MS LUCY MUSA v J SAINSBURY PLC [2000] UKEAT 238_00_2305

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 238_00_2305Case No Appeal No. EAT/238/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS LUCY MUSAAPPELLANTJ SAINSBURY PLCRESPONDENT
Before
His Honour Judge H WilsonLord Gladwin of CleeDate 23 May 2000
[1]APPEARANCES For the Appellant MR C AGWU (Solicitor) Solicitors Direct 124 Kingsland High Street Dalston London E8 2NS JUDGE WILSON: This has been the preliminary hearing of the proposed appeal by the Applicant against the decision of the Employment Tribunal that the Respondent Company did not unfairly dismiss her. The applicant says in her application that she had been off sick for some time and then she was confronted with allegations concerning the adding of reward points to her customer loyalty card. She admitted that she did that when customers offered her reward points. She said that she did not know that it was wrong to do that and that she had not had the letter about it. She contends in her application that the Respondent company used this matter as an excuse to get rid of her because of her record of sickness absence.[2]The Respondent company denied unfair dismissal and asserted that their handbook, set out the position about the reward points. There was moreover a notice on the staff notice board of the branch where this applicant worked. They defended as fair the dismissal for gross misconduct.[3]The grounds of appeal are that the Tribunal founded its decision after having admitted inadmissible evidence from two sources. It is submitted that the employee handbook was inadmissible because the Appellant had never seen it or signed it. That is slightly changed by Mr Agwu on behalf of the applicant in his submissions today, because he says that the hand book was issued and signed for at a time when the reward points scheme was not in existence. This matter is in fact dealt with by the Tribunal in its extended reasons and in paragraph 6 the Tribunal refers to the particulars of employment which were before it as document R1 and they go on to say:
"The Applicant by her signature to it on 10 August 1992 confirmed that she had read and understood and it asked her to refer to the employee hand book for guidance on the Sainsbury's complaints procedure and its disciplinary rules"
[4]On 19 August 1992 the Applicant signed the induction-training checklist which was document A10 before the Tribunal. The Tribunal went on in its next paragraph to quote the relevant extracts from the employee handbook under the heading 'Working on trust.' In particular there was reference to the company's staff discount scheme or any company customer scheme and staff that are employed are warned:
"Any misuse or breach of those schemes for personal gain will make the perpetrators liable to summary dismissal. This applies whether the misuse or breach is either for personal gain or that of a colleague, relative, friend or customer. If a customer offers you his or her customer loyalty card benefits such as points or vouchers, you must politely refuse."
Mr Agwu contends that the reward scheme by that name was not in existence at the date of that handbook but concedes that at that date there was a customer loyalty scheme in existence, which was the forerunner. It seems to us that there is no merit in the first ground of appeal.[5]The second ground of appeal is that a report by Mr Terry Pool that no other staff accepted gifts of points should have been rejected as inadmissable. All the report showed was that there was no other incidences of high usage on staff cards. The report did not rule out usage by other staff. That too is a matter which is dealt with in full in the Tribunal. In particular it was an assertion which had been made at the initial disciplinary proceedings. Mr Wiltshire, who had conducted those proceedings, found no evidence that other customers had offered their reward points to other checkout cashiers, nor that other cashiers had accepted such offers from customers. He took the view that the evidence pointed to a breach of trust for personal gain. He dismissed the Applicant for gross misconduct.[6]The domestic appeal had been commenced on 15 December 1998 before Mr Millen the District Manager. Mr Waale represented the Applicant. The hearing was adjourned in order to investigate the Applicant's allegations that other check out operators were also putting customer reward points onto their personal reward cards. She would not name them and the usage report showed only the Applicant and another, genuine, customer as high users at the Harringay store. Mr Terry Poole prepared the report and the relevant parties quoted in paragraph 8 (7) of the decision. The resumed hearing took place on 8 January and took into account Mr Poole's report and the decision was upheld. The Tribunal dealt with that matter specifically under paragraph 12 (2) of its decision: - "Further investigations were carried out after the first hearing because at the first hearing the Applicant although she would not name any names alleged that other check out cashier employees were doing the same thing. That is transferring reward points from customer's purchases to their own personal reward cards. Mr Poole's investigations did not reveal any other Sainsbury's employee indulging in that practice, apart from the Applicant. As stated in evidence Sainsbury's employees are allowed to have reward cards in relation to their purchases and therefore their reward card transactions are bound to show reward points, relating to purchases. The issue was not whether they transferred points onto their reward cards: the issue was whether they had transferred any points from customers' purchases onto their reward cards. As the Applicant was understandably not prepared to name any names, Sainsbury's could not take the investigation any further. The evidence was that local branches did not carry out any random monitoring of their employees' reward cards. What triggered the investigation into the Applicant's reward card was the print out (which was before the Tribunal), which brought the unusually high level of transactions in relation to the Applicant's reward card to the attention of the Respondents security staff. There was no evidence to suggest that Sainsbury's would not have conducted an investigation into the reward card transactions of any other employee in similar circumstances."[7]In our view there is no merit in the second ground of appeal either which is as misconceived in law as the first one. There is therefore no ground upon which to impugh the decision reached by the Employment Tribunal. This appeal has no chance of success, if it was fully argued, and must be dismissed at this stage.