Berry v Travis Perkins Trading Co Ltd [1993] UKEAT 396_91_0202

EAT
Berry v Travis Perkins Trading Co Ltd
[1993] UKEAT 396_91_0202 · 1993-02-02
HIS HONOUR JUDGE HARGROVE QC For 25 years the Appellant served the Respondent company and its predecessor. At the time of his dismissal he was 61 years of age. He was dismissed on 3rd November 1990 from his post as shop supervisor. Mr Hayms, the assistant branch manager, came to suspect the Appellant of stealing from the store room. The Appellant was a trusted employee, one of his duties being to secure the store room. Mr Hayms concealed himself in the store room and on one occasion observed the Appellant removing some item from the store but could not ascertain what the item was. This further alerted him and on 3 November 1990 he became aware that the Appellant had placed 4 valuable brushes by the store room door. In consultation with the branch manager, Mr Lancashire, the brushes were marked with Mr Lancashire's initials. On the following morning Mr Berry took the brushes to his car. He had them with him when he was later challenged by Mr Hayms as well as some polyfilla which he had purchased from his employer legitimately.In reply to the challenge by Mr Hayms he disclosed, at first, only the polyfilla. Questioned further he admitted to having the brushes which, he said, he had forgotten. He had no documentation and apart from the error of memory, he had no explanation. The police were called and when he was asked whether he intended paying for them replied, "I guess not". According to Mr Hayms when the police and Mr Hayms went to the Appellant's home, his explanation to his wife was "I got caught nicking some brushes from work".Mr Hayms reported the matter to Mr Lancashire who decided, without more ado that the Appellant should be summarily dismissed and the notification was sent by letter. It is common ground that the letter did not include any reference to a right of appeal.It was accepted by the Appellant that the employee handbook, which he had received just over 12 months previously, stated that summary dismissal would result from, inter alia , removing materials from the premises without the accompanying documentation as specified in the security rules. The Appellant had plainly broken that rule. The handbook set out disciplinary procedures which were not followed in this instance.The first objection to the finding of the Industrial Tribunal, which found on 13th June 1991 that the dismissal was fair, was that there had been no proper investigation. We see nothing in this point. In the light of the suspected activities the suspension of the Appellant or any similar step was inappropriate. In any event there had been admission of guilt see Royal Society for the Protection of Birds v. Croucher [1984] ICR 604.The main contention is that by failing to follow the Respondents' disciplinary procedure the dismissal was unfair. Mr Lancashire, it is said, acted upon the account given by Mr Hayms. There was no opportunity for Mr Berry to give his side of the event or even to meet Mr Lancashire before the decision to dismiss was made. Mr Lancashire's view was that there could be no explanation because there was no documentation. Even if Mr Berry had told Mr Lancashire that he forgot to make out the documentation, Mr Lancashire told the Tribunal that he would not have believed him. Our attention has been drawn to Budgen & Co v. Thomas [1976] ICR 344 at 348:
"It follows quite clearly from the rest of the decision that the basis of the decision is that the employers either had no proper disciplinary procedure such as is outlined in paragraphs 130-133 of the Code of Practice, or, if they did, that they did not apply or make use of it in this case. The particular ground of the decision is that there is a distinction between investigating and ascertaining the facts, on the one hand, and upon the other, deciding whether it is right or not to dismiss; and that whereas the employers dealt satisfactorily with the first of these questions, they did not even enter upon the second one at all, but just dismissed the employee out of hand. In our judgment that is a valid distinction and upon that question the tribunal came to a right decision."
Both sides referred us to Polkey v. A E Dayton Services Ltd [1988] ICR 142 . The Appellant relied on the passage at p.163:
"If an employer has failed to take the appropriate procedural steps in any 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 steps had been taken. On the true construction of section 57(3) this question is simply irrelevant."
The respondents rely on the passage which follows that set forth above:
"It is quite a different matter if the tribunal is able to conclude that the employer himself, at the time of the 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 S.57(3) may be satisfied."
While we do not find any merit in any of the other grounds upon which the Tribunal's decision has been attacked we are not clear upon what basis the Tribunal decided the failure to utilise the normal procedures was justified. On the one hand it must be remembered that the Appellant did not have an opportunity to put forward his case either on guilt or in relation to mitigation to the person (Mr Lancashire) who took the decision to dismiss and that was in breach of the Company's disciplinary procedure. Mr Berry had 25 years' service with the employer, had been promoted to supervisor. He had been the subject of suspicion for only a few months. On the other hand, it must also be borne in mind that this was a case where the employers had, through Mr Hayms, caught the Appellant red-handed in breach of a well known prohibition and where at least one of his replies was indicative of admitting theft.It has been urged upon us that paragraph 10(vii) of the Reasons clarifies the point:
"... that once the Respondents had, as they genuinely believed, caught Mr Berry red handed, and he had failed to give any satisfactory explanation, they were justified in taking the view that their suspicions were confirmed, that further investigation or explanation was unnecessary, and that they were in a position under the procedural rules to dismiss him for gross misconduct."
With reluctance we feel obliged to remit this matter to the same Industrial Tribunal for a decision upon whether the Tribunal is of the view that the Respondents at the time of the dismissal acted reasonably and took the view that in the exceptional circumstances of this 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 circumstances which were exceptional.