Hays Network Distribution v Window [1996] UKEAT 967_95_3004

EAT
Hays Network Distribution v Window
[1996] UKEAT 967_95_3004 · 1996-04-30

JUDGE HARGROVE Q.C. :

The first matter which we must deal with is that there has been before us this morning a statement from a Mr Hampton. That statement covers a large area and, to put it quite shortly, indicates the very unhappy personnel relations which existed between management and junior staff at the South Ockendon branch of the appellant's undertaking. We have taken no notice of that document at all in reaching the conclusions that we have reached. We do not do so because it is quite clear that this document which is dated 9th September 1994 was not before the Industrial Tribunal. The reason why it was not before the tribunal was that Mr Window was asked not to put it there because it might jeopardise Mr Hampton's relationship with the appellants. In those circumstances applying the usual Ladd v Marshall rule, where evidence before a inferior court could have been placed there before them on that occasion and was not placed before them, it cannot be adduced in evidence at a appeal hearing.In this case, Mr Window had been employed by the appellants as a shift controller. The company handbook stated that an employee would be liable to summary dismissal if he committed any act of gross misconduct. Examples of gross misconduct were given, and number four reads as follows:
"Deliberate falsification of any record including incorrect clocking on/off and the clocking of another employee's clock card for whatever reasons."
The respondent says that he had no idea that he was, at the time of this offence, on a final warning. He was then faced before us with some documents, one of which is a letter which states:
"Confirmation of meeting held on 2nd December 1993, final written warning to be placed on Mr Window's file. Mr Window accepted that the verbal statement he made to Mr Tonybee and Mr Thompson of HM Customs and Excise was not the truth, which caused a major embarrassment to Hays Interbond with reference to Whitbread Corona Extra Beer being located in the bonded warehouse. He must also ensure that this never happens again."
There is a manuscript note on that which says:
"This copy was handed to Mr Window personally by me, but he refused to accept it."
That is signed by Mr Calver.First of all Mr Window has told us today, there never was such a meeting. He never saw this letter, it was never offered to him, he never had the bundle documents which appears to have been placed before the Industrial Tribunal and he never saw that. The Chairman's Notes say (these are the Chairman's Notes of what the applicant said):
"The final warning was about a matter where I lied to the Customs about the destruction of some beer. I refused to sign a letter saying that I had lied."
In those circumstances, it would appear that at the relevant time the respondent was on a final warning for a breach of discipline. That final warning in accordance with that letter must have been in December 1993.The only other matter to which I need refer, is that on 5th October 1993 there is a report which appears to be signed by Mr Window in relation to a Mr Glenn Newton, this appears at our 28. It reads as follows:
"On Monday, 4th October whilst checking clock cards overtime for the week-ending 2nd October, I noticed a discrepancy in Mr Glenn Newton's card on Monday, 27th September. He had signed himself out at 6.30 when he actually left the site at 5.30 thus committing a fraudulent act. In addition to this, on Thursday, 30th September he left the site without clocking out and the Health & Safety Regulations of which he is fully aware, I regard this as a very serious offence."
That is signed by Mr Window.The situation appears to be that upon 1st March 1993, the respondent admits that he clocked Mr McKenzie's card. He says that Mr McKenzie was very ill at the time with diarrhoea and vomiting. It appears that he should have marked the card showing that Mr McKenzie had gone home ill if that were the case, and that would have then been looked at by management to decide whether Mr McKenzie should be paid in respect of the work he had done and indeed in respect of a period off work due to sickness. It was discovered that Mr Window had in fact clocked out Mr McKenzie at the wrong time. He was then summarily dismissed.I pause here to deal with one other matter that had been raised which comes in incidentally. One must bear in mind that at stage the dismissal was upon the basis of what the employer then knew, he knew that there had been a false clocking out. He knew that there was a prohibition against that on the basis of gross misconduct in the disciplinary procedures as set out in the handbook. He knew that Mr Window was a manager, in other words in a position of some trust and control over staff.The tribunal refused to allow evidence to be led to deal with the question of whether or not it was a genuine illness. Bearing in mind what was the relevant issue they had to try, we can see no error in the tribunal taking the view that anything that was later discovered was not a matter which had influenced the dismissal. The way in which the tribunal dealt with this matter and which is criticised by the appellants here is this. In paragraphs 2 and 3 the tribunal says this:
"2. The matter really therefore, resolved itself into the question of whether it was possible to say that the dismissal of Mr Window for this offence, the facts of which were admitted, was within the band of reasonable responses open to the reasonable employer. Mr Window had in the past, received a final written warning, which appears to have been because of some incorrect information given to the Customs and Excise. The Respondents regarded this as serious because they operated a bonded warehouse. He had also apparently, been warned by Mr Williams at a later date, about the shift starting late and being in the canteen too long. It is to be noted that neither of these matters were in any way connected with clocking-on offences. It is also to be noted that clocking-on and clocking-off offences are described by the Respondents in their disciplinary procedures as gross misconduct.
3. Why we find that this dismissal is not within the band of reasonable responses, open to the reasonable employer, is the nature of the offence. We quite appreciate that we must not substitute our own view, for the view of the reasonable employer but, in our view, the Tribunal does have to take into account, even where the offence is described as gross misconduct in the employer's disciplinary procedure what exactly has happened. There is an obligation on all employers to measure the penalty inflicted against the nature of the offence. Mr Williams did not impress us as a witness, and we felt that he was far too inflexible in his approach and simply adopted the reaction that since clocking-on offences were gross misconduct therefore, the Applicant ought to be dismissed. What he should have done, was to consider carefully exactly what had happened. What had happened was that Mr McKenzie had booked off sick. There is no reason to doubt that this sickness was genuine, [ We pause there, as all evidence had been ruled out in relation to the genuineness of the sickness, it is difficult to see upon what basis that is decided ] in spite of certain remarks made by the Respondents during the course of the hearing about Mr McKenzie having managed to drive home, and that Mr Window had, on one isolated occasion, clocked Mr McKenzie with two hours time, which he had not in fact worked. To dismiss for this, is not in our view, something which is the band of reasonable responses open to the reasonable employer. The reasonable employer's reaction to these circumstances, in our view, without there being any previous disciplinary offence recorded against the employee, is to issue final written warnings and emphasise to the employee the seriousness of clocking-on and clocking-off offenses."The result was that they found that there had been a contribution in the order of 60% to the dismissal and made an award accordingly.The approach which we are invited to take by the appellants here is this. First of all there is criticism of the way in which this tribunal uses the words "booked" in paragraph 1 and also "marked" in respect of the clock card. It is said that there is a great deal of distinction between "booking" and "marking" a card, indeed had this card been marked management would have been perfectly content. We do not think that that criticism is valid. We can understand how those who work in industry know that distinction, but we can well understand how someone, such as the Chairman producing these extended reasons, may well have used words "booked" and "marked" as interchangeable with clocked.The next point which is made, was that the tribunal here, although it says that it was adopting only the attitude of what was within the range of reasonable responses of a reasonable employer, has in fact substituted its own views. It is clear that in paragraph 2 that the tribunal asked the correct question. The real problem is that by paragraph 3, the question of reasonable responses has become elided with the views of the Industrial Tribunal itself. That is, quite apart from the general tenor of paragraphs 2 and 3, highlighted by the sentence which reads:
"The reasonable employer's reaction in these circumstances, in our view, without there being any previous disciplinary offence recorded against the employee, is to issue a final written warning and emphasise to the employee the seriousness of clocking-on and clocking-off offenses."
There is a further criticism of that made by the appellant. It is that having established that there was a previous offence to then to say that there is no previous offence, is a nonsense.Furthermore, it is said, that this was a case where it was known, because of documents placed before the tribunal, that this employee was only too well aware of the gravity of this offence. He had in fact reported a fellow employee for such an offence, and the document R28 which was before the tribunal indicated unequivocally that he knew that this was a serious matter.The approach which has been laid down by this tribunal and others, is encapsulated in Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 . It is in the following terms:
" The authorities establish that in law the correct approach for an Industrial Tribunal to adopt in answering the question posed by s.57(3) is as follows:
(1) the starting point should always be the words of s.57(3) themselves;(2) in applying the section an Industrial Tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair;(3) in judging the reasonableness of the employer's conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;(4) in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;(5) the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair."In Whitbread v Mills [1988] IRLR 501 this tribunal said this:
"The question of whether the employer acted reasonably or unreasonably in treating the real reason as a sufficient reason for dismissing the employee must be considered as a single reason, but Tribunals are bound in their deliberations to pose a number of subsidiary questions, including -
A. Has the employer satisfied us that he has complied with the pre-dismissal procedures which a reasonable employer could and should have applied in the circumstances of this case? ...B. Where there is a contractual appeal process, has the employer carried it out in its essentials? ...C. Where conduct is the main reason, has the employer proved that at the time of dismissal he had a reasonable suspicion amounting to ta belief in the guilt of the employee and, if necessary, has complied with the principles set out in British Homes Stores Ltd v Burchell? "D. During the disciplinary hearings and the appeal process, has the employer dealt fairly with the employee?"In our view, had the Industrial Tribunal applied those matters, it would not have reached a conclusion that there was apparently only one approach. There must be, in this case, a band of reasonable approaches.Accordingly the appellants have made out their case, and upon that ground we will allow the appeal and we shall set aside the award and the matter must now be reheard before a different tribunal.