Frames Snooker Centre v Boyce [1992] UKEAT 265_90_1805

EAT
Frames Snooker Centre v Boyce
[1992] UKEAT 265_90_1805 · 1992-05-18

JUDGE HAGUE:

This is an appeal brought by employers against the decision of an Industrial Tribunal sitting at London (North) sent to the parties on 2nd April 1990, whereby they held that the applicant, Mr J Boyce, had been unfairly dismissed and awarded him compensation in the sum of £5,128.The employers were Mr Morris and Mr Major, who ran a snooker centre at Walthamstow together in partnership under the name of "Frames Snooker Centre". We were informed that the business, with the use of the name, has subsequently been sold to a third party. Mr Boyce's rights are thus against Mr Morris and Mr Major, and not (directly, at any rate) against the new proprietors of the business.Mr Boyce is the brother-in-law of Mr Morris, being married to Mr Morris' sister. He had been one of the managers of the Snooker Centre from 1985 until his dismissal. There were two other managers, Mr Kane and Miss Jane Morris, Mr Morris' daughter. As such, each of them had keys to the Centre, knew the code number of the combination safe lock, and had an intimate knowledge of the premises.There were burglaries at the Centre in April 1988, June 1989 and September 1989, when all three managers were employed. (There had been two previous burglaries when there had been other managers, but these are not relevant.) The police made investigations, and formed the view that each burglary was an "inside job". They had four suspects, the three managers and an agent of one of them. They were unable to eliminate any of the suspects, and were unable to make any arrest.Mr Morris decided after the third burglary in September 1989 that he had no alternative except to dismiss Mr Boyce and Mr Kane, which he did on 14th September 1989. The reasons why he did not also dismiss his daughter are set out in the Industrial Tribunal's summary of his evidence on that point in paragraph 4 of their Reasons:
"He said he had complete faith in his daughter's honesty and by way of particular proof, she had taken money from fruit machines in the morning and the afternoon which she had placed in the safe - some £800. If she had intended to steal she could easily have taken that money instead of putting it in the safe."
We were informed that " the morning and the afternoon" referred to were immediately before the night in which the September 1989 burglary took place.Mr Boyce made a claim for unfair dismissal. The Industrial Tribunal heard evidence on behalf of the employers from Mr Morris, Mr Major and Miss Morris. They considered the cases of Parr v. Whitbread Plc t/a Threshers Wine Merchants [1990] IRLR 439 and Whitbread Plc t/a Ashe and Nephew v. Thomas [1988] IRLR 43. Of these, the closest and more important is the Parr case, which had then only just been reported (it is now reported sub nom Parr v. Whitbread & Co Plc [1990] ICR 427). The Tribunal found(1) that the employers' belief at the date of dismissal that any one of the three managers could have committed the September 1989 burglary was based on "solid and sensible grounds" (the phrase used by Wood J in the Parr case);(2) that an act had been committed which if committed by an individual would justify dismissal;(3) that the employers had carried out all the investigation available, and were justified in believing that they could not carry out a better investigation than the police;(4) that they had given Mr Boyce an opportunity to offer an explanation;(5) that the employers had acted reasonably in identifying the group of employees who could have committed the act; and(6) that as between the members of the group the employers could not reasonably identify the individual perpetrator.Pausing at that point, it is clear that the employers had satisfied all the criteria identified in the Parr case justifying the dismissal of the three managers. If they had dismissed Miss Morris as well as Mr Boyce and Mr Kane, there would have been no question of Mr Boyce being unfairly dismissed. Mr Boyce had apparently agreed as much, but said that in the circumstances of the case it was unfair to dismiss only two of the three managers. That was the substance of his case before the Industrial Tribunal, which found in his favour on that ground.The question of law which Mr Wearden on behalf of the employers said arose and should be determined was whether if, an employer in a Parr situation eliminates one member of the relevant group of employees on reasonable grounds, that elimination makes the dismissal of the remainder unfair. Mr Hoskins, Counsel for Mr Boyce, submitted that on a proper reading of the Tribunal's decision, this question simply did not arise. That is a matter to which we will return, but we find it convenient first to consider the question posed by Mr Wearden.The starting point is S.57(3) of the Employment Protection (Consolidation) Act 1978, which provides, so far as relevant, that " the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances ... the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case." As Wood J. pointed out in the Parr case, S.57 envisages the dismissal of an individual employee, and its application to cases of a group of employees who are dismissed is not easy. But it is plain that what has to be considered as regards each employee is the conduct of the employer, and the question is whether he has acted reasonably or unreasonably in treating his reasons as sufficient to justify dismissing that employee.We can see nothing in S.57(3) to force the conclusion that the elimination of one member of a group of employees to be dismissed necessarily renders the dismissal of the remainder unfair, nor any reason in principle why that should be the case. Taking the example which was canvassed in argument, suppose the relevant group of employees includes an employee of long standing who has frequently been entrusted in the past with large sums of money and whom the employer therefore has good reason to consider wholly trustworthy and honest. We can see nothing unreasonable in the employer taking the view that in order to get rid of the unidentified offender it is unnecessary to dismiss that employee and that he can be properly omitted from the group to be dismissed. Looking at the same situation from another viewpoint, if he is dismissed along with the remainder of the group, the long-standing employee might well himself have a strong claim for unfair dismissal, on the ground that in view of his long service and character it was unreasonable of the employer to dismiss him. In our view, it would be quite wrong if, in appropriate cases and for proper reasons, an employer could not make an exception in favour of a particular employee.In our judgment, there is no "all or none" principle in the dismissal of a group of employees in a Parr situation. As a general rule, if the circumstances of the members of the group in relation to the relevant offence are similar, it is likely to be unreasonable for the employer to dismiss one or more members of the group and not others, and those dismissed will thus succeed in a claim for unfair dismissal. But if the employer is able to show that he had solid and sensible grounds (which do not have to be related to the relevant offence) for differentiating between members of the group and not dismissing one or more of them, that will not of itself render the dismissal of the remainder unfair.Mr Hoskins submitted that it was implicit in the Tribunal's reasons that they must have considered that Mr Morris did not have solid and substantial reasons for omitting his daughter from the group of employees to be sacked. He pointed to paragraph 4 of the Reasons, set out above, and said the Tribunal must have had Mr Morris' evidence in mind and come to the conclusion that, having regard to all the circumstances, it was unreasonable and unfair of Mr Morris to treat her differently from Mr Boyce and Mr Kane. That conclusion was, said Mr Hoskins, supported by evidence and not perverse, so that this Appeal Tribunal could not interfere with it.We cannot accept that the above conclusion is necessarily implicit in the Tribunal's finding. The Tribunal makes no findings as to Mr Morris' reasons for not dismissing his daughter, and we consider that it is quite possible that they simply thought those reasons irrelevant and that the mere fact that he had not dismissed her was enough to render Mr Boyce's dismissal unfair and unreasonable. If so, for the reasons we have given, their decision involved an error of law. The decision is therefore flawed.Mr Hoskins also reminded us of the seriousness of a case of this kind, and of the most careful investigation and attention which a Tribunal must give to it, as was stressed by Wood J, in the Parr case. He also said that the Tribunal followed the Parr guidelines and should not be interfered with. We are mindful of these points, but as the decision of the Tribunal is flawed from the reasons we have given, we consider it cannot stand without the possibility of injustice to the employers.Our decision is that the appeal is allowed, and that the case should be remitted to the same Tribunal for reconsideration in the light of our judgment.