United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 791_95_1110

Appeal No. EAT/791/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11th October 1995

THE HONOURABLE MR JUSTICE MORISON

MR P DAWSON OBE

MISS C HOLROYD

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MIDLAND SPORTS CENTRE FOR THE DISABLED TRUST LTD          APPELLANTS

MR D J LEIGH          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR R J LANE

(Personnel Consultant)

The Legal Protection Group Ltd

Crosby Court

28 George Street

Birmingham

B3 1QG


 


MR JUSTICE MORISON: Mr Leigh, whom if we may call the `employee' was employed by Midland Sports Centre for the Disabled Trust Ltd, whom we shall call the `employers'.

At an Industrial Tribunal held at Birmingham, the employee's complaint that he had been unfairly dismissed was unanimously upheld, and the Industrial Tribunal ordered that he be re-instated. The Tribunal's decision is explained in reasons sent to the parties on 29th June 1995.

The employers have filed a Notice of Appeal, and the purpose of this hearing is to determine whether or not the appeal raises an arguable point of law fit for hearing before the full Employment Appeal Tribunal at some later date.

We should emphasise that appeals lie against decisions such as these only if the Tribunal has erred in law. It is not for us to substitute our own judgment of the facts for that arrived at by the Industrial Tribunal. We have no power to hear evidence on such an appeal.

It was the employers' case at the hearing, that they had dismissed the employee for gross misconduct, in that they reasonably suspected that he had obtained items from their cafe on credit, and then paid incorrect amounts for what had been obtained. The employee gave evidence and was supported by two witnesses, the employers' evidence comprised three witnesses.

The Industrial Tribunal found that the employee had had five years of service prior to his dismissal, that he was a centre supervisor without any duties to perform in the centre's cafeteria. That finding of fact is challenged. He had no previous disciplinary record. The employers suspected that pilfering from the cafe was going on and, on advice from the police, a camera was installed for a period of about three weeks from the end of May 1994. Having reviewed the film, the employers called some fifteen members of staff to attend disciplinary interviews. They were allowed to be accompanied by a friend or representative. Following an interview with the employee, on 1st July 1994, he was suspended. He had been seen on film, on four days in June 1994, to take four coffees, a can of pop, and three plates of food without apparently paying for them. Five of the other members of staff admitted theft, and were dismissed. Four were suspended and later given formal warnings. One was dismissed and re-instated, and at least one member of staff resigned. As the employee had referred to the practice of staff having free coffees and teas whilst on duty, the employers investigated the matter further. He attended a further disciplinary hearing on 9th July 1994 accompanied by a colleague, he said he wanted to see the video and have access to till rolls. He also said that sometimes he brought in food which was made into sandwiches and that he did not expect to pay the full price. He said that he did not always pay at the time, but was allowed by the cafe manageress some credit. His was given a further period of suspension of five days, and was then dismissed. He exercised his right of appeal and was given a chance to see an extract of the video film, but by then the till rolls could not be found.

The essence of the Tribunal's reasons may be summarised in this way:-

1. The number of occasions in which he had been seen to be involved were comparatively few and the employers accepted that the centre cafe management, rightly or wrongly, had allowed the practice of giving credit to occur, and of providing tea and coffee to staff free of charge. At no stage during the disciplinary process was the employee given a chance to question the cafe manageress about this matter.
2. The Tribunal were undecided whether when credit had been given, the price paid was the full price or a discounted price. But the employers accepted that he always paid a price later. This practice had not been reported to the management by the cafe manageress.
3. Another centre supervisor was given the benefit of the doubt and given a formal warning. She had been as much involved as the employee, but the employers appear to have discriminated against the employee, because of his strong reactions to the allegations against him. The Industrial Tribunal found it hard to understand why she had been treated differently, and more leniently, than the employee.

Accordingly, the Industrial Tribunal concluded that the employee's dismissal was not within the range of options open to a reasonable employer in dealing with the cafe losses, and was unfair. They ordered re-instatement. Observing that such a remedy was practicable.

At this stage I refer to paragraph 19 of the Industrial Tribunal's decision. The appeal and skeleton argument prepared in support of the employer's case at this hearing, suggests that many of the findings of fact were against the weight of the evidence, and were wrong. We are not persuaded that this is the case. The question of weight, of course, is entirely a matter for the Industrial Tribunal, and not for us. Following the decision of the Tribunal the employers asked for a review, which was refused. In the course of refusing a review, the Industrial Tribunal Chairman accepted that there was one error of fact in a minor respect. We agree that it was in a minor respect, and do not consider that it had or could have had any part to play in the ultimate decision which was arrived at by the Industrial Tribunal.

Having looked at all the material with which we have been provided, it seems to us clear that the decision of the Industrial Tribunal on the question of unfair dismissal was one which they were entitled to arrive at. The most striking part of the case is that he was dismissed not because he had free coffee and tea, because that was accepted as custom and practice, albeit one not approved by management. Nor because he had not paid for food at the time he acquired it, but paid later, because the giving of credit to him had been authorised also by the cafe supervisor. What he was really dismissed for, was not paying the full price for what he had eaten. On that point, he was not alone. The view was taken that if an employee made his own sandwich, he should not pay the full price, especially if he had provided any of the ingredients from provisions which he had himself brought in.

Against the lax way the cafe was organised, and allowed to operate, it seems to us that dismissal was arguably far too strong a sanction. That was the view of the Industrial Tribunal and it being essentially a question of fact and judgment for them, we cannot interfere with it and we are not persuaded that there is any arguable point of law in relation to it.

There is another aspect to this prospective appeal, which relates to the order of re-instatement. An application for a review was made, based on the fact that, in a sense, the employers had not had a full opportunity to present their case as to why re-instatement should not be ordered in the circumstances. The Chairman refused the application for a review and indicated in his decision that essentially the question of re-instatement was one which was alive in their minds right from the beginning of the case, and that they mentioned it to everybody in the room at the time. It was therefore technically open to the employer's representative to adduce such evidence as he wished in relation to the practicability or otherwise of re-instatement.

Mr Lane tells us, and we accept, that he had rather been under the impression that the time for adducing any relevant material in relation to re-instatement was to come after the Tribunal had announced its decision and not before. When that time came at the end of the day, his pertinent witnesses had had to leave for other public duties, and therefore he was bereft of relevant evidence at the time when he felt he needed it. We do not criticise Mr Lane for not taking the opportunity, which was plainly made available to the parties as result of what was said at the beginning of the hearing, to adduce any evidence from his witnesses on reinstatement. But even if we were to criticise him, we are firmly of the view that there was no evidence which they could legitimately give which was going to influence the Tribunal's mind. Firstly, Mr Lane tells us that what he wanted to do was to indicate through his witnesses that they had lost trust and confidence in the employee. It seems to us that bearing in mind their findings that this was a manifestly unfair dismissal, such an argument was not likely to prevail. Secondly, he wished to adduce evidence that there had been a reorganisation, as a result of which his post was no longer available. We do not wish to prejudice any discussions that may take place at a later date in relation to the order for re-instatement, but suffice it to say, that under the terms of the statute it is not a good reason for not re-instating somebody that the position has been filled, unless certain circumstances have been proved.

We are not at all persuaded that the Tribunal has behaved unfairly, or that the conclusion that they arrived at in relation to re-instatement was perverse.

Accordingly, we would dismiss this appeal and no doubt the matter will now have to go back to the Industrial Tribunal for further consideration of the orders.

We would like conclude this hearing by paying tribute to Mr Lane's submissions to us.