Liggat v Superdrug Stores Plc [1995] UKEAT 921_95_1910

EAT
Liggat v Superdrug Stores Plc
[1995] UKEAT 921_95_1910 · 1995-10-19
MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an appeal. The appeal is by Mr D Liggat against the decision of the Industrial Tribunal held at Liverpool on 27 January and 24 April 1995. The Tribunal heard his complaint that he had been unfairly dismissed by his former employers, Superdrug Stores Plc from his position as Store Manager. In the Extended Reasons (running to 15 pages) sent to the parties on 18 July 1995, the Tribunal unanimously decided that they had jurisdiction to hear the complaint of unfair dismissal on its merits and then proceeded to decide that the complaint should be dismissed. Mr Liggat appealed against that decision by a Notice of Appeal dated 25 August. The purpose of today's Preliminary Hearing is to determine whether there is an arguable point of law on the appeal.It appears from recent correspondence between the Employment Appeal Tribunal and a firm of solicitors that Mr Liggat instructed solicitors to act for him on the appeal. They made attempts to obtain Legal Aid for the purposes of the appeal. An application was made by them in the first week of October to have this appeal adjourned. The solicitors were informed that the Preliminary Hearing of the appeal would remain in the list for today. The position today is no-one has turned up to represent Mr Liggat. Mr Liggat has not attended personally to argue his case. We have read the papers. If we thought that there was an arguable point of law, we would direct that the matter proceed to a full hearing. If we were in any doubt on the question, we would be inclined to adjourn the Preliminary Hearing so that, if Legal Aid were granted, we would have the benefit of arguments from Mr Liggat's solicitors or Counsel.Having read the papers and the detailed decision, we have come to the conclusion that there is no prospect of this appeal succeeding, because there is no arguable point of law in it. There is no point in allowing it to go any further, by way of adjournment, or a full hearing.The decision of the Tribunal sets out a long account of the circumstances of Mr Liggat's employment and the events which led up to his dismissal. It is unnecessary to repeat the facts. The position is that Mr Liggat was dismissed by Superdrug Plc in circumstances which the employers said were justified by reason of his conduct. The decision sets out the circumstances of a written warning being sent to Mr Liggat on 16 December 1993. That written warning was not appealed. There followed visits to the store of which Mr Liggat was the Manager. The investigations on those visits led to a disciplinary hearing, which the Tribunal found was conducted in accordance with the provisions of Superdrug's written disciplinary procedures. Following the hearings, a letter was sent informing Mr Liggat that Superdrug had decided to terminate his employment. The letter says in paragraph 3:
"You will recall that you had previously received a final written warning dated the 27th November 1993, in connection with your failure to adhere to Company systems and procedures. Despite this warning, whilst investigating the reasons for your store stock loss, it came to light that there was a problem with cash handling, with respect to poor control of the daily cash report, the Cashiers Balance Sheets, your failure to take action on poor till results, insufficient random till checks and the falsification of Company documentation in respect of the recording of till lifts."
The dismissal decision notified in that letter was appealed. One of the grounds of appeal was that the dismissal letter referred to Mr Liggat's receipt of a final written warning, whereas he had never received such a warning, but only a first written warning. It was indicated that enquiries would be made into that complaint. As a result of those enquiries, Mr Liggat was informed that the letter of dismissal should have referred to a first written warning, not to a final warning. The upshot of the appeal was that the decision to dismiss him was confirmed, and express reference was made in the letter relating to the appeal hearing, to the point raised by Mr Liggat about the written warning referred to in the letter of 27 November. The appeal letter said:"The first item discussed [at the Appeal Hearing] related to your dismissal letter which stated you had previously received a Final Written Warning on the 27 November 1993. You pointed out that this had, in fact, been a First Written Warning and the meeting was adjourned for clarification. On reconvening, I confirmed that you were correct and that this had been an accidental error when the letter was written."...After the refusal of the appeal, the matter of dismissal was taken up by Mr Liggat with the Industrial Tribunal in his Originating Application presented on 1 July 1994. On the basis of the findings summarised, the Tribunal stated that they were satisfied, having regard to Section 57 of the Employment Protection Act 1978 , that the reason for dismissal was because Superdrug's management believed that Mr Liggat, as one of their store managers, had failed to ensure that their cash handling procedures were complied with and that he had permitted documents relating thereto to be falsified in order to conceal this. The Tribunal correctly stated that that was clearly a reason related to conduct and, as such, was a reason set out in the terms of Section 57 as being a potentially fair reason for an employee's dismissal. The Tribunal were satisfied that Superdrug had discharged the burden of establishing a potentially fair reason.There is, in our view, no error of law in reaching that decision. The facts found bring the case within Section 57(1). The Tribunal then directed themselves to Section 57(3), which they set out in full and added, applying the Burchall test, that they were satisfied that at the time when the management of Superdrug took the decision to dismiss Mr Liggat, and at the time when they decided to dismiss his appeal, they genuinely believed that he was guilty of the conduct for which he was dismissed, that they had reasonable grounds for their belief, and that they had formed that belief after conducting a reasonable investigation of the circumstances. That is a correct direction in accordance with the well-known case of Burchall . The Tribunal set out, in the remainder of that crucial paragraph, that they were satisfied that it was reasonable for the employers, in their line of business, to regard Mr Liggat as being in a position of trust, and responsible for ensuring that their cash handling procedures with which he was conversant were complied with. He had been warned in November 1993 under the provisions of the disciplinary procedure, but he failed to ensure that these systems were complied with. The Tribunal asked themselves the question, whether the decision to impose the penalty of dismissal was one which a reasonable employer in their line of business and in the circumstances of this case, could have taken. They said that they were satisfied that the penalty of dismissal was within the range of options open to a reasonable employer, and that, having regard to the equity and substantial merits of the case, and taking into account the size of the undertaking and its administrative resources, the employers had acted reasonably in treating the reasons specified as a sufficient reason for dismissal.Those are the reasons sent to the parties on 18 July. We are unable to see any error of law in a very full decision, setting out in clear chronological order the relevant facts and applying correctly the provisions of Section 57 of the 1978 Act . We have looked at the Notice of Appeal submitted by Mr Liggat's solicitors. That alleges two errors of law. We are unable to accept that either of them is correctly described as an error of law. The first is that the decision was perverse, having regard to its finding of fact that, having given a first written warning, (not a final warning) and having not been notified that the further disciplinary hearing was one at which there was a possibility of dismissal, Mr Liggat was nevertheless dismissed. In our view, there was no perversity in the decision. The matter of the first written warning and the final warning is fully explained in the Extended Reasons. We are unable to see that the grounds set out in the first paragraph of the grounds amounts to an error of law. Still less are we able to identify an error of law of the kind complained of in paragraph 2, main paragraph 6, of the Notice of Appeal. That says there was an error of law in that:"The evidence at the hearing was that the Appeal by the Appellant against the dismissal was conducted by the Respondent in an unfair manner in that the Appeal was conducted by the representative of the Respondent who had instigated the dismissal of the Appellant."...It is alleged that the Tribunal failed to take note of this evidence which rendered the manner of dismissal unfair. There is nothing improper, substantively or procedurally, in a proceeding being conducted by a representative of the party who had instigated the dismissal. In any case we are unable to see that there was a legal error of the kind mentioned in the conduct of the hearings which led to the decision dismissing Mr Liggat. In those circumstances we dismiss the appeal at this stage.