Marks & Spencer Plc v O'Connell [1996] UKEAT 230_95_0410

EAT
Marks & Spencer Plc v O'Connell
[1996] UKEAT 230_95_0410 · 1996-07-12
For the Appellants MR E TABACHNIK Q.C.

Mr F Kieran (Solicitor)

Marks & Spencer Plc

46-47 Baker Street

London

W1A 1DN

For the Respondent MRS M G O'CONNELL

(Representative)

JUDGE HULL Q.C. :

This is an appeal to us by Marks & Spencer PLC against the decision of the Industrial Tribunal sitting at Bury St Edmunds under the Chairmanship of Mr Barnes. By their decision, which was promulgated on 6th January 1995, the tribunal held that Marks & Spencer had unfairly dismissed Mr O'Connell. Although this is not directly material to the appeal, we were informed that on a later occasion the tribunal held that Mr O'Connell had contributed to his dismissal to the extent of 40%, by reason of his conduct, and they then awarded him more than £9,000 by way of compensation.Mr O'Connell was dismissed because he had smoked while on duty. Marks & Spencer has very strict rules about smoking, principally on the ground of fire hazard. The regulations, so far as they applied to the Colchester branch of Marks & Spencer where Mr O'Connell was employed, are copied at page 49 of the documents bundle.
"SMOKING IS ONLY ALLOWED IN THE STAFF LOUNGE AND THE ROOF GARDEN .
THERE MUST BE NO SMOKING AT ANY TIME IN ANY OTHER AREA OF THE STORE INCLUDING THE YARD AND THE PERIMETER OF THE STORE.SMOKING IS ONLY ALLOWED IN THE DESIGNATED AREAS AT THE TIMES LISTED BELOW.

ONE HOUR BEFORE OPENING TIME UNTIL ONE HALF HOUR BEFORE CLOSING TIME."

[The hours are then set out for each day of the week.]

"STAFF MAY ONLY SMOKE, AS ABOVE, IN THEIR OWN TIME I.E. BEFORE THEY COMMENCE WORK, DURING MEAL BREAKS AND AFTER THEY FINISH WORK.
ALL CIGARETTES AND LIGHTERS/MATCHES SHOULD BE KEPT IN YOUR LOCKER EXCEPT DURING MEAL BREAKS.

FAILURE TO COMPLY WITH THESE REGULATIONS WILL RESULT IN SUMMARY DISMISSAL ."

These regulations were displayed at a number of places on the employer's premises, and Mr O'Connell was perfectly familiar with them.The Industrial Tribunal considered the facts in great detail. Their hearing extended over no less than five days in November and December 1994. They found that on 23rd September 1993 Mr O'Connell, in addition to working on an early shift from 5.30 am, was also asked to work a long evening and night shift, starting at 5.30 pm and not finishing until 5.30 am on the following morning. He agreed to do so. The necessity for this extra shift arose because contractors were to install new escalators in the store. This involved the removal of the entrance doors in the High Street so that the escalators could be manoeuvred into the store. Work had to be carried out in preparation for the scheduled delivery and while the contractors were carrying out the installation someone had to be on duty at the doors to ensure that members of the public did not gain access to the store. It was also necessary to prevent the contractors' men smoking in the store; although it was decided that there would be no objection to them smoking outside the store on the pavement. Mr O'Connell was one of those responsible for seeing that there was no unauthorised entry to the store through the open door spaces, and for preventing smoking in the store.In front of the store, between the pavement and the doors, there was a tiled area which was always regarded as being within the perimeter of the store. Unknown to Mr O'Connell, the management had decided to carry out security surveillance during the installation of the escalators, and one of those who was keeping observation saw Mr O'Connell, who had just emerged from the store, and was standing on the tiling, light a cigarette and smoke it. Mr O'Connell was challenged shortly afterwards, and according to the evidence of the witness he still had the lighted cigarette in his hand, and admitted that he was smoking.An enquiry was held the next day, during which there were three interviews with Mr O'Connell. The tribunal found that at these interviews Mr O'Connell admitted that he had been smoking and that he had deliberately acted in breach of the employer's rules. He was summarily dismissed, and his subsequent appeals were unsuccessful.The Industrial Tribunal's hearing must have been greatly prolonged by the way in which Mr O'Connell chose to conduct his case. With the assistance of his wife, he put forward contentions that the employer's representatives had entered into a conspiracy for the purpose of securing his dismissal, that pursuant to their conspiracy the statements that he had been seen smoking were false, and moreover that other representatives of the employers had falsified what they alleged to be contemporaneous notes of interviews. These allegations of conspiracy, perjury and forgery were rejected by the tribunal. Wherever there was a conflict of evidence, the tribunal preferred the evidence of the employer's witnesses. They refer in detail to this evidence; an important matter, from the point of view of the present appeal, is that they accepted the evidence of Miss Bentley, the Divisional Personnel Controller. Miss Bentley stated that because of the importance that the employers placed on safety and potential hazard there were (subject to matters which were not material) no exceptions to summary dismissal for breach of the smoking rules, because exceptions created uncertainty. The proximity and degree of any fire hazard was not relevant in the case of breach. If an employee knowingly broke the rules about smoking, that employee would be dismissed. In the present case, whether Mr O'Connell was on the marble tiling or the public pavement was irrelevant.At paragraph 4 of their written reasons the tribunal say:
"4. As was pointed out to the applicant and his wife, who represented him, at the beginning of the hearing of this application, the issues which the Tribunal must determine after ascertaining, first, the reason for dismissal and that the dismissal was for one of the statutory reasons, were, secondly, whether at the time of the dismissal there was a genuine belief on the part of the respondent after reasonable investigation that the applicant had been guilty of the conduct alleged and thirdly, whether dismissal on the grounds of that conduct was within the band of reasonable response of a reasonable employer to such a situation.
...6. We are satisfied that the reason for dismissal was that [ Mr O'Connell ] had been smoking whilst on duty and that it related to the conduct of the applicant within the meaning of s.57(2)(b) of the Employment Protection (Consolidation) Act, 1978 ..."The tribunal then read Section 57(3) of the Act and continued:
"8. This requires us to consider the second and third issues referred to in paragraph 4 above. We are satisfied that the investigations carried out were reasonable - indeed, it would not be putting it too high to say that they were painstaking and that every matter raised by the applicant was carefully considered and that witnesses were not only required to make statements but that those statements were checked where it appeared that there were discrepancies. Whilst it is true that copies of the statements taken were not provided to the applicant during the investigation and that he was not given the opportunity of directly questioning the makers of those statements at that time, it must be remembered that the investigation took place against the background that he had admitted that he had been smoking whilst on duty other than in a designated place in contravention of the respondent's rules which he fully accepted were well know to him. The only material matters which he disputed at the time of his dismissal were that he was on company premises, because he alleged that he was on the pavement just off the company premises, and that he had smoking materials on him apart from the cigarette. In the light of his admissions, we are also satisfied that Mr Donohoe, the dismissing officer, had a genuine belief that the applicant had been guilty of the conduct for which he was dismissed.
9. This leads to the third issue, namely whether the employer acted reasonably or unreasonably in treating that conduct as a sufficient reason for the dismissal of the applicant. It is clear from the evidence that numbers of the visiting contractors had been smoking outside the store in the course of the evening in question and that there could be no restriction on the public smoking outside the store or, indeed, on the grey marble area at the back of the public footpath but which nevertheless formed part of the property of the respondent. It is also clear that on this night there would be little opportunity for anyone on duty to have regular breaks and that the applicant had been on duty, with only a short break in the afternoon, for many hours and was, at the time of the incident, anticipating that he would continue on duty for some seven hours longer. The applicant had made it clear that this was an isolated act related to those specific circumstances, which were unusual, and that he did not normally smoke at work at all. Finally, the act of smoking was carried out not within the store in the normal sense but at the point where the respondent's property abutted the public footpath and it is difficult to see how that act could, in those particular circumstances, have constituted a fire hazard. Mr Hill, who was the only person who observed the incident was singularly unconvincing on the fire hazard aspect ... There was no cogent evidence produced before us that the action of the applicant was seen as constituting a fire hazard. Indeed, this is not a matter which is referred to in Mr Donohoe's written report of the incident or the reasons for dismissal where he makes it quite clear that the deliberate act of smoking on duty on the company premises in breach of the respondent's policy is the reason for dismissal....11. Whilst we accept that it was made clear in evidence that summary dismissal inevitably follows a breach in full knowledge of the regulations unless the respondent considers that for some procedural reason as opposed to reasons specific to the nature of the breach, it would be proper to mitigate its consequences, that is not the way in which it is proper for the Tribunal to approach the matter. The fact that an employer's regulations specify dismissal as the consequence of a breach of a specified regulation, is not conclusive; what has to be decided is whether dismissal is a reasonable response to a particular breach of its specified regulation as is well illustrated by the judgements in Ladbroke Racing Ltd -v- Arnott & Others [1983] IRLR 154."The tribunal proceeded to cite passages from the judgments in that case and continued:
"14. It seems to us that the respondent has done precisely what those judgements say must not be done - that is to base its case upon the premise that breach in full knowledge of the regulation is of itself sufficient ground for dismissal because the rule which forms part of the contract of employment says that, irrespective of the particular circumstances of the case. The genuine belief of Mr Donohoe in the existence of that breach after reasonable investigation is the evidence which the respondent has brought before us to justify the reasonableness of its decision to dismiss the applicant. We do not accept that implementation of its regulation in this way, irrespective of a consideration of the particular circumstances relating to this specific case, would be reasonable on the part of any employer. As the learned editor of Harvey's Industrial Relations and Employment Law comments it is only rarely that an employer can properly take the view that no mitigating circumstances can justify a departure from the rule that misconduct should be visited by dismissal. Nor is this comparable to a case where a total ban on smoking within the workplace has been imposed involving a change in the terms and conditions of employment of all staff. It is not a matter of an overall policy in that sense but a policy selectively applied for safety purposes because of the danger of fire hazard.
...16. For these reasons we have come to the conclusion that in this case the dismissal has followed an automatic implementation of the respondent's regulations and that it was not within the band of reasonable response of a reasonable employer to have dismissed the applicant on the evidence which has been brought before us. Accordingly we hold that the dismissal was unfair. We would add, adopting the words of Lord McDonald in Taylor -v- Parson Peebles NEI Brown Peebles Ltd [1981] IRLR 19, that this is not to say that the conduct of the applicant can be condoned but that the application of a rigid sanction of automatic dismissal in the manner promulgated by the respondent is not what a reasonable employer could have done."In our view, reached unanimously after considerable discussion, no error of law is shown by these reasons of the Industrial Tribunal. The tribunal correctly directed themselves that the question whether the employer acted reasonably or unreasonably in treating the behaviour of the employee as a sufficient reason for dismissing him was to be determined in accordance with equity and the substantial merits of the case; and they held that a reasonable employer would have considered matters of mitigation and that it was not within the band of reasonable responses of a reasonable employer to have dismissed Mr O'Connell on the evidence which had been brought before the Industrial Tribunal. On the face of it, the tribunal were not putting themselves in the shoes of the employer and deciding what they would have done in the circumstances, but correctly adopting the objective standard of what a reasonable employer would or would not have done, bearing in mind that there is of course a band of reasonable responses which reasonable employers might evince.Mr Tabachnik, Q.C., who appeared with Mr Freeland for the employers, submitted that the decision in Ladbroke was plainly distinguishable. He also submitted that no degrees of culpability or mitigating circumstances should be recognised where the prohibition, fenced by the penalty of dismissal, exists in the interests of safety and for the protection of employees and the public alike. He pointed out that Mr O'Connell was on this occasion in a position of trust, and committed the very offence that he was charged with preventing others from committing. Mr Tabachnik referred to parts of the evidence, in which among other matters Mr Donohoe had stated that he expressly took into account the mitigating factors; these (see page 83 of the documents bundle) were evidently that Mr O'Connell had a good record over nine years, and that dismissal would cause financial hardship to his family. Supported by these and other references to the evidence, Mr Tabachnik submitted that there was only one conclusion open to the tribunal, namely that dismissal fell within the band of reasonable responses. He referred to Siraj-Eldin -v- Campbell Middleton Burness & Dickson [1989] IRLR 208 .We have considered these submissions with care. The tribunal had the emphatic evidence of Miss Bentley, to which we have referred, that there were no exceptions to the rule of summary dismissal for breach of the rules about smoking. Indeed, the employers made this part of their case; in paragraph 10 the tribunal say:
"10. In his powerful and cogent submissions on this issue, Mr Kieran put it that it was fundamental that management must be allowed to manage and that it was for management to determine which rules should have priority. In the present case, it was the employer's fire regulations which were of paramount importance in the employer's view and their strict observance went directly to issues of the safety of staff and customers. The rules were imposed for sound commercial and sound public safety reasons. The employer had a duty to produce clear regulations and they had done so, promulgating them to their staff and spelling out the consequences of disobedience. In the case of these regulations, staff had no discretion at all and if it were otherwise, the regulations would be unworkable. The fact that the applicant was outside the store was immaterial - he was on duty to enforce security and it was part of his duty to stop other people smoking; the applicant had been guilty of a breach of trust, which was a serious part of the offence and merited severe treatment as an example if for no other reason. The company's regulations were clear, the applicant was well aware of them and deliberately flouted them."
The tribunal had considered this submission, which as they say they found powerful and cogent, but they pointed out that the smoking did not take place within the store but at the point where the perimeter abutted the public footpath, and at a point where the employers could not of course prevent members of the public smoking, nor indeed the contractors' representatives. The tribunal found it difficult to see how that act could have constituted a fire hazard, and on this part of the case alone found the employer's evidence singularly unconvincing. This was not an absolute prohibition; smoking was permitted in two parts of the premises when staff were off-duty, and the tribunal had also received evidence that the manager could authorise further exceptions to the rule in particular circumstances. In those circumstances, it appears to us that the tribunal were doing no more than their duty in deciding that the employer's response was unreasonable in all circumstances, and we cannot say that their decision was perverse. It may very well be that another Industrial Tribunal, or perhaps we ourselves if we had heard the evidence, might have reached a different conclusion; but that is entirely beside the point. Our jurisdiction is confined to points of law, and unless we hold that the Industrial Tribunal's findings of fact were perverse we are unable to interfere with the decision, which is their responsibility and theirs alone. In particular, we are not entitled to tell any Industrial Tribunal what is, or is not, within the band of reasonable responses of an employer, which is peculiarly a matter for the "industrial jury" as the tribunal has often been called.We have therefore all come to the conclusion that this appeal must be dismissed.Before leaving the case, we would mention that we regret that the employers thought it necessary to call for very large parts of the evidence, to comparatively little of which they actually referred in the course of argument. It seems to us that for all purposes of questions of law, the evidence is set out entirely adequately in the very full reasons given by the tribunal. The Chairman of the tribunal has protested to the President of the Employment Appeal Tribunal that many hours have been spent in the preparation of transcripts of Notes of Evidence in relation to matters which appeared to him to be largely irrelevant to the issues raised in the appellant's Notice of Appeal. We think that there is justice in what the Chairman says.