Rowe v Union & Western Hotels Ltd [1992] UKEAT 95_90_1601

EAT
Rowe v Union & Western Hotels Ltd
[1992] UKEAT 95_90_1601 · 1992-01-16
MR JUSTICE WOOD (PRESIDENT): Mrs Rowe was an Applicant before an Industrial Tribunal sitting at Truro in November 1989 under the Chairmanship of Mr Walton. She alleged that she had been unfairly dismissed by her employers Union & Western Hotels Ltd.She had been employed there since 1965 as a waitress. In 1984 a Mr Kennedy purchased the shares in the Company and took over the hotel. There were some eight or ten in the permanent staff, and some part time as well. The hotel had approximately thirty bedrooms and had general facilities for functions. Breakfast was served on the first floor in a large room called "The Trafalgar Room". There was a kitchen adjoining but there was also another kitchen.Mrs Rowe was a "smoker". She smoked about fifteen a day and this caused problems after Mr Kennedy arrived at the hotel, because he was concerned about her smoking and the smoking of other staff. It is well known that the Food & Hygiene Regulations of 1970 are not only strict but are strictly enforced by local authorities and any breach of those regulations is a criminal offence with liability also on the employer.No one therefore is suggesting, and it is not suggested in this case, that it was not entirely reasonable and proper to have strict rules about smoking in various parts of the premises.The staff were not paying attention to Mr Kennedy's efforts to control the smoking. And so on the 17th June 1987 a formal notice was posted, making it clear that smoking whilst on duty is "FORBIDDEN" in various areas - kitchens, dining rooms, bars, bedrooms - and that after due warning the penalty would be dismissal.The notice is plain and is set out in the Decision of the Tribunal. However, despite this there was shortly afterwards an incident in which Mrs Rowe was given an oral warning. There was a further incident on the 7th October that year, this was the 3rd, when she was again found smoking and she received a written note dated 17th October 1987 from Mr Kennedy referring to the notice of the 17th June indicating a written warning and that if there was any further smoking in forbidden areas "you will be dismissed". The forbidden areas are also set out again in the written warning.Mrs Rowe complied with the rules until the incident which gave rise to her dismissal. That incident took place on 26th May 1989.Before turning to that incident it is important to explain the background to what was happening at about that time. In April 1989, at the very end, Mr Kennedy went on holiday. A friend of his Mr Booton, who had had some previous experience in the restaurant trade, came to look after the hotel in his absence. Very shortly after arriving, and during Mr Kennedy's absence, Mr Booton uncovered substantial and continuing theft of quite a considerable substance. The Head Chef was dismissed and another chef did not return. Subsequently after Mr Kennedy's return two others were dismissed, it was therefore a very serious matter. Mr Booton changed the locks and anyone wishing to draw supplies had to do so through him. It is not suggested that Mrs Rowe was in any way involved in that thieving, but Mr Booton was making remarks to her indicating that everyone was "on the fiddle".The Tribunal paid close attention to these matters as is indicated in paragraphs 15, 16 and 17 of the Decision. In those paragraphs the Tribunal found that Mr Booton was making remarks from time to time which could be interpreted as indicating at least suspicion, harboured by him, in connection with Mrs Rowe and the Tribunal found that she was upset at what she thought were suggestions of dishonesty.On the 25th May, that is the day before this incident, Mr Kennedy returned. On the 26th Mrs Rowe was on duty in the breakfast area; she was still upset. That morning there had been yet another comment from Mr Booton, in which the Tribunal found that he said to Mrs Rowe:"everybody does a little bit of stealing".That comment had made her even more upset.She served breakfast however, and having finished serving breakfast she was clearing up in the kitchen. She lit a cigarette in the corridor, where she was allowed to smoke, then went into the kitchen with the lighted cigarette. She did this without thinking, and as she was leaning on the sink smoking the cigarette, Mr Kennedy came in. He was extremely angry; so was she, she wanted to speak to him about these accusations of theft. She did not at that stage offer her upset as an excuse for being forgetful, having lit the cigarette. They were both very upset and angry; a shouting match was clearly envisaged; he did not want that and went away, as he said, to collect his thoughts. He in fact concluded that he would dismiss her. He drafted a letter that same day, dated the 26th May, and gave her 12 weeks' notice. So it was not a summary dismissal.Mrs Rowe's case was that she was very upset, that she had lit the cigarette in the corridor and had been forgetful of the rules and regulations in going into the kitchen; she would not have done so but for the accusation which was made. Those are the short facts.The Tribunal considered the evidence, they looked at the reason for the dismissal; they looked at the whole picture; the length of service; all that had happened, her suggestion about her upset. They also examined her allegation that this dismissal was simply a method of reducing staff, which they rejected. Ultimately they drew the conclusion that the decision to dismiss, although a situation in which they had sympathy with Mrs Rowe, nevertheless was one within the band of reasonable responses of this employer in these circumstances. Let us say at once, that although that part of the Decision has been open to perfectly proper but severe attack by Mr Lynch, we feel that there was evidence upon which the Tribunal could properly reach their conclusion that the Decision was within the band of reasonable response on the basis of the Iceland Frozen Food v. Jones [1983] ICR 17 EAT case.The duties of this Industrial Tribunal, like any other under Section 57, is first to decide whether the Applicant has proved dismissal, there is no issue in this case; secondly, to decide what the principle reason was and whether it fell within sub section (2). Here, it is quite clear that there is no question of an insufficient investigation in the Burchell sense. Lastly, it is to consider the provisions of Section 57(3) and two of the issues which are almost always likely to arise under that sub section are the issue of procedure and the issue of penalty. We have dealt with the issue of penalty. That leaves only the question of procedure. The fairness of the way in which the Decision was reached is open to criticism or not is always one for an industrial tribunal to consider.The present law is now usefully summarised on this particular issue in the case of Polkey v. A E Dayton Services Ltd [1988] ICR 142 . That was a case of redundancy but the principles enunciated have been applied to cases of conduct and we would merely refer to three passages in the speeches of their Lordships in the House of Lords. The first speech to which we would refer is that of Lord Mackay of Clashfern, the learned Lord Chancellor, on page 153 E, he is looking at the question of procedure:
"On the other hand, in judging whether what the employer did was reasonable it is right to consider what a reasonable employer would have had in mind at the time he decided to dismiss as the consequence of not consulting or not warning.
If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code. Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair. Whether in any particular case it did so is a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee."The other speech to which we would refer is that of Lord Bridge of Harwich and in particular two passages. The first is at page 162 where he says:
"in the case of misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation"
and later on page 163 just below B he says:
"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."
The desirability of hearing what an employee has to say was also emphasised in a number of earlier cases and indeed from very early days in industrial relations, it has always been thought to be a very important part of the procedure which should be adopted prior to a dismissal. We would refer to Earl v. Slater & Wheeler (Airlyne) Ltd [1972] ICR 508. The facts are not material but at page 512 between B and C the learned Master of the Rolls who was then Sir John Donaldson had this to say in a Reserved Judgment:
"Whilst we do not say that in all circumstances the employee must be given an opportunity of stating his case, the only exception can be the case where there can be no explanation which could cause the employers to refrain from dismissing the employee. This must be a very rare situation."
We are also reminded of two recent decisions. The first case is Lewis v. Coventry Hood and Seating Company Ltd [1990] IRLR 324 and the second Spink v. Express Food Group Ltd [1990] IRLR 320. It is also, we would add, important in this area of industrial relations that an employee should feel that where he is being dismissed he has had every chance to have his say. Although some might say that in some exceptional cases it is unnecessary, it would have to be exceptional and moreover, and this is the next point we would make, an Industrial Tribunal would need to be satisfied that in fact, as indicated in Polkey , the employer had thought about the matter, or the situation was so blatantly obvious, that it was an exceptional case and that it was not necessary in fairness to allow the employee to have his say, or her say.As it has now emerged, it is quite clear in the present case, as it has now emerged, that the point was taken before the Industrial Tribunal, that Mrs Rowe did not have a hearing at all. That was an allegation of unfairness and of a flaw in the procedure. At first there was some doubt about this because it is quite clear to us and indeed it seems there is no issue, that there is no express reference to this in the Decision of the Tribunal. Speaking for the moment, in general terms, there have been a number of appeals in recent months where this issue of procedure and whether a tribunal had addressed its mind to the procedure, have come to the fore. As we have indicated it is clearly the duty of an industrial tribunal to be satisfied that fairness has prevailed in the procedural facets, whether the point is expressly taken or not. It seems to us that it would be helpful if in the decisions from industrial tribunals a paragraph, albeit just a few lines, could be inserted indicating that the tribunal felt that there was nothing to criticise in the procedures adopted. This would obviate the point which has been arising, that in the absence of express mention the tribunal did not address its mind to questions of procedure.As this Tribunal did not expressly deal with the matter, the next argument before us was based upon the well known decision in Retarded Childrens Aid Society Ltd v. Day [1978] ICR 437 and to the passage in the leading Judgment of the learned Master of the Rolls Lord Denning where he cautions against too careful an analysis of a decision from industrial tribunals; he indicates that there could be a reading between the lines and that although a factor was not expressly and explicitly stated in the Reasons it must have been very probable that consideration of it was in the mind of an experienced tribunal. That case contains the well known passage from the Judgment of Lord Russell of Kilowan:
"that it was not desirable to search around for a point of law with a fine tooth comb."
Bearing in mind the principles of that case we have examined the reasoning of this Tribunal which is set out in paragraphs 24-30 and we are grateful to Mr Tozzi for the detailed analysis which he has submitted to us. It is really a question of whether we can be satisfied that the Tribunal looked to see whether Mr Kennedy had given consideration to this aspect, and whether he had thought that there was no point in it at all that it was futile, utterly futile. Many points had been made before us, but it seems to us that that particular issue may not have been in the minds of this Industrial Tribunal. We do not say it was not, but it is not for us to speculate and we do not think it is necessary to go through the submissions in detail. We would feel uncomfortable in reaching any other decision and therefore we feel that there is a flaw in the reasoning of the Judgment in this case.What then are we to do? Both parties ask us first of all, to resolve the issues ourselves. Mr Tozzi on one side, submits that the facts are absolutely clear and that there could be no purpose in seeing Mrs Rowe before deciding to dismiss her. Mr Lynch, on the other hand submits that the facts indicate that there was no interview and there can, practically never, be an excuse for not facing someone with an allegation and asking them what they wish to say. Two vitally different opposing views on the facts. It is a rare case where this Court feels able, without having seen and heard the witnesses, to be confident in the view it takes on the facts. In the light of all the submissions made to us we do not feel in this case that it would be right for us to reach our own conclusion.Mr Tozzi went further and submitted that even if the Decision stood as being unfair then we should award no compensation. The compensation issue is not before us and it would be an exceptional step for us to take. We decide against doing that, indeed we doubt whether there is an appeal to us on that matter in which we could deal with it.The Decision therefore which we reach is that this matter must be remitted. It is only on the issue of procedure under Section 57(3) that the matter is in our judgment uncertain. There is no authority cited to the Tribunal, and that is common ground. Therefore it will be for the Tribunal to consider Polkey, to consider it no doubt, with the able assistance of the two Members of the Bar before us, perhaps in written submissions and then if necessary, it is a matter entirely for them to allow further evidence to be called or witnesses to be recalled. The Tribunal will then re-examine that matter afresh. It will be remitted to the same Tribunal; it will save cost and time; it is a narrow issue and it should not take more than half a day. Directions can be given by the Chairman or the learned Regional Chairman about that matter and we would urge in the light of the time table that it be treated as a matter of urgency. If, ultimately, unfairness is found then compensation can be considered and that again can be considered on the basis of Polkey which is now the guiding light in these matters.It follows, therefore, for those reasons that this Appeal is allowed and the matter is remitted to the same Tribunal for consideration of the procedural issue under Section 57(3). May we express our gratitude to you both for the able way in which you have helped us.