United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1216_94_1505

Appeal No. EAT/1216/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15 May 1995

HIS HONOUR JUDGE J HULL QC

MRS R CHAPMAN

MR S M SPRINGER MBE

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MRS K SMITH          APPELLANT

TABLE TALK          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR A PARR

(Representative)

Free Representation Unit

49/51 Bedford Row

London

WC1R 4LR


 


JUDGE HULL QC: This is an appeal to us by Mrs Smith against a decision of the Industrial Tribunal sitting at London (North) under the chairmanship of Mrs Prevezer, on 21 October 1994.

That Tribunal gave a decision that Mrs Smith had been unfairly dismissed, but that she had contributed to the extent of 80% to her loss.

She was employed as a shop assistant by the respondent firm, starting on 9 December 1991. At the end of 1992 she was promoted to manageress of the shop and she had a full-time assistant and two part-timers. The shop was at Loughton and sold artistic chinaware, among other things.

In November 1993 there were some difficulties. There were two reports of an unhelpful approach to customers, which had led to complaints, and in addition, apparently, somebody had told management that there were stock shortages. Mrs Smith was demoted to sales assistant. That appears to have been after some sort of enquiry, but that is not the subject- matter of complaint.

What did happen was that the employers then embarked on stock checks and other enquiries, without involving Mrs Smith in them, which led them to the conclusion, by the end of November, that something like £3,000 worth of stock had gone from the shop without being accounted for; about 116 items were said to be involved.

Thereafter, although it was said that they were advised that their original demotion was wrong and Mrs Smith was restored to the position of manageress, nonetheless nothing else was done until March of the next year, 1994, when she was interviewed; she was told about these stock shortages and she, having failed to give an adequate explanation, was dismissed.

She complained of unfair dismissal to the Industrial Tribunal and the Tribunal appears to have gone into it with considerable thoroughness. They recorded that, during her first year as manageress, she had been reprimanded for not following proper procedures and then she had been reprimanded again in November 1993, on the occasion which I mentioned. They record in addition the enquiry which led to the conclusion that 116 items were missing, with a value, as I said, of about £3,000. The management (that is to say Mrs Giles and the other directors) found that the procedures in relation to articles being set aside, going missing and so forth, had not been complied with, and they decided to confront her - as I say, not without a delay of more than three months - with the finding of the enquiry into the missing items.

Apparently, it was concluded that the Appellant had stolen the missing items. There was no question of being able to prove that. They still did not put that belief to her or ask her for an explanation. Then a third director arrived on the scene - apparently he was frequently out of the country; and in March there was an enquiry.

The Appellant said that she knew nothing about these matters. It was the first she had heard about them. It was agreed, before the Tribunal, by the management that they had never put these matters, never confronted the Appellant on these matters. So far as the Appellant was concerned she was, as I say, apparently unable to give any explanations for the stock shortages, but she had to admit that she had not followed the proper procedures in dealing with some of these items, and that she should, of course, have done so.

The Tribunal was of the opinion that Mrs Smith had been treated unfairly throughout. She had not been properly told, and promptly told, about what was alleged against her. She had not been given a proper opportunity to think about it and make her reply and she had been dismissed without being given those opportunities. They said she had not been given an opportunity to explain the losses and the dismissal was unreasonable and, therefore, unfair.

So far as she was concerned, they record that she admitted she had not followed the proper procedures. She gave various excuses for not doing so, but they say, "by not doing so she contributed to her dismissal and therefore we reduce any compensation that she would receive by 80%" and they proceeded to do so.

Of course, it is elementary that if £3,000 worth of stock has gone missing, that is a serious matter and the manageress, in this case Mrs Smith, was responsible and must be expected to be asked for an explanation. If the manageress has to admit that she has not followed the proper procedures for accounting for losses and for reporting them, then that makes the matter much more serious. Inevitably, it gives rise to suspicions. There are various possibilities. Things may appear to be missing which have not, in fact, gone missing, that is to say sales have not been recorded. That itself might give rise to further suspicions about what might have happened. On the other hand, of course, they may have been stolen owing to lax supervision, or it may be that there are other explanations of what has happened.

Here, unhappily, she could throw no light on it. She herself was very badly treated, there is no doubt about that, and the Tribunal say that she was. In spite of that, they fixed her contribution at the high figure of 80%.

Now we come to the complaints which are made. If one looks at the Notice of Appearance by the Respondents to the application, having set out their version of the facts, they say:

"The Applicant could offer no explanation whatsoever. The Respondents concluded that, at best, the applicant was guilty of gross neglect of her duties and was wholly unfitted to employment in a retail shop".

That was their case, that was "at best". Now that must be saying implicitly that one of the possibilities, as they indeed admitted at the hearing, was that she herself was dishonest. But it was not pleaded and was not alleged that they believed that she was dishonest and that that justified the dismissal. Mr Parr, to whom we are grateful, puts forward her case today and he concedes, among other things, that his first appeal was not put in the form that he would wish and he has put before us re-drafted grounds today. We decide the case on the basis of those grounds. He said:

"(e) The Tribunal erred in law by failing to adjourn when it was disclosed for the first time [at the hearing] .... that the reason why the Appellant was dismissed was that she was suspected of theft. As a result of the failure to adjourn, the Appellant was denied the opportunity of dealing with the allegation of theft fully and of being sufficiently prepared to state her answer at the hearing".

The first thing to notice is that no adjournment was asked for by Mr Parr. He says that that was due to inexperience, one entirely understands that, but it was not asked for. The second is that the Respondent was represented by Counsel. Mr Parr cannot remember if Mr Walker of Counsel ever made that suggestion on behalf of the Respondents, it apparently came out in evidence.

It is inconceivable to us that experienced Counsel would make such a suggestion, that is to say that the Appellant was rightly dismissed because it was believed she was guilty of theft, when that was not pleaded. Mr Parr says, in addition, that if you read the decision carefully, it appears that the Tribunal itself was of the opinion that she was, or might be, guilty of theft. That, in our view, is quite unsubstantiated when you look at the decision as a whole.

The Tribunal had no business to reach such a conclusion. What they had to do was to say whether she had been fairly dismissed or not, and if she had been unfairly dismissed, the extent of her contribution. We do not believe that this Tribunal, any more than any other Tribunal, would take on itself the duty of deciding whether she was guilty of theft, and they certainly do not make, it seems to us, any indication of that in their decision. It is elementary that if a manageress is found to be short of stock to this extent there are a number of possibilities which come to mind. When they say that she was responsible, they mean quite clearly that she was responsible as manageress for what had happened.

Then Mr Parr complains in ground (b) of his amended Notice of Appeal that:

"(b) The Tribunal reached a decision which no reasonable Tribunal could have reached and substituted its own decision for that of the Respondent by finding that the Respondent had made a proper investigation of the affairs and found stock losses which could have led it to a reasonable belief that the Appellant was responsible".

We again do not think that there is anything in that ground. The Tribunal were fully entitled, having heard the employers, to find that they did enquire into these stock losses. They found that every step which the employers took thereafter was unfair and unreasonable. They were entitled to do that too. But why they should not have found that there were these stock losses we do not know. Of course, there can be no absolute certainty about stock losses. As I say, there are various possible explanations, but they were entitled to find that.

Then Mr Parr urges in ground (c) that:

"(c) The Tribunal erred in law in making a deduction of 80% for contributory fault .... by taking into account [their previous] finding .... and/or by failing to take into account the relevance of the fault to the position from which the Appellant was dismissed".

He says what that means (and Mr Parr made it very plain to us) is that she was demoted to being a mere sales assistant and he says it might be fair to blame the manageress for some of these matters, but not a sales assistant; but the essence of it was, of course, that she had neglected her duties as manageress up to 19 November when she was demoted, and if she had not done her duty then there was no doubt a continuing duty on her to try to put matters right if she could. She had not done her duty, that was the point.

Then he says they erred in law in awarding compensation only up to the date of the hearing by taking into consideration the finding referred to above, and/or failing to take into consideration the Appellant's evidence as to mitigation. It appears to us again that that is a complaint which is not justified. The Tribunal assessed compensation up to the date of the hearing and thereafter gave no further compensation. It is implicit in that they considered that she should, by the date of the hearing, have found other employment in the retail trade.

It appears to us that the complaints here are essentially matters of fact. It is always a difficult situation for a person in this position, where stock has gone missing or other articles have gone missing, to know how to proceed; it is difficult for the employers to know how to proceed. The employers must, of course, make up their minds after having held a fair and proper enquiry. That never did take place in this case and therefore it is rather idle to speculate on what they might have found if there had been a fair and proper enquiry.

We cannot find any fault, in law, in the way in which the Tribunal conducted their enquiry, in finding that there was unfair dismissal and in finding that the Appellant was very seriously to blame. In particular, we do not think that this Tribunal found that the Appellant was guilty of dishonesty and we do not think that that coloured their minds in any way. It is quite clear to us, having read it, that what did colour the minds of the Tribunal was the very strong feeling that she had neglected her duty as manageress and that they took a serious view of that; and they were certainly entitled to take that view.

The case is in our list to see whether we can find an arguable point of law. We cannot. It appears to us that the matters of which complaint is made are essentially matters of discretion, fact and degree for the Industrial Tribunal and that we have no right whatever to interfere with those matters. Having heard all that Mr Parr said, we give leave to amend by pleading the matters raised in the draft amended Notice of Appeal, but we say that the appeal must proceed no further and it falls therefore to be dismissed at this stage.