At the Tribunal
THE HONOURABLE MR JUSTICE MUMMERY (P)
MR R SANDERSON OBE
MR J A SCOULLER
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellant MR N COX
Free Representation Unit
Room 140, 1st Floor
49-51 Bedford Row
London
WC1R 4LR
MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an appeal from the majority decision of the Industrial Tribunal held at Brighton on 26 September 1994. For extended reasons notified to the parties on 25 November 1994 the majority decided that Mr Hillier was fairly dismissed. His application for unfair dismissal therefore failed. He appealed against the decision by Notice of Appeal served on 23 December 1994. The appeal sets out four paragraphs of grounds. At the hearing we have before us an application to amend the Notice of Appeal by substituting the other grounds. The legal position is that we would not grant leave to amend, unless we are satisfied that the appeal, taking account of the points proposed in the amendment, raise an arguable point of law.
The purpose of the Preliminary Hearing is to decide whether there is an arguable legal point in the appeal. If there is not, this Tribunal has no jurisdiction to hear the appeal and the case will be dismissed at this stage. Mr Cox of the Free Representation Unit has represented Mr Hillier. In order to test the validity of his arguments against the decision, it is necessary to consider the findings of fact and the law applied by the Tribunal, to reach the conclusion that the application failed. Mr Hillier started his case against the Respondents, C A Goodwin Ltd., on 1 March 1994. He claimed he had been unfairly dismissed from his job as a heating service engineer, a position which he had held from 1982 until he was dismissed in January 1994. He set out the circumstances in which he was summarily dismissed on 18 January 1994. The dismissal had been by the Service Manager, Mr Grigg, and had been done on the basis that he had breached the rules relating to drinking at work.
In his complaint Mr Hillier said that he was stopped by Mr Grigg, who told him a council tenant had complained that he was drunk. He would not tell him who the tenant was. Mr Hillier said to him "do I look drunk?" Mr Grigg said it was not for him to say. "He asked me where I was at lunchtime and I told him I went to the golf club where I had a pint of shandy and a cup of coffee. He told me to forget about this call and asked for the keys of the van. He made several phone calls and afterwards told him he was sacked." Mr Hillier was amazed by the swiftness of the dismissal without any form of investigation into the allegation. He then set out some matters relating to the tenant who had made the complaint. He denied that he was drunk. He felt that, after 12 years of unbroken service without drinking problems with this, or any other company, he had been treated disgracefully.
The company resisted the claim. Their case was that Mr Hillier had been dismissed for gross misconduct. Under the general conditions and disciplinary provisions, gross misconduct included, but was not limited to, the unauthorised taking of drugs or taking alcoholic drink during working hours. The code provided that, in the event of gross misconduct, the company was entitled to dismiss without notice. They set out the facts relevant to the decision to dismiss on 18 June. He had gone to an address to do plumbing work on behalf of an occupant. What happened led to the occupant telephoning the company and making a complaint. They said that Mr Hillier later admitted that he had taken alcoholic drink during lunch. In the premises he was in breach of his terms of employment. The company was entitled to dismiss him without notice, under the disciplinary procedures that were agreed. Those were the issues for the Tribunal.
The Tribunal set out their findings of fact, after hearing evidence from Mr Grigg, the manager of the company's small works department, and from Mr Hillier. They looked at the documents, the contract of employment and the conditions and disciplinary provisions. They found as a fact that the company carries out work on domestic oil and gas appliances. It takes the view that, for safety reasons, there should be a ban on staff carrying out that work having taken alcoholic drink. Accordingly, there is a ban on drinking and that is in the form of the provision in the disciplinary code already quoted. They found as a fact that Mr Hillier was aware of the ban and of the reason for it. He appreciated that it was a serious matter to have taken any alcoholic drink and on his evidence he refrained from taking any alcohol whilst working or during lunchtimes. He had been issued with a copy of the disciplinary provisions. They found that on 18 January he was at work. At lunchtime he had an appointment to meet someone at the golf club. He admitted that whilst there he had drunk a pint of lager shandy. Later he went to an address in Brighton. The door was answered by a lady who told him that the job did not need doing. He returned to the vehicle and radioed the office for another job. He was given another job at a different address in Brighton. Due to a telephone call from a lady he had first visited after lunch, Mr Grigg was called on his radio and requested to contact the office. He was informed of the telephone call from the lady. Mr Grigg was told that Mr Hillier would be attending the address in Brighton where he was going to do another job. Mr Grigg went there. He met him. They spoke together. They walked for some distance. Mr Grigg smelled alcohol on Mr Hillier's breath and asked him if he had been drinking. They said there was no doubt that, at some stage, Mr Hillier admitted that he had had the pint of shandy at lunchtime. Mr Grigg formed the impression that Mr Hillier had had more to drink than one pint, but the Tribunal found as a fact that he was not drunk. Paragraph 7(7) of the reasons has formed the basis of a principal submission by Mr Cox:
"Mr Grigg dismissed the Applicant then and there for having been drinking whilst on duty. What influenced Mr Grigg in his decision to dismiss was the amount of alcohol on the Applicant's breath."
The Tribunal referred to the good work record of Mr Hillier. He had had no disciplinary action taken against him in twelve years of employment. They referred to the provisions of the contract of employment about normal hours of work being 8.00 a.m. to 5.30 p.m. In the Tribunal's conclusions there was a division of opinion. The majority view was that the reason for dismissal was misconduct, namely that the Applicant had breached the Respondents' no alcoholic drinking rule. Of his own admission, the Applicant had drunk a pint of lager shandy that lunchtime, though Mr Grigg believed the Applicant might have drunk more. The rule was well-known. The reason for it (work with gas and oil fired heating equipment) was understood by the Applicant. The Applicant was aware that the rule was a complete prohibition on alcoholic drinks during working hours, including lunchtimes. The minority of the Tribunal thought there had been no breach of the rule, because the drink was at lunchtime. The lunch break was not paid and therefore did not form part of working hours.
On the issue of reasonableness, which fell for decision after the finding that there had been misconduct, all three Members were unanimous that the company had acted as a reasonable employer in treating Mr Hillier's conduct as a sufficient reason for dismissal. The "no drinking" rule was supported by valid reason. They said that, in those circumstances, it cannot be said it fell outside the band of responses of a reasonable employer to dismiss even a long serving member of staff, for a first offence of a single alcoholic drink in the nature of a lager shandy. On the investigation point, they said that the brief investigation had been carried out, but, as the facts were not substantially in dispute, a reasonable employer would consider in the circumstances that no further investigation was necessary or desirable.
We can only allow an appeal if there is a legal error. What is the legal error? Mr Cox has presented a clear, succinct argument, that there was a legal error on what might be called "the amount of alcohol point". He pointed to the parts of the decision in which it stated that Mr Grigg was influenced in his decision to dismiss by the amount of alcohol on Mr Hillier's breath. His argument was that the legal test laid down in British Homes Stores and Burchell [1980] ICR303 had not been satisfied. The Tribunal had not addressed their minds to the question whether there were reasonable grounds for believing that Mr Hillier had drunk more than one pint of shandy. Simply smelling alcohol in his breath did not constitute reasonable grounds. The company had not reasonably investigated the belief that Mr Hillier had drunk more than a pint of shandy. The company had failed to afford him an opportunity to provide evidence to counter the belief that he had drunk more than a pint of shandy or to mitigate the seriousness of his offence. It was also argued by Mr Cox that it was perverse of the Tribunal to find that the facts were not substantially in dispute on the question of the amount of alcohol. He had admitted he had had a pint, but Mr Grigg was stated to have formed the impression that he had had more to drink than a pint and that influenced him. There was in the decision to dismiss a dispute about that. In the light of those matters there was no basis to find that the facts were substantially not in dispute. All that Mr Grigg had received by way of admission from Mr Hillier was drinking one pint of shandy at lunchtime.
In brief, the legal point raised by Mr Cox is that the Tribunal had not properly directed themselves in relation to the Burchell test. In a misconduct case the employer must genuinely believe there has been misconduct, must have reasonable grounds for that belief and must carry out all the investigation reasonably required in the circumstances. In our view, reading the decision as a whole, there is no error of law in this decision. We can see that Mr Hillier feels that he has been harshly treated in view of his good work record with only one lapse, one pint of lager shandy. The findings by the Tribunal were that, first, there was an absolute ban on alcohol drinking during working hours; secondly, Mr Hillier was aware of that ban; thirdly, he had breached the ban by his own admission; fourthly, that constituted misconduct under the terms of the company's own disciplinary provisions; and fifthly, all three Members of the Tribunal were agreed that it was not outside the band of reasonable responses of a reasonable employer to dismiss, even an employee with a long good record of service, for a single breach by taking one drink in the nature of a lager shandy. In our view, the amount of alcohol point taken by Mr Cox is a non-point. In the account of the history of the matter, the Tribunal stated that it was Mr Grigg's belief that he had had more to drink than that, but the Tribunal made it clear, in particular in paragraph 8 of the decision, that the reason for dismissal was not the amount he had drunk. The reason for the dismissal was the fact that he had drunk in breach of the rule. In those circumstances, there is no point in allowing an amendment of the Notice of Appeal, because there is no arguable point of law disclosed in the existing grounds or in the proposed amended grounds. We dismiss this appeal.