Lambert & Anor v Booker Foodservice Group Ltd [1997] UKEAT 898_97_2710

EAT
Lambert & Anor v Booker Foodservice Group Ltd
[1997] UKEAT 898_97_2710 · 1997-10-27
MR JUSTICE MAURICE KAY : This is a preliminary hearing of the appeals of Mr Lambert and Mr Baume against the decision of an Industrial Tribunal held at Ashford on 25th June 1997. They had applied alleging unfair dismissal. Their applications failed and were dismissed.The two appellants were employed by Booker Foodservice Group Ltd as HGV drivers. The company is a nation-wide company supplying food and other goods to the food industry. The particulars facts arose at a depot in Edenbridge where the company was having problems with theft from a warehouse. Of particular concern to the company was the serious theft of cheese, and eventually it was ascertained that the culprit was an outsider.However, in the course of considering its response to the theft problem, the employer decided to mount surveillance cameras. Their function was not limited to the warehouse from which the cheese had been taken. It seems that because there was also trouble with pilfering elsewhere, the CCTV cameras covered other areas as well. One such area was known as the damaged goods cage, a receptacle in which damaged goods were placed for either disposal as waste or repackaging for various customers, or for resale to staff through a staff purchase scheme. Unsurprisingly, the company had rules about theft and misappropriation and these were set out in the appellant's terms and conditions of employment. There were also notices around the premises describing misappropriation as a serious offence, and referring to the disciplinary policy. That includes a reference to summary dismissal for gross misconduct which includes theft.On 9th December 1996, the two appellants and another man were caught on film taking sweets from the damaged goods cage. They never denied that that was what they were doing. They were not all dealt with at the same time. The third man was dismissed on 13th December 1996. These two appellants were dismissed subsequently following a disciplinary hearing in respect of Mr Baume on 20th December, and in respect of Mr Lambert on 23rd December.Their case in the disciplinary hearing had been that it was custom and practice for staff to be allowed to take such items. The company, however, denied that that was a common practice and put in evidence the fact that during a period of some 2½ weeks in which the CCTV cameras were running 24 hours a day, only five employees were shown as involving themselves in the area of the damaged goods cage; three who were to be dismissed and two others who were not actually seen to be misappropriating anything.The upshot was that both men were dismissed. We have seen a sample of the letters of dismissal in the form of the one to Mr Baume dated 23rd December 1996. It recites the fact that he had been caught on film removing products from the cage containing damaged stock; the fact that he had not asked permission; and adds:

"When questioned you made no comment on your actions."

The appeal against the decision of the Industrial Tribunal seeks to raise a number of points. The first is that the dismissals paid little or no regard to the ACAS Code of Practice on disciplinary procedures in that, it is submitted, there was an unwarranted delay and there was inconsistency in treatment between these two appellants and the third man who was dealt with earlier.So far as that is concerned, we cannot see that it raises any point of law at all. We have looked at the provisions of the ACAS Code of Practice. Whilst it is true that in paragraph 10 in recites that disciplinary procedures should be dealt with quickly, we cannot find any provision that can be said to have been breached in the circumstances of this case. Nor do we think that there is any point of law in the suggestion of inconsistency treatment. It is true that before the Industrial Tribunal there was a dispute as to why the three men had not all been dealt with at the same time, and that this dispute of fact was resolved by the Industrial Tribunal substantially in favour of the employers. But, we have to say that we cannot see that there was lurking behind that dispute of fact, any arguable point of law in any event. The fact is that these two men remained at work for a week or so longer than the third man, but does not seem to us that they suffered any detriment from not having their case dealt with earlier, or at the same time as him.It is apparent from the submissions made by Mr Harwood on behalf of these appellants, that there is a feeling of injustice on their part in that they contend that there was a custom and practice of permission to take such goods and the employer was moving the goal posts. It seems to us to be implicit in the decision of the Industrial Tribunal that not withstanding the evidence of a former manager of the company, supportive of the appellants, the Industrial Tribunal did not accept that there was such a custom and practice.In the course of his submissions, Mr Harwood has referred us to the case of Secretary of State for Scotland v Campbell [1992] IRLR 263 . That was a case involving a conviction for embezzlement on the part of a serving prison officer. We regret to say that it seems not to have any bearing on the circumstances of the present case, because it was concerned primarily with the question of what facts and matters would justify an employer in deciding that there had been an act of dishonesty, rather than in the response to such an act once it had been decided that it taken place.The Industrial Tribunal in the present case set out the provisions of s.98 of the Employment Rights Act 1996 in reported form, and correctly identified the test which they had to apply. In the application of that test the crucial passage is to be found in paragraph 24 of the decision, which is in the following terms:
"24 We reminded ourselves that it is not for the Tribunal to substitute its own view for that of the Respondent, but we have to ask ourselves can it be said that no reasonable employer would have dismissed in these circumstances. Given the importance of the security of products for the Respondent company, given their efforts to ensure that the security was maintained, given the video evidence and the Applicants' admissions, and finally given the fairness of the disciplinary procedure, we could not say that no reasonable employer would have dismissed in these circumstances, and consequently, we have found that the dismissals were not unfair."
It seems to us that that is a permissible application of the principles that are to be derived from s.98 of the 1996 Act.Mr Harwood's final global submission is that it is decision of an Industrial Tribunal which smacks of perversity. In our judgment, there is no prospect of such an argument succeeding at a final hearing. We consider that the decision made by the Industrial Tribunal was a permissible option.In all the circumstances, there is no prospect of these appeals succeeding, and they are hereby dismissed.