Title: Appeal No.
Author: TEST USER
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Company: BAILLI

Appeal No.	 EAT/682/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 November 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR S M SPRINGER MBE
MR R N STRAKER

MR J McLEAN	APPELLANT

McLANE LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant

MR PAUL EPSTEIN
(of Counsel)
Nicholls & Sainsbury
(Solicitors)
135 Fore Street
Saltash
Cornwall PL12 6AB

For the Respondent

MR TUDOR WILLIAMS
(Solicitor)
Messrs Tudor Williams & Co
(Solicitors)
27 Chester Street
Wrexham
Clwyd LL13 8BG

	JUDGE PETER CLARK:  This is an appeal by the Applicant before the Plymouth Industrial Tribunal. Mr Justin McLean, against that Tribunal’s decision to dismiss his complaint of unfair dismissal against his former employer, Palmer and Harvey McLane Ltd, the Respondent, following a hearing held on 20 May 1996.  Extended reasons for that decision are dated 28 May 1996.

	The facts may be shortly summarized.  The Appellant, aged 20 years at the time of his dismissal in January 1996, had worked for the Respondents since November 1992.  At the material time he was employed in the capacity of a fork-lift truck driver, moving pallets of goods around the Respondent’s warehouse in Saltash.  The Tribunal observed that forklift truck drivers must be fully trained and instructed in their task;  unless handled properly, such trucks can be dangerous pieces of equipment.

	On Monday, 8 January 1996, Mr Petas, the Saltash Branch Manager, found two newspaper reports on his desk relating to a recent conviction of the Appellant.  The reports referred to an incident on 1 December 1996 when the Appellant had been drinking heavily and damaged the door of a take-away restaurant.  On arrest he was found to be in possession of a small quantity of cannabis resin.  He was fined £75 by the local justices and, together with a compensation order, ordered to pay £500 in all.

	Mr Petas called in the Appellant and informed him that he would hold a disciplinary interview at 3 pm that afternoon.

	At that interview, attended also by the Branch Commercial Manager, Mr Friend, the Appellant was very frank.  He disclosed the fact that he had a previous conviction for cannabis possession some 6-9 months earlier.  He said that he had since stopped smoking joints and that on 1 December 1995 he had had too much to drink and got aggressive.  He also admitted that he was totally intoxicated over the Christmas period whilst also having flu, for which he had a doctor’s certificate.  However, he told his managers that he had never come into work under the influence of drugs or alcohol and wanted to pay his fine and forget about the incident.

	The Respondent’s line, through Mr Petas, was that it was concerned about safety.  The Company was not prepared to risk anyone using forklift trucks or any other potentially dangerous equipment whilst under the influence of drink or drugs.  The Appellant was suspended until Thursday, 11 January.

	Mr Petas consulted with personnel and his senior management.  He also considered with Mr Friend, who was the Appellant’s line manager, moving him to alternative duties but found that there were no vacancies.  He formed the view that he could not risk employing a forklift truck driver with two convictions for possession of cannabis.  There was no system of testing for drug use practised by the Respondents;  they relied on their staff arriving for work in a fit state.

	The disciplinary hearing took place on 11 January.  There was no real dispute about the facts.  The Appellant’s case was that he had never been to work under the influence of drink or drugs and what he did in his own time was his own affair.  Mr Petas considered the evidence before him and concluded, in the absence of any contrition about his behaviour or appreciation of the possible dangers of drug taking and excessive alcohol intake, decided in the interest of the health and safety of the warehouse, that the Appellant should be dismissed and he was so dismissed by letter of 12 January.

	The Appellant then appealed to the Regional General Manager, Mr Howard.  That appeal was heard on 24 January.  The Appellant’s father was present and presented his son’s case.  He told Mr Howard that the Appellant had been involved with the use of cannabis since the age of 16, that all his mates were on it, and he was trying hard to come off it.  As the Tribunal observed, that was somewhat at variance with the Appellant’s own original statement that he had learnt his lesson and had already come off the drug.  The line taken by Mr McLean, senior, was that what his son did in his private life was his own affair, his employers having not been identified either at Court or in the newspaper articles.  Mr Howard considered the matter and for similar reasons to those that influenced Mr Petas, he refused to allow the appeal.

	Against that background, the Industrial Tribunal expressed their reasoning in concluding that this dismissal fair at paragraph 13 of the extended reasons, in this way:

“It is not the function of a tribunal to re-hear a case or to substitute its own view of what should have happened.  We have to apply an objective test and ask whether the decision to dismiss made by the respondents was within the wide band of reasonable responses which a fair employer could give.  Our conclusion is that a fair employer could decide that the potential safety risk to a forklift truck driver himself and to other employees if he is on drugs was more important than that employee’s continued employment, and that conduct on the part of an employee giving rise to those safety risks could justify dismissal.  The respondents agreed that there was no evidence of the applicant ever having come to work under the influence of alcohol or drugs, but they were concerned that it might happen and what the possible consequences could be.  That was a reasonable stance to take, and as they were not able to find other employment for the applicant not involving the use of a forklift truck, clearly it was the potential danger which was the cause of their concern.”

	Against the Tribunal’s decision, the Appellant appealed and the matter first came before this Tribunal on a preliminary hearing which took place on 23 October 1996.  The matter was allowed to proceed to a full hearing and in a short judgment on behalf of that Tribunal, Judge Byrt QC identified the sole question to be decided at this full hearing to be as follows:

“We think it appropriate to limit the issue to whether it was reasonable to dismiss in all the circumstances of the case, and in particular having regard to the finding that there was no evidence that the appellant’s conduct at work had ever been affected by the intake or effects of alcohol or drugs.”

	We remind ourselves that our powers to interfere with industrial tribunals’ decisions are limited to correcting error of law.  It follows that in order to do so in this case we must be satisfied that the Industrial Tribunal, in concluding that dismissal for the Appellant’s out-of-work activities, in the absence of any evidence that his work as a forklift truck driver was affected by alcohol or drugs, fell within the band of reasonable responses, was perverse.  As Mr Epstein accepts that means that we must be satisfied that no reasonable industrial tribunal properly directing itself could conclude that dismissal in the circumstances of this case fell outside the range of reasonable responses open to the employer.

	The ACAS Code of Practice on Disciplinary Practice and Procedure provides, at paragraph 15(C):

“Criminal offences outside employment
These should not be treated as automatic reasons for dismissal regardless of whether the offence has any relevance to the duties of the individual as an employee.  The main consideration should be whether the offence is one that makes the individual unsuitable for his or her type of work or unacceptable to other employees.  Employees should not be dismissed solely because a charge against them is pending or because they are absent through having been remanded in custody.”
That principle, we think is reflected in the cases to which we have been referred, namely, Norfolk County Council v Bernard [1979] IRLR 220 and Mathewson v R B Wilson Dental Laboratory Ltd [1988] IRLR 512.

	This Industrial Tribunal plainly concluded that the risk of the Appellant operating dangerous machinery whilst affected by drink or drugs was such as to render him unsuitable for continued employment in that capacity in the eyes of a reasonable employer.

	That finding is attacked by Mr Epstein on the grounds, first, that in the absence of evidence that the Appellant had attended for work under the influence of drink or drugs, the Appellant was not guilty of any of the examples of gross misconduct set out in the Respondent’s disciplinary rules.  We accept that proposition forensically, as did the Industrial Tribunal, but that does not answer the question posed by s.98(4) of the Employment Rights Act 1996.  It is plain that the Tribunal was entitled to conclude that the reason for the dismissal in this case related to the Appellant’s conduct, and not his capability, as Mr Epstein argues.  It is that reason which the Industrial Tribunal was bound to consider when looking at the question of reasonableness under s.98(4).

	Secondly, he submits that in the absence of evidence, following a proper investigation, that the Appellant would in future pose a threat to the health and safety of employees at the warehouse, the Tribunal’s conclusion was erroneous in law.  We think that overlooks the common sense of the situation, which the Tribunal plainly applied to the facts of this case.

	Finally, he submits that the only sanction that a reasonable employer could impose was one short of dismissal.  We reject that submission;  let alone the further necessary contention that no reasonable Industrial Tribunal would have found otherwise.

	Having considered the various ways in which the appeal is put by Mr Epstein, we are quite unable to say that any error of law has here been made out and, accordingly, the appeal must be dismissed.

© Copyright 1997

EAT/682/96

EAT/682/96
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