United Kingdom Employment Appeal Tribunal

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Cite as: [1993] UKEAT 612_92_2201

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BAILII case number: [1993] UKEAT 612_92_2201

Appeal No. EAT/612/92

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 January 1993

Before

HIS HONOUR JUDGE J HICKS QC

MRS M L BOYLE

MR J H GALBRAITH CB

MESSRS GRAHAM & PETER MAY T/A SAINSBURY BROTHERS APPELLANTS

MRS M PEARSON RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

APPEARANCES

For the Appellants MR PETER MAY

(Representative)

Sainsbury Brothers

The Wine Merchants of Bath

3 Edgar Buildings

George Street

Bath

BA1 2EG

JUDGE HICKS QC: Mrs Pearson worked for the Appellants, Messrs Graham and Peter May, and her main responsibility was to look after one of their shops. She was dismissed for breach of a prohibition against smoking on the premises and the question before the Industrial Tribunal was whether that was a fair or unfair dismissal, and the Industrial Tribunal found in her favour that it was unfair. Her employers appeal against that and this is a Preliminary Hearing of the appeal, so the question we have to consider is whether any arguable point arises which would involve an error of law on the part of the Tribunal and would justify a full hearing of the appeal to consider whether that arguable point is in the event made good or not.

Mr Peter May appears in person at this hearing and relies substantially on the nine matters set out in the Notice of Appeal, which to some extent he has enlarged upon, but substantially the case is set out in those nine heads. First is:

"We feel it unfair for the Tribunal to take no account of Mrs Pearson's actions in contributing to her dismissal".

In explanation Mr May agreed that that was her actions in breaking the smoking ban and we feel it is quite impossible to suggest that the Tribunal took no account of that; it was a very large part of what the hearing before the Tribunal was about. The real complaint is that they did, not having taken it into account, reach the conclusion which the employers sought, and that is not a question of law; it is a question of their conclusions on the issues of fact which were before them.

The same is true of ground 2, which reads:

"Having recognised the relevance of the Health Regulations the Tribunal then failed to take them into account".

Again it is clear that they did take them into account, and it is not an error of law if they reached a conclusion which the employers object to.

The third relates to the layout of the shop and the back room, and in summary makes the point that in order to perform her duties in supervising the shop Mrs Pearson, even when in the back room (and it was in the back room that she admitted smoking a cigarette), would have to keep the door open, and indeed Mr May says today would need to be in the doorway in order to supervise the shop, so that the distinction between the back room and the shop (the argument goes) does not hold. But there is no point of law there. The Tribunal had to consider all the circumstances, including such matters as these, and there is no material before us to suggest that anything that was put to the Tribunal was not taken into account by them.

Point 4 deals with the Tribunal's findings about three memoranda which were in evidence before them and which drew the attention of the staff - I summarise their terms - to the importance of the prohibition on smoking. What the Tribunal, after referring to the memoranda, say about this is:

"Those memos have been described as formal warnings. They were not warnings in the sense that there was any indication that anyone's employment would be at risk if the behaviour mentioned continued."

As we understand it what the Industrial Tribunal is pointing to there is that when the suggestion is made to them that those memoranda were "formal warnings", they have regard to the sense in which that phrase is used in the context of disciplinary procedures in industrial relations, and clearly, for the purposes of justifying a summary dismissal which would or might not have been justified in the absence of earlier warnings, what are needed and what are relevant are warnings to a particular employee that particular conduct if repeated, will or may result in summary dismissal, and the Tribunal were clearly not only justified but absolutely right in concluding that these memoranda were not of that nature.

Point 5 of the Grounds of Appeal relates to and criticises a finding by the Tribunal that the prohibition insofar as the back room was concerned was not at all clear, and this is linked also with a finding on their part that they accepted Mrs Pearson's evidence that she understood that no great objection was taken to her smoking in the back room, although she appreciated that it was absolutely prohibited in the shop. In our view those are matters of fact for the Tribunal. It cannot be said that there was no evidence on which they could reach those conclusions. They heard Mrs Pearson and really, so far as her understanding was concerned, the matter turned entirely on her credibility as a witness, and if they believed her that is absolutely a matter of fact for the Tribunal and not one with which we can interfere.

Insofar as the Tribunal were reaching any conclusion about the general effect of the earlier memoranda they were entitled to take into account the wording of those memoranda, which certainly in some parts, and in particular in the first of the three, that of the 4 February 1991 addressed to her individually, repeats the phrase "in the shop" and indeed emphasises it, and that was something which the Tribunal was entitled to take into account in the relative weight which they attached to the prohibition in different parts of the premises.

Paragraph 6 of the Grounds of Appeal attacks a finding by the Tribunal in paragraph 15 of their Reasons, in which they comment on the argument addressed by the employers to them and by Mr May to us about the risk of a fine of £20,000 if anyone smoked, and the reference to smoking as being illegal. The Tribunal make this comment:

"The experience of the lay members of the tribunal is that those comments bear little relationship to the likely results of any investigation by the Health Authorities."

That finding is attacked in ground 6, but it seems to us to be eminently a matter of fact on which the members of the Tribunal were entitled to draw on their industrial experience and does not disclose any error of law.

Ground 7 comes back to the question of the effect of the memoranda and of Mrs Pearson's understanding of what was required and the relevant importance of smoking in various parts of the premises, and also to the question how far it had been brought home to her that smoking would amount to gross misconduct and cause instant dismissal. Again we see nothing in that paragraph which points to any error of law on the part of the Tribunal.

Paragraph 8 comes to a fresh point, and that is the Tribunal's decision and view as to what are commonly called the "procedural" requirements for fair dismissal and in particular whether the employer has made such investigations as are reasonable in the circumstances. The Tribunal were not satisfied that the employers did make sufficient investigation before deciding that the Applicant should summarily be dismissed and that in our view was a finding of fact which they were entitled to reach on the evidence, and no error of law is disclosed in the way in which they approached it or reached their conclusion.

Paragraph 9 Mr May did not address us upon. It concerns a finding of the Tribunal about a matter which I have not mentioned yet, because it is not directly germane to the issue of fair or unfair dismissal for smoking, and that is that the background to this situation was that Mrs Pearson had already been given notice of dismissal on the ground of redundancy and at the time that she was summarily dismissed for smoking there was some discussion as to whether that previous notice was valid or not. It does not seem to us that that has anything to do with the issues germane to the question of unfair dismissal for smoking, and therefore it is not relevant to this appeal, nor for that matter do we accept that any error of law is shown in the Tribunal's finding on that issue, even if it were relevant.

We therefore see no arguable ground of law that could go forward to a full hearing. A full hearing could only cause unnecessary and pointless expense to both parties and we must therefore dismiss the appeal at this stage.