Thorn Security Ltd v Agyei [1993] UKEAT 50_92_2710

EAT
Thorn Security Ltd v Agyei
[1993] UKEAT 50_92_2710 · 1993-10-27
HIS HONOUR JUDGE BULL QC This is an appeal by Thorn Security Ltd, the employers, against the Decision of the Industrial Tribunal for London (South) sitting on 15th November 1991 by which it unanimously decided that the Applicant had been unfairly dismissed. The Full Reasons for the decision were sent to the parties on 5th December 1991. Thorn Security Ltd are a security firm employing some 500 guards, mainly in the London area, working in shifts under the supervision of Area Supervisors who visit sites to ensure that the guards are performing their duties.On 19th March 1991, the responsible supervisor, a Mr Bushnell, visited the Respondent who was guarding a building in Central London and found that at about 11.10 p.m. the Respondent was slumped asleep with his head on the reception desk. There was difficulty in gaining admittance until the Respondent awoke and pressed the appropriate entry button. A partly consumed bottle of whisky was found in the sports bag belonging to the Respondent and a further part bottle underneath. The conclusion of the supervisor was that the Respondent had been drinking for he smelt of drink and the log which he kept was less clearly written than usual and extended over three pages giving to the supervisor the impression of confusion. The Respondent was sent home and in interview the following day when asked if he had anything to say he replied that he had been to his daughter's 21st birthday party. He was dismissed.Mr Agyei then applied to the Industrial Tribunal alleging that he had been unfairly dismissed. It appears to have been an exceptionally thorough inquiry by the Industrial Tribunal, no doubt partly because Thorn Security Ltd, as well as Mr Agyei, wished to be fully heard. There was no serious dispute over the background facts nor was there dispute over the reason for dismissal. In paragraph 9 the Tribunal specifically find that the employers' reason for dismissal was that the Applicant was "the worse for drink whilst on duty".Whether the Appellant was or was not unfairly dismissed turns therefore solely upon the Industrial Tribunal's answer to the question posed by S.57(3) of the Employment Protection (Consolidation) Act 1978, as amended, namely: whether in the circumstances including the size and administrative resources of the employer's undertaking the employer acted reasonably or unreasonably in treating it (the employee's conduct of having been the worse for drink whilst on duty) as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case.Mr Kirkbright complains that the decision of the Industrial Tribunal was perverse in that they misapplied S.57(3) to the facts of this case. Their conclusion, he contends, is not a permissible option upon those facts, indeed it is not, he suggests, a decision which any reasonable Tribunal properly directing itself upon the law, could have reached. He suggests they misdirected themselves in what he characterises as their almost emotive view of the hours worked by the employee as set out in paragraph 13 of their Reasons.His starting point, correctly in our view, is that the initial approach in law is conveniently summarised by Mr Justice Browne-Wilkinson in Iceland Frozen Foods Ltd v. Jones [1982] IRLR 439 at 442 :
"...We consider that the authorities establish that in law the correct approach for the Industrial Tribunal to adopt in answering the question posed by S.57(3) of the 1978 Act is as follows.
(1) the starting point should always be the words of S.57(3) themselves;(2) in applying the section an Industrial Tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair;(3) in judging the reasonableness of the employer's conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;(4) in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;(5) the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair."It is quite clear from the words of paragraphs 7 and 10 of their Reasons that the Tribunal did consider the reasonableness of the employer's conduct in the light of what they, the employers believed, namely: that the employee had been drinking because he smelt of drink and that his log was less clear than usual and had been needlessly written on three pages giving an impression of confusion. The employers upon those facts concluded that the employee had been drinking either whilst on duty or sufficiently shortly before going on duty that he was the worse for drink whilst he was on duty.In considering whether in the particular circumstances of this case the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted, we consider that the Industrial Tribunal were entitled to take into account, upon the evidence before them, the standards of fitness for employment as a security guard, which the employers plainly considered to be reasonable. In paragraph 12, the Tribunal were satisfied:
"... it was not at all unusual for the applicant to work as long as 140 hours a week. In the preceding four or five weeks the average was 127 hours and in at least two weeks he had actually worked 140 hours."
Faced with evidence therefore that the employee was present at his place of work for an average of at least 18 hours per day over the preceding four or five weeks and upon two weeks he was working no less than 20 hours out of every 24, the Tribunal were entitled to find as they did find in paragraph 12 that the employers were:
"... prepared to employ a person who on the evidence whether he was sober or not in the light of the hours on duty was not fit to perform properly as a security guard. Such a person undertakes responsible and serious duties."
Against that background the conduct of the employee on the night of 19th March 1991 had to be considered. The employers were satisfied upon reasonable grounds, held the Tribunal, that the employee was found to be slumped asleep with his head upon the reception desk, that he smelt of drink and that his writing was less clear than usual and his log was written needlessly on three pages giving the impression of confusion. In our judgment, the Industrial Tribunal clearly followed the approach set out by Lord Donaldson M.R. in the well-known case of Piggott Bros. & Co Ltd v. Jackson [1991] IRLR 309 at 310 :
"It calls first for an examination of the employee's conduct and an evaluation of that conduct in the light of circumstances as they existed. Having decided where the employee's conduct fell within a spectrum beginning with the wholly reasonable and ending with the wholly unreasonable, the Industrial Tribunal then has to evaluate the employer's reaction to that conduct and ask itself whether, in accordance with equity and the substantial merits of the case, the employer acted reasonably or unreasonably in treating the employee's conduct as a sufficient reason for dismissing him ..."
In the course of such an evaluation of the employee's conduct in the circumstances of this case, it was, in our judgment, wholly appropriate for the Industrial Tribunal to consider the recent history of the hours of work permitted by the employers. There was, in our view, no error of law in the approach of the Industrial Tribunal to the facts.We remind ourselves in this context of what Lord Donaldson M.R. said in the Piggott Bros case at p.312:
"...What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law, the EAT will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear misdirection in law by the Industrial Tribunal. If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as `perverse'."
It has not been suggested that this is a case where we ought to consider the transcript of the Notes of Evidence, and thus we have to consider the findings of fact as set out in the Reasons of the Industrial Tribunal. Despite the great force, skill and attractiveness with which Mr Kirkbright has presented his argument, we are quite unable to identify any finding of fact which is unsupported by the evidence. Equally can detect no self misdirection in law by this Industrial Tribunal, which conducted, it seems to us, a most thorough analysis of the evidence to which it correctly applied the criteria required by the statute.It follows therefore that this appeal must be dismissed and we so dismiss it.