BUDGENS STORES LTD v MR FREDERICK JOHN FLOYD [2001] UKEAT 1080_00_0312

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1080_00_0312Case No Appeal No. EAT/1080/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BUDGENS STORES LTDAPPELLANTMR FREDERICK JOHN FLOYDRESPONDENT
Before
His Honour Judge D M LevyDate 3 December 2001
[1]APPEARANCES For the Appellant MR OLIVER CAMPBELL (of Counsel) Messrs Shoosmiths Solicitors The Lakes Northampton NN4 7SH For the Respondent MR TIM BULEY (of Counsel) Free Representation Unit Peer House 4th Floor 8-14 Verulam Street London EC1X 8LZ HIS HONOUR JUDGE D M LEVY QC Mr Floyd ('the Respondent') was born on 7 January 1941. He commenced employment with Budgens Stores Ltd ('the Appellant') as an HGV 1 Driver at their Wellingborough Distribution Centre on 6 July 1993. On 24 October 1997 Mr Floyd signed and accepted revised terms and conditions of employment. Those terms and conditions of employment included at 9 under the heading:
" Security and Search Procedures"
The Company reserves the right to search any Employee and their property whilst on Company premises [emphasis added] and the Company will undertake random searches as a normal practice. Full details of the Security and Search Procedure may be found in the Staff Handbook." The staff handbook included at March 1997 a heading 'Breaches of discipline which may result in disciplinary action' and then as sub headings:
"(3) GROSS MISCONDUCT Examples of gross misconduct which may {emphasis added] render an employee liable to summary dismissal are given below. Please remember that the list is not exhaustive. ….. …… k) Actions which breach Company Security Procedures including failure to submit to a security search …."
[2]On 17 December 1999 (a Friday) the Respondent finished his shift at about 2.00pm. In his witness statement before the Tribunal he stated:
"I can't remember the time I clocked off on Friday. Could have been about 2 o'clock time. I saw the Security Guard the car was parked as I walked across. He then walked round the back of the car and into the security shed. Why he did not stop me when he looked at me, that is what annoyed me mostly. I thought he was not bothering. Because I went out I was almost on the path going towards my car, then he shouted excuse me sir, I asked him What do you want? He said I want to look in your bag. He said that it is in my contract that I will be searched from time to time."
If that is what was said, of course, what is in the contract is, to be searched 'on company property'. In the IT3 of the Company the grounds of resisting the application are said to be:
"On Friday 17 th December 1999, Mr F Floyd was asked by a security guard to submit himself to a search on leaving the premises." and also: "
At the subsequent Appeal, Mr Floyd was asked why de didn't walk back to the gatehouse to be searched. Mr Floyd explained that the security guard approached him and they met in the road. Mr Floyd admits he should have walked back with the security guard to the gatehouse to be searched, but he 'just wanted to get off home'.[3]On 20 December 1999 there was an investigatory interview held in relation to the Respondent's action on 17 December. On 21 December the Respondent was summarily dismissed for breach of the security procedures, following a hearing conducted by Mr Richard Gibson, the company's area transport manager. There was an appeal hearing on 22 December conducted by the Appellant's senior controller of distribution. On 30 December 1999 Mr Calder, who held that appeal, giving the decision refused the Respondent's appeal. On 31 January 2000 the Respondent applied to a Bedford Employment Tribunal claiming unfair and wrongful dismissal. A hearing took place on 5 May and 19 June 2000. On 20 July 2000 the Tribunal's Extended Reasons were promulgated to the parties. The unanimous decision of the Tribunal was that the Respondent had been wrongfully and unfairly dismissed and he was awarded a sum of £13,894.65. From that decision there was an appeal. There was a Preliminary Hearing before a different Tribunal where the matter was allowed to come to a full Appeal Hearing. That is the appeal which we have heard today.[4]The main ground of appeal is that the Tribunal having set out the test on fairness of dismissal contained in Section 98(i) of the Employment Rights Act 1996 , concluded:
"It is the unanimous decision of the Tribunal that the Applicant has not committed an act of gross conduct pursuant to the Respondent's terms and conditions of employment."
It failed properly or at all to follow guidelines given on applying the familiar steps set out in British Home Stores Ltd v Burchell [1978] IRLR 379 .[5]Before we consider the submissions made we should say that this Tribunal's Extended Reasons have some unusual features. First, the words 'summary reasons' are typed and the words 'extended reasons' are placed on top of it. Secondly, there is a paragraph numbered 1 which has no heading; a paragraph numbered 2 called 'the issues; further down on the first page of the reasons, there is a heading 'facts', against which there is no paragraph number to the side; there are a number of unnumbered findings of the facts made; when we proceed to page 5 of the decision there is a heading 'the law' in an unnumbered paragraph; on the next page, page 6 of the decision, there is a conclusion without a number at the side; on the next page, page 7, there is a heading 'remedies' again without a paragraph number at the side and no numbering below. It has the look of perhaps a decision which not been as well prepared or checked as those we are used to seeing.[6]However that may be, there is that finding. Mr Campbell, who appears for the Appellant, says, it is quite clear that the Tribunal did not carry out the test which it should have done, namely first of all, to determine the reason for the dismissal, and that it is either a reason falling within sub section 2 or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position of which the employee held. A number of other serious complaints are made about the way the Employment Tribunal examined the contractual rights of the parties. Complaint was made about the failure to examine properly, or if at all, where the refusal to search took place and the way certain other questions were raised and answered.[7]We are all satisfied that the decision of the Employment Tribunal cannot be upheld because it did not follow the basic rules which a Tribunal has to do as demonstrated by a short passage in Ferodo Ltd v R Barnes [1976] IRLR 302:
"The question before the Industrial Tribunal should be "
Are we satisfied that the employers had, at the time of dismissal, reasonable grounds for believing that the offence put against the applicant was committed?" rather than "Are we satisfied that the offence was committed?""[8]Given the history of the Respondent's employment, there may well be questions seriously to be examined as to whether the Appellant's reaction to what may well have taken place (we make no findings) was outside the company's premises was a breach of the rules at all. If it was such a breach, was it one for which a reasonable employer could have thought it appropriate to dismiss an employee? Those are all questions which in our judgment should have been considered by the Employment Tribunal which heard this matter some time ago and will have to be considered in the circumstances by another Employment Tribunal. It would be wrong with so many 't's uncrossed and so many 'i's undotted in the decision, for us, as we have been asked to do, to substitute a decision one way or the other ourselves.[9]There is an appeal against quantum which it would be inappropriate for us to consider, having regard to the decision we have reached on the main question ie, was the decision itself right. There is a cross-appeal against making certain findings which in the event it is not appropriate for us to rule on.[10]In our judgment this is an unfortunate decision which, unless the parties can reach an accommodation, will have to be returned to a Tribunal for a further hearing. We say 'unless the parties can reach a decision' because we bear in mind the overriding objective that there should be a saving of costs wherever possible and a further hearing can only add to the costs which at least one of the parties has had to bear and is likely to continue to have to bear in further proceedings, to say nothing of the stress which the other party will have to bear. In the circumstances we will allow this appeal and direct that the matter be reheard by a separately constituted Tribunal as soon as possible.