United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Appellant neither present or represented.


 


MR RECORDER BURKE QC

1. We have before us the preliminary hearing of an appeal against the decision of an Industrial Tribunal, Bristol, chaired by Mr. Bedford and promulgated with extended reasons on 4 May 2000.
2. The tribunal found that the employee, Mr. May, had not been unfairly dismissed. Mr. May has not appeared today to support his appeal and has not put forward any written arguments or any skeleton argument. We are therefore dealing with this appeal in his absence.
3. Mr. May was the Manager of the employer's store at Lyneham. He worked long hours, extended at the material time by staffing difficulties. Part of the store premises consisted of a stock-room which was supposed to be locked. Entry was obtained by a digital code keypad. Inside the stock room was a locked cage, in which cigarettes and telephone cards were kept. The keys to the cage were intended to be kept in a safe, but the key was only to be available to Managers and Assistant Managers. The Employment Tribunal found that on 29 September 1999 Mr. May returned to the store at about 1:30pm from a branch managers' meeting. A senior member of the store staff was sick, so he decided to work the afternoon shift, starting at 4:30, but first to get some rest in the premises upstairs. So he went upstairs and returned downstairs at 2:25 in the afternoon before going back upstairs. He left downstairs two almost entirely inexperienced assistants. The Tribunal record Mr. May's acceptance that, when he first went upstairs to rest and again when he went upstairs for the second time, the stock-room door, in breach of procedure, was open. Plainly it would have been visible as open to anybody who had looked.
4. At 3:40 in the afternoon, while the inexperienced staff downstairs were deliberately distracted by an accomplice, two men went into the stock-room, which was unlocked, found the cage keys, which were not in the safe, and took between £6,000 and £8,000 worth of cigarettes and phone cards and left by the back door, which was also not properly secured. Mr. May was dismissed after a disciplinary hearing and the dismissal was upheld on appeal. The Tribunal noted that the employer's written disciplinary procedure expressly spelt out that gross negligence, carelessness and recklessness, which did or could cause serious damage would be treated as gross misconduct.
5. Mr. May's case was that the door was open when he went upstairs because restocking was going on and that the cage key was hidden, but the Tribunal found in terms, that there were serious breaches of security procedures, for which Mr. May was responsible.
6. Six days later, a similar crime was committed at the employer's store at Wootten Bassett. Mr. May made the point that the Assistant Manager, at that store, who was on duty at the time of that theft had been given a final warning and had not been dismissed. But the evidence was that in that, case, the stock-room door had been locked and the criminals had managed to obtain access by somehow obtaining knowledge of the code. It was clear, therefore and the Tribunal found that the two occasions were not, in terms of inattention to necessary procedures on the part of the relevant Manager, comparable. The Tribunal took into account Mr. May's previous record, but they decided, as we have said, that there were serious breaches of security for which Mr. May was responsible and which resulted in serious loss to the employers, that the investigation and disciplinary procedure were reasonable and that the response to the breaches of security which Mr. May had permitted and for which he was responsible were firm but reasonable.
7. On behalf of Mr. May, two grounds of appeal were put forward by his solicitors, who had acted for him before the Tribunal. Firstly they contend that the Tribunal failed to consider the range of reasonable responses in the light of similar circumstances involving other employees. It is clear from the decision that the Tribunal expressly considered the range of reasonable responses and, so far as we can see, only one case of another employee was put before the Tribunal. The Tribunal found as a fact that the circumstances of that case were not identical to but were different from those of Mr. May's case. Therefore a finding which they were plainly entitled to reach. Thus we can see no arguable error of law which arises from the first ground of appeal.
8. Secondly, it is argued that the Tribunal failed properly to consider whether the Birchell test had been satisfied. We need not go into details about the Birchell test at this preliminary stage. The Birchell test requires that the Tribunal consider three limbs. First of all, did the employer believe that the employee had committed the misconduct alleged? Secondly, did they reasonably so believe and thirdly, was there a reasonable investigation? In this case, the employers plainly believed in the misconduct that was alleged and in any event, this is not a case in which the Tribunal relied upon the employer's belief. They found as a fact not only that the employer believed that the misconduct had occurred, but that there were serious breaches of security procedures. It follows from that that the second limb of the Birchell test, namely, that the employer should reasonably believe in the misconduct alleged was plainly satisfied. Thirdly, the Tribunal expressly directed themselves to consideration of the disciplinary procedure and found that the procedure was reasonable and fair. Thus we can see no basis on which it can sensibly be argued that the Birchell test was not satisfied.
9. We have looked at this decision with care, in the absence of Mr. May to see whether there might be some other argument which could or should have been put forward had Mr. May attended. We can find none; and in our judgement this appeal should be dismissed.