United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR I KENNEDY (Solicitor) The Kennedy Moffat Partnership Glebe End 23 Cramond Glebe Road Cramond Village Edinburgh EH4 6NT
For the Respondent	MR B MOHAN (Solicitor) Messrs Cartys Solicitors 10A Anderson Street Airdrie ML6 0AA


 


SUMMARY

UNFAIR DISMISSAL: Reasonableness of dismissal

Claimant dismissed for gross misconduct in having taken taxi money without prior authority. Tribunal satisfied that dismissal was outwith the range of reasonable responses in whole circumstances which included that she had put the cost through her employers EPOS system so that it was evident who had taken the cash and what it had been taken for, that she would have clearly been entitled to bus fares (which would have fallen not far short of the taxi costs), that she had no other means of getting to work to act as a relief manager at a place which was not her regular place of employment, that she was a long standing employee and that the employers drew no distinction between employees who took money without leaving any trace of who had done so or why and circumstances such as in the present case. Tribunal's conclusion not disturbed on appeal.


 


THE HONOURABLE LADY SMITH

INTRODUCTION

1. This is an appeal against a judgment of an Employment Tribunal sitting at Glasgow, Chairman Mr I F Atack, finding that the claimant had been unfairly dismissed. The judgment was registered on 3 September 2007.
2. We will continue to refer to parties as claimant and respondents.
3. The claimant was represented by Mr B Mohan, solicitor before the Tribunal and before us. The respondents were represented by Mr I Kennedy, solicitor, before the Tribunal and before us.

BACKGROUND

4. The claimant had been in the employment of the respondents for 24 years. The respondents operate about 2,200 licensed betting offices throughout the UK. In about June 2006, the claimant was, without warning, appointed as a relief manager. Prior to that she had worked as depute manager at the Hallcraig shop. The claimant tried to speak to the District Operating Manager about this change of position but her call was not returned. The claimant was absent through illness for 8 weeks until mid August. Thereafter, she was to work at Petersburn one day per week and Whifflet for three days per week, all as relief manager. Travelling to Petersburn involved the claimant in bus journeys which lasted about 1¾ hours in each direction.
5. The claimant at no time received proper advice as to what her duties as relief manager involved nor was she told by the District Operating Manager what expenses could be recovered or how. She tried to meet with her but despite her request for a meeting, it did not take place.
6. It was normal for the respondents' employees to be able to claim back full bus fares between home and work if they were required to work at somewhere other than their usual workplace. Thus, the claimant was entitled to claim the full bus fares between her home and Petersburn which amounted to £8.60 per day. The claimant was told by the deputy manager in the Whifflet shop how to claim those fares by using a form to do so.
7. The claimant was instructed to go to the Petersburn shop on Monday 25 September 2006, which was a public holiday. She took a taxi, each way, as she had no other means of getting to the shop. She took a taxi again on 26 September. She obtained receipts and put the cost of the taxis through the electronic point of sale system (EPOS) showing what she had taken the money for. She did so after having spoken to her line manager at the other shop (Hallcraig) and asked her if she could claim for taxis, to which that line manager had said it was "worth a try". The total taxi cost involved for the two days was £24.
8. The claimant had seen a manager deal with taxi fares for going to the bank by using the EPOS system in the way that she had done. She thought that there was a difference in the way that bus and taxi fares were claimed.
9. When the manager whom the claimant had been relieving returned to Petersburn, she noticed that the claimant had taken the taxi money and reported it.
10. The claimant was then disciplined. She was "charged" with having taken taxi money without prior authorisation under an allegation of gross misconduct. The respondents took the view that there had been misappropriation of their money and reference was made to the employee handbook which states:

"All employees must be aware that any breach of discipline itemised under this section will result in summary dismissal where the employee will not be entitled to notice. ………..

2. Misappropriation, misapplication or misuse, including IOU's , borrowing and unauthorised personal cheques, of the Company's money or property. This includes using for the employees own purpose or allowing them to be used by any third party, company monies, premises or equipment including the telephone."

11. The view was taken that the claimant either knew or ought to have known the procedure and she had failed to follow it. The respondents' Mr Philbin, who was responsible for the decision to dismiss, gave no consideration to any option other than dismissal and did not accept that his decision to do so was harsh. He did not, he told the Tribunal, accept that the claimant had acted in good faith or that there was any confusion in her mind. The claimant appealed, unsuccessfully.

RELEVANT LAW

12. Parties were in agreement that the claimant was dismissed for a potentially fair reason (misconduct) and that the Tribunal thus required to consider, under and in terms of section 98 (4) of the Employment Rights Act 1996 whether in all the circumstances the respondent acted reasonably or unreasonably in treating that reason as a sufficient reason for dismissing her, in accordance with equity and the substantial merits of the case.
13. Parties also agreed, not surprisingly, that in addressing its task, the Tribunal required to bear in mind that when applying section 98 (4), that there was generally a range of reasonable responses open to an employer when considering whether or not to dismiss:

" ..in many , though not all , cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view , another quite reasonably take another;" (Iceland Frozen Foods Ltd v Jones [1983] ICR 17 per Browne–Wilkinson J ).

THE TRIBUNAL'S JUDGMENT

14. The concluded that the dismissal was unfair. In so doing, it took into account a number of facts and circumstances which had not been taken into account by the respondents. In particular, it referred to the length of the claimant's service, that she had no other means of getting to the Petersburn shop on the bank holiday, that she had inserted into the EPOS system exactly what she had done, that Mr Philbin had drawn no distinction between that situation and one where an employee takes money leaving no trace of their actions, that the claimant would in any event, have been entitled to two days' bus fares (£17.20) and that there was nothing in the staff handbook which linked failure to follow expenses authorisation procedures with gross misconduct.

THE APPEAL

15. Mr Kennedy submitted that the Tribunal had erred in law. The decision was perverse. This was an instance of an employee claiming an inadmissible expense. It was by mere accident that her taking the money had been discovered. It was not enough to put it through the EPOS system where it might never have been traced. She had knowingly done so knowing she should not have done so and hoping it would, "duck under the radar". The findings in fact were incoherent because they ignored the fact that the claimant had made claims for getting a bus in the past so there was scope for her thinking that what she could do on a normal working day was restricted. It was impossible to conclude that the claimant was confused.
16. Much of what Mr Kennedy said came close to suggesting that the claimant had been dishonest, as had, of course, been inherent in Mr Philbin's assertion that she was not in good faith. On being specifically asked about that matter however, he confirmed that the respondents were not suggesting that the claimant had acted dishonestly. They accepted that dishonesty did not feature in her actions. He did, however, press the submission that in the respondents' business, which involved the handling of large amounts of cash, it was vital to have strict rules about the handling of it and they had, accordingly, been entitled to dismiss.
17. Mr Kennedy submitted that the Tribunal had substituted its own view for that of the reasonable employer in labelling the claimant's conduct as they did, as confusion and a matter of failing to get prior authorisation. There was more to it than that. It was not, however, entirely clear what more it was that was being alleged given the references to the claimant's actions being an error of judgment on her part.
18. Mr Kennedy relied on comments in the cases of Royal Mail v Mr W Adam & Mrs D Stephen UKEATS 0056/06 and Jabil Circuit Ltd v Fleming UKEATS 0069/06 although he did accept that the facts could be distinguished.
19. For the claimant, Mr Mohan submitted that no sufficient reason was advanced for setting aside the judgment of the Tribunal. Blameworthy conduct did not open the door to all forms of sanction. What had happened here was that Mr Philbin had tried to squeeze the claimant's conduct into the category of misappropriation but that was not justified, as the Tribunal had themselves concluded. There were many reasons why that was so, as he sought to demonstrate by going through the facts of the case. The Tribunal had, in all the circumstances, been entitled to conclude as it did. Nothing in the Royal Mail or Jabil Circuit cases, where the circumstances were quite different, showed that it was not open to them to do so.

Discussion and Decision

20. We are not persuaded that the Tribunal fell into error. The claimant did not act dishonestly and there was no basis for Mr Philbin to regard her as not having acted in good faith or for Mr Kennedy's submission that she had been hoping that her actions would 'duck under the radar'. She failed to get prior authorisation for taking the taxi money but that was against a background of her having tried to speak to the District Operating Manager about the job which she was newly appointed to do, without success, of it having been suggested to her that claiming for taxis would be worth trying, of the disparity between bus fares to which she was certainly entitled and the taxi fares being small in amount, of her having no means of transport to work other than by taxi on the bank holiday, of her being a long standing employee, and of her, far from trying to cover her traces, having recorded the payment through the EPOS system. In these circumstances, we agree with the Tribunal and with Mr Mohan that this was not a case of misappropriation. We can fully understand why the Tribunal took the view, as it evidently did, that a reasonable employer in Mr Philbin's shoes would have drawn a distinction between the claimant's case and that of an employee who simply takes money without leaving any trace of their having done so, to use for their own purposes. In all the circumstances, we can fully understand from the Tribunal's findings in fact and reasons why they reached the decision that they did and we are entirely satisfied that it was one which was open to them on the evidence.
21. This appeal was presented as a perversity appeal but the test does not begin to be met. A perverse decision is one which no reasonable tribunal could have come to. Such instances occur where the tribunal finds facts which are contrary to the uncontradicted evidence, or finds facts for which there is no evidence at all. There are isolated cases in which perverse decisions are made and they will be entertained on an appeal as raising questions of law, but perversity means that the decision is contrary to the evidence, not that the tribunal has preferred the evidence of one party to another or drawn conclusions which were open to it on that evidence but with which one party does not agree. It really has to be shown that there is an overwhelming case for setting aside the decision of the Employment Tribunal as unsupported by any evidence or as completely contrary to the uncontradicted evidence and nothing put forward on behalf of the respondents in this appeal supports such a case. On the contrary, we would have been surprised if, on these facts, the Tribunal had found itself able to conclude that the dismissal was fair.

Disposal

22. In the circumstances, we will pronounce an order dismissing the appeal.