United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J LEPORT (Solicitor) Messrs Leport & Co Solicitors Lincoln Chambers Market Place Banbury Oxfordshire OX16 8UA


 


JUDGE PUGSLEY: In this case we are asked to consider whether there is an arguable point of law which arises from the decision of the Industrial Tribunal when they found that the applicant's claim for unfair dismissal was dismissed

We have listened at some considerable length to the submissions made on the applicant's behalf, the appellant in this matter.

The facts can be fairly briefly summarised. The respondents were the owners of three jewellers shops. The shops were small and they had only had two employees at each branch, a manager and a sales assistant. The shops by the very nature of their business, held goods of a high value put at, by the tribunal, of between £20-22,000 stock at cost and for customers' property held for repairs, valuations varied between £5-15,000.

The tribunal noted, with a degree of realism, that the conditions of employment could be criticised in that they were not perhaps the most carefully drafted documents. There was a clause to this effect:

"One hour is given for lunch (except for management and at the Christmas period)."

The term is somewhat ambiguous. At paragraph 9 of the decision, the tribunal worked on the basis that:

"9 The requirement to be on the shop premises throughout the day, including the lunch hour, was because of the high risk nature of the business carrying valuable stock which was at risk of robbery and snatching; the applicant claims he never saw the contract of employment, but did admit that it was taken for granted that he never took the lunch hour."

On 15th June 1996 there was to be football match, England -v- Scotland in the European Championships. It took place in the middle/late afternoon and was to be screened nation-wide on television. It seems that the appellant in this case, Mr Weir, was a keen follower of soccer. On the findings of the tribunal:

"11 ... the applicant left the shop on two occasions for about half and hour, on each occasion during the morning; he left again about 12.45 returning at 1.45pm and it was Miss Hills' [the assistant] impression that during this latter period the applicant had socialised and the applicant in fact admitted to taking the lunch hour. About 3.30pm he left again returning to the shop at 4.45pm and during this latter period visited the nearby Reindeer Public House to watch the World Cup match on television and on his return it was clear to Miss Hills that he had consumed alcohol during his period of absence and this is admitted by the applicant who said he drank two pints of beer."

As a matter of interest, we have been shown the notes of the disciplinary meeting, and that puts his consumption, according to the notes, at three or four pints. The tribunal continue:

"12 During his final absence, Miss Hills was the only employee in the shop, though a male friend stayed with her during the time the applicant was absent.

13 The applicant, shortly after his return to the shop, telephoned Mr Ray Brook, the Manager of the Chesham branch, and his speech caused Mr Brock to think that something was wrong with him ... he telephoned Mrs Quy to report his concerns; ... Mrs Quy telephoned the Banbury shop, spoke to Miss Hills, who confirmed that the applicant had visited a public house. She also spoke to the applicant on the telephone and formed the impression that his speech was slurred and he was under the influence of alcohol.

14 Mrs Quy referred this to her husband who was concerned about the security of the shop and immediately went over to Banbury; the shop has been secured, but the till had not been put away in the safe, customers' repairs were left lying around and Mr Weir had not cashed up properly or completed the past week's daily taking sheet."

Mr Weir was telephoned the following day, Sunday, certain questions were asked of him, he was suspended without pay and he was told that there would be a disciplinary hearing. The matter is dealt with by the tribunal thus:

"17 On the Monday, Mr Quy took statements from members of the staff, Miss Hills, Mr Brock and Mrs Davies and forwarded these to Mr Weir on 16 June together with a letter setting out the matters that were to be discussed at the disciplinary hearing.

18 At the disciplinary meeting, Mr Quy went through the various allegations and Mr Weir admitted that he had left the shop twice in the morning and twice in the afternoon and on the final occasion had consumed possibly three or four pints of beer. He also admitted not securing the cash float and customers' repairs in the safe and also failing to cash up and complete the past week's daily taking sheet.

19 At the conclusion of the meeting, he handed Mr Quy the shop keys saying he had no future. Mr Quy did not reach a final decision at that time, but wrote to Mr Weir asking him to confirm or not it was his intention to resign. Mr Weir later telephoned saying he would not resign saying it would prevent him from claiming the dole, but invited Mr Quy to sack him.

20 On 21 June Mr Quy wrote to Mr Weir terminating his employment by reason of gross misconduct, by reason of the fact that at about 5.00pm the previous Saturday 15 June he was observed to be drunk and incapable having absented himself from the shop for some three and a half hours during which time he was at as nearby public house watching the football when he was supposed to be working and further his failure to cash up properly and not secure money and customers' property meant that he no longer had trust in Mr Weir to carry out his managerial responsibilities."

On the basis of those findings of facts, submissions were made by Mr Leport on behalf of Mr Weir, that that conduct did not constitute misconduct which would enable a tribunal to dismiss at a first offence. Mr Leport conceded that of course dismissal for a first offence might be justified in certain circumstances where it involved theft, dishonesty or deliberately damaging company's property. He contended the employer should have a rule which expressly states that breaches thereof would lead to dismissal when it does not deal with any heinous offence in which dismissal is self-evidently the inevitable sanction.

At paragraph 25 the tribunal state thus:

"25 Having considered the evidence in this matter and the submissions of the parties, we first of all asked ourselves the three questions which are set out in the well known case of British Home Stores -v- Burchell [1980] ICR 303. First of all we are satisfied unanimously that the respondents in the person of Mr Quy who took the dismissal decision had a genuine belief in gross misconduct of the applicant. When we looked at the evidence which was before Mr Quy at the time, we noticed that Mr Weir admitted he had been absent from the shop on several occasions during the day, that he visited a nearby public house when alcohol was consumed and he had not secured all the property in the shop on leaving and his consumption of alcohol was confirmed by Miss Hills who saw him on his return from the public house and could asses his demeanour and Mr Brock, who spoke to Mr Weir shortly thereafter and also Mrs Quy who spoke to him. We find that such evidence was sufficient to justify his belief at that stage."

The tribunal went on:

"26 We then went on to ask whether the investigation carried out by the respondent was a reasonable one in all the circumstances and we find that it was reasonable; Mr Weir was informed of the allegations, supplied with the statements and told he could have a witness with him and Mr Weir, who was fully aware of the event of Saturday 15 June, could not have been disadvantaged in any way. There was no appeal from Mr Quy's decision, but in a business consisting of only two proprietors, this would have been impossible."

The tribunal sum the matter up in this way in paragraph 27:

"27 The respondents have therefore satisfied the Tribunal that the main reason for the dismissal of the applicant was gross misconduct arising out of his absence on the day in question and breach of the implied term of trust and confidence. ..."

The tribunal then go on to ask:

"was the decision to dismiss in this case that of a fair and reasonable employer or was it one no such employer could have taken in these circumstances?"

They point out:

"By absenting himself from the shop in breach of his term of employment which states that management cannot take lunch hour, he put the property and staff at considerable risk; whilst the shop itself was smaller than the average newsagent/confectioner, the value of the stock was substantial and was an easy target for robbers and whilst it was argued that Miss Hills was experienced and could be left on her own, her expertise in selling jewellery would not affect her vulnerability in being left alone in the shop. The fact that during Mr Weir's final absence a male friend remained in the shop is irrelevant."

The tribunal had a number of cases cited before it, and they came to the view that this was case where that it was within the range of the options to dismiss this applicant. It is true Mr Weir had not, we understand, before been the subject of formal disciplinary proceedings, but the tribunal noted that he did not enjoy a history of good conduct over a long period and they found that the decision dismiss came within the band of reasonable responses of a fair employer. One notes the observation that he did not enjoy a history of good conduct over a long period, is no doubt a reference to the various matters which are set out in the disciplinary procedure of which we have seen the minutes.

Before us Mr Leport has argued with vigour, that if you are going to dismiss somebody for a matter which is not notorious to lead to dismissal, then you ought to have such a term in the contract of contract. He cited various cases which were cited before the tribunal and he has referred us to Dairy Produce Packers Ltd v Bevistock [1981] IRLR 265 a case heard in the Employment Appeal Tribunal in Scotland. In that case the Employment Appeal Tribunal held an Industrial Tribunal had not erred in holding that an employer had dismissed the employee unfairly for drinking in a public house during working hours.

We have asked ourselves what is the error of law. One of the functions and purposes of Industrial Tribunals, it needs to be remembered, was to provide an efficient, economic and expeditious way for matters between employer and employee to be resolved. The purity of that simple purpose has been sullied by an excess of legalism in trawling through decisions to find whether one can isolate, out of their context, some matter that can be the subject of a forensic argument as to an error of law. We have come to the view that there is no arguable error of law in this appeal.

The reality is that the appellant was employed as a manager of a jewellers shop. The reality is that retail outlets such as this, small in size, large in value, are a risk and vulnerable to violent dishonesty. I refer of course to robberies and snatches. The reality is that the appellant knew full well that he was not entitled to leave the premises. He did so to watch a football match. In the words of the tribunal, he compounded it by taking drink and there was evidence at which the tribunal could accept the employer's evidence that they had believed he had drunk so that it affected his behaviour. It is palpably obvious in our view that a tribunal was entitled to reach the decision it did. In our view there is no arguable matter of law. This was a well drafted decision.

We therefore dismiss the appeal, and say that there is no arguable point of law to go to a full hearing.