Safeway Stores Plc v Savill [1998] UKEAT 718_97_2402

EAT
Safeway Stores Plc v Savill
[1998] UKEAT 718_97_2402 · 1998-02-24
MR JUSTICE BELL : This is an appeal by Safeway Stores Plc against the unanimous decision of an Industrial Tribunal at Ashford, Kent, promulgated on 16th April 1997 after a hearing on 11th and 12th March 1997, that Safeways had unfairly dismissed Miss Keeley Suzanne Savill. A complaint by Miss Savill of discrimination against her on the ground of her sex was dismissed.Miss Savill began working for Safeways in September 1989. Thereafter, she held various positions until her dismissal which took effect on 22nd July 1996, by which time she was working at the Gravesend store as a cashier.Cash from the store is banked daily at the Midland Bank after collection by Security Express in bags containing up to £15,000. In February 1996 Mr D. Webb, the Customer Services Manager at Gravesend, carried out an investigation following a report by the Midland Bank that cash banked on Wednesday, 7th February 1996, had been £4,000 short, all in £10 notes. Mr Webb's investigation disclosed that on Tuesday, 6th February 1996, Miss Savill made up the bag from which it was recorded that £4,000 was missing when it was taken to the bank the next day, Wednesday, 7th February 1996. Four of the self-sealed bags banked that day had been incorrectly sealed and signed by Miss Savill. Between Tuesday morning and 2.30 p.m. on Wednesday, 7th February 1996, another employee, Mrs Sims, was seen on video film taking two banking bags from the safe where they were kept. The counterfoil for the bank paying-in was signed by Miss Savill and a Mrs Cooper, who had also been on duty on Tuesday, 6th February 1996. Mrs Sims was arrested on 15th February 1996, but she was released and not prosecuted, although a large amount of cash, mostly in £10 notes, had been found at her home.Mr C R Ancell, manager of the Dartford store, was approached by Mr P B Duffy, Area Operations Controller, with a view to carrying out disciplinary proceedings. Both Miss Savill and Mrs Sims were suspended on 29th May 1996, and Mr Ancell arranged to commence disciplinary hearings against Miss Savill and Mrs Sims on 6th June 1996.Mrs Sims gave explanations of the large amounts of cash at her disposal. She denied any involvement in the missing £4,000. She explained that the bag from which the money was apparently missing had been sealed when she took it out of the safe on the morning of Wednesday, 7th February 1996.Mr Ancell interviewed Miss Savill on more than one occasion. He made the decision to dismiss her and he told her that he was summarily dismissing her. The reason for his decision was that in the light of what he found with regard to procedures which Miss Savill had followed or had failed to follow with regard to the cash to be banked, he was unable to discount Miss Savill from having been responsible for £4,000 going missing. He listed six points which he had taken into consideration in reaching this decision. He was satisfied that Mrs Sims was not responsible for the loss of the money for four reasons which he gave, including the favourable and convincing impression which she had made on him. Apart from anything else, Mrs Sims had convinced him she was telling him the truth about the cash found in her possession.Miss Savill appealed against her dismissal. Her appeal was heard by Mr Duffy who concluded that the dismissal must be upheld, adding one point of his own to those made by Mr Ancell.The Industrial Tribunal found that there was no doubt that Mr Duffy carefully considered all the matters raised by Miss Savill. The Industrial Tribunal further found that Safeways had shown that the reason for Miss Savill's dismissal was a reason related to her conduct within the meaning of s.98(2)(b) of the Employment Rights Act 1996 . The members of the Industrial Tribunal had no doubt that Mr Ancell and Mr Duffy believed that Miss Savill was responsible for £4,000 belonging to Safeways disappearing from its premises. Mr Ancell had originally formed the view that either Miss Savill or Mrs Sims was responsible for the loss, and in the Industrial Tribunal's opinion, it was reasonable for Mr Ancell to form that view from various documents and a video film that one of those two employees was responsible. By the time of Miss Savill's dismissal, Mr Ancell believed that Mrs Sims was not responsible for the loss of the £4,000. Safeways management had formed the belief that Miss Savill's responsibility for the missing money could not be discounted. The combination of those factors amounted to a belief on the balance of probabilities that Miss Savill was involved in the disappearance of the money.At paragraphs 42 and 43 of its decision the Industrial Tribunal said:
"42 We must, therefore, have regard to what subsequent investigations revealed which led Mr Ancell to change his preliminary impression and to acquire a firm belief that the Applicant was responsible. This is so that we can decide whether the evidence received by Mr Ancell at the disciplinary hearings, together with any further enquiries after his study of Mr Webb's report, rendered reasonable the transition in his mind from a suspicion that either of these two employees could have been responsible, to a belief that the Applicant alone was guilty.
43 We have been urged by Mr Jones, for the Respondent, that Mr Ancell's belief of Mrs Sims' account, and therefore his belief that the Applicant was guilty, could not be gainsaid, unless perverse. We are aware that we must not substitute our views for those of a reasonable employer, but that does not mean that an employer can always successfully plead that his assessment of verbal responses at a disciplinary hearing must be held to be reasonable."The Industrial Tribunal turned its attention to various authorities and advised itself that among other matters:
"... 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.
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.In many, but 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.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."The Industrial Tribunal said that it was with all that in mind that it set about its task of deciding whether Safeways acted reasonably in treating Mr Ancell's and Mr Duffy's belief in the guilt of Miss Savill as sufficient reason for dismissing her in all the circumstances.It is only fair to say that the history of matters given in the Industrial Tribunal's extended reasons for its decision is very detailed and that having directed itself as to the proper approach, the Industrial Tribunal then engaged in a quite detailed examination of Mr Ancell's response to the information before him, in particular Mrs Sims' explanation of the cash in her possession and an examination of the relative strengths of the cases as the Industrial Tribunal saw them against Mrs Sims on the one hand, and Miss Savill on the other.At paragraph 51 of its decision it went through Mr Ancell's six points against Miss Savill and gave reasons of its own for discounting them. At the end of this exercise, the Industrial Tribunal at paragraph 52:
"... concluded that it was not within the range of responses available to a reasonable employer for Mr Ancell to have balanced the matter in favour of Mrs Sims and against the Applicant. We are left, therefore, with Mr Ancell's assessment of the two employees themselves, i.e. that he believed Mrs Sims and did not believe the Applicant. We do not consider that such a belief arrived at against the weight of a large amount of evidence going the other way, can be reasonably grounded only upon the subjective view of the person holding the disciplinary hearings. In short, when we ask whether there were reasonable grounds to have swayed Mr Ancell from the view held by him before the disciplinary hearings that he could not say which one of the two employees was responsible of the loss, to the decision that the Applicant alone was responsible, we are unanimous that the answer must be a negative one."
The Industrial Tribunal had in its earlier consideration of the law reminded itself at paragraph 35 that:
"In Monie .v. Coral Racing Ltd [1980] IRLR 464 the Court of Appeal upheld a finding by an Industrial Tribunal that a dismissal was fair when an employer who was unable to decide which of two particular employees was guilty of dishonesty, dismissed both of them."
At paragraph 53 of its decision the Industrial Tribunal said:
"It appears not only from the Respondent's Notice of Appearance, but also from the evidence as a whole, that the Respondents had set themselves the task of going beyond the position held by the employer in Monie .v. Coral Racing Ltd and were determined to lay the blame upon one of these two individuals. The process by which the Respondents management came to select the Applicant as the guilty party has taken this dismissal outside the range of responses available to a reasonable employer in the circumstances of the case."
The Industrial Tribunal then referred to Mr Duffy's hearing of Miss Savill's appeal before concluding:
"54 ... All the matters considered and evaluated by Mr Ancell were reconsidered and re-evaluated by Mr Duffy, who endorsed Mr Ancell's conclusions. In addition, he considered a number of other points raised by the Applicant, and reasonably concluded that they did not take the matter any further.
55 We are not able to find that Mr Duffy's investigation uncovered any further evidence to bring the Respondent's decision to terminate the Applicant's employment within the range of responses available to a reasonable employer.56 The Respondent's investigation into this matter was painstakingly exhaustive. It is nevertheless our finding that the results of such detailed investigation did not provide the Respondent with reasonable grounds for a belief that the Applicant, and not Mrs Sims, was responsible for the loss of cash which occurred at the Gravesend store on 6 or 7 February 1996.57 For these reasons, we have decided that Respondent did not act reasonably in treating the reason for the dismissal as a sufficient reason in all the circumstances (including the size and administrative resources of the Respondent's undertaking) and having regard to equity and the substantial merits of the case.58 The Applicant was therefore unfairly dismissed by the Respondent."Turning to the arguments on this appeal, both Mr Linden for Safeways, and Mr Cartwright for Miss Savill, referred us to a number of authorities, but both Counsel effectively agreed that the test of whether Miss Savill's dismissal was fair, was whether Safeways, through Mr Ancell, believed that Miss Savill was guilty, i.e. responsible for the loss of the money, and was entitled to that belief in the sense of having in its mind reasonable grounds upon which to sustain that belief, having carried out as much investigation into the matter as was reasonable in all the circumstances of the case. There is no issue but that Safeways, through Mr Ancell, believed that Miss Savill was responsible for the loss of the money after carrying out a very thorough investigation. The issue on the appeal is whether that on a proper analysis of the Industrial Tribunal's extended reasons it asked itself and answered the question whether Safeways, through Mr Ancell, was entitled to that belief in the sense of having reasonable grounds to sustain it.Mr Linden for Safeways contends that the Industrial Tribunal did not carry out the proper exercise, but merely substituted its own view of the conclusions to be drawn from the material revealed by the investigation. If it did carry out the proper exercise, it reached a conclusion which was perverse, that is to say a conclusion which no reasonable Industrial Tribunal properly directed could come to. He pointed out that the Industrial Tribunal decided that a study of relevant documents and videos made it reasonable to conclude that one of Mrs Sims or Miss Savill was responsible. The Industrial Tribunal concluded that Mr Ancell's belief, and therefore Safeways', that Miss Savill was responsible was not only genuine, but also that it was reached after "painstakingly exhaustive" investigation. So the Industrial Tribunal should be slow to judge it unreasonable.Mr Linden engaged in a detailed analysis and criticism of the Industrial Tribunal's elimination, or at least, discounting of Mr Ancell's specific reasons for deciding that Miss Savill was responsible. He pointed out, for instance, that the Industrial Tribunal suggested reasons which Miss Savill herself had not suggested for her failure to call another member of management staff to carry out a re-checking exercise which should have been done, and for her failure to leave a note for a member of management that the money was to be re-checked. That, Mr Linden argued, showed that the Industrial Tribunal was adopting its own view of the significance or insignificance of the points upon which Mr Ancell relied, rather than asking if he could reasonably have relied upon them.Mr Linden pointed out that Mr Ancell saw significance in the fact that a day or two after the money was found missing, Miss Savill telephoned Mrs Sims to ask if the missing money had been found. Yet the Industrial Tribunal, off its own bat as it were, concluded that "it would have been surprising if she had not queried the matter". Though we might find the Industrial Tribunal's reaction to that point sensible, Mr Linden contends that it was a clear case of substitution of the Industrial Tribunal's own judgment for Mr Ancell's legitimate judgment.While himself applying detailed criticism of the Industrial Tribunal's reasons, Mr Linden contends that the Industrial Tribunal fell into the trap of subjecting Mr Ancell's reasoning to an over-minute analysis, and therefore, lost sight of its duty simply to review Safeways' decision with a view to deciding whether Miss Savill's dismissal was within the range of reasonable responses by Safeways. It overlooked, he says, the fact that credibility of witnesses such as Mrs Sims, whom the Industrial Tribunal did not see, was essentially a matter for Mr Ancell. In fact, it reached views of its own which were no more tenable than Mr Ancell's, and in some cases, Mr Linden contended, less tenable. He pointed out that the Industrial Tribunal did not ask in respect of each point taken by Mr Ancell:
"Could he reasonably have taken account of that point in favour of Mrs Sims or against Miss Savill?"
He argued that the Industrial Tribunal was really asking in relation to each point whether in its view it was a good point.Mr Cartwright for the Miss Savill contends that the Industrial Tribunal directed itself correctly as to relevant law and asked itself the correct question of whether Safeways, through Mr Ancell, was entitled to hold the belief, having regard to the results of the investigation carried out, that Miss Savill was responsible for the loss. It took pains to counsel itself that "we must not substitute our views for those of a reasonable employer", and reminded itself of the need for an Industrial Tribunal to be aware of the range of reasonable responses. It had to evaluate the reasons relied upon by Mr Ancell for his belief in Miss Savill's responsibility, and in doing so, to compare the evidence against Mrs Sims with that against Miss Savill. That was not in order to substitute its own view of who had taken the money, but in order to form its own view on whether Mr Ancell and Safeways was entitled to its belief that is whether that belief was reasonable allowing for a broad spectrum of reasonable beliefs.There is no doubt that the Industrial Tribunal did reach its own conclusion on the weight of the points which effected Mr Ancell's belief in Miss Savill's guilt. But the evaluation exercise which the Industrial Tribunal carried out did not end there. In our view, the essence of the Industrial Tribunal's decision lay in it going on after its analysis of Mr Ancell's reasons to say that it had:"concluded that it was not within the range of responses available to a reasonable employer for Mr Ancell to have balance the matter in favour of Mrs Sims and against [ Miss Savill ]".In our judgment, that amounted to deciding that Safeways, through Mr Ancell, was not entitled to its belief in Miss Savill's guilt in the sense of having reasonable grounds to sustain it allowing for a range of reasonable responses. In reaching that conclusion the Industrial Tribunal had to form its own views of the material before Mr Ancell and Mr Duffy, and in so far as those views differed from the views of Mr Ancell and Mr Duffy, it can be said that in one sense, it was substituting its own view of the conclusions to be drawn from the material for the views of Mr Ancell and Mr Duffy, and of course it was doing so without the benefit of having seen Mrs Sims at all, or having seen Miss Savill at the enquiry stage. But in our judgment that begs the question of whether, it being common ground that Safeways, through Mr Ancell, believed that Miss Savill was guilty, the Industrial Tribunal went through the proper exercise of deciding whether Safeways, through Mr Ancell, was entitled so to believe. The Industrial Tribunal did not shrink from a careful consideration of the material before it, and in a situation where the case against Miss Savill depended upon an accumulation of circumstances, that careful consideration necessarily became detailed and involved an expression of the Industrial Tribunal's own views on a number of issues considered by Mr Ancell.In our judgment, however, that was an inevitable part of the Industrial Tribunal's proper function in the particular circumstances of this case. The exercise which the Industrial Tribunal went through would only be wrong in principle if it was done with the object of substituting its own view, rather than as a necessary means of assessing whether the employer's belief fell within a range of reasonable responses to the material available on the disciplinary investigation.Having heard the very helpful arguments in this case, we are not driven to the conclusion that the Industrial Tribunal merely set about a rehearing of the case against Miss Savill, substituting its own views for the differing but reasonably tenable views of the appellant. To reach that conclusion would be to say that the Industrial Tribunal was only paying lip service to the principles which it rehearsed, and ultimately returned to when concluding that the appellants' belief in Miss Savill's guilt was not within the range of responses available to a reasonable employer.There is no sound basis for concluding that the Industrial Tribunal was unsympathetic to the argument that a broad spectrum of views or reasons may appear in a case such as this.Despite Mr Linden's closely reasoned argument, it is our judgment, having considered all the material and arguments, that the Industrial Tribunal was entitled to reach the ultimate conclusion that the appellants' belief in Miss Savill's guilt was unreasonable for the reasons which it gave. It follows that this appeal must be dismissed.