the circumstances, a reasonable one. The majority's finding on this point was irrelevant. The alleged use of expletives by the customer was not mentioned by Mr James until after he had been dismissed. It could not be a procedural failure by Harrods to fail to investigate a matter which had not yet been raised. There were in any event no witnesses to what had passed apart from the customer, Mr James and the other sales assistant who appeared towards the end of the story.

We have come to the conclusion that Mr Sendall's submissions on this point are correct. If Mr James had denied raising his voice, and treating the customer without proper courtesy, or having invited the other assistant to take the customer's name and address because she had been in one of the private areas of the store, then it might well have been necessary for Harrods to make a proper inquiry as to exactly what had been said and done on 27th April; but Mr James had already admitted these matters and even if he had raised the matter of the customer's behaviour before Mr Kirby-Pugh it could hardly have been unreasonable for Harrods to insist that an apology should be sent to the customer. In addition, an apology which sought to censure the customer herself would on any view have been worse than useless, as Mr Bacon, who appeared before us for Mr James, admitted. We therefore agree with the Chairman's findings and comment on this point, and hold that the finding of the majority was irrelevant.

Next, the majority found that Harrods had not carried out any proper investigation, which was a requirement under their own disciplinary procedure and rules, because they had not (as they should have) obtained statements from the customer or two shop assistants, one of whom subsequently served the customer at the till.

The Chairman found that Harrods had made as thorough and full an investigation as was necessary in the circumstances, bearing in mind the Applicant's admissions.

Mr Sendall said that the majority's finding was perverse. Mr Bacon sought to support the majority's finding on the basis that an employer was always under a duty to carry out a reasonable investigation into the facts before he dismissed for misconduct. He referred to Linfood Cash & Carry Ltd v. Thomson [1989] ICR 518.

Again, we have come to the conclusion that Mr Sendall's submission is correct. An employer is most certainly under a duty to carry out a reasonable enquiry into the facts before taking disciplinary action against an employee. In the present case, however, Mr Kirby-Pugh had enquired at the outset about what had happened, and Mr James had given an account of the matter in which he made the admissions to which we have referred. Thereafter, Harrods proceeded simply on the basis of those admissions, as they were entitled to do. The question before Mr Kirby-Pugh, Mrs Ebsworth and Mr Taylor was not the question of blameworthiness for the altercation and what took place during it, but whether Mr James should be ordered to write a letter of apology, and whether his belated refusal to sign the letter, in defiance of his manager's order, could properly be treated as misconduct justifying dismissal.

We therefore conclude that the finding of the majority was, in the circumstances, irrelevant and in the technical sense "perverse".

Thirdly, the majority of the Industrial Tribunal found that Mr Kirby-Pugh sent Mr James a draft warning letter which contained no reference to the necessity for a letter of apology, whereas another draft which did require an apology in writing was not sent. The Chairman reached the contrary conclusion on the facts, and on that of course we have to accept the finding of the majority, who heard all the evidence. However, we accept the Chairman's comment that this issue was irrelevant because on Mr James' own evidence he was clearly told by Mr Kirby-Pugh that he would have to write a letter of apology and a refusal to do so would result in his dismissal.

In our judgment this is another finding by the majority which was irrelevant and we agree with Mr Sendall that this too is evidence that the majority were not directing their minds to the true issue in the case.

Fourthly, the majority stated shortly that they were of the view that there were breaches of natural justice and that the procedures were not properly carried out. The Chairman, in the minority, was unable to find any breaches of natural justice, or that the disciplinary procedures were not carried out. He commented that Mr James had not made any such allegations concerning the conduct of the hearings by any of the three managers involved.

Mr Sendall again described the view of the majority as unsupported by evidence and perverse. We pointed out to Mr Bacon what we understand to be the normal requirements of natural justice and asked how it could be said that Harrods had departed from them. Mr Bacon could not give us any convincing reply to this, and in our judgement the finding of the majority is indeed unsupported by any evidence and wholly unjustified.

Fifthly, the majority found that Harrods had acted unreasonably in not consulting Mr James about the wording of the apology letter. The Chairman, being of the opinion that the apology letter was reasonably worded, given the Applicant's own admissions, commented that Mr James had never told Mr Kirby-Pugh that he would refuse to sign because the wording of the letter was unacceptable. His suggestions that the customer should apologise to him and that the apology should have stated that the customer was also in the wrong were unpractical and preposterous, in the view of the Chairman. Such a letter would only have added insult to injury.

As we have said, Mr Bacon was disposed to admit that a letter purporting to be an apology which criticised the customer could not usefully have been sent. Mr Sendall submitted that the majority finding on this point too was perverse. It would have been quite otherwise if Mr James had said that he was unhappy with the terms of the letter, or that he would sign a differently worded letter; or if the letter had been in unreasonable or untruthful terms, subjecting Mr James to unnecessary humiliation or requiring him to state something which was false.

We accept Mr Sendall's submission about this. Given that it was reasonable to order Mr James to apologise, this letter was couched in language which was as unobjectionable to him as any that could reasonably be devised, he never objected to it, and his only suggestions, put forward after dismissal, were that the letter should also criticise the customer, which in our view is an absurd suggestion. The mere fact that Mr James felt able to make this suggestion destroys the basis of the majority finding; if Mr James had had any legitimate objection to the wording of the letter he would undoubtedly have said so.

As their sixth finding, the majority of the Tribunal said that Mr James was entitled to consider the security aspects "as the store is particularly vulnerable as a well known target for terrorists". The Chairman, on the other hand, observed that Mr James did not make any suggestion that he suspected that the customer could in any way be connected to terrorists; and that all that she had done was mistakenly to wander into a non-public area, a mistake easily made. He also pointed out that Harrods had clear instructions on security which Mr James had disregarded. As the Tribunal unanimously found, the staff had specific instructions not to approach any suspicious looking persons, but to inform management and security immediately and leave it to them to deal with those persons or situations.

Mr Bacon sought to uphold the majority findings, but he was unable to tell us why, if Mr James were genuinely concerned about the security aspects of the customer's behaviour, he did not follow Harrods' rules by informing those responsible, or indeed why he did not ask that his concern on this score should be put in the balance and, perhaps, added to the letter of apology as some mitigation for his behaviour. We agree with Mr Sendall's submission that the majority finding on this point is, in the circumstances, wholly irrelevant to the question whether the order to sign a letter of apology was reasonable and whether Mr James' repeated refusal to do so justified his dismissal.

Lastly, the majority of the Industrial Tribunal found that the appeal procedures were flawed in that Mr James was not informed of any further appeal from Mr Taylor. However, the Industrial Tribunal had unanimously found that there was "a gap in the managerial structure" between Mrs Ebsworth and Mr Taylor and no appropriate manager who could have heard the second stage appeal. Moreover, as is clear from the provisions of the rules to which we have referred, they provide for two appeals and if the result of each of these is unfavourable to the employee then "the matter may be referred to the Personnel Director whose decision is final". In the present case this discretionary third stage could not usefully be invoked because Mr Taylor, instead of merely having the matter "referred" to him, actually heard the appeal, without any objection from Mr James. We agree with Mr Sendall that this last finding of the majority is perverse in the technical sense. The "third stage" of a reference to Mr Taylor was rendered impracticable and unnecessary by Mr James' own conduct in appealing to Mr Taylor.

We accept Mr Sendall's submission that, on the unanimous findings of fact made by the Industrial Tribunal, the only reasonable conclusion at which they could have arrived was that the order to sign a letter of apology was a "reasonable" one in the sense that it was within the band of responses of a reasonable employer in the position of Harrods, in the admitted circumstances of the case. We also accept Mr Sendall's submission that Mr James' repeated defiance of this order justified dismissal as a further response well within the band of reasonable responses of an employer in Harrods' position. We accept that the findings of the majority are perverse, irrational or irrelevant, given the primary findings of fact about which the Tribunal were unanimous. This was a decision of the majority which no reasonable Tribunal, properly directing itself on the law, could have reached. We accept that the judgment of the Chairman, where it differed from the majority, was correct. We therefore allow the appeal and direct that Mr James' complaint to the Tribunal be dismissed.