MR B W SMITH v LONDON BOROUGH OF HAMMERSMITH & FULHAM [1999] UKEAT 1487_98_2906

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 1487_98_2906

Case No Appeal No. EAT/1487/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR B W SMITHAPPELLANT

LONDON BOROUGH OF HAMMERSMITH & FULHAMRESPONDENT

Before

Mr Justice Morison

Date 29 June 1999

[1]) Messrs W H Matthews & Co Solicitors 109 Old Street London EC1V 9JR MR JUSTICE MORISON (PRESIDENT): The purpose of this Hearing is to determine whether Mr Smith has an arguable point of law in an Appeal which he wishes to make against the unanimous decision of an Employment Tribunal which rejected his complaint of unfair dismissal. Mr Smith had brought his complaint against his former Employers, the London Borough of Hammersmith & Fulham, by whom he had been employed on a full time basis from 1994 until his dismissal on 4 th September 1997. The dismissal occurred as a result of an incident taken place on 14 th March when the team, of which Mr Smith was the driver, attended premises in Fulham. The team had been instructed to clear the refuse from the flat. In fact, it was a furnished flat; the furniture having been supplied by the Local Authority and the instructions should have made it clear that only the rubbish was to be cleared but not the furniture. The Tribunal said this:

"It must be emphasised that Mr Smith was not dismissed for clearing the furniture in the flat. He was dismissed for being the acting ganger for that day. It was concluded by the Respondent that he was in charge and it was his responsibility to ensure that nothing untoward occurred."

[2]It was maintained that a member of the public, a Mr Dean Marsh, had assisted in clearing the furniture from the flat and it was maintained that the furniture was sold to Mr Marsh, a second-hand furniture dealer, for him to resell to members of the public. The reason for this dismissal was, accordingly, gross misconduct, and the Tribunal's conclusion was that the Employers, London Borough of Hammersmith & Fulham, behaved reasonably pursuant to S.98(4) of the Act.

[3]The main ground of appeal is based on the disparity between what happened to Mr Smith on the one hand and to Mr Wills on the other. It is therefore necessary to say a little more about the facts of this case.

[4]The original decision to dismiss was to dismiss both Mr Smith and Mr Wills, and it was only subsequently, that Mr Wills was reinstated. Counsel, on behalf of Mr Smith, said that they could not legitimately be distinguished, by reference to their years of service. One had 6 years service - 4 years as a permanent employee, the other had 4 years of service.

[5]On 1 st September 1997, a disciplinary hearing was held and it was resumed on 4 th September. The decision taken by Mr Davenall, who was the director of Direct Services Department was, to dismiss both Mr Smith and Mr Wills. The letter of dismissal makes it plain that Mr Smith was being dismissed because he had dishonestly disposed of valuable items of furniture which were Council property, with the assistance of a second-hand furniture dealer, and it was considered that the removal of the property was for private gain and constituted theft of Council property. That was also the reason given for Mr Wills' dismissal. Both of them appealed and their appeals were heard on 11 th February 1998 and 9 th March 1998.

[6]It was maintained on behalf of Mr Smith during the course of the disciplinary hearing that Mr Marsh had volunteered to assist the team carrying items of furniture from the flat. Neither Mr Davenall, at the disciplinary hearing, nor the members of the Council who heard the Appeal, found this explanation to be credible. Indeed, the Tribunal went on to say that they didn't find it a credible explanation. "… particularly in view of the fact that Mr Marsh is a second-hand furniture dealer. Indeed, we would not find it credible that any member of the public would assist a team of Local Authority refuse collectors in removing large items of furniture from a block of flats. We note that Mr Marsh, the volunteer, was carrying the largest items on his own. If Mr Smith's story is to be believed, Mr Marsh is either extraordinarily stupid or extraordinarily generous in his time and efforts. In addition, no reasonable explanation was given to the disciplinary and appeal hearings, nor to the Tribunal as to why it was considered necessary to visit the premises in the morning to remove the less valuable items and return in the afternoon to remove the more bulky and valuable items."

[7]At the Appeal Hearing questions were raised as to whether the culpability of the two people concerned should be looked at on the basis that each was equally to blame. There was, apparently, in existence, a trade union agreement, which suggested that the members of a team such as this should all be looked at on the same basis. There was also another suggestion that the team should not be regarded as being equally culpable but that the person in charge, receiving some kind of ganger's fee, should be held to be more culpable.

[8]In paragraph 14 of their decision, the Employment Tribunal said this:

"We note that Mr Smith complains that the Appeal Hearing was unfair in that the rules were changed half way through the Hearing so that the members of the team were not considered culpable as a whole but that he, as the ganger, was to take the blame. We find, as a fact, that the change of this approach, in fact, benefited Mr Wills. It did not disadvantage Mr Smith."

[9]It seems to us very clear that what the Employment Tribunal was saying at this point was that if the whole team approach had been adopted, then both Mr Wills and Mr Smith would have been dismissed. It was only as a result of it being looked at on the basis of the culpability of each, having regard to the particular responsibility of the ganger, that Mr Wills was able to avoid being dismissed. The Employment Tribunal found as a fact on the evidence, that Mr Smith, being the driver and being of a higher grade than Mr Wills and being a permanent member of the team, was the more culpable and had to take the blame for what had occurred. They went on to hold that it was reasonable for the Employers to have believed that Mr Smith was responsible for the sale of the goods to Mr Marsh. They noted that they heard evidence from Mr Wills and Mr Marsh and indeed, from the Appellant. The Employment Tribunal said this:

"They had every opportunity to give evidence as to how they had disposed of the furniture. Mr Smith maintained that he was in the flat when the furniture was taken out of the building. However, the photographic evidence shows Mr Smith being downstairs in the back entrance, together with Marsh."

[10]On the basis of the evidence, they concluded that Mr Smith was dismissed by reason of his gross misconduct and that it was within the range of reasonable responses for this employer to have dismissed this employee for the offence as alleged because, on that day, Mr Smith was the driver and acting ganger. They commented that it was clear that Mr Smith was an acting ganger and given an extra allowance, despite Mr Smith saying that he was unaware of this fact or that he received allowances in the past. The Tribunal accordingly, rejected the complaint of unfair dismissal.

[11]The Appeal in this case, which has been ably put forward by Mr Evan Jones of Counsel, stresses the disparity between what happened to Mr Wills and what happened to Mr Smith. He pointed out from documents which evidenced the disciplinary and appeal hearings that Mr Smith and Mr Wills were essentially equally culpable and that the only reason why Mr Smith was dismissed was because he was the one in charge and yet that constituted a departure from the arrangement which everybody had assumed up until the appeal hearing would be followed, namely, that all members of the team would be treated on an equal basis. Having given themselves the opportunity of enquiring of the decision maker as to whether they should adopt the approach of "all in it together" or "look at them individually", the person who took the decision to dismiss said that:

"Mr Smith was untrustworthy. A thief should be dismissed. I would be happy if Mr Wills is reinstated with a final warning. Any employee should not steal from the Authority. No doubt, Mr Wills benefited and didn't whistle-blow."

[12]Having asked themselves the question as to whether they should follow the old practice or the new one, the Employers were concerned as to what would happen if they rejected Mr Deverall's advice on reinstatement of Mr Wills. "What could we say at an Employment Tribunal?" Counsel submits that the Employers have fallen into error. They should have also gone on to say "If we reinstate Mr Wills, what will we say to an Industrial Tribunal when Mr Smith says that he has been treated significantly differently from somebody whose case was identical to his own." He also points out that, and we accept, that Mr Smith does not acknowledge that he was in any way acting dishonestly in what he did in relation to the particular incident.

[13]We have to say that we do not consider there to be an arguable point of law. It is obviously right than an employer should not unreasonably discriminate in terms of penalty between one employee and another. If an employer consciously distinguishes between two cases, it seems to us that the dismissal can be successfully challenged but only if it could be said that there was no rational basis for the distinction made and that is a proposition taken from the Securicor Limited -v- Smith reported in 1989 IRLR P.356. Inconsistency, even where it exists, many not render a dismissal which is otherwise fair/unfair.

[14]It seems to us reading the decision of the Employment Tribunal that there was indeed, a rational explanation for the difference in treatment between Mr Smith and Mr Wills. Firstly, Mr Smith was found by the Tribunal to be the driver and on a higher grade and was a permanent member of this particular team. Secondly, it was their judgment that it was reasonable for the Employers to have believed that Mr Smith was responsible for the sale of the goods to Mr Marsh. And thirdly, they noted that Mr Smith, whilst denying that he was in the flat when the furniture was taken, could not have been correct in his evidence because of the photographic material.

[15]In those circumstances, it seems to us that this was a question of fact for the good judgment of an industrial jury. We can see arguments suggesting that Mr Smith and Mr Wills should not have been treated differently because of previous arrangements made with the Transport & General Workers Union, and we can understand that there may have been other tribunals which would have or might have reached a different conclusion. But the question before us is whether there is any arguable point of law in this Appeal. We have to say, having considered the case with care, that there appears to us to be none and accordingly, this Appeal must be dismissed.