United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 623_93_0712

Appeal No. EAT/623/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7 December 1994

Before

HIS HONOUR JUDGE BYRT QC

MRS M L BOYLE

MR J C RAMSAY

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DURHAM INNS LTD          APPELLANTS

MR C EMBLETON          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR D HESSELBERTH

(Solicitor)

Messrs Ward Hadaway

Alliance House

Hood Street

Newcastle upon Tyne

NE1 6LJ

For the Respondent MR P CAPE

(of Counsel)

Samuel Phillips & Co

86 Pilgrim Street

Newcastle upon Tyne

NE1 6SR


 


JUDGE BYRT QC: This is an appeal from the Industrial Tribunal sitting at Newcastle upon Tyne on 28 May 1993. By an unanimous decision they found that the employee had been unfairly dismissed but found that he was guilty of contributory conduct to the tune of 25% and they proceeded to make the compensatory award on that basis.

The Respondent in this appeal, the employee, Mr Embleton, was the head chef at a hotel in Whickham called Gibside Arms Hotel. He had been employed there before the events which are the subject matter of this enquiry for some four years, that is, until 11 January 1993, when he was summarily dismissed on the grounds of gross misconduct. The gross misconduct complained of was that he supplied a guest of the hotel a gateau, free of charge and without the authority of the manager. The employer or, more particularly, a director of the employer company, a Mr Walker, felt that Mr Embleton had broken that bond of trust and confidence that must exist between employer and employee.

The facts of the case, as found by the Tribunal, are as follows. The chef had 20 years' experience. In his employment at this hotel, he was in charge of the kitchen and kitchen staff and in that capacity was responsible for the cooking, the quality of the food, the profitability of the food and also for ordering the raw materials themselves from nominated suppliers. The restaurant manager was a Miss Julie Harvey. There was some overlap between her responsibilities and that of Mr Embleton's but, despite the fact that on occasions such a situation causes friction, the Tribunal found that the relationship between the two at this hotel was good.

On Sunday, 10 January 1993, a Mr Walker was carrying out a routine inspection in the lounge bar at lunch time and, on checking the money that was in the till, was disappointed at the returns there shown, having regard to the number of people eating at the lounge bar. As a result, he questioned the person in charge of the lounge bar, a woman called Catherine Lowden and learned that the deficiency in the till was something like £17.50. This was attributable to the fact that she had made no charge of four lunches for adults and one for a child. Although, she first of all disputed knowing any reason for this deficiency, she later admitted that Miss Harvey, the restaurant manager, had told her not to charge because the party was that of a Mrs Collingham, who was a supplier of fruit and vegetables to the hotel. Miss Harvey made plain that this concession to Mrs Collingham was made at the request of Mr Embleton, the chef. Having ascertained that much, Mr Walker went and talked to Miss Harvey to find out the part she had played and what she had learnt from Mr Embleton. Miss Harvey immediately admitted what Miss Lowden had told him and said that although she did not think it was right what Mr Embleton had asked her to do, she had not been minded to challenge him nor, indeed, to tell Mr Walker about it.

By that stage of the investigation, Mr Embleton had gone home as it was Sunday evening. Mr Walker waited until first thing the next morning, the Monday, when Mr Embleton came back in to work. Mr Walker put the facts to him; Mr Embleton immediately admitted that he had authorized the giving of a cake free of charge for the benefit of the boy's birthday but denied that he had authorized anybody to supply the four lunches for the adults and the child. He said that either Miss Harvey and Miss Lowden were lying about their recollection of what he had told them or, alternatively, they had just misunderstood what he had asked them to do. He then went on to explain to Mr Walker that he was doing Mrs Colligan a favour in return for the fact that she was generous to the hotel. Annually she provided a free crate of apples for a charity occasion. She also from time to time provided free odds and ends for the use of the hotel and, indeed, was a regular supplier of high quality fruit and vegetables. It was for this reason he said that he, Mr Embleton, had decided to make this concession for her. Mr Walker refused that explanation. He said that Mr Embleton had broken the house rule that there was to be no free food for anyone and, indeed, he, Mr Embleton, had made him a laughing stock, presumably with the staff.

Having stated his views, Mr Walker dismissed Mr Embleton forthwith for grounds of gross misconduct.

Mrs Colligan interceded, stressing that she had never solicited a free meal or, indeed, a free cake. She offered to pay but Mr Walker was not to be moved.

At the hearing before the Industrial Tribunal, Mr Walker seemed confused whether free meals as well as a free cake were involved. He said that his confusion did not really matter as Mr Embleton was responsible for providing the free cake. It was a question of principle that was at stake here.

On those facts, the Tribunal concluded that the employers had genuinely believed that Mr Embleton was guilty of gross misconduct. It then proceeded to enquire whether the employers had acted within that broad band of reasonable responses of the reasonable employer. They directed themselves appropriately to the requirements of s.57(3) of the Act and took into account, when considering the reasonableness of the employer's decision, the size of the organization and its resources and, at the end, concluded that the dismissal was an unreasonable response. That same paragraph 20 of their reasons stressed that they were not substituting their decision for that of the employers but, in fact, were considering the reasonableness of the employers' decision by objective standards. They took into account the fact that Mr Embleton had worked at the hotel for some four years without any complaint; they refer to his conduct record as unblemished. They thought that a reasonable employer should have taken into account Mr Embleton's motive in making this gesture towards Mrs Colligan and assume that he was genuine in his desire to keep on good terms with a good supplier of food to the hotel and an otherwise generous contributor.

In addition to that, they thought that Mr Walker was guilty of making a hasty decision in that there was insufficient time for Mr Embleton to gather his wits to take stock and to formulate a proper argument in his defence before his dismissal. They also concluded that if, in the back of Mr Walker's mind, was a thought that Mr Embleton had been responsible for authorizing the provision of free meals in addition to the free cake, Mr Embleton, indeed, was not to be blamed for that confusion.

Having found that the dismissal was unfair by reason of the unreasonableness of the employer's response, they found that Mr Embleton himself had contributed to his dismissal to the extent of 25%. They took the view that it had been approximately 2 days before when Mrs Colligan had booked her luncheon engagement and that therefore he had had the opportunity during that time to approach Mr Walker to discuss the matter with him and gain his authority. On account of that failure, they decided that there should be a deduction of 25% from the award.

On this appeal, it has been argued on behalf of Mr Embleton that the Tribunal's approach was correct in law and accordingly it was not open to the employer to challenge the matter before the EAT. Equally, it is saids that so far as the element of contributory conduct is concerned, this also is a question for the Tribunal to decide as they have formed their view having seen the witnesses and heard the ecidence.

Mr Hesselberth, on behalf of the employers, argues that the Tribunal failed to take sufficient account of the special circumstances which applied to this case and which influenced Mr Walker's decision to dismiss Mr Embleton. First of all, he referred to the fact that Mr Embleton was in a position of responsibility as the chef, being responsible for something like 10 people in the kitchen. They refer to the fact that this is a hotel of some substantial size, having 43 bedrooms, employing something like 33 staff itself being part of an organization represented by the Respondent company, consisting of two hotels and two public houses, in all employing 180 staff. An incident like this set a precedent, making a necessary example if the company's staff were to be kept in order and to be prevented from engaging in peculation. It was also argued by Mr Hesselberth that there were rules of the Company as the Tribunal found, for the giving of free meals and free gestures of the sort we are talking about in this case, and these had to be maintained.

In all those circumstances, it was urged upon us that we should take these factors into account and set aside the finding of the Tribunal.

We, as a Tribunal, are satisfied that the Industrial Tribunal did take these factors into account. Certainly all the factors that I have just recited appear in the Tribunal's decision and, although they do not specifically say how and in what way they took those matters into account, we are satisfied they were in the minds of the Tribunal at the time they approached their decision as to reasonableness. Mr Cape has reminded us in the course of his submissions that whether an employer has been reasonable in dismissing an employee is essentially a question of fact. He says it is clear, beyond doubt, that the Industrial Tribunal directed itself appropriately on the principles of law that had to be applied and in that they applied that law to this crucial and central question of fact it was a matter for the Industrial Tribunal and not one for the EAT to question. He also, reminded us that the facts having been covered so extensively by the Tribunal in their decision, it was not appropriate for us to approach their findings with a fine toothcomb in order to search out some shadowy point of law which might enable us to question the sound and reasonable decision of the Industrial Tribunal.

We are unanimous in accepting Mr Cape's submissions. We think here that the reasons of the Industrial Tribunal set out most fully the factors which were present and uppermost in the Tribunal's mind when they made the decision. They applied the right law and decided the crucial issues of fact in the right way. In short, they came to a decision which was well within their powers.

In all the circumstances we do not feel that the decision of the Industrial Tribunal can be challenged.

Coming to the issue of contributory conduct, Mr Hesselberth, on behalf of the Respondents, has argued that the 25% figure is derisory having regard to the culpability the Tribunal found Mr Embleton to be responsible for. He says that instead of 25% the Tribunal should have found contributory conduct here of the order of 75%.

Mr Cape, as I have already alluded to, submitted that this was very much a question for the Industrial Tribunal, who had the advantage of seeing the witnesses and forming an overall impression on the facts contained in their evidence.

We are of the view that it adopted the right approach. Again, it was very much a matter of impression for the Industrial Tribunal and not something for us to change or alter on what we have heard from Mr Hesselberth here.

In all the circumstances we confirm the Industrial Tribunal's decision here that there be a reduction of the 25% and that being so, the appeal must be dismissed.