White v ASDA Stores Ltd [1993] UKEAT 720_92_0211

EAT
White v ASDA Stores Ltd
[1993] UKEAT 720_92_0211 · 1993-11-02

JUDGE BULL QC :

This is the preliminary ex-parte hearing of an Appeal by Jacqueline Ann White against the decision of the Industrial Tribunal sitting at London North on 14 April and 26 May 1992 by which it dismissed the application in respect of what she claimed to have been, unfair dismissal.The ground upon which she appeals to this Tribunal is that the Chairman of the Industrial Tribunal showed bias in favour of the Respondents at the conclusion of the first day's hearing on 14 April. She asserts in her Affidavit sworn on 14 August 1992 at paragraphs 4 and 5:
"...when part heard on 14 April, 1992 the Chairman of the Tribunal invited my Counsel to consider whether or not I would be continuing with my claim on 26th May, 1992 as it seemed to her that certain decided cases were against me. My Counsel asked the Chairman whether this was her personal view or whether she had discussed the matter with either of her colleagues. The Chairman was then seen by me to turn to her colleagues who rather sheepishly agreed with her."
My Counsel then told the Chairman that I would consider the matter but that my Counsel could not envisage that I would not be returning to the Tribunal on 26th May 1992. The Chairman and her colleagues seems to find this amusing and gave what seemed to be an embarrassed laugh."Enquiry has been made of the Chairman and she has no recollection of such events. The comments of one of the lay members of the Tribunal disclosed that they were personally sympathetic in their attitude towards Miss White.The facts as found by the Tribunal were as follows.The Applicant had been employed as Customer Services Manager at the supermarket between 16 December 1987 and 18 June 1991. That supermarket was subsequently taken over by ASDA Stores Ltd, the Respondent in the Industrial Tribunal. The Tribunal further found that on 11 June 1991 the Applicant authorised her father's and boyfriend's shopping to the value of £204.21 from which she deducted a 10% discount but failed to pay into the till the appropriate staff discount vouchers. In addition this transaction was one involving a switch card and the transaction itself exceeded the floor limit of £100 which limit the Applicant herself had set.She was interviewed in connection with the matter on 13 June 1991 and a disciplinary hearing was held subsequently on 17 and 18 June of that year at which hearing she was represented. She acknowledged that she had not adhered to procedures but explained that she had no dishonest intention at all. There was an appeal from that first disciplinary hearing conducted by the Regional Operations Controller on 31 July 1991 and a final internal appeal on 9 September 1991 to the Group Employee Relations Director. She was again represented. She in fact was found to have been in deliberate and gross breach of the Respondent's procedures governing the handling of transactions. It was found at the final internal appeal that as Customer Services Manager she was responsible for the entire check-out operation and accordingly held a position of considerable responsibility. She should not have committed or permitted any breach of procedure and her conduct, it was held, was a bad example to employees junior to her.Miss White has not appeared this morning but has sent a message by facsimile received on 1 November saying that she feels she can no longer continue with this matter. We have nonetheless considered all that she has had to say in the context of her complaint in that fax note and in the context of her Notice of Appeal.She says by her Notice in the facts that she was sacked for dishonesty. We would only point out that the Industrial Tribunal was at pains to set out at paragraph 4 and we repeat that at no time did the Respondent, ASDA Stores Ltd infer any dishonest intention on her part. The dismissal, they contended, was for gross misconduct in relation to procedures but not in relation to dishonesty.At the Tribunal it is plain to us there was conducted a detailed and thorough hearing followed by a careful analytical examination of the facts as they appeared to the Tribunal and an application of the relevant law in relation to those facts. Finally, the Industrial Tribunal expressed its conclusions with great care.We have considered the allegation of bias. We are satisfied that the Appellant wholly misconstrued any comment which may have been made. Indeed the tenure of the decision in paragraph 11 demonstrates that the Tribunal were upon a personal level sympathetic to Miss White but had to apply the criteria required by law which they did. They said specifically in paragraph 11:
"This Tribunal, indeed, might not have taken the decision to dismiss. However, it is not for the Tribunal to impose its decision upon that of a reasoned on the spot management decision. It was a reasonable response for this employer to dismiss this employee for the offence. Indeed, it was conceded by the representative of the Applicant at the disciplinary and appeal hearings that gross misconduct had occurred. The only dispute was the sanction."
The Tribunal further took commendable care to express its view of the fact that there was no dispute that up to the date of dismissal the Applicant was a conscientious hard-working employee.We can detect no error of law in this Industrial Tribunal. Most certainly we cannot say that in any of the respects which are put forward, particularly that of bias, or indeed any other respect that occurs to us this Industrial Tribunal acted in a way or reached a conclusion which no reasonable Tribunal could have done.For those reasons it seems to us, there having been no appearance before us today, that this appeal falls to be dismissed. We so dismiss it.