Turk v NFC UK Services Ltd (t/a Exel Logistics) [1998] UKEAT 43_98_0103

EAT
Turk v NFC UK Services Ltd (t/a Exel Logistics)
[1998] UKEAT 43_98_0103 · 1998-03-01
MR JUSTICE BELL : This is a preliminary ex-parte hearing in respect of an appeal against the decision of an Industrial Tribunal sitting at Birmingham on 21 March and 6 June 1997 which, by a decision entered in the register on 6 October 1997 dismissed the Appellant, Mr Turk's, claim of unfair dismissal. His claim under the Wages Act was dismissed when he withdrew it.The essential background findings and conclusions made by the Industrial Tribunal were as follows. Mr Turk was employed at the Respondent's Droitwich warehouse as a warehouse operative from February 1994 until 28 October 1996, which was the effective date of termination of his employment. He claimed that the Respondent acted unreasonably in dismissing him for leaving his place of work early on 20 October 1996.The Tribunal made the following findings of fact, at paragraph 3:
"(1) In March 1995 the applicant was given a formal written warning for leaving his place of work without authority.
(2) In February 1996 the applicant was dismissed for threatening behaviour and damage to company property but was subsequently reinstated in July 1996.(3) In July 1996 the respondent introduced a new system of banked hours. This system was fully explained to the applicant. Under this system, while the applicant's normal hours of work were from 2.00 pm to 10.30 pm, he could be required either to come in early or to work after 10.30 pm, and would on occasions finish work before 10.30 pm.(4) The respondent's employees were offered redundancy as an alternative to the bank hours system. The applicant though accepted the banked hours system, although he made it clear that he was reluctant to work after 10.30 pm.(5) In July 1996 the applicant attended a disciplinary hearing concerning his failure to operate the bank hours system and having left work early although no action was taken at that time.(6) In August 1996 the applicant was given a final written warning for failing to follows instructions and abusive behaviour.(7) Under the banked hours system Mr Skelton, the Warehouse Operations Manager would inform the Shop Steward, Mr Bennett, and Mr Bennett would in turn inform the operatives of the time at which they were expected to finish work."Then at paragraph 3 (8) comes the finding which is at the heart of Mr Turk's original Notice of Appeal. It reads as follows:
"(8) On 20 October 1996, the operatives were informed that they would finish work at about 8.30 pm when they had completed 2500-3000 pickings. At about 8.30 pm the applicant had finished his work and decided he could go home, based on the information he had been given by Mr Bennett. As he was preparing to leave, the applicant was seen by a Mr Bencroft, another operative, who said words to the effect 'Where are you off to, it's a 9 o'clock finish tonight'. Nonetheless the applicant proceeded to leave although he did make some attempt to locate his manager, Mr Pugh, before doing so. Being unable to find Mr Pugh, the applicant left anyway."
The findings go on:
"(9) While there may have been some confusion as to the correct finish time on that night, having been told that he was leaving early, the applicant should have ascertained what was the correct finishing time before leaving work."
The reasons for the Tribunal's decision then continue after those findings of fact as follows, at paragraphs 4 and 5:
"The reason for the applicant's dismissal was that he had left his place of work before the official finishing time. That is a reason relating to the applicant's conduct.
We have to decide whether the respondent acted reasonably or not in treating that as a sufficient reason for dismissing the applicant. We have reminded ourselves of the provisions of Section 98(4) Employment Rights Act 1996. In applying that Section we direct ourselves that it is not for us to stand in the shoes of the employer and decide what we would have done. Rather, we ask ourselves whether the decision to dismiss the applicant for the reason found fell within the range of responses of a reasonable employer. ..."We stress that the Industrial Tribunal was there, in our judgment, directing itself correctly as to the function which it had to perform on hearing Mr Turk's complaint and the proper approach to that function. It was not for the Industrial Tribunal to stand in the shoes of the employer and decide what it would have done, but to ask itself whether the decision to dismiss Mr Turk for the reason found, that is his leaving work early on 20 October 1996, fell within the range of responses of a reasonable employer.The Industrial Tribunal underlined that by going on to say, "Was dismissal a sanction open to a reasonable employer?". Its reasons continued, at paragraphs 6 and 7:
"On 23 October 1996 a meeting was held with the applicant to find out why he had finished work early. ..."
On 28 October 1996 the applicant was required to attend a disciplinary hearing at which he was again given the opportunity to explain why he had left work early on 20 October. At the conclusion of his hearing the applicant was told he was being dismissed."He was advised of his rights of appeal. He did appeal but the decision to dismiss him was upheld.The Industrial Tribunal then concluded that the dismissal was fair, having regard to the criteria in Section 98 (4), because the Respondent:
"(a) Believed in the misconduct alleged; (b) Reached that belief after a proper investigation of the claim; (c) Gave the applicant full opportunity to state his case; (d) Had reasonable grounds for that belief; (e) Gave the applicant full opportunity to state his case; (f) Followed a fair procedure."
And finally, and crucially:

"(g) On the facts, dismissal was a sanction open to a reasonable employer."

Mr Turk's grounds of appeal in his original Notice of Appeal are that it is contended that the Industrial Tribunal erred in law in that:
"Having made a finding of fact that the Appellant's hours of work were notified to him under the banked hours system by a Mr Bennett and that the Appellant had been notified by Mr Bennett that he would finish work at about 8.30 p.m. when 2500 to 3000 pickings had been completed. The finding by the Tribunal that the sanction of dismissal for leaving at 8.30 p.m. was a sanction open to a reasonable employer was perverse."
Mr Turk wishes to add two grounds of appeal additionally. The first really amounts to contending that the Industrial Tribunal was wrong in law to take account of evidence of previous disciplinary matters, some of which were overturned, and in excluding evidence from Mr Turk as to wrongdoing by the Respondent. There is a further ground of appeal he would wish to add, that the Tribunal refused to admit fresh evidence as to working practice.This morning Mr Turk has told us that the fresh evidence would be to establish that, although at the time of his dismissal the practice was for shop stewards often to pass on finishing times to the work-force, there had been previous mix ups and that after the Industrial Tribunal decision he, Mr Turk, discovered that a decision had been made, in order to limit the risk of mix ups that only management should tell the work-force what the finishing times were.We regret to have to tell Mr Turk that, in our view, we cannot see any arguable point of law in this case. It seems to us that the Industrial Tribunal had well in mind the finding of fact, which it made at paragraph 8, because it went on at paragraph 9 to note the possibility of confusion as to the correct finish time on the night in question, but concluded, as in our view it was entitled to conclude as a matter of fact, that Mr Turk should have ascertained what was the correct finishing time before leaving work, once he had been put on notice by Mr Bencroft that he might have got it wrong.The Industrial Tribunal posed the correct question. We stress again that it was not for the Industrial Tribunal to decide what it what would have done, but merely to decide whether what happened in this particular case meant that dismissal was a sanction open to a reasonable employer and we have come to the conclusion that the Industrial Tribunal rightly, not substituting itself for the employer, was entitled to conclude that dismissal was a sanction open to a reasonable employer.It may, as Mr Turk says, have been a harsh sanction. It may well have been a sanction which another employer would not have imposed, but that was not the test for the Industrial Tribunal.We cannot see any mileage (if we can put it in that colloquial way) in the two additional grounds of appeal which Mr Turk would like to advance. Although the Industrial Tribunal related some parts of previous disciplinary history, so far as Mr Turk was concerned, it is quite clear that, at the end of the day, it had very much in mind that the reason for dismissal was actually leaving work early on 20 October 1996 and it addressed itself, at the end of the day, to the question of whether that was a sanction open to a reasonable employer.We do not think that the information which came to Mr Turk's attention after the Industrial Tribunal about a change of practice, in any way makes the Industrial Tribunal's decision unsafe. In the light of previous mix-ups and, indeed, in the light of what led to Mr Turk's dismissal, the change of method of notification of finishing times may have been sensible, but that change does not, in our view, impugn the Industrial Tribunal's decision in this case in any way.It follows, Mr Turk, that your appeal must be dismissed at this preliminary stage.