Hanvey v Frederick Wain Ltd [1995] UKEAT 855_94_2109

EAT
Hanvey v Frederick Wain Ltd
[1995] UKEAT 855_94_2109 · 1995-09-21

JUDGE HICKS QC:

Mr Hanvey was an assistant depot manager employed by the Respondents, Frederick Wain Ltd, at their warehouse. There had, over a number of years, been difficulties with stock shortages and the position about the view which the employers took of that matter, to the knowledge of the Appellant, can be summarised as follows.First of all, there was a written set of Company Rules and Disciplinary Procedures in which it is stated that:
"It is not practicable, or necessary, to list all the specific offences which are likely to result in disciplinary action under this procedure. The following are examples of misconduct grouped under four headings of Poor Conduct, Unsatisfactory Conduct, Misconduct and Gross Misconduct. These are not to be taken as comprehensive lists, but as guide lines only."
And under "Examples of Gross Misconduct" appears:
"(v) Unauthorised removal or possession of Company or fellow employees' property (Theft)."
On the face of that, the addition of the word "theft" might clearly be understood as confining that category to dishonest "removal or possession of ... property". But that was not by any means the only relevant document or fact because first of all, as the Tribunal found, as far back as June 1988 there had been a warning memorandum that:
" .... anyone attempting to remove stock from the company without permission would be liable to instant dismissal and prosecution .... "
The Appellant, among others, signed confirmation of having read that memorandum.But then in September 1993 a stock take revealed a significant shortage of stock and the staff were all called together and reminded of the seriousness of that, and in the Tribunal's findings of fact it is clear that Mr Dunn, the Director who did that, emphasised repeatedly that removal of stock "without appropriate paperwork" , as it is put in one instance or " if stock was not accurately recorded in the paperwork ", would be treated as " gross misconduct " resulting in dismissal. And twice, in the findings of the Tribunal, it is made clear that that would be so, whether it was dishonest or neglectful or, as it is put, "either deliberately or by accident" in one place or " whether honestly or deliberately " in another.The incident which gave rise to the Appellant's dismissal, which we need to refer to only briefly, arose because Mr Dunn had occasion to view a security video recording which apparently showed the Appellant involved in removal of goods with a customer from the warehouse, which a check of the records showed were not covered by the appropriate delivery notes.As a result of that and further investigation Mr Dunn saw the Appellant in his office, ran the video in his presence (it would seem that that was indeed done repeatedly) and confronted him with the accusation, in effect, that that showed him involved in the removal of goods which were then not recorded on the appropriate delivery notes.The Tribunal find that, as they put it at one point, the applicant acknowledged to Mr Dunn during that interview that he thought that Mr Dunn had got him "banged to rights" . They put it later on in the words:
"Sitting where you are I think you've got me banged to rights"
. Mr Dunn then in that interview indicated that he "was mindful to dismiss the applicant" , but "wanted the applicant to leave the office to give Mr Dunn an opportunity to think about it further", to which the Appellant responded that "he did not want the matter hanging over his head and he wanted a decision by Mr Dunn there and then" , and in response to that Mr Dunn, as the Tribunal find, "concluded that in the light of the applicant's acknowledgement that he had not recorded the respondent's stock on the delivery note, he could no longer trust the applicant" and he decided to dismiss him and did so.The first and strongest criticism, in the sense that it would have the most complete effect in disposing of the dismissal, that is advanced by Mr Lyons, is that there was no conclusion by Mr Dunn that that did amount to gross misconduct, nor was it (as we understand Mr Lyons to put it) open to him to do so because in paragraph 13 of their findings the Tribunal say:
"13 .... The fact that Mr Dunn was not able to conclude whether the unauthorised action was negligence or dishonesty is not in our opinion significant."
In our view, there is really nothing in that point whatsoever on the history which I have recounted. It is absolutely clear that the employers had justifiably made known and the employees, including the Appellant, were perfectly well aware that unauthorised removal of goods without the proper record in the appropriate documents, was to be regarded as "gross misconduct" justifying instant dismissal whether it was accidental or deliberate and whether it was negligent or dishonest, and we regard that as being therefore a point that is unarguable.The next way in which Mr Lyons puts it is that there was procedural unfairness in the fact that Mr Dunn instantly dismissed the Appellant without giving an opportunity for reflection or further consideration. The answer to that is simply in the findings of fact of the Tribunal. Mr Dunn plainly did give that opportunity and it was refused and that, we equally consider, is an argument that cannot be pursued.There was a third matter that was canvassed but which, as we understand it, Mr Lyons in the end felt that he could not advance as a ground of appeal and we agree, that arises out of the way in which the Tribunal dealt with the question of procedural unfairness in paragraph 15 of their reasons. They say:
"15 .... The respondent we find was entitled to view the suspected unauthorised removal of stock as constituting gross misconduct in accordance with its company's rules and disciplinary procedures. ....."
And we have dealt with that aspect. Then they go on:
"There is in our mind nothing in the procedure relating to dismissal contained in the respondent's bundle page 7 which has in substance been ignored. We are satisfied that the facts were thoroughly investigated by Mr Dunn, a meeting was held as soon as possible and the opportunity for explanation and response by the applicant was afforded to him. Any deficiencies or departures from the set procedure did not in our mind cause any unfairness or injustice to the applicant, or vitiate an otherwise fair investigation and decision to dismiss the applicant."
So far as we can see, and so far as Mr Lyons submits to us, the only departure from the set procedure that is of any possible significance or relevance is that the paragraph headed "Dismissal" in the procedure document requires that:
"A meeting will be arranged as soon as possible after the offence has been identified [and there is no complaint about that] at which will be present, the employee, his/her representative, the supervisor, and his/her superior."
On the employer's side there was only Mr Dunn, and whether he was the supervisor or a further superior officer is not complained of at all by Mr Lyons, but manifestly there was no representative present on behalf of Mr Hanvey, and that is the element, as far we can see, to which the Tribunal must be referring when they say:
" .... Any deficiencies or departures from the set procedure did not .... cause any unfairness or injustice .... ."
We have looked at the two extracts from the judgments of the House of Lords in Polkey which are set out at paragraphs 998 and 1019 of Harvey on Industrial Relations, the second of those two being in fact, not a speech of one of the Members of the House of Lords itself, but the passage from the Judgment of Browne-Wilkinson J. in Sillifant which was adopted and approved by Lord Mackay, and the crucial sentence there is:
"An industrial tribunal is not bound to hold that any procedural failure by the employer renders a dismissal unfair. It is one of the factors to be weighed by the industrial tribunal in deciding whether or not the dismissal was reasonable within section 57(3)."
It is apparent that that is the way in which the Industrial Tribunal approached this point and that they therefore fell into no error of law in that respect.For those reasons we have come to the conclusion that this appeal must be dismissed.