Gadd v W H Smith Ltd [1997] UKEAT 1420_96_0503

EAT
Gadd v W H Smith Ltd
[1997] UKEAT 1420_96_0503 · 1997-03-05

JUDGE N BUTTER :

This is the preliminary hearing of an appeal by Mr Gadd in respect of a decision of the Industrial Tribunal at London (North) heard on 2 and 10 January 1996. The Tribunal gave detailed and full Extended Reasons which were sent out on 30 January 1996. Mr Gadd was dissatisfied with the decision. and he applied for it to be reviewed. Again he was dissatisfied with the conclusion which the Chairman reached, namely that there was no reasonable prospect of success.

(d) of that decision, when he said:

"(d) There is a public interest in the finality of litigation. The case was very fully argued at the hearing on 2 & 10 January 1996 and Mr Gadd is now seeking the opportunity to re-open the case and re-argue it many months later on the basis that new evidence has become available which can have only a limited impact."
I return to the main decision of January 1996. The unanimous decision of that Tribunal was that the Applicant was fairly dismissed for a reason related to his conduct. In their Extended Reasons the Tribunal set out the facts in detail. They drew attention to the fact that Mr Gadd had been employed by the Respondents, W.H. Smith Ltd, as a night packer/driver in their News Division at warehouse premises at Hammersmith. His employment had started in February 1992, but he was summarily dismissed on 10 March 1995 for being in unauthorised possession of company property on 7 March 1995. Mr Gadd complained that he was unfairly dismissed and sought an order for re-engagement. The Respondents contended that he had been fairly dismissed for gross misconduct.The Tribunal outlined the background that the Respondents had sustained stock losses from the unauthorised taking of newspapers, magazines and periodicals in the warehouse and that they had adopted clearly defined rules and procedures relating to security which were then summarised in their reasons. They drew attention to the fact that, under the disciplinary procedure of the Respondents, being in unauthorised possession of company property was cited as an example of an act of gross misconduct which might result in summary dismissal. They said that it was abundantly clear that being found in unauthorised possession of company property without a valid explanation would be considered to constitute gross misconduct, irrespective of the quantity or value of the goods and, in such an event, the individual would be dismissed. It was no part of Mr Gadd's case, they stated, that he was unaware of the staff purchase rules. It is his case that he was not in breach of the rules and that his explanation ought to have been accepted.I pause to say that one of the matters which gives Mr Gadd concern is that he would have wished to have adduced evidence concerning a Mr Gilmore, who he said, was not dismissed and he wished the Tribunal to consider the question of inconsistency. I continue with the narrative.The incident which resulted in Mr Gadd's dismissal occurred on 7 March 1995 when the Respondents' Security Manager, Mr Geraghty, was in his car in the car park and saw Mr Gadd leaving the warehouse walking towards his car carrying a bundle of newspapers and a paper. Mr Geraghty made a report. The detail again is referred to in the Tribunal's decision. It is sufficient for the purposes of the Tribunal today to say that the report showed that on examination of the newspaper, which was found to be a Daily Mirror, concealed inside was a copy of the Daily Star. According to Mr Geraghty's report, Mr Gadd said, "Come on you're not going to have me for one paper". Mr Geraghty replied "Its not my decision but you know you should not have done this don't you" and Mr Gadd replied "Yes".Mr Gadd was suspended and a letter of suspension was delivered to him. There was a meeting with Mr Lunn on 9 March 1995. Again the Tribunal deal with that in detail and say that Mr Gadd's explanation did not correspond with the account given by Mr Geraghty in his report.There was a yet further meeting on Friday 10 March and Mr Lunn stated that the meeting on the previous day had been a fact gathering exercise. He then considered the position more fully and then decided that Mr Gadd had been in unauthorised possession of company property and that Mr Gadd was to be summarily dismissed.Mr Gadd was advised of his right of appeal which he exercised and that took place on 21 April, before the Respondents' Southern Regional Manager, Mr Reilly. The Tribunal records that the appeal took the form of a complete re-hearing. Mr Reilly, having considered the matter, dismissed the appeal and indicated his reasons quite shortly. He said that he believed that Mr Gadd had not intended to pay for the unauthorised copy found in his possession. He, Mr Reilly, concluded that Mr Lunn's decision to dismiss Mr Gadd was fair and his appeal was therefore dismissed. He was, however, advised of a yet further right of appeal which he exercised and that appeal took place on 9 June, before the Respondents' General Manager - Operations, Mr Horwell.In their decision the Tribunal refer to that hearing fully and go on to state that Mr Horwell rejected Mr Gadd's appeal and set out his reasons in a letter which again, they summarised. At paragraph 17 of their reasons, the Tribunal summarised in detail the case for the Applicant. In paragraph 20 they summarise it in this way:
"20. Mr Gadd maintains that his dismissal was unfair on the following grounds:- (a) He did not commit the offence for which he was dismissed because he was not in unauthorised possession of the newspaper as he was still on company premises at the time when he was approached by Mr Geraghty and the obligation was to pay for staff purchases and obtain a receipt before leaving the premises. (b) The respondents should have believed his explanation that he intended to pay for the newspaper and should have disbelieved Mr Geraghty's account. ... (c) The dismissal was procedurally unfair ... (d) ... it was unreasonable to dismiss him for being in unauthorised possession of a single newspaper on company premises. ..."
In paragraph 21 the Tribunal say:
"21. ... We find that Mr Gadd was dismissed for being in unauthorised possession of a copy of the Daily Star in breach of the respondents' security procedures relating to staff purchases on 7 March 1995. That is a reason related to his conduct within the meaning of section 57(2)(b) of the Employment Protection (Consolidation) Act 1978. There was no other reason for his dismissal."
In the following paragraph they went on to consider the question of the fairness of the dismissal and referred to section 57(3) of the Act and expressly stated that they had regard to the following matters:
"(a) Mr Gadd was a satisfactory employee and but for the incident on 7 March 1995 the respondents had no cause or wish to dismiss him."
They go on to say that:
"(b) Mr Gadd has maintained throughout that he did not commit the offence for which he was dismissed. ..."
And they say, correctly, as a matter of law:
"In these proceedings it is not for us to determine whether or not he committed the offence as charged but whether it was respondents' belief at each stage of the disciplinary process that he did commit it, and whether the manager concerned had in his mind reasonable grounds upon which to sustain that belief, and whether at the final stage on which he formed that belief on those grounds, he had carried out as much investigation into the matter as was reasonable in all the circumstances of the case (the 3-fold test in British Home Stores Ltd v Burchell [1977] IRLR 379)."
In their reasons the Industrial Tribunal went on to review the matter.

(e) they said:

"(e) We accept that it is undesirable that the manager who conducts the initial investigatory interview should then go on to conduct the disciplinary hearing. ..."
They explained why they thought that was and went on to add:
"Whether any unfairness results ... depends upon all the material circumstances. ..."
And they refer to the subsequent appeal hearing and to the yet further right of appeal which was exercised. They concluded that the Respondents had made it abundantly clear that being found in unauthorised possession of company property would be considered a summary dismissible offence. Then, towards the end of their reasons they stated:
"(i) Although it is of limited relevance to the issues which we have to decide, we found that Mr Gadd was not a reliable witness. ..."
Mr Gadd today is concerned, and annoyed, that the Tribunal should have expressed itself in that way.Finally, the Tribunal concluded by saying:
"As we find that the respondents went out of their way to accord Mr Gadd a full and fair hearing at each stage of the disciplinary process and that the issue for determination was very straightforward and the fairness of the dismissal was not affected by any procedural irregularities and that dismissal for a first offence of this nature did not fall outside the range of responses open to a reasonable employer, it is the unanimous decision of the tribunal that Mr Gadd was fairly dismissed for a reason related to his conduct."
Today, Mr Gadd has appeared in person. He has drawn our attention to a number of points, including that concerning Mr Gilmore, to which I have already referred. He maintains that Mr Lunn lied as a witness and indeed, was attempting to or did pervert the course of justice. We have endeavoured to explain to Mr Gadd that we are concerned here solely with questions as to whether there is a reasonably arguable point of law to go forward to a full appeal.We have considered the matters to which he has drawn our attention. We are unanimous in our view that there is, in truth, no reasonably arguable point of law. We would therefore do no service to him to direct that the matter go forward to a full appeal and in these circumstances and for these reasons it follows that the appeal fails and must be dismissed.