Alfred Smith & Son Ltd v Warner [1996] UKEAT 212_96_2711

EAT
Alfred Smith & Son Ltd v Warner
[1996] UKEAT 212_96_2711 · 1996-11-27

JUDGE PUGSLEY :

In this case we are concerned with an appeal from a decision of the Truro Industrial Tribunal. The tribunal decided the applicant had been unfairly dismissed, but that his award should be reduced by 25% due to the fact that he had contributed to his dismissal.The background evokes a certain degree of sadness. Mr Warner, who is in his early sixties, had been employed for nigh on a generation with the respondent company, that carries on business as furnishing retailers. Mr Warner was the carpet sales manager. The company which had some three executive directors and employed some ten people of whom the applicant was one.Mrs Wilkinson, a director of the respondent company, became aware on 11th September 1995 that a Mr Cotton, a fellow employee, was out of the premises. She got what she thought was an evasive reply from the applicant, and Mr Cotton lied about where he had been. It then emerged that two 8ft lengths of aluminium Matwell edging had been delivered to the home of the applicant in Sennen. The value was somewhere in the order of £12.94.The history can be taken shortly from the facts as found by the tribunal, namely, that there was a formal disciplinary proceeding on 14th September 1995, at which the applicant was accompanied by Mr Meek, a colleague. He was not told why the meeting had been convened or the nature of the allegation to be put to him. He was effectively accused of theft of the strips, and accused of deliberate deception in denying his knowledge of the whereabouts of Mr Cotton two days before, when he had been delivering these items to his home. Notes were taken. At that meeting the applicant stated that the strips were to be used in a fund-raising event in the Royal National Lifeboat Institution ["RNLI"], and he was taking them on approval to a committee meeting that evening. The disciplinary meeting adjourned, the applicant was suspended. The respondents had some conversations with local members of the RNLI and the result of the responses they received, they came to the view that they had the applicant's explanation was a fabrication.On the Friday, the applicant tendered the £12.94 cash, asking for an invoice and receipt to be made out to the RNLI. Mr Wilkinson declined to accept the cash.A further disciplinary meeting was held on 19th. The applicant was accompanied by another of his fellow employees. It was put to the applicant that his account had not been verified by any of the enquiries made by Mr Wilkinson. The applicant explained that Mr Wilkinson had approached the wrong people. That the relevant fund which was concerned with the purchase of the Matwell strips was the "sunshine fund", informally funded, run by an informally constituted committee, and the various officers who the director had spoken would not know anything about it. The directors took the view that this corroborated their decision that the explanation was a fabrication, and on 21st September 1995, having thought about it, they dismissed the applicant summarily without pay.In paragraph 10 the tribunal state as follows:
"10 On the basis of the evidence, both written and oral we find that the applicant was involved in RNLI fund-raising activities which included the operation of an informal fund called the "sunshine fund"; that that fund and the informally constituted committee responsible for it, had organised and was responsible for the construction of the treasure hunt board for which the Matwell strips were acquired; that the applicant had caused the Matwell strips to be delivered to his home for the purposes of that construction; that he had no intention of doing anything other than paying for them and that the reason for him asking Mr Cotton to deliver them was simply that the opportunity arose, when on the 11 September Mr Cotton was not too busy, for that delivery to be made without upsetting other arrangements of the respondent; that he subsequently received authority from the informal committee of the sunshine fund to pay for them; that he tendered the purchase price of £12.94 on 15 September, which tender was rejected by the directors; that, while not overtly lying, he was responsible for misleading the directors as to the purpose of Mr Cotton's journey on 11 September and the fact of his dealing with the Matwell strips."
However that paragraph is read, it is clear that the tribunal was itself taking upon its shoulders the responsibility for making a determination of what actually did happen.Mr Latham, in clear and unequivocal terms, reminds us that the task of a tribunal in a case of unfair dismissal is to ask itself whether the employer has established the reason for the dismissal. If that is established then under what is now section 98(4), and was then section 57(3), the tribunal has to decide whether the decision to dismiss was within the range of response of a reasonable employer having regard to the statutory test. Indeed, it is right to say in terms, that the tribunal directed itself in the exact statutory words of section 57(3) that:
"... the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case."
It has been made clear in a whole plethora of cases that a tribunal is not to ask itself the question "would we have dismissed this employee?" Nor the question "do we believe this employee?" The question the tribunal has to ask is whether on the material before the dismissing officer at the time, that officer did believe that particular employee was guilty of misconduct whether there was a reasonable ground for such belief, after making such enquiry as was appropriate.The well-hallowed case of British Homes Stores v Burchell [1980] ICR 303 came to prominence, and was only cited in the Industrial Case Reports after it had received the seal of approval from Stephenson LJ in Court of Appeal case of Weddel Co v Tipper [1980] IRLR 96 . In the case of Boys and Girls Welfare Society v McDonald [1996] IRLR 129 , it has been pertinently pointed out by His Honour Judge Peter Clark, that of course the Burchell citation of Arnold J has to be read in the context that the burden of proof that at the time rested on the employer has now been altered by statute. So the dictum of Sir John Arnold has to be read in the light of the change of the statutory wording. But that decision Boys and Girls Welfare Society also makes it clear, reasserting a long line of authority, that it is not for the tribunal to substitute its own view of the matter, but rather to ask whether the dismissal fell within the range of reasonable responses.We think it is unfortunate that the tribunal go on to make those findings of fact about what actually happened in the context in which they appear in the decision, because it can give the impression that when considering the issue of unfair dismissal it is substituting its own view and usurping the rôle of that area of decision which properly belongs to the employer.But if one looks at the decision overall, a rather different picture emerges. The picture is that the tribunal start by painting a picture of the enquiry the employer made. The investigation is put at the forefront of the decision for the first nine paragraphs; thereafter from paragraph 11, 12, 12 and 14, the tribunal go on to give themselves certain directions of law. And save for one aspect that is open to the criticism, we do not think that the propositions of law which the tribunal set out in their application can be criticised. In paragraph 11 the tribunal say that:
"... it is for us to decide whether or not the response of the respondent to the various facts and circumstances presented to them at the time was a reasonable response or at least a response that fell within a band of reasonable responses. In seeking to assess that, we took into account not only the fact of the unblemished 25 year employment record of the applicant and the fact that he had made a perfectly reasonable explanation for the removal of the Matwell strips but also that he had tendered payment for them consistent with that explanation and that the value of the goods concerned was only £12.94. ..."
Now it is true that one could say that for part of that sentence the tribunal was giving their own assessment of the position. But the tribunal then move on to properly direct themselves as to the burden under section 57 that the absence of any burden under section 57(3). They remind themselves of the principals laid down in British Homes Stores v Burchell . They then in paragraph 12 go on to say:
"12 We are satisfied that the provisions of section 57(1) and 57(2) of the Act are complied with namely that the reason for the dismissal was conduct, that being a matter that is capable of justifying a dismissal, subject to the provisions of section 57(3)."
They then go on in a crucial paragraph in paragraph 13 to simply say this:
"13 There is no doubt but that the procedure of the respondent in dealing with the allegation was on the face of it comprehensive and reasonable. The applicant together with his witness Mr Withers, indicated, however, that there had been a breakdown in communications between the directors and the staff employed by the respondent and that that background in communication had developed almost to the point of ill will. It was clear to us, therefore, that the applicant did not view the approach of the directors to the matter of being reasonable and, taking into account the particular matters referred to above, we are inclined to share his view that the directors having formed a particular view were not prepared to give credence to his explanation and were not, therefore, even handed in the way in which they undertook the disciplinary procedure which, in all other respects, appeared to be reasonable. We find, therefore, that the respondent acted unreasonably in treating the removal of the Matwell strips, in the face of the applicant's explanation, as a sufficient reason for dismissing the applicant with his particular record; we find that the substantial merits of the case and equity dictates that we should make a finding that the dismissal was, accordingly, unfair."
That paragraph lies at the very heart of the decision. The tribunal, whatever views at times it had stated about its own perception of what had happened, when it came to that issue, were making a finding that, although ostensibly comprehensive and reasonable, the enquiry was flawed in that the directors, having formed a particular view, were not prepared to give credence to the explanation given and were not even handed in the way they undertook the disciplinary procedure. We think that that is a view to which, having heard the evidence, the tribunal were entitled to come. In litigation it is not only that which is said, but the way it is said, that is relevant. It is true that Mr Withers called on this issue had only been an employed some years before. We do not consider that it is right for us to investigate the factual content of the decision making process of the tribunal. This was a unanimous decision of a Chairman and two members, and we are sure that they would not have reached a view as to the attitude of the directors without good cause.We think the proper test is not only: do the tribunal state the proper test, but whether it is clear from the decision that the correct test had been identified and applied. It is possible for the correct test to be formally set out, but to be undermined by the whole body of the decision. In this case we accept that it is unfortunate that the tribunal have not distanced themselves from the remarks they made in paragraph 10, when they come to evaluate the issue of unfair dismissal.Industrial Tribunals were established to provide an efficient, an economic and expeditious way in which employees and employers could have a forum in which issues could be resolved. Tribunals have the benefit of lay members who have extensive industrial experience.We do not criticise the instigation of this appeal. The tribunal could have worded the decision in a different way but it rings through the decision, that they believed that justice had not been done to the applicant according to the criteria set out in section 57(3). It is clear in paragraph 14 the tribunal properly reduced the compensation to which the applicant would otherwise have been entitled in order to reflect that he had contributed to his dismissal by his arousing the suspicion by giving evasive actions as to the whereabouts of Mr Cotton.We therefore in those circumstances dismiss the appeal. We grant legal aid taxation to the respondent.