United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR W G WILLIAMS (of Counsel) and Assistant Legal Advisor Laura Ashley Ltd Third Floor The Chambers Chelsea Harbour London SW10 0NX


 


JUDGE SMITH QC: This is an application for leave to proceed to a full hearing of an appeal by Laura Ashley Ltd, who were the respondent employers before the Employment Tribunal. By their decision, the Employment Tribunal, sitting at London (North), decided unanimously, after what appears to us to be a very lengthy three day hearing on liability between various dates in April and September 1998, of which extended reasons were sent to the parties on 1st October 1998, that the respondent to this potential appeal, Ms Myrna Japal, the applicant before the Employment Tribunal, had been unfairly dismissed from her employment, which I shall describe as caretaker/store manager, at the appellants' Covent Garden store on 6th October 1997 on the alleged grounds of gross misconduct. The tribunal went on to hold that she had contributed to her dismissal to the extent of 80% by way of contribution.

We have reminded ourselves that the appellant only has to show an arguable point of law to be allowed to proceed a full hearing.

It appears that the Ms Japal had been dismissed for behaviour which the appellants sought to categorise as gross misconduct by reference to the disciplinary rules, of the appellant company, under this heading:

"Actions or performance which would lead to the Company's loss of trust and confidence in your ability to fulfil the role for which you were employed."

We must say, and one of the members noted particularly, that this is an extremely vague and broadly worded catch-all clause, which would cover a very great number of different kinds of conduct, and is really in remarkably wide terms. The circumstances were, apparently, reading from the decision of the tribunal that, it all arose out of an incident of some kind on Saturday, 27th September 1997, when, on our characterisation of the incident in question, Ms Japal forgot to place the takings from one of the tills into the night safe and left one of the tills open with apparently some money in it the amount of which was in dispute, as was the question as to the extent to which, if at all, the open till was visible from outside the shop as an obvious magnet for shop breakers. We should add that it is apparent that such matters as these, namely which till it was, how much money there was in the till and whether it was visible from outside the shop, appear to have taken up an inordinate amount of time at the hearing before the tribunal and we do note that Ms Japal was in person, whereas Counsel was there for the appellants, Laura Ashley Ltd, and we believe it to be somewhat unfortunate that the tribunal had to listen over obviously lengthy periods to a lot of evidence relating to matters which really may not have been of any particular relevance to the issues which the Employment Tribunal had to decide. To the extent that we are critical of the Employment Tribunal's decision, and we are critical of it to an extent in one particular respect, we consider it likely that they were rather led into making a finding which it was probably not necessary for them to make because of the matters we have already mentioned. The Employment Tribunal having considered carefully the evidence and the submissions, made its findings of fact in paragraph 15 of its decision. Particular criticism is made with regard to paragraph 15(c) of the tribunal's findings. That subparagraph reads as follows:

"(c) the Tribunal is not satisfied that the contents of the right till could be seen from outside the front of the store, whether that was part of the Respondent's case or not;"

The tribunal having made its findings of fact (we will return to that particular finding of fact a little later on in this judgment) concluded, having, in our judgment, correctly set out the relevant principles of law in paragraph 16 of its decision by reference to s. 98(4) of the 1996 Act, that by application of that test the appellants had not acted reasonably in treating the reason for dismissing Ms Japal as a sufficient reason for doing so, and that Ms Japal's dismissal did not fall within the band of reasonable responses open to an employer. Therefore, Ms Japal was unfairly dismissed from her employment by the appellants.

The gravamen of the case sought to be made by Mr Williams, who has presented his submissions to us with moderation today on behalf of the appellants, as set out in the Notice of Appeal and amplified by Mr Williams, is to the effect that particularly in subparagraph 15(c), the tribunal allowed itself to slip into the error of law of substituting its own decision for that of the reasonable employer. That really lies at the heart of the way in which the appellants seek to impugn this decision and to label it as being wrong in law and/or perverse on that basis.

However, we do not so read the Employment Tribunal's decision. We accept that it would have been better if the tribunal had not expressed a conclusion with regard to the conflict of evidence adduced before it to whether the right till could or could not be seen from outside the front of the store. However, in our judgment, that is but one small part of the overall findings of fact of the Industrial Tribunal as set out in paragraph 15. We remind ourselves that it is not appropriate for an Employment Tribunal's decision to be subjected to close linguistic analysis or to be read like a statute, or for one part of the decision to be read out of context of the whole of the decision. We have concluded that in all the circumstances here, the Employment Tribunal, acting as an industrial jury, were fully entitled to reach the overall findings that they did in order to decide whether the ultimate sanction of dismissal was within the bands of a reasonable response open to a reasonable employer in all the circumstances.

We have concluded, accordingly, that there is no arguable point of law arising on this application. We should add that we accept that the earlier incident of Ms Japal's misconduct was of a different nature and we accept the argument put forward in Ms Japal's answer, so we do not regard that as giving rise to a separate ground of appeal, in all the circumstances. For those reasons we have concluded that this application will have to be dismissed.