Thake (t/a Cycle King) v Phillips [1996] UKEAT 723_95_1607

EAT
Thake (t/a Cycle King) v Phillips
[1996] UKEAT 723_95_1607 · 1996-07-16

JUDGE PETER CLARK:

The Respondent employee, Mr Phillips, was employed by the Appellant as manager of its Ipswich branch, which traded under the style Cycle King. That branch was one of a number of cycle shops owned by the proprietor, Mr Thake.Mr Phillips was summarily dismissed by the General Manager, Mr Baker, on 1 December 1994. The background to that dismissal was that on 23 November an employee in the shop, Mr Maynard, reported to management that Mr Phillips had removed items from the shop without paying for them or recording them in the transfer book, and had stolen £10 from the till.Mr Maynard signed a written statement which was passed to Mr Baker. He visited the shop on 1 December, carried out some routine checks and spoke to Mr Maynard. Then, without any prior warning or notification, he interviewed the Respondent in the back of the shop. The Respondent admitted that he had on three occasions taken items out of the shop for differing reasons without entering them into the book.Mr Baker, believing that there was a Company rule that anyone removing items without entering them in the book would be dismissed, terminated the Respondent's employment there and then.He lodged an appeal to Mr Thake on 6 December, enclosing letters from two of the recipients of the items which he had removed from the shop.Mr Thake did not hear the Respondent's appeal. Instead he wrote him a letter dated 8 December which the Bury St Edmunds Industrial Tribunal, hearing the Respondent's complaint of unfair dismissal, found astonishing.Mr Thake's attitude was that if items were removed without being entered in the book, they were stolen. There was no alternative to dismissal in this case.The Tribunal, in Extended Reasons dated 11 May 1995, held the dismissal to be unfair on a number of grounds, namely first, that the Respondent had been given no adequate opportunity to deal with the allegations at the interview with Mr Baker. Mr Baker, they found, took no notice at all of his explanation. Further, Mr Baker took no steps to investigate the matter further to ascertain where the goods had gone or indeed, take any account of whether or not the Respondent was acting honestly or dishonestly in what he did.They found secondly, that dismissal in the circumstances of this case, fell outside the range of reasonable responses open to a reasonable employer. Thirdly, they found that the appeal process was flawed. It was quite clear to the Tribunal that Mr Thake had made up his mind and was not prepared to give his own employee a hearing in accordance with the Appellants' disciplinary procedure which stated that an employee was entitled to a hearing on appeal.However, the Tribunal went on to find that the Respondent ought to have entered the items into the book and in not doing so he had contributed to his dismissal to the extent of 50 per cent.Against that decision the employer appealed. The original grounds of appeal set out in the Notice of Appeal were these:

"1. Chairman failed to allow full evidence to be given

2. The Chairman pressurised witness (Mr Maynard) into giving false and misleading evidence.3. Decision inconsistent with evidence given and may have been different had all the evidence been given at a full hearing."The appeal came before this Tribunal on a preliminary hearing on 27 September 1995. On that occasion this Tribunal allowed the matter to proceed to a full hearing and directed that there should be affidavit evidence from the Appellant giving full particulars of the misconduct alleged against the Industrial Tribunal and also there was an order that the Chairman's notes of evidence be obtained in relation to the evidence of Messrs Baker, Maynard and Phillips.This is the full appeal hearing and we have the advantage of the Chairman's notes and affidavits sworn by both Mr Baker and Mr Maynard as directed at the preliminary hearing.Mr Baker, who again appears on behalf of the Appellant, does not challenge the Tribunal's findings of procedural irregularity. He confines himself to the narrow point that the Tribunal did not allow full evidence to be given by Mr Maynard in connection with the removal of batteries from the shop by the Respondent on 29 November 1994; that allegation having post-dated Mr Maynard's original written statement.In our judgment that submission simply is not borne out by the material before us. First, Mr Maynard's affidavit sworn on 24 October 1995. This relates to the batteries incident. He says that on 29 November he overheard the Respondent taking a telephone call from a woman who he believed was Mrs Phillips because the Respondent referred to her as "darling". Mr Maynard says he overheard a reference to the batteries. A little while later, when he went for a smoke in the yard at the rear of the premises, he saw Mr Phillips selecting a number of packs of batteries from the display near the door and then placing them into his briefcase. He said that Mr Phillips did not pay for the batteries and he believes that he was taking them wrongfully.To what extent was that evidence before the Industrial Tribunal? We turn to the Chairman's notes of evidence and first, the evidence given by Mr Baker. He told the Tribunal that he was informed by Mr Maynard that on the Tuesday evening he, Maynard had seen the Respondent put a selection of batteries in his briefcase, failed to pay for them or record them. Mr Baker went on that he put that allegation with two other allegations contained in Mr Maynard's written statement to the Respondent on 1 December and his evidence was, and it was not disputed by the Respondent, that Mr Phillips admitted the three incidents put to him and also told Mr Baker that the batteries were for personal use.There are further references to the batteries later in the evidence of Mr Baker where he said that the Respondent was seen to take batteries out of the shop and put them in his private briefcase; that the facts were not recorded and that he believed the Respondent had stolen them.Mr Maynard gave evidence before the Tribunal and according to the Chairman's note, told the Tribunal that he saw the Respondent take his briefcase and take the batteries and he said he knew that the Respondent was doing wrong. Then, in the Respondent's own evidence, he said that he mentioned the batteries and another item to Mr Baker.In those circumstances it seems to us that the evidence which is now put before us in the form of Mr Maynard's affidavit really adds nothing to the material that was before the Industrial Tribunal.Mr Baker makes a further complaint and that is that there is no reference to the batteries, and he regards that as the crucial incident of the three matters that he put to the Respondent, in the Industrial Tribunal's reasons. Of course it is not necessary for a Tribunal to refer to each and every piece of evidence which it has heard, but we need only refer to paragraph 5(4) of the Tribunal's Reasons where they deal with the interview on 1 December. They say:
"5.4 The applicant had no idea at all what the interview was about; he was not asked if he would like anyone present at the interview. It was a short, sharp, interview at which the applicant admitted that he had on 3 occasions taken various items out of the shop for differing reasons, without entering them in the book. Mr Baker, we are satisfied, was convinced in his own mind that there was a company rule which did not permit exceptions and that those who did not enter items in the book were to be dismissed."
Before us Mr Baker suggests that the Tribunal failed to draw a distinction between the other two items removed which were removed to further the interests of the business and the batteries which he says were effectively stolen for personal use. But in his letter of dismissal dated 2 December 1994, Mr Baker makes no distinction between the three matters. He said this:
"The reasons for your dismissal are that on three occasions within the last month you took goods from the shop without prior payment or having recorded them in the Goods Outward Book contrary to company goods handling procedures."
That was the reason for dismissal and in our judgment the affidavit evidence from Mr Maynard, bearing in mind the issue was whether the employer had reasonable grounds for believing that the misconduct alleged had taken place, and plainly it did because it was admitted by the Respondent, adds nothing material to the state of the evidence that was before the Tribunal. In all these circumstances we do not accept that the Appellant was prevented from properly presenting its evidence. There was no misconduct by the Industrial Tribunal Chairman as is alleged and in these circumstances this appeal must be dismissed.