Crown Leisure Ltd v Shaw [1992] UKEAT 618_90_0807

EAT

Crown Leisure Ltd v Shaw

[1992] UKEAT 618_90_0807 · 1992-07-08

MR JUSTICE WOOD (PRESIDENT): By an Originating Application dated 3rd November 1989, Miss Shaw claimed that she had been unfairly dismissed by her employers Crown Leisure Limited. Her application was heard by an Industrial Tribunal sitting at Manchester under the Chairmanship of the learned Regional Chairman on the 14th February, 19th March and the 23rd May 1990.

She succeeded, they found that she had been unfairly dismissed and the Company were ordered to pay her the sum of £2,651 by way of compensation.

The Applicant gave evidence on her own behalf and was represented by a Solicitor. The Company's witnesses included a Mr Jemson, the Managing Director, Miss O'Mahoney who was a Collections Manager, Mr Robinson, by way of an affidavit, who was a Technical Director, he had been taken ill, and Mr Dixon, the Operations Director.

There is before us a judgment from the Industrial Tribunal stretching over some 15 pages. We make no criticism of that, it is a meticulously presented set of Reasons. The facts as found are clearly set out. The reasoning is set out and the result of that reasoning and those findings of fact were that the Tribunal found that the real reason for the dismissal was that Miss Shaw had refused to repay some money which had gone missing in circumstances to which we will refer in a moment. That had not been the submission of the Company, it was therefore a finding against the case being put forward by the Company. Even if the Tribunal were wrong on that, then in accepting the reason put forward by the Company they nevertheless found, first of all, that it was not a reasonable decision to dismiss for that reason. But perhaps, more importantly, that there were procedural failures and therefore the dismissal was unfair on those grounds. They found that there was no contribution although the Company was suggesting that it was 100 per cent and they then awarded a sum of money about which no complaint is made. In view of the fact that anyone considering this matter would have to read the decision with care, we do not propose to set the facts out completely in full. We will only refer to such parts of the decision as we deem it necessary to explain our own reasoning.

We first of all start off with the obvious remark and comment that an appeal to this Appeal Tribunal can only be based on a point of law.

The submission of Mr Cleeve, for the Company, before us is first of all, that the decision was perverse and the reason found by the Tribunal as being the reason for the dismissal was not based on fact but was inferred simply from a submission made by Miss Shaw's Solicitor. Then he defends their criticism of the procedures and he submits that the Tribunal were substituting its own view for the view of the employer in deciding that the reason was not a sufficient reason on the principle of the well known case of Iceland Frozen Foods Ltd v. Jones

[1983] ICR 17

Now let us turn to the story behind this case. It is important that we should stress that in paragraph 10 of the Reasons the Tribunal say this:

"There was a considerable degree of conflict between the evidence given by the applicant and that which was given by the respondents' witnesses, and also between the evidence given by the applicant the contents of the sworn affidavit referred to above. [That was, in fact, Mr Robinson]. Having heard each of the witnesses give their evidence and having observed their demeanour in the witness box and having considered the contents of the sworn affidavit, we preferred, wherever there was conflict, the evidence of the applicant to that of the respondents' witnesses and also the contents of the sworn affidavit."

The Company employ some 120 and there were amongst those some 20 collectors of money from amusement or gaming machines which were rented out to the clients of the Company. The picture is of a company putting gaming machines and amusement machines in public houses, or clubs and then the money is collected from those machines, paid into the company, the company presumably then make their charges, and any profit out of it is then returned to the client. Clearly, the collector's task is one that has an element of risk about it. They clearly deal with substantial sums of money and they go around the Country, indeed it seems to be a very large part of the Country, from Lancashire down to the South Coast, and they collect the money and then bank it locally during their rounds. For the purpose of this collection the collectors, who are all female, are provided with a small motor car and they have a brief case, and most importantly, perhaps they have a large bunch of keys, which are called the Security Keys. They collect the monies, pay them in to the various banks where they may be, and then account for that when they return home.

The Applicant lives in the Wirral area of Merseyside. She was 38 years of age at the time. She started employment in February 1986; she was dismissed on the 9th October 1989; she was a Collector. She had her keys, her car and her brief case. It was her practice to use the facilities of the Post Office for banking her monies.

The Tribunal heard and read the disciplinary procedure of the Company together with the Right of Appeal. There had been one or two incidents in the past when problems had occurred over keys either being stolen or somebody being mugged. There had also an incident in the past where £45 had been missing from a public house machine. The Applicant was alleged to have failed to lock the machine, she denied this, but in the end was content to have the £45 deducted from her pay, although she did this reluctantly and under protest.

The area for collection for Miss Shaw was in Liverpool. It was a roughish area, and she was not minded to bank in that area, but on the whole she preferred to take her monies to the Post Office at the Bamber Bridge area of Preston.

In the disciplinary procedures, of course the loss of the security keys was an example of what might be called gross misconduct, leading to dismissal. But there was also a question of the amount of money which was involved at any one time. It was suggested that £1,000 was the limit, but the Tribunal found that the collection procedures had changed from time to time and that Miss Shaw had never been told that she should not leave more than a £1,000 in a Company vehicle.

The unfortunate affair occurred on Wednesday 4th October 1989. She had with her a sum of money just short of £2,000. She went to the Post Office in Bamber Bridge and found it closed for business. She was also going to purchase a brief case because hers was dilapidated. She had made arrangements with a senior member of staff for this to happen. She therefore took the money and her keys, locked them into the boot of her car, and then went to a store to buy a suitable brief case. She could not find one. She came back, tried to open the luggage compartment and was unable to do so. On returning to the Company premises, she reported this to the Security Officer who examined it. It was sent round to the garage which they used and it was found that the luggage compartment had been forced open and the cash and the keys were missing. This was reported at once to Mr Robinson and Miss O'Mahoney, and later that afternoon Mr Dixon was also informed. The Applicant was suspended for 24 hours, that is the Wednesday. She was interviewed by the Police and she was told to report the following day.

The communication between various members of the staff is set out and the Tribunal make it perfectly clear that the evidence from the Respondent's witnesses throughout had stressed that the dismissal was not because the £2,000 had been missing but because she had lost her security keys and this was the most serious aspect of the incident. The Tribunal did not accept that and they gave their reasons for not accepting that. But to continue with the history of the matter. Miss Shaw did not attend work on the Thursday, she was ill, but she did attend on the Friday and during the course of the Thursday Mr Dixon had spoken to the Managing Director, Mr Jemson and had asked whether facilities could be arranged for the money to be repaid, and for Miss Shaw to borrow it from a finance company. The finance company was of course associated with the employers, but we do know details of quite how that matter would have been arranged.

However, Miss Shaw attended on Friday 6th October, she met Mr Dixon, Miss O'Mahoney and Mr Robinson. The Tribunal make these following findings, and I am reading now from paragraph xix of the decision:

"We were satisfied that she was not informed that this meeting was to be a disciplinary meeting. They also did not tell her at this meeting that they were carrying out an investigation into a disciplinary matter; indeed we found that the applicant was told that she would be required to repay the monies which had been taken from her vehicle on the previous day and that facilities would be made available for her by the Finance Company referred to above to obtain a loan from this company to do so. She was also given details of the amount of instalments she would have to pay the Finance Company is she used these facilities. During the course of this meeting the fact that her Security Keys had been taken from the vehicle was referred to but she was not told that this could lead to her dismissal. Having considered what the respondents' management had said to her she asked Mr Robinson whether or not she would lose her employment if she refused to pay to the respondents the amount of money which had been taken from her vehicle. He told her that he would have to consult senior management about that matter. The applicant then told Mr Robinson, Mr Dixon and Miss O'Mahoney that she wished to consider what had been said about the repayment of the stolen money and whether or not she wished to continue being employed by the respondents in a job where there was a considerable risk of her being robbed of money. She was then informed that she should let management have her answer to these two points by 5.30 pm that same day."

That is the end of the finding of the description of what occurred at that meeting on Friday 6th. She returned home, to the Merseyside area, and later on that same day, through her brother, she instructed her present Solicitors. As a result of that the Solicitor phoned Mr Robinson and made it perfectly clear that he took the view that there was no contractual right to require the Applicant to pay the money, which had been stolen, and she did not intend to do so. Therefore that information was in the hands of the Company by the time that they had required it, namely 5.30 pm that same day.

The Tribunal then go on to make the following finding in xxi:

"We were satisfied that Mr Robinson's conversation with the Solicitor was brought to Mr Dixon's attention and on the following day, ie the Saturday, to Mr Jemson by Miss O'Mahoney. During the course of the week-end Mr Jemson [the Managing Director] took a decision that the applicant was to be dismissed."

So that is the position over the weekend.

On Monday 9th October, when Mr Robinson came to work he was not aware of the decision which had been reached by Mr Jemson to dismiss, and during that morning he had a conversation with the Applicant and told her that the Company did not have the right to compel her to repay the money and that she should come to the Respondent's premises in order to start work, when Miss O'Mahoney would give her the necessary equipment to do so. We imagine the equipment is a fresh set of keys and a brief case. At about that same time that Mr Robinson was speaking on the phone to the Applicant, Mr Jemson was speaking to Mr Dixon and they both agreed that the Applicant should be dismissed. Shortly after that Mr Dixon told Miss O'Mahoney and Mr Robinson of this decision. So that by that Monday morning the decision by a four of them, that there should be a dismissal.

The Applicant arrived and was told that Mr Dixon wished to see her. She was, a little later, called in to a room where she was met by Mr Dixon and Miss O'Mahoney, Mr Robinson was not present. At the outset Mr Dixon told her that the meeting was a disciplinary one and that she could have someone present on her behalf if she wished. Somewhat naturally, the Applicant was confused by this turn of events and she did not say she wanted someone. Mr Dixon then produced a number of hand written notes, asked her if the contents were accurate of what had taken place on the previous Wednesday, with regard to the monies and the security keys. She said that they were. He then said he was dismissing her for losing her security keys; she was shocked when told about this. She was told that she had a right of appeal. She asked Mr Robinson to come into the room. Mr Robinson came in and reported what had happened that morning between himself and Miss Shaw. The Applicant did appeal, to Mr Jemson, her Solicitor, Mr Coward appeared before her, that appeal was dismissed.

Those are the background facts and on that finding of fact the Tribunal found that the real reason for the dismissal was the refusal to repay the money and not the loss of the security keys. In paragraph 12 they set out the reasoning behind that finding and it seems to us that that reasoning cannot be faulted. Mr Cleeve criticises the Tribunal because he says they drew an inference. Of course they drew an inference, the inference they drew from their findings in paragraphs xix, xx and xxi are that on the meeting of Friday 6th October the main topic and the substantive topic was not the disciplinary fact of the security keys being lost, but the issue of the repayment of the money. The Company asked for an answer, the Solicitor gave the answer and over the weekend the decision was made, and on Monday morning confirmed to all four, that they were going to dismiss. So that the decision to dismiss had been reached before any meeting with Miss Shaw on Monday 9th, and the only reason that is set out in the facts so found, is, on the basis that she had refused to repay the money. She was told on the Monday that the reason was the keys but the Tribunal did not accept it. There is no basis for criticism on the findings of fact and the reasoning and the only basis of an appeal to this Court is on a point of law. One cannot say on the findings of fact made that this was a perverse decision in any way and we wholly reject the criticisms levelled by Mr Cleeve.

However, as we indicated earlier the Tribunal then went on to look at the question whether an employer could have dismissed on the basis that the reason was that given by the employer, and they decided that it was not reasonable. It is said that therefore they substituted their decision for the decision of this employer. That of course was in connection with the keys, there might have been some argument about that but it is immaterial in the circumstances because in paragraph 14 of the Industrial Tribunal's decision then went on to look at the procedures and it criticised the procedures in a number of ways. We need not repeat them, they are perfectly valid criticisms of the procedures, and in any event therefore the dismissal was unfair on those grounds.

The last point taken is on contribution. That is essentially a matter of fact. But the contribution would of course be based upon the reason which the Tribunal found was the reason and in those circumstances we can find no grounds for criticising paragraph 15 in which the reasoning of the Industrial Tribunal is set out on the basis that the decision was the refusal to repay the money. We are bound to comment that there is absolutely no ground whatsoever for this appeal and it is dismissed.

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We shall make an Order for Costs here to be taxed or agreed.