Fairbrother v Sayers (Confectioners) Ltd [1992] UKEAT 475_91_0211

EAT
Fairbrother v Sayers (Confectioners) Ltd
[1992] UKEAT 475_91_0211 · 1992-11-02
MR JUSTICE WOOD (PRESIDENT): This case has a somewhat complicated history and it is necessary to follow the chronology.Mrs Fairbrother has appealed against a decision of an Industrial Tribunal and also a rejection of her application for review. She has written to this Court with copious notes and documents. She does not appear because her health does not allow her to do so. She was represented before the Industrial Tribunal by her husband, but he, for some reason, does not appear today. Therefore we do not have the assistance of any argument, however, we have read all the documentation and without the assistance of any argument or submissions it seems to us for the following reasons that these appeals must be dismissed.The Originating Application was dated 17th December 1990; it alleged constructive dismissal by her employers Sayers (Confectioners) Ltd.The original hearing took place on the 13th June 1991 but the decision was not promulgated and sent to the parties until the 18th July 1991. Before she received that Full Reasons, on the 29th June 1991 Mrs Fairbrother applied for a Review. Having received the Full Reasons on the 18th July she wrote further in connection with the application for Review on the 28th July. So that there were two documents which were before the Tribunal when the Review was dealt with. That Review was considered by the full Tribunal on the 26th November 1991 and the Full Reasons were promulgated on the 5th December 1991.The allegations made against the Tribunal include those of bias. An affidavit was sworn by the Applicant on the 21st January 1992 in accordance with the usual procedure. It is to that affidavit that we turn to ascertain the main points of the arguments put forward on the appeal.There is a complaint that at a Hearing for Directions, a preliminary hearing, on the 7th June 1991, the learned Chairman had absolved the Company from complying with certain orders which had been made on the 29th April 1991.There was a suggestion that Mr Coventry, the Chairman, should not hear the Full Hearing because he had heard the Interlocutory proceedings and there was a complaint that Mr Coventry commented during the hearing that the Applicant, who had secretly taken tape recordings of the various disciplinary proceedings, had done so without seeking permission to do so; he described it as a somewhat underhand method.There was also complaint about a member of the Tribunal and it was said that he constantly picked his teeth; kept sighing; looking up at the ceiling; when he was not doing that he was reading a file in another case; and he asked no questions. There was the suggestion also that at one stage the learned Chairman had flung his papers down when told that Mrs Fairbrother was going to appeal to this Tribunal and he commented that there would be two years to sort the matter out.All those complaints, again, in accordance with our usual practice were sent to the learned Chairman for his comment and he also took the step, as is quite often taken, of consulting the lay Members. The learned Chairman meets all the points that are made, he points out quite properly that just because a Chairman hears the Interlocutory matters there is no reason why he should not hear the Full Hearing. This is done all the time and there is no problem about that whatsoever. There was a question of absolving the Company from Orders of Discovery because time was running short. Again that was entirely a matter for his discretion and there was no possible impropriety there.The Members of the Tribunal deal with any criticisms made and one of them comments that the Applicant's Representative showed hostility towards the Tribunal as a whole from early in the proceedings, that was Mrs Fairbrother's husband.So all those matters, it seems to us, including the comments from the Member, Mr Makhaba, who was criticised, destroys any question of a substantial allegation of impropriety or bias in the Tribunal.It therefore behoves us to look at the decision to see whether, quite apart from the allegations made in the letters and the allegations made in the affidavit, there is any error in that wrong principle of law has been applied which merits discussion or further argument before us.The Reasons, which are given in full form, disclose a long history. The Company is one which has a number of retail outlets. The Applicant was employed from the 4th August 1986 until the 15th December 1990. She had been provided with a statement of the main terms of employment and there were various rules existing on such matters as security and usage of the till. The incidents leading up to the final ending of employment start in the week ending Saturday 15th September 1990. The manageress of one branch was on holiday and the Applicant was acting as manageress with a Mrs Rimmer acting in the capacity of first assistant. On the morning of 15th September 1990 Mrs Fairbrother was in touch with Mrs Fullton, who was an area manager, saying that she needed extra staff in the afternoon. Mrs Fullton said "leave it to me" and in fact attended at the shop at 1.40 pm on that day. Neither Mrs Fairbrother nor Mrs Rimmer was there. Two part-time assistants were there and Mrs Fullton observed a cloth bag containing coins in plastic bags on the counter top, that was against the procedure, it should have been in the security box, and another bag under the cooked meat till. Mrs Fullton put the money away, Mrs Fairbrother and Mrs Rimmer returned within 5 or 10 minutes and resumed their duties. Mrs Fullton subsequently left but she did not refer to the money being left on the counter before she left.On the Monday morning thereafter, Mrs Pearson who came back to the shop having been on holiday, reported a cash shortage. Mrs Fullton investigated, reconciliation was possible in the bread and cake till, but not in the cooked meat till. As a result Mrs Fullton convened a disciplinary hearing from Monday 24th September, that was a week later, and that followed the Company's disciplinary procedure. At that hearing although complaint was made to the Tribunal, they indicated that they felt that the Applicant had a proper opportunity of expressing her views. The complaint being made against her was as to procedural matters, not as to dishonesty, stealing. They were examined in detail. She was given a first written warning for non-compliance with the Company rules regarding the handling of cash and in particular not reporting cash discrepancies; leaving cash unattended and taking paperwork home. That was to be alive as a warning for a period of six months.The Tribunal emphasise on page 4 of the decision in paragraph 6(g) as follows:
"It is perhaps proper to record at this point that at no stage was any accusation made that the applicant herself had taken the missing money. It was made clear that the basis of the complaint was breach of procedures. It is also clear that, although Mrs Fairbrother did sign the warning to say that she acknowledged it, she remained disgruntled and disagreed with the imposition of the penalty."
She was told that she could appeal and she did appeal. It was heard on Friday 28th September 1990 by Mrs Towndrow. The matter was examined; clearly Mrs Fairbrother felt that she was being victimised; again it was emphasised that the complaint was non-compliance with the rules, the reference to taking work home was deleted and the decision was that the disciplinary action should be to reduce to a verbal warning, which was to be alive for 3 months. So there was a substantial reduction there from a written warning to a verbal warning and only to remain in existence for 3 months.Following that appeal Mrs Fairbrother was away sick for some 10 weeks; she came back on Monday 10th December 1990. There had been some question about when she was coming back, she had been asked to indicate when she was going to come back. But there was no further firm indication, and she in fact turned up for work on Monday 10th. It was unexpected and in fact the personnel staff were fully occupied and fully provided; she was told to come back later, but to go away.The following morning, that is Tuesday 11th December, Mrs Towndrow and Mrs Fullton saw the Applicant at the shop. There was a discussion then about a written request made earlier by the Applicant to step down from her position as Assistant Shop Manager. Mrs Fairbrother was still of the same mind, namely, she wanted to reduce her position, and accordingly she was offered a move. That was to the Halewood shop, either as a Shop Assistant or First Assistant with effect from the following day, the 12th December. The Applicant indicated that she wanted to think the matter over. But that same afternoon she telephoned Mrs Towndrow to say that she wanted to give her notice in and work in the present shop until the end of the week. That was how her employment came to an end.This was an allegation therefore of constructive dismissal. The Tribunal directed themselves in accordance with the provisions of the well known case of Western Excavating (ECC) Ltd v. Sharp [1978] IRLR 27 and also Woods v. W M Car Services (Peterborough) Ltd [1981] ICR 66 and having looked at the facts they decided that here there was no fundamental breach by the Company of any term of the contract. The basis of the allegation was a breach of Company's rules and the penalty imposed was entirely reasonable. The view that there was that the Company was no in breach of contract. They express those views succinctly in the last part of their Reasons.In view of the strong feeling of Mrs Fairbrother and the way in which the allegations have been launched against this Industrial Tribunal and the somewhat complicated procedure, we have felt it right to set out the history of this matter and to look at the allegations and the actual history of the case in rather greater detail than we would have done on a preliminary hearing. We have read all the documentation which amounts to some 60 or 70 pages, together with further letters recently received and we are quite unable to discern any error of law in this decision, nor are we satisfied that any allegations of misconduct or bias made against this Industrial Tribunal have any valid foundation.It follows therefore that this appeal must be dismissed at this stage and it is.