United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 803_93_1204

Appeal No. EAT/803/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12 April 1994

Before

HIS HONOUR JUDGE J HULL QC

MRS M L BOYLE

MR J H GALBRAITH

---

MR D BRETT          APPELLANT

STERLING SECURITY SERVICES LTD          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellant IN PERSON


 


JUDGE HULL QC: This appeal is put into our list under our special procedure because by the Act of Parliament which creates our jurisdiction, we can only consider points of law. It is for the Industrial Tribunal, as has been said very often, to find all the facts in the case. To do that of course they hear the witnesses, which we do not. They decide which evidence they accept and which they reject. They look at the documents and decide, with their assistance, whether the credibility of a witness is furthered or not or whether they should accept documentary evidence of matters and they say what inferences they draw, in particular whether they find that the employer has acted fairly or unfairly.

Mr Brett was employed by the Respondents for 10 years as a security man and at the material time in 1992 he was employed at an important building site where he was seconded in effect to the contractors and was responsible for security. There came a time one evening, when he had with him, although this was a one-man job, a young man who was not in uniform, just a student, a Mr Pathak. A fire alarm on a different level from that on which Mr Brett was at that stage, (he was at level 1 and this was at level 7) went off. Apparently Mr Pathak was up on level 7 and an entry was made in the log book which read:

"Level 7 Fire Alarm Activated All Level Check - Fault - Fire Alarms Reset".

Now what in fact had happened, apparently, was that Mr Pathak accidentally, but obviously very carelessly, had started something like a fire. He had put a heater on top of a chair and that had led to sufficient heat, smoke fumes or whatever it was to set off the fire alarm. Anybody looking at the log might be forgiven for supposing that the fire alarm had simply gone off because of a fault, which would be an irritating matter but not of itself serious, but in fact the fire alarm had gone off for that reason.

Mr Brett has told us that he was at the time quite ignorant of that matter. Mr Pathak had reported to him and he had not gone upstairs to level 7 to check for himself what had caused the alarm; he put down what was reported to him and recorded it.

There were other criticisms of Mr Brett. It was suggested that he had been found asleep on duty and that the contractor's security said they wanted him removed from the site. There was a disciplinary hearing and it was decided, in due course, to dismiss Mr Brett. He complained to the Industrial Tribunal, as he was of course entitled to do.

In the Respondents' Notice of Appearance (form IT.3) the employers set out the matters which I have mentioned and they say:

"Mr Brett in his log book entry said that the area had been checked and had reset the alarm which was faulty. No mention of the damage to the chair. The Client eventually discovered the damage to the chair and contacted Sterling Security Services Head Office, and Operations Manager, S Taylor went to the site to investigate. On the 24th October, S Taylor asked Brett for a statement regarding the incident. Brett's statement confirms that the fire was unsafe and that he knew the chair had been damaged. The investigation also showed that Brett had not been carrying out his duties in the correct manner. Brett was given a Notice of a Disciplinary Hearing to attend at the Chiswick office at 1700 hours on the 25th October. Brett did not attend on the 25th October and a further interview was arranged for the 7th November at 1700 hrs. At a Disciplinary Hearing on the 7th November, Brett was found guilty of Gross Misconduct - Failing to report the damage to the chair and, failing to carry out his Patrols in the prescribed manner.""

I have already mentioned what Mr Brett has to say about that.

The Tribunal heard evidence from Mr Brett and several other witnesses including Mr Taylor and they deal with these matters after setting out some of the facts and what was said in the log book which Mr Brett has told us today was ambiguous and could be regarded as thoroughly misleading in a very serious respect.

The Industrial Tribunal say at paragraph 7:

"At 5 am on the morning of 24 October, when the Applicant and Mr Pathak were again both on duty, Mr Taylor visited the site to interview them. They both denied all knowledge of how the chair had become damaged. Later that day, however, the Applicant [Mr Brett] telephoned the Respondent's control room to say that Mr Pathak had caused the damage to the chair and that written reports were on site for collection. Mr Taylor returned to the site to collect the reports and on arrival he met Mr Teague accompanied by Mr Hutchings, Bovis's security officer."

Then we have the complaint about finding Mr Brett asleep.

The Tribunal record at paragraph 8:

"Mr Pathak admitted having placed the convector heater (which had no legs) on the chair but he said that the damage was not serious."

I should mention in passing that this was a site where virtual destruction to a historic building had indeed been caused by fire and that is what the contractors were doing on site. They were rebuilding and refurbishing the fire damaged building.

At paragraph 9 the Industrial Tribunal say (and this is very important):

"A disciplinary hearing took place on 7 November at which the only people present were Mr Taylor, the Applicant and Inspector Campbell as a witness for the Respondent. The Applicant was told that the charges against him were:

1 Removal from site at client's request

2 Damage to property

3 Not carrying out duty

[Removal from site at client's request was the request of the contractors that he should be removed]

Mr Taylor [the Respondents' manager] informed the Applicant that he had been removed from the site for sleeping on duty and stated that removal from site at the client's request was itself an act of gross misconduct. The Applicant denied having been asleep, saying that he had only had his eyes closed. Mr Taylor asked the Applicant why he had logged the fire alarm activation on 16 October as a fault when he knew it had been caused by the heater being on the chair and why he had not reported the incident to the control room."

Mr Brett might have said in response to that - "I logged it like that because that is what Mr Pathak told me. I did not go and look for myself but I accepted what Mr Pathak had told me and that is why I put it there and it was true as I understood it at the time". But what he was alleged to have replied and what the Tribunal found he said (paragraph 9) was:

"there was a code of honour among officers not to inform on each other. Mr Taylor asked why the Applicant used the convector heater when he knew it was a safety risk. Mr Taylor said that, in view of the Applicant's experience and length of service, this was unacceptable and also amounted to gross misconduct. Mr Taylor then summarily dismissed the Applicant..."

In paragraph 10 we come to a passage on which Mr Brett places great emphasis:

"In evidence Mr Taylor said that the reasons for his having dismissed the Applicant were:

1 That the Applicant had been removed from site at the clients request;

2 That the Applicant had been seen by an officer of the client in Mr Taylor's office when he should have been carrying out patrols;

3 That the Applicant had falsified the log sheet;

4 That the Applicant had failed to report an incident."

Mr Brett points out that two of those reasons are not stated clearly in the Notice of Appearance.

The Industrial Tribunal say at paragraph 11:

"We find that the principal reason for the Applicant's dismissal was a belief on the part of Mr Taylor that the request by Bovis (the contractor), that the Applicant should be removed from the site made the Applicant guilty of gross misconduct."

So having considered all these matters so far the Tribunal then proceed to make their findings:

"We find that, while that may have been a genuine belief, it was not one which Mr Taylor had reasonable grounds for holding. A mere arbitrary request by a client that a security guard should be removed from a site could not in itself constitute misconduct on the part of the guard. Whether a guard in respect of which such a request is made has been guilty of misconduct must in every case depend on the conduct which led to the request."

That was a finding favourable to Mr Brett and possibly a very favourable finding in the sense that it is possible that some tribunals would have reached a less favourable conclusion. This Tribunal was, so to speak, breast high with Mr Brett on that. They say at paragraph 13:

"The fact that Bovis had requested the Applicant's removal from the site owing, among other things, to damage to a chair in Mr Teague's office is not in dispute. The evidence before Mr Taylor, however, was to the effect that the damage had been caused by the carelessness of Mr Pathak and not of the Applicant. Even if the Applicant could be said to have been vicariously liable for the acts of Mr Pathak, the latter's carelessness could not, in our view, in itself make the Applicant guilty of gross misconduct. The allegation that the Applicant had been asleep while on duty does not appear to have been pursued at the disciplinary hearing or to have been a reason for Mr Taylor's decision to dismiss the Applicant....

We find that the Applicant was unfairly dismissed."

So there is a finding completely favourable to Mr Brett but they continue at paragraph 15:

"On the other hand we find that the Applicant was under a duty to report the damage to the chair and also to record it and the true reason for the activation of the fire alarm in the log book. The Applicant's failure to report the damage to the chair and the false entry in the log book, to the effect that the fire alarm was activated due to a fault in the alarm itself, did in our view constitute acts of gross misconduct. We consider that the Applicant's conduct in those respects was such as would have justified his dismissal and we therefore assess the degree of his contributory fault at 100%."

Mr Brett says to us that the only evidence given by the employers which was before the Tribunal was that set out in paragraph 10 of the decision of the Tribunal. If that were true then it would follow that those findings concerning what happened at the disciplinary hearing and in particular the fact that at the disciplinary hearing Mr Brett said that his failure to report the incident correctly and the misleading entry in the log book were because there was a code of honour among officers not to inform on each other, simply sprang from the fertile imagination of the Chairman and the two members. Mr Brett sought to restrict his criticism to the Chairman but this is a decision of course of the Chairman and the members.

Pressed on that point Mr Brett said he thought what must have happened was this - that between the hearing and the giving of the summary reasons and the giving of full reasons, the Chairman must have rung up Mr Taylor, the Manager of the Respondents, and got him to say exactly what happened at the hearing and then put that which had not been given in evidence before the Tribunal into this written Statement of Reasons and somehow slipped the whole thing past the members. Such a gross act of misconduct, which is not complained of in the Notice of Appeal, would be in our view something which would most certainly justify an appeal. If we thought that there was any possibility that that might have occurred we should have no hesitation in giving leave; but we reject that. It seems to us utterly impossible to suppose that the Chairman behaved in that way or that his members concurred in his behaving in that way. It is perfectly clear from paragraph 9 and from the fact that there were called at the hearing not merely Mr Taylor but other witnesses of the employers. The reason, of course, that they were called was not so that they could give direct evidence of what happened on the night, for as Mr Brett rightly points out, they were not present on the night at the site where the fire took place. The reason they were called was to speak to the way in which the employers dealt with the allegations against Mr Brett and their decision to dismiss him and we do not accept that having been called for that purpose they did not give evidence about the matters which are set out in paragraph 9.

If they gave that evidence (and it is impossible for us to believe that they did not), then it appears to us that this Tribunal were well entitled to find that notwithstanding that Mr Brett had been unfairly dismissed nonetheless the conduct which they set out in paragraph 15 was so serious that it disentitled the Applicant, Mr Brett, to any compensation. His contributory fault was 100%. They could have put it like this by saying -" He should not be entitled to any compensation in justice and in equity". That was one view of the evidence. Mr Brett may have given evidence (we do not know) to the effect that he had not reported the matter correctly because Mr Pathak had misled him, and it was reasonable for him not to go and check why the fire alarm had gone off. All that again was a matter for the Tribunal.

Mr Brett makes other complaints. He says that he wanted to call a witness, Mr Purvis. Mr Purvis, he says, would have said that the fire alarm was faulty; but it appears to us that that is not a point of any importance in the circumstances. There was apparently a fault in the fire alarm. Mr Brett gave evidence about it. That was a fault which led to difficulty in re-setting it. But the fire alarm had in fact gone off because there was a genuine fire or something like a fire when the furniture was singed by this heater.

He makes other complaints which all really amount to this; that the Respondents should be tied to the case which they made in their reasons for dismissing him and in their Notice of Appearance. That would be so when the Tribunal was considering the question of the true reason for dismissal and the Tribunal, of course, then had to reach its findings. Those findings were wholly in Mr Brett's favour. When they had heard all the evidence they had to decide about Mr Brett's conduct and that was something which the Act puts on them a duty to do. They did consider that. They reached a view about responsibility for what had happened and the degree of blame-worthiness of Mr Brett and they thought that his conduct merited the refusal of any compensation.

If they had reached a different view of the evidence, it would have been entirely open to them to say that he was entitled to substantial compensation under the Act; but they did not. We have come to the conclusion, despite all that has been said by Mr Brett, that we can discover no error of law here. In particular we find no substantiation whatever for the misbehaviour which is now belatedly alleged by Mr Brett against the Chairman and by

implication against the members, who of course are jointly responsible with the Chairman for this decision.