Harris v Walon Ltd [1996] UKEAT 1142_95_1206

EAT
Harris v Walon Ltd
[1996] UKEAT 1142_95_1206 · 1996-06-12

JUDGE HULL Q.C. :

This is an appeal to us by Mr Keith Alan Harris. He was employed by the respondents Walon Ltd at their premises in Ellesmere Port. He was a delivery driver. He had been employed for just over four years. The charge against him was that he had driven improperly a customer's Land Rover vehicle. There was an enquiry by the company. The facts were found and proved and dismissal was ordered. There were certain imperfections in the enquiry, he made an appeal within the organisation, that appeal was heard, again there were certain imperfections apparently on the hearing of the appeal. There was a second internal appeal. Eventually the decision stood.He therefore applied alleging unfair dismissal to the Industrial Tribunal which sat on 15th March and 11th May 1995 at Liverpool under the Chairmanship of Mr Brown with two industrial members. That tribunal appears to us to have conducted a very thorough enquiry into the circumstances, not merely of what was alleged against the applicant of course, but of the way in which the employers had dealt with it and the justice of the result which was arrived at; which is of course their duty. They found a number of matters. Amongst other things they found certain failures on the part of the employers, but they found:
"4.(j) The applicant admitted driving a customer's Land Rover at 3.00am on 5 August 1994 and said he had done so in order to test drive it because a neighbour of his wanted to purchase one."
He said that there was no rule against such things. Indeed, there were no instructions that employees must not drive customer's vehicles, the tribunal found that. They made a finding very favourable to Mr Harris:
"4.(m) Employees were allowed to familiarise themselves with new models in order to be able to size them up to enable them to load them on vehicle transporters."
It was entirely a question for the employers (and on appeal the tribunal) whether it could be fairly said that the right and indeed duty of the employees to size up vehicles and accustom themselves to vehicles, so that they could carry out their duties, covered the behaviour or excused the behaviour in driving this customer's Land Rover at 3 a.m. in the morning for private purposes. That was clearly not the view of the employers, and not the view of the Industrial Tribunal as it turned out.They refer to the history of appeals, and they refer, as they are very well advised to do, to the exact terms of Section 57 of the Act. Unhappily they were obviously referring, as one can see at the top of page 8, to the Act in its unamended form. It was amended in 1993 in a sense favourable to the employer, because there is now no burden on the employer to satisfy the tribunal, there is no burden on either party with regard to the question whether the employer has acted fairly or unfairly, that is a matter which has to be decided now by the tribunal without any burden of proof applying. So that was wrongly taking a point, so to speak, favourable to the employee and rather against the employers. If anything therefore the tribunal were, if they were unfair on that matter, unfair against the employers.The tribunal acknowledged that there were certain breaches by the employers of their own disciplinary procedures. But they say that the appellant was not placed at a disadvantage, and they note that he was represented by his shop stewards who did not complain about the failures of procedure.Then they refer to the first of the internal appeals. They say "the defect in procedure was cured by the appeal". Then having decided that there were no errors in procedure, they say:
"12. There are no complaints about the second appeal which was in the form of a rehearing of the complaint, evidence was given and witnesses were cross-examined. If there were any defects caused at the initial disciplinary hearing or the first appeal, then they were in our unanimous decision cured by the second appeal.
13. We are unanimous that the response of the respondents in dismissing the applicant for driving a customer's Land Rover at 3.00am without permission did fall within that band of reasonable responses available to a reasonable employer. We cannot say that no reasonable employer would have dismissed the applicant for that conduct. Accordingly we are unanimous that the dismissal was fair and the Originating Application is dismissed."Well now Mr Harris seeks to appeal to us. We are of course confined to points of law. The appeal is in our list under our Practice Direction to see whether in our view there are any fairly arguable points of law.The case for the appellant has been argued by Mr Brown, to whom we are very grateful. Mr Brown has prepared a skeleton argument and amended grounds of appeal. The skeleton argument puts the matter admirably shortly, as involving two points.First of all, says Mr Brown on behalf of Mr Harris, there was no rule against this, and that, he says is a very important matter. But of course it is self-evident that there are some types of misbehaviour which are not listed. Not everything can be covered by the employer's rule book. Mr Brown urged us to be a bit sophisticated about this, and he said that certain types of behaviour, though they may be thought blameworthy, nonetheless cannot fairly be punished because they are not the subject of a rule in the rule book. So that is the first point.About that point we would say this, that it is quite clear the Industrial Tribunal did not overlook this matter, they expressly found that what he had done was not expressly forbidden, either by word of mouth or by rule. It is quite idle to suppose that where the appellant is represented by an experienced trade union officer or officers such a point would be overlooked, either by the appellant and his advisers, or by the tribunal. We think that it is self-evident that both the employers and the tribunal were entitled to say that nonetheless the matter was misconduct, justifying dismissal provided that the employers acted fairly. It is for the tribunal of fact, that is to say the Industrial Tribunal to form a view on those matters. We think that there is, with respect, nothing in that point as it was urged by Mr Brown.The second ground concerns the application of BHS v Burchell , a well-known case, which intended to provide guidelines, ordinary rules where misconduct is alleged. First of all the employers have to conduct a reasonable and fair enquiry. Then they have to find reasonable grounds for any suspicions they have and to form a bona fide view, adverse to the employee, and then if they do decide on dismissal or any other penalty, it has to be one within the range of reasonable responses of a reasonable employer. This Industrial Tribunal plainly did have that test in mind and applied it. But that is not good enough for the appellant on this appeal. He says that they were implying it mechanistically. It is not enough, says Mr Brown, to say 2 + 2 = 4. But again, why should we suppose that this tribunal, although they express themselves shortly on this point, were applying it mechanistically? Can we really say "oh, they may very well have overlooked the hardship to an employee of being dismissed, or his previous conduct, his previous good behaviour or the mitigating circumstances." We think that that is going much too far. This was a case which on one view at any rate, was absolutely blatant misbehaviour of a very serious sort from the employer's point of view.The tribunal on the other hand would have well in mind that a different view was put before them. It is to us not credible to suppose that simply because they have not mentioned all the mitigation, and the hardship involved, that they were applying the test mechanistically and without thinking about it. They devoted two days to the matter.We simply cannot accept that because they have failed, in the course of a carefully stated decision, to deal with all the matters which they, in our belief, must have had in mind, that they simply did not have those matters in mind and were behaving in a mechanistic way. We do not think that there is any arguable error of law shown here. None of us thinks that, and therefore it is our duty under our practice direction to say that the appeal should go no further and must be dismissed at this stage, grateful as we are to Mr Brown for his assistance.