Willetts v Quicks Group Plc [1992] UKEAT 305_90_0907

EAT
Willetts v Quicks Group Plc
[1992] UKEAT 305_90_0907 · 1992-07-09
MR JUSTICE WOOD (PRESIDENT): This is an appeal by Mr Willetts who was the Applicant before an Industrial Tribunal alleging that he had been unfairly dismissed by his employers Quicks Group plc. An Industrial Tribunal sitting at Liverpool on the 5th April 1990 under the Chairmanship of Mr Arrowsmith, found against him and that he had not been unfairly dismissed. The dismissal took place on the 1st November 1989.The Respondent had worked for this Company from 1968 until the date of his dismissal. The Company is a large national group of vehicle dealers and repairers. Until the 2nd November 1988, the Applicant had been employed as a supervisor at the paint shop at Bretton where not only was he working himself as a coach painter, mainly on repairs, but he also supervised the work of two other painters. As a result of domestic problems his work became less satisfactory and on that 2nd November 1988 he was demoted from that position as supervisor but continued until his dismissal at the same rate of pay and the same pension entitlement as a painter in the paint shop. His colleague Mr Sheen became the supervisor in his place.There had been a problem in the past but it was not relevant to the consideration of the Tribunal, and we do not propose to go into it. In the July 1989 the Applicant was presented with a clock as his award for 21 year's service, and he had shown great improvement in his workmanship and efficiency since his domestic troubles in 1987 and 1988.The incident which gave rise to his dismissal occurred on Thursday, 26th October 1989. He had clocked off and was walking across the yard when he met his immediate line manager, Mr Osborne, who asked him into his office. Mr Osborne had intended to speak to the Applicant about some alleged smoking in or near the paint shop. When he came into Mr Osborne's office Mr Osborne noticed that the Applicant's coat was bulging, and he said "what's this?" The Applicant immediately took out two tins, one tin of paint and the other tin of thinner, each of a litre, so they must have been huge bulky tins in his pocket. He was asked about this and at once he said he had taken them from the paint shop.The general policy of the Company was that if an employee wished to take the Respondents' stock for personal use he must first ask his supervisor or line manager for permission to do so. Mr Osborne enquired, and was told by the Applicant, that he, the Applicant, had asked Mr Sheen for permission. Mr Osborne pointed out that Mr Sheen, on that particular day, was on holiday, and the Applicant gave no further explanation. The next morning the Applicant went to see Mr Sheen, who was at home on holiday. He told him about the paint, asked him to describe the practice and how there had been an arrangement with a previous manager, Mr Brock, of allowing small amounts of paints and thinners and "Wet & Dry" to be taken providing that the stock figures were not affected. The two managers a Mr Osborne and a Mr Fielding also went to see Mr Sheen that morning to check on whether the Applicant had in fact been given permission to remove the two 1 litre tins and Mr Sheen confirmed to them that such permission had not been given. That was Friday 27th.On Monday 30th October the Applicant returned to work and was seen by Mr Osborne, together with Mr Fielding who was the Depôt Manager. Mr Fielding put the facts to the Applicant, but the Applicant made no answer and gave no further explanation of his actions. He was therefore suspended for three days, which was subsequently reduced to two, whilst the position was considered. In particular Mr Fielding wanted to consider the long service of the Applicant together with the admitted offence, with his Managing Director, Mr Worrall. Mr Fielding felt, that as the facts of the case were so clear, the materials were there and no explanation offered, no further investigation was really necessary.On the Wednesday morning, that is two days later, the 1st November, Mr Fielding saw the Applicant again, with Mr Osborne. No offer was made to the Applicant of any witness or representative to accompany him, nor did Mr Fielding consider it necessary or relevant to invite Mr Sheen to attend the meeting with the Applicant. Prior to that meeting Mr Fielding had discussed the matter with his directors and had been advised that in accordance with the Respondents' usual practice in cases like this, he must - and that was the finding of the Tribunal - he must dismiss the Applicant but that he need not bring the Police into the affair, which was part of the Company's normal procedure in cases like this. Thus, when Mr Fielding saw the Applicant he had already decided to dismiss. He asked the Applicant again if there was any further explanation to give for his action and after that he dismissed him. The Applicant - apparently the Tribunal, thought that he sometimes had difficulty in explaining himself - added nothing fresh to the evidence and Mr Fielding therefore had nothing further to consider. He dismissed him and he put before him a document to which we will refer later.The Company had a form a disciplinary procedure. We understand that alterations are anticipated. We are so told by Miss Holliman and we are glad to think that that is so. This Company is unionised but in the Company Handbook entitled "Discipline" which is at paragraph 14, it is to be noted that there is no provision for representation by a Trade Union Representative or indeed by a friend or someone else in the same shop, the old idea of "a soldier's friend" is not part of the disciplinary procedure. The Industrial Members sitting with me regard this as an important part of the procedural system in any disciplinary matter.The importance of the gross misconduct provisions are emphasised in the terms of the Contract of Employment which is also in this same documentation. Under the examples indicating the type of offence which would be regarded as:

"constituting grounds for instant dismissal"

are, or is

"being in unauthorised possession of the property of another employee of the Company or of a customer."
The Applicant was aware of that document, naturally, because it contained his Contract of Employment. He was told of his right to appeal, he did not appeal. Those then, are the facts of the matters as they appear at the time of the dismissal as set out in the decision of the Tribunal.The Tribunal then reaches its conclusions in three main paragraphs 15, 16 and 17. Paragraph 15 reads as follows:
"On the above facts our findings are that the applicant took the 2 tins of paint from the respondent's stock without permission; that as stated in the respondent's conditions of employment handbook he knew that such permission should be obtained before stock was taken; that when asked for an explanation he failed to give one or in particular to mention the previous practice of removing small items of paint and thinners with permission from the paint shop; that in any case the 2 one litres which he took were in excess of the usual amounts for which permission might be given in the case of used or partly used materials"
and those are their findings of fact before they refer to procedure. In paragraph 16, the Tribunal say:
"Applying therefore the test in British Home Stores v. Burchell (1978) IRLR 379 we conclude that the respondent in this case had a genuine belief in the applicant's guilt, that it was based on such investigation as was necessary (little because of the applicant's admission and Sheen's confirmation that no permission was given) and arrived at after giving the applicant several opportunities to reply to the charge against him or put forward any mitigating circumstances."
Those are their findings and apart from referring to matters of procedure, and it is in respect of matters of procedure that this appeal is really concerned. Nowhere in the findings of those three paragraphs, to which we will refer in greater detail, is there any finding that the dismissal was fair, and the only place that is found, as far as we have been able, with the assistance of those before us, is in the heading of the decision at the top of the Reasons.The Tribunal dealt with procedure in two passages. Half way through paragraph 15 where I stopped reading, they say this:
"although the respondent's procedure in dealing with these facts was not altogether satisfactory in that (i) they failed to offer the applicant an opportunity to have a representative or witness with him at the disciplinary meetings and (ii) that they had already in Mr Fielding's case made up their minds as to the commission of the gross misconduct by the applicant and the penalty of dismissal before they saw him at the final interview on 1 November, these procedural faults cannot detract from the applicant's admitted misconduct or make his dismissal for it any less likely."
Pausing there, there are two criticisms made which are therein set out and the Tribunal then use these words:
"these procedural faults cannot detract from the applicant's admitted misconduct or make his dismissal for it any less likely."
They return to consider procedure in the opening sentence of paragraph 17, where they say this:
"We do not consider that, if the correct disciplinary procedure in every respect had been followed by these parties this would have made any difference to the applicant's dismissal."
The first point for us to consider, and at this stage it is of greatest assistance for someone like myself to be sitting with lay Members with their experience, is whether or not the errors or lacuna in the procedures should be considered as substantial, or clearly, most material. There is the possibility of reading the decision as indicating that these were merely suggestions for the future. We are unable to reach that conclusion and indeed, the two Industrial Members sitting with me, are of the view that each of the points raised are of importance in industrial relations. The first is the fundamental opportunity to be accompanied at a disciplinary proceeding and in many, many, procedures that is specified. But our experience is that in the vast majority of cases it is always offered, even if not specified. The second matter, namely coming to a final hearing with a mind made up, is again, a fundamental point. It was raised in argument and indeed rightly and properly raised, that those who are deputed to make decisions on dismissal may very well wish to take advice from those with greater experience, or those more senior in management, indeed, there may be others up the line of management who ultimately may have to consider an appeal. There can be nothing wrong in that if they are merely seeking advice and guidance, for instance, "Have you ever met this situation before? What are the options open to me? Have you any suggestions as to further enquiries we might make?" That sort of thing, provided that when that discussion is over it is abundantly clear that the person seeking advice is then in a position to listen; to enquire; to see that fairness is ensured and ultimately to make up his or her own mind on what is before them at that final disciplinary meeting. This is not the present situation in this decision, hence our emphasis of the word of the finding that Mr Fielding was told before that last meeting that he must dismiss, and indeed, the secondary finding, that he had already decided to dismiss. Thus, each of those criticisms are in the judgment of the Industrial Members, and I respectfully agree with them, not matters which are in any way peripheral or de minimis, they are substantive. What then is the duty of an Industrial Tribunal which has found those shortcomings in the procedure?The position is made abundantly clear in the well known case in the House of Lords in Polkey v. A E Dayton Services Ltd [1988] ICR 142 , there is no need for us to examine the facts. It was a redundancy case, but the principle involved was that it was not open to an industrial tribunal, if there were failings in procedure, merely to say that the failings would have made no difference to the ultimate decision. The passages which are so often referred to are in the speech of the learned Lord Chancellor, Lord Mackay of Clashfern at p.153 from D to F, and there in particular, he was dealing with questions of consultation or warning in a redundancy case, which that case was. However, the passage from the speech of Lord Bridge of Harwich is perhaps somewhat more pertinent where one has a case of conduct. He dealt, on page 162 at F onwards, with the various matters and in particular where steps were being considered, conveniently classified in most of the authorities as "procedural", but are necessary in circumstances of a case to justify a course of action. He adds at page 163 at A as follows:
"If an employer has failed to take the appropriate procedural steps in any particular case, the one question the industrial tribunal is not permitted to ask in applying the test of reasonableness posed by section 57(3) is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken. On the true construction of section 57(3) this question is simply irrelevant. It is quite a different matter if the tribunal is able to conclude that the employer himself, at the time of dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with. In such a case the test of reasonableness under section 57(3) may be satisfied."
In the present case, it is clear that some appropriate procedural steps had not been taken. It was therefore the duty of this Industrial Tribunal, relying on the guidance in Polkey , and we understand Polkey was cited to them, to decide whether despite the absence of appropriate procedural steps the decision to dismiss was nevertheless fair, and it would only be fair if they took the view, on the guidance of Polkey , that to have carried out those procedural steps would really have been "a futile exercise" or "utterly useless".Whether or not they would have so decided is not clear, because in fact, they did not approach the matter in that way. What they did say in those two passages which we have cited, is to indicate that the adoption of those appropriate procedures would have made no difference, and if we may cite from that opening sentence of paragraph 17:
"We do not consider that, if the correct disciplinary procedure in every respect had been followed by these parties this would have made any difference to the applicant's dismissal."
and we put those phrases beside this "the one question the industrial tribunal is not permitted to ask in applying a test of reasonableness, is the hypothetical question, whether it would have made any difference to the outcome if the appropriate procedural steps had been taken" and those are the words of Lord Bridge of Harwich.It may be that even after a finding of unfairness that the tribunal will then decide that it would have made no difference and, therefore, in dealing with remedy may decide that there is no merit in any compensation. For that purpose the tribunal can consider the evidence given to it, despite the fact that the evidence given to it, was not evidence before the employer at the time of the dismissal.There are a number of passages in this decision which we have not referred to because they are prefaced by the phrase "they told us" or "he told us" and therefore that was the evidence before the Tribunal but was not the evidence available to the employer at the time of dismissal. It may very well be on the findings that appear from that evidence that a tribunal, maybe this Tribunal, would have taken the view that a dismissal was, in the end, inevitable, and that no compensation should be awarded, but that is a different matter. It follows, therefore, that we take the view here that there was an error of law and that therefore Mr Willetts is entitled to have his case reconsidered. Whether, in the end he will be any more successful remains, perhaps, open to doubt but that is a matter for those advising him.However, before leaving this case we wish, and indeed we feel, in the interests of industrial relations that it is important to refer to a document of the 1st November 1989, this document was signed by Mr Willetts at his last disciplinary interview of the 1st November, that same date. Clearly it is a document that had been prepared before that interview and he was asked, indeed, we feel, that he was requested, under a measure of pressure, to sign the document. The document reads:
"I agree that when apprehended by Mr R Osborne, Service Manager of Quicks Trucks Limited, on Thursday 26th October, 1989 I was in possession of paint and thinners, the property of Quicks Trucks Ltd neither of which I purchased or gained permission to remove from the premises.
I therefore accept my dismissal as a result of this theft and understand that no further action will be taken by Quicks Trucks Limited or myself and will also on signing this declaration absolve me from Police Prosecution."What the purpose of obtaining that document was, we are not quite clear. If it was to try to be a resolution of the matter and to prevent proceedings before an industrial tribunal, it was of no effect. If it was intended as an admission of theft, we doubt whether it was necessarily a very sound admission of theft. The phrase "theft" is not used in the disciplinary procedure, it was not used in the Notices of Appearance, and the correspondence in that connection, and indeed, we are told by Mr Benson that that phrase did not come into being until this stage in the enquiry.Because we do not know the precise details and are unable to form any clear view of about the purpose of this document, or exactly what happened, we make no further comment than to say that it seems to us on the face of this document that this is an undesirable procedure in connection with good industrial relations and we hope that it is not a practice which will become utilised in any way, more especially if an employee is not accompanied. There is roon for misunderstandings to occur.It follows, therefore, for the reasons which we have given, that this appeal will be allowed and this matter will be remitted to be reheard. Whether it is reheard by the same Tribunal or by some differently constituted tribunal is a matter for the learned Regional Chairman; we leave it in that way because of the practical administrative arrangements. If he felt it was quicker for the same Tribunal to consider it, then so be it, but it is a matter for him and we give no guidance in the matter.We would not like to leave this case without thanking both Advocates for the admirable way in which they presented their interesting submissions.