United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 93_93_0604

Appeal No. EAT/93/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6th April 1993

Before

HIS HONOUR JUDGE J PEPPITT QC

MR J A SCOULLER

MR R TODD

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MR A J SQUIRE          APPELLANT

MR J HANNAM          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR W J DIAMOND

Consultant

Peninsula Business Services

361-365 Chapel Street

Manchester

M3 5JY


 


JUDGE J PEPPITT QC: This is the preliminary hearing of an appeal from a decision of the Plymouth Industrial Tribunal who on the 2nd December 1992 held that the Respondent had been unfairly dismissed and awarded him compensation of £8,385.00. The Tribunal made no reduction in the compensation awarded to the Respondent on the principle set out in Polkey v. A E Dayton (Services) Ltd [1987] IRLR 503.

The Appellant does not seek to disturb the finding of unfair dismissal but Mr Diamond on his behalf has urged upon us that the Tribunal erred in law in failing under the Polkey principle to consider whether there was a possibility that the Respondent might have been dismissed fairly in any event.

The Appellant is the Landlord of the Avondale public house in Devonport. The Respondent was the Manager of that public house.

The reason for the dismissal as found in paragraph 26 of its judgment was that the Appellant believed him to have been guilty of the theft of £500 from a pouch left with him to pay into the bank and to have been responsible for stock shortages in the sum of some £4,000.

The Tribunal found that the dismissal was not within the ambit of reasonable responses available to an employer in the circumstances of this case. They crystallized their reasons for that finding at paragraph 29(d) of the decision in which they found in the following terms:

"We were absolutely appalled by the total lack of any kind of security in the premises. We were told that seals were lying around upstairs, and there was a cash drawer open to any employee to use with £400 in it at any one time of the day. Anybody could have taken cash at regular intervals, thus accounting for the large stock loss."

The Tribunal dealt with the question of contribution at paragraph 30 and 31 of the decision. At paragraph 30 they said:

"On the question of contribution, we do not accept in the particular circumstances of this case that the applicant should be considered to have contributed in any way to his own dismissal. We think it ill behoves the respondent to allege contribution when taking such a lax attitude to security on his premises generally. We cannot think that in these circumstances it is in accordance with equity and the substantial merits of the case for the applicant to be penalised in any way by suffering a deduction from any compensation he may be due by way of alleged contribution in all the circumstances."

and at paragraph 31:

"Accordingly, [and we stress that word] we are of the unanimous view that this is indeed undoubtedly an unfair dismissal with no contribution by the applicant. Further, had there been a proper investigation, there is no doubt in our mind that the respondent would have had no reasonable grounds to dismiss the applicant at all."

Mr Diamond, on the Appellant's behalf, submits to us that in paragraphs 30 and 31 of the decision the Tribunal must be taken to have been referring only to the £500 in the purse and not to the stock losses of £4,000. In those circumstances, he argues, the Tribunal failed to take into account under the Polkey principle the fact that after a full investigation of the stock losses there was at the very lowest a possibility that the Respondent would have been dismissed on that ground. Mr Diamond says, that in order to make the position clear had the Tribunal been referring to the stock losses as well as to the £500 when making their finding in paragraph 31 of the decision they should have used some such phrase as "both the loss of the £500 and the stock losses". The absence of such a phrase, he argues, supports the construction for which he contends.

We regret to say that we are quite unable to accept that submission. It seems to us clear from a combination of paragraphs 29, 30 and 31 that the Tribunal was considering both matters when it discounted the possibility of any reduction from the Respondent's compensation. In paragraph 29(d) the Tribunal found:

"Anybody could have taken cash at regular intervals, thus accounting for the large stock loss."

at paragraph 30 the Tribunal referred to:

"a lax attitude to security on his premises generally."

and paragraph 31, which contains the crucial finding, begins with the word "Accordingly" which points the reader back to the findings in earlier parts of the decision. We are of the opinion that as a matter of construction it is perfectly plain in paragraph 31 that the Tribunal was considering the Polkey principle, not only in relation to the £500, but also in relation to the stock losses of £4,000. The suggestion that the Respondent contributed to the dismissal was rejected. The grounds for rejection were matters of fact about which no complaint can properly be made. Accordingly we are unanimously of the view that this appeal should be dismissed.