Morgan v Limocoat Ltd [1993] UKEAT 342_91_2411

EAT
Morgan v Limocoat Ltd
[1993] UKEAT 342_91_2411 · 1993-11-24

JUDGE B HARGROVE QC:

In this case Mr Morgan has decided not to appear before us on the advice of his local Citizens' Advice Bureau and has asked us "to deal with this matter upon the papers". We have, however, had the advantage of hearing from Mr Smith on behalf of the Respondent and, if we may say so, his contribution has been considerable and very helpful.This, on any view of the matter, was always a very sad case and on the 21st May 1991 the Industrial Tribunal held that Mr Morgan had not been unfairly dismissed.The surrounding circumstances are these: that Mr Morgan was employed by the Respondents and he worked in a warehouse; the employers being involved in the warehousing and wholesaling of clothing, footwear and other items connected with camping and leisure activities. One need only recite that collection of items to indicate that they are particularly susceptible to being stolen, easily secreted about a person's clothing on leaving the premises and, not unnaturally, the employers took a very firm line about what happened if somebody was caught stealing. That strict line was indicated by notices prominently displayed saying:

" Warning

Theft or attempted theft - we call in the Police immediately.Penalty for smoking in the warehouse - instant dismissal.

Also, on the exit door, there is a further notice:-

Warning

Think of the consequences before stealing."

Mr Smith has fleshed that out slightly for us this morning by indicating that in fact, on at least one occasion, theft has placed the Company in peril and that is one of the reasons, probably there are others, for taking this line, which might appear to those not involved in Industry, to be rather draconian.What happened in this case is described by the Tribunal in paragraph 8(4) in these terms:
"(4) On the relevant day, 7 November 1990 Mr Mitchell carried out a random check on staff as they were leaving. Mr Morgan was told by Mr Mitchell that he would like to search him. He had been searched on previous occasions and nothing had been found. He was, on this occasion, wearing an outer coat, which was fastened. He was asked to undo it, which he did. Tucked into a trouser pocket Mr Mitchell found a pair of fingerless mittens of a kind sold by the Company. He describes them as being in brand new condition and still fastened together at the top. The applicant [Mr Morgan] had no permission to remove them. Asked why he had them he gave a reply which Mr Mitchell found unconvincing. Mr Mitchell says Mr Morgan stated that it was a cold day, that he was taking the gloves home but would bring them back the next day if it was still cold.
(5) Mr Morgan was taken into an office and Mr Bather was called. Mr Mitchell explained to him what he had found. Mr Bather's evidence, which the Tribunal accepted, is that Mr Morgan said that he had taken the gloves off the shelf because he felt it was cold. He was taking them home and wearing them the next day, (i.e. at work) if it was cold. Mr Morgan's evidence today is that he found the mittens on the floor. That he put them half in and half out of his pocket with the intention of putting them on his table, and of wearing them the next day, but then forgot about them. He was surprised when Mr Mitchell found the mittens because he thought he had left them upstairs. He told Mr Bather that he was going to wear them the next day for work.(6) There is evidence that in conditions of extreme cold staff have, in the past, been allowed to wear items taken from a specific area where reject or returned goods are kept. There is no evidence to the effect that these mittens came from that area and, even if they had, permission would still have been required to remove them from the premises.(7) Mr Morgan was seen, together with Mr Bather, by Mr Nash early the following morning. Mr Nash's evidence is that Mr Morgan stated a similar version of events to that which he had given the previous evening. He said that he had had the gloves in his pocket because it was a cold day and that if it was cold the next day he was going to bring them into work and wear them. No other or alternative explanation was offered. He was reminded that under no circumstances were goods to be taken out of the warehouse without permission. He was asked to wait until the Police came and interviewed him. This they did, and reported that he had given to them the same explanation as before. The applicant was told by Mr Nash that he was dismissed. Mr Nash consulted with the Managing Director who, in view of his length of service took the view that it would not be appropriate to ask the Police to prosecute. Mr Nash does agree that he failed to advise the applicant of any right of appeal. This is, of course, a matter which links up with our previous comments as to the very real need for some form of written disciplinary procedure."In the light of that the Tribunal felt that applying, as we find they did, the correct tests of law, that this was an occasion when the dismissal was not unfair.We have looked at the grounds of appeal which are five in number. At each point it is said that the Tribunal failed, for example, to give due consideration to the wording of Section 57(3). It is quite clear that the Tribunal did precisely that.It is said:
"The Tribunal did not take into account the evidence of Mr Nash, the Managing Director, who under cross-examination admitted that he did not believe the dismissal to be fair and reasonable."
In fact, it is clear that what was said on that occasion was not that there was a view by Mr Nash that the dismissal was not fair and reasonable but that if one looked at it upon the basis being put to him in cross-examination, some might think it to be unfair and unreasonable. The appeal goes on:
"The Tribunal did not give due consideration to the failure of the Company to adhere to its contractual appeal procedure particularly following the Company's admission . . ."
The Company, before the Tribunal, apologised for what had happened but the Tribunal felt this being a small Company and that there was an appeal procedure of a fairly limited type, this was not a matter which rendered the dismissal unfair. There are clear decisions of this Tribunal and of the Court of Appeal indicating that an Industrial Tribunal is entitled to take that approach.The fourth ground is:
"The Tribunal erred in that it did not take into account that Limocoat Limited [the Respondents] failed to demonstrate compliance with the pre-dismissal procedures which a reasonable employer could and should have applied in the circumstances . . ."
That point is entirely without merit. The Tribunal were quite satisfied that bearing in mind the sensitive nature of the goods being dealt with by the employers they were perfectly entitled to take the strong line which they did.Finally, it is said:
"The Tribunal did not give due consideration to the fact that the employer acted unfairly in failing to avail Mr Morgan of a suitable choice of representation prior to his dismissal other than those who accused him of the act of misconduct."
There is nothing in that point either. It appears that what was put to him was - "would he like representation - or would Mr Bather be a satisfactory representative for him?". He had indicated, so we are told, that Mr Bather would be a satisfactory representative for him and in those circumstances he cannot now change his mind and take the view that he would have liked some other representation.Owing to the absence of Mr Morgan I have dealt with this matter in somewhat more detail than normally was the case. But it seems to us that there is no merit in any other the matters which have been raised and accordingly this appeal is dismissed.