Harrison v Cooper & Anor (t/a Care Drug Store) [1995] UKEAT 397_94_2003

EAT
Harrison v Cooper & Anor (t/a Care Drug Store)
[1995] UKEAT 397_94_2003 · 1995-03-20
Mr & Mrs Cooper trading as Care Drug Store. She was a sales assistant at the store. One day in March 1993 a pair of tights disappeared from the shelves of the store. One of the owners was told about its disappearance by employees, other than Mrs Harrison. We will narrate subsequent events from the Reasons given by the Industrial Tribunal, who heardMrs Harrison's subsequent complaint that she had been unfairly dismissed. Her complaint was made on 31 March 1993; the Employer put in its Notice of Appearance on 26 April 1994; there was a hearing before the Industrial Tribunal at Ashford, Kent, on 14 and 21 January 1994. The majority decision of the Tribunal was that her dismissal was fair.Paragraph 6 of the Reasons contain findings of fact. We recite facts as found from sub paragraph (16).
"(16) At about 4.30 p.m. on Thursday 11 March, Mrs Cooper returned to the shop. Miss Moor told Mrs Cooper about the incident of the tights and the tights packet, and said:
"Rebecca has taken a pair of tights. The packet is in the basket, but it is not written in the book yet."
(17) At that time, Miss Moor then was told by Mrs Cooper to go and get the tights packet. Miss Moor went to the wire basket and found the folded newspaper, but the tights packet was no longer inside the newspaper. Miss Moor then went to the stock room where there is kept a black rubbish sack. Miss Moor then found the tights packet folded in half and pushed down the side of the black rubbish sack.(18) The tights packet was recovered at about 4.45 p.m. on Thursday 11 March. At that time the applicant was still in the shop, but nothing was said to her.(19) Mrs Cooper placed the empty tights packet in her own desk drawer. Mrs Cooper said to Miss Moor:
"We'll wait till Friday to see if she pays. If she doesn't write them in the book or pay for them by Friday evening, I'll have no alternative but to sack her."
(20) Mrs Cooper asked her husband to attend at the shop on the evening of Friday 12 March 1993. During the course of that afternoon, Mrs Cooper removed the shop keys from the applicant's bag.(21) At about 5.00 p.m. on Friday 12 March, the applicant then paid for the goods which she had entered for that week in the staff purchase book.Mrs Cooper said:
"Have you paid for all your shopping?"

The applicant said: "Yes, I have"

Mrs Cooper said:
"You haven't forgotten to pay for anything, have you?"
The applicant said:
"No, I've paid for everything"
Mrs Cooper detected that the applicant was looking a little bit flushed.Mrs Cooper said:
"Why have you not paid for these tights?"
The applicant said:
"Oh, I forgot. I must have thrown the packet away this morning when I cleared out the wire basket"
Mrs Cooper had in fact retrieved the packet the previous evening.Mrs Cooper said:
"I am sorry, I don't believe you. I believe you took these with no intention of paying for them"
The applicant was then dismissed.Other paragraphs of the Reason read:7 We find that the applicant was dismissed on 12 March 1993 because she was believed to have stolen from the respondents.10 The majority of this Tribunal have no doubt at all that the respondents genuinely believed that the applicant had been stealing from them."By way of background there was some evidence before the Industrial Tribunal and before the Employers, that there had been some pilfering by the Appellant prior to the incident, but in the light of submissions made by Mr Foster, we conclude such evidence has nothing to do with the decision of the Tribunal.Mr Foster submitted that the intention to dismiss the Appellant was taken before she was spoken to and thus the dismissal was unfair. His submission is based on the conversation between Mrs Cooper and Miss Moor set out above. We do not accept that submission. We think that the Industrial Tribunal was entitled to look at the comment made as if it said "well, unless there is a satisfactory explanation, we will dismiss". We are satisfied that the Employer did not take a decision to dismiss until after the conversation between the Appellant and the Employer had taken place. On the evidence which it heard, the Tribunal was entitled to hold both that the Employers had made sufficient enquiries before dismissing the Appellant and no decision to dismiss, before she had been given the opportunity to give her explanation.In his skeleton argument, Mr Foster has set out the well known passage from British Home Stores v Burchell [1979] IRLR 379 Arnold J when at page 304 D; Arnold J said:
"... First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case."
Mr Foster also set out a citation from Weddel & Co Ltd v Tepper [1980] IRLR 96 where Stephenson L.J. following the Burchell test, said:
" Employers suspecting an employee of misconduct justifying dismissal cannot justify their dismissal simply by stating an honest belief in his guilt. There must be reasonable grounds, and they must act reasonably in all the circumstances, having regard to equity and the substantial merits of the case. They do not have regard to equity in particular if they do not give him a fair opportunity of explaining before dismissing him. And they do not have regard to equity or the substantial merits of the case if they jump to conclusions which it would have been reasonable to postpone in all the circumstances until they had, per Arnold J in Burchell , "carried out as much investigation into the matter as was reasonable in all the circumstances of the case". That means that they must act reasonably in all the circumstances, and must make reasonable inquiries appropriate to the circumstances. If they form their belief hastily and act hastily upon it, without making the appropriate inquiries or giving the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are not acting reasonably."
We think that the employers in this case did sufficient and more than sufficient to carry out the test proposed by Arnold J in British Home Stores and Stephenson L.J. in Weddel & Co Ltd . We think that Mr Foster, with great respect to him, is trying to make "bricks out of straw" when he suggests they did not. There was ample evidence to justify the majority of the Decision on the facts which they heard, and we see nothing which would enable us to decide that the findings made by the majority, were in any way wrong. In the circumstances we dismiss this appeal.