United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR PAUL AITKEN (Managing Director)
For the Respondent	MR D BROWN (of Counsel) Messrs Thompsons Congress House Great Russell Street London WC1B 3LW


 


JUDGE PUGSLEY: At a hearing of the Industrial Tribunal in Reading, the Industrial Tribunal found that the applicant, Mr Creese had been unfairly dismissed, but they reduced the amount of compensation that would otherwise have been payable and the basic award by 50% in order to reflect their view as to his culpability in the matter.

The factual background may be briefly narrated. We rely on the facts as found by the Industrial Tribunal.

The respondent company was engaged in the production of videos. It has a total of nine employees, including its managing director, Mr Aitken. It is clear from the Notes of Evidence, that there were in fact not nine employees engaged on the company's business in the production of videos, three of those employees were in fact part-timers who were cleaners.

The applicant, Mr Creese, had been employed as a Cameraman and Editor since 2nd April 1984. He was a long serving employee and he had been at the outset the company's only employee. He was certainly a person who therefore enjoyed a degree of seniority in the company.

In 1987 the company issued, on the advice of ACAS, a contract of employment which was duly signed, and that contained term which made it constitute misconduct to use company equipment for private use. Exceptions to this could be made by arrangement with Mr Aitken.

Mr Creese's employment record had not been one of unsullied by any disciplinary matter. He had received a warning, a first and final written warning in September 1991 which stated:

"You must not remove company property without prior consent from myself."

The decision makes it clear that quite irrespective of that matter, there were a number of concerns that Mr Aitken felt about Mr Creese as to the quality of his work, both as to his aptitude and attitude to that work.

On Sunday, 26th May 1996, Mr Aitken, the managing director, was going off on holiday. He was driving past the company's premises with his wife and family to the airport and he saw the lights on in his premises. He was concerned. He went in. He knew that Mr Creese knew that the Aitkens were off on holiday, as was almost inevitable in such a small company. He found Mr Creese there who gave the explanation that he was copying a video for his step-daughter, which had been copied from a television programme and was typing a CV for his father-in-law. Mr Aitken was concerned that the lights were on in the studio, and that Mr Creese appeared to be using the company's main computer equipment. Mr Aitken said when he was given the explanation by Mr Creese, he would have liked to have known about the visit. Mr Creese had a key. Mr Aitken was rather concerned about this. We know from an affidavit subsequently filed, that he got one of his employees to go round. He worried about it and discussed it with his wife who was also involved in running of the company, and indeed, they cut short their holiday returning on Friday, 31st May.

It is quite clear from the way this appeal has been conducted, that Mr Aitken is a person who takes his responsibilities very seriously and has, if we may say so, adopted an understandable concern about the fact that the tribunal reached a decision adverse to him. If we may say so, putting it slightly in context, it also reached a verdict adverse to the applicant, because it made a substantial reduction in the amount of compensation.

The events can now be taken shortly. On 2nd June Mr Aitken sought advice from a customer who had rather greater experience in these matters. On the next day he wrote to Mr Creese inviting him to a disciplinary meeting and stating that he had the right to be accompanied if he so wished. The letter spelt out three subjects to be covered: poor quality of work; the use of company property for private purposes, without permission, in direct contravention of company rules and after previous reminders; and previous employment record. The letter did not spell out that dismissal was being considered as a possibility nor did it make it clear that Mr Aitken regarded the use of company property as the most important issue.

Mr Creese was seen. The meeting lasted some two hours. Mr Milne, an informal adviser to the employer was present, and he gave evidence of the content of that meeting to the tribunal. In their findings of fact, the tribunal state that the discussion centred around Mr Aitken's complaints about the poor quality of work and the incident when Mr Creese had gone back and used the company equipment on 26th May.

After the adjournment, when Mr Creese had left the room at 5.15 p.m., Mr Aitken considered the matter, and at 5.45 p.m. he dismissed Mr Creese summarily. On 4th June wrote to Mr Creese confirming the dismissal stating the reason was one of gross misconduct which was:

"That you used company property for your own use without my permission, which is in direct contravention of our disciplinary code. The equipment used was a computer, computer disk, video recorders and video tape."

The tribunal in paragraph 5, 6, 7, 8, 9, 10 and 11, summarise their position:

"5 The Tribunal are satisfied that Mr Aitken had good reason to discipline Mr Creese on 3 June. Mr Aitken was concerned, both about the incident on 26 May and a number of issues relating to poor work; there had been a further complaint from a client whilst Mr Aitken was away on holiday. But Mr Aitken identified the incident on 26 May as being the one which led to dismissal, rather than the complaints about poor work.

6 Section 98 Employment Rights Act 1996 provides that an employee must have an admissible reason for dismissal, and must act reasonably in treating that reason as a sufficient reason for dismissal.

7 It is the respondents' case that Mr Creese was well aware of the prohibition of private use of company equipment, and that such use could lead to dismissal.

8 However, it is clear from the provision for "exceptions to ... be made by arrangement with Paul Aitken", that the prohibition was not an absolute one. Furthermore, the warning letter written to Mr Aitken on 6 September 1991, emphasised that Mr Creese "must not remove company property" without prior consent, rather than "use" company property.

9 There was no evidence of any prohibition against Mr Creese entering the company's premises out of normal working hours - even if it may have been unusual for him to do so. Mr Creese had a key to the premises in Chipping Norton and lived nearby. He had been with the company for 12 years. He was aware of the prohibition against private use and had used loan forms in order to borrow equipment following the incident in 1991. But Mr Creese did not think that this prohibition covered every sort of private use, particularly the uses he employed that Sunday - copying a video and typing out a CV - when he used the company's equipment on the company's premises.

10 The Tribunal find that Mr Aitken had at no stage spelt out that the prohibition on private use was intended to be an absolute prohibition. It would have been easy enough for him to do so. Mr Aitken's muted reaction on 26 May, and in particular the fact that he left Mr Creese and his step-daughter alone in the building after finding them there, not only failed to alert Mr Creese to the seriousness with which Mr Aitken now says he regarded the situation; it also raises doubts as to whether in fact Mr Aitken did regard the matter so seriously at the outset. The letter of 2 June, although referring to the company rules, did not highlight the fact that Mr Aitken regarded the breach as so serious that it might justify dismissal.

11 The Tribunal find that whilst disciplinary action was justified, Mr Aitken had given insufficient warning of the risk of dismissal and was acting outside the range of reasonable responses in deciding to dismiss rather than impose a formal written warning. The conduct admitted to by Mr Creese was not such that a reasonable employer would consider to justify dismissal in the circumstances. Although Mr Aitken claimed that he believed that the company's main computer equipment was being used, there was no evidence to show that Mr Creese was in fact doing anything more than he admitted both in the interview on 3 June and in evidence before the Tribunal; that is copying a video and typing a CV."

The tribunal then went on to find that the dismissal had been unfair, but it considered that Mr Creese had contributed to his dismissal by his conduct on 26th May. The tribunal considered he may well have deserved a formal warning. The tribunal went on to find it just and equitable to reduce his compensatory and basic award by 50%. In the event, the amount actually ordered to be paid was £2,334.86.

It is quite clear to us from hearing from the appellant in this matter, that Mr Aitken feels very strongly that this is an unjust decision. In his original Notice of Appeal he sets out three grounds:

"1. The tribunal ignored the evidence in front of them.

2. That the tribunal did not take proper account of the size of the company.

3. That the tribunal chose to ignore the binding contracts of employment signed by the applicant.

I respectfully request sight of the Chairman's Notes of Evidence, further grounds to follow."

That Notice of Appeal has been supplemented by a full skeleton argument in which it is alleged that the appeal is made on the assertion that the Industrial Tribunal acted perversely. There then followed a series of suggestions as to way in which the tribunal have failed to adequately deal with the evidence before them and to appreciate the arguments made.

It would not, in our view, be necessary merely to repeat the skeleton argument, and if Mr Aitken will forgive us for saying so, there were at times when he had almost had a homing instinct to return to the same point having made it in a variety of different ways. We do not think we would do violence to what Mr Aitken is saying if we summarise his criticism of the decision in this way:

The respondent company is a small company. As such there has to be a basis of trust. That of course, Mr Aitken concedes, is true of all companies, but when you are dealing with a small company, it is just not possible to have the mechanisms in place or the staff to have elaborate systems of surveillance and monitoring of performance. There had been a number of problems with the attitude of the applicant; there had been some problems with the quality of his work, and he went in knowing that Mr Aitken was away and used the company's facilities. That, says Mr Aitken, is in clear breach of the contract of employment. He tells us that in fact there had been an earlier incident which had led to the term of this being in his contract of employment. He then goes on to say that the tribunal in a number of ways did not appreciate the gravity of that which had been committed by Mr Creese, and that we should reverse decision.

We have considerable sympathy with anyone who find themselves embroiled in what is unhappily becoming an increasingly technical area of the law. We are well aware that the simple aspiration that tribunals would provide a means of resolving disputes that were economic, economical, expeditious and efficient. Unhappily, due to the complexity of legislation, not of all of which lies in the responsibility of domestic legislation, has made that a very difficult matter. In no way would we wish to appear to be unsympathetic to the plight that Mr Aitken was in. He took advice, it was advice from a customer, as we understand it, unpaid advice. He was represented by a Mr Faulkner. And quite bluntly, Mr Aitken considers that he could have done the job better. But many of the points he felt were not made that should have been made, and least we hope he feels that he has had the full opportunity to make those points to us. One understands that position. If I may gently say so, there will be many employers who have expended far more on legal costs than the amount that Mr Aitken's company has been ordered to pay by the tribunal, and that would still have been the case even if they had won. On the other hand, one has to say this. That one is stuck with the representation one has. We suspect, although obviously it would be unfair to Mr Faulkner to do anything other float as a suggestion that it may be Mr Aitken would have been better served if he had gone along to the tribunal and told his account as it was and argued as he wanted, rather than leaving it to the albeit well-intentioned Mr Faulkner.

We have considered all the points made. But at the end of the day we have to say that we have found that the matter really has been summed up by Mr Damien Brown in his skeleton argument and in his oral submissions. That, unfortunately Mr Aitken simply does not like the view the tribunal took of the evidence and their interpretation of the evidence in the factual matrix of this particular case.

We have listened with great care to what Mr Aitken has said, and we have obviously considered the case before coming into the tribunal and of course since hearing his further arguments before us.

Ultimately, a decision by a manager as to whether to dismiss and a decision by a tribunal as to whether that dismissal was fair or unfair, is not the arid application of rules and regulations, but the exercise of judgment. We cannot find any error of law in the tribunal's decision. Of course as if one may say so with any judgment, if one poured over it with myopic detail one could always look at the odd phrase which could have been felicitiously expressed. But in those passages to which we have adverted, the tribunal was in our view directing itself as to the issues it had to consider and, it came to the view, that in dismissing him in these circumstances, Mr Aitken had acted outside the range of response of a reasonable employer. I hope that no one thinks that we are trivialising this matter. It would be very difficult to describe the tribunal decision as a clear victory for Mr Creese, it was not. If one wanted to use football parlance, without in any way trivialising the matter, this case was very much a draw in that there was a finding of unfair dismissal, but a very substantial reduction, namely 50%, because of what the tribunal considered was the culpability of Mr Creese.

At the end of the day, although we have listened with great care to what has been said, and in some ways sympathise with the position that Mr Aitken found himself in, the tribunal having considered all the evidence and the chemistry of the evidence, not just what was said but how it was said came to the conclusion which is open to them on the facts. We do not consider we would be doing anymore than usurping the fact-finding role of the tribunal if we were now to say that this was perverse. It clearly was not perverse according to any of the standard authorities. There was evidence before them on which they could come to this conclusion. It is trite comfort to say that there are many cases where different tribunals on the same facts may have reached a different decision. But this is not a case where Mr Aitken has in any way accused of acting with a cynical or callous disregard of other peoples rights. This is a case where the tribunal in measured terms concluded that the sanction of dismissal was outside the range of response, but has made it very clear that Mr Creese to the dismissal.

We consider that we have no alternative in the light of those matters to dismiss the appeal.