MR S OWUSU-ANSAH v WOOLWORTHS PLC, EASTERN [2002] UKEAT 1029_01_2504

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1029_01_2504

Case No Appeal No. EAT/1029/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S OWUSU-ANSAHAPPELLANT

WOOLWORTHS PLC, EASTERNRESPONDENT

Before

Mr Justice Wall Ms S R Corby Mr D J Hodgkins Cb

Date 25 April 2002

[1]APPEARANCES For the Appellant MR MANNAN (of Counsel) Messrs Ranjit & Co Solicitors 182 Mitcham Road Tooting London SW17 9NJ THE HONOURABLE MR JUSTICE WALL This is the Preliminary Hearing of an appeal by Mr Owusu-Ansah against the decision of the Employment Tribunal held at London South on 17 July 2001. The Respondent to the appeal is Woolworths PLC, Eastern. The unanimous decision of the Tribunal was that the Appellant was fairly dismissed and accordingly his application for unfair dismissal failed.

[2]The facts found by the Tribunal were that the Appellant, on 14 March 2001, was the responsible person in charge of the Respondent's store at Tooting in South London. He was responsible for the lock up process. The Tribunal found that he had locked fire exit doors on the upper levels of the Tooting store before the shop had been emptied of all other persons, and further, that after the fire exit doors had been closed the Appellant and a lady called Michelle Lamb went from the sales floor to the upper floor putting themselves at risk. The Tribunal also found that there may well have been other staff, who, after the doors had been secured, had access to the upper floor where their coats and belongings were stored. The Tribunal referred to the Fire Regulations operated by the Respondents, known as Fire Sip, the relevant passage of which reads:

"Fire exit doors standard for all stores. When anyone is present in the store it must be possible to open all fire exit doors without using a key. Customer fire exit doors must be secured by push bars only. All security devices, e.g. bars, wedges, push bolts etc are removed or released."

The Tribunal found as a fact that this requirement had been breached by the Appellant and indeed the Appellant did not dispute before the Tribunal that the regulation had been breached nor did he dispute it at the disciplinary hearing, to which I shall refer in just a moment.

[3]The Respondent, as the Tribunal found it was entitled to do, took the view that the Appellant's conduct was a wilful and serious breach of health and safety regulations whereby the Appellant put himself and others, particularly Michelle Lambe, at risk. The representative of the Respondent who carried out the disciplinary hearing told the Tribunal, and the Tribunal found, that she took into account that the Appellant had six years managerial experience, and that he had not had any previous disciplinary matters recorded against him. However, she considered that the conduct of the Appellant on 14 March was sufficiently serious to warrant dismissal. The Appellant was summarily dismissed by Ms Warner on 5 April.

[4]Ms Warner conducted the disciplinary hearing, the particulars of which were before the Tribunal, and the extract quoted by the Tribunal reads as follows:

"Just to reiterate the purpose of this interview was to discuss the allegations that you locked the fire exit doors on the upper levels of the building in the store 64 Tooting, preventing exit in the event of an emergency. I have researched what you said about lock up procedures both at Tooting and the rest of the district and they assure me that at no time are fire exit doors locked prior to store closure. I have also spoken to Julie Hucklesbury, Health and Safety Manager who has confirmed that a store does not need to have a thumb lock on front doors as long as there is a fire exit without 20 years [yards] of the front door. This is the case with Tooting. It is not your duty to make assumptions about fire exits. You did lock the two fire exits by your own admission prior to store closure and team members did access the upper levels after this, which means that if there was an emergency the nearest exit may have been locked. This is a serious omission or neglect of proper precautions for the security, safety or health of staff, customers or property of the company and therefore I summarily dismiss you without notice or money in lieu."

[5]The Tribunal then went on to consider Section 98 of the Employment Rights Act 1996 which they set out in some detail. No criticism is made by the Appellant before us of the manner of which they applied that section. The Tribunal went on to say:

"The Tribunal's powers are [in] these cases restricted. It is not a re-hearing of the whole, it is for the Tribunal to look at the way in which the Respondents carried out the disciplinary process and the decision reached, and it is for the Respondent to show the reason for the dismissal and then it is for the Tribunal to be satisfied that it was reasonable to treat that reason as a ground for dismissal. Once again, no criticism is made of that as that a direction of law. The Tribunal goes on to say: "

The reason in this case for the dismissal was the Appellant's conduct in locking the two fire exit doors prematurely while people were still in the store, breaching the Respondent's safety requirements." The Tribunal then had to consider whether the Respondent acted reasonably. They stated:

"Reasonableness comes into consideration in both the procedural aspects and the manner of the disciplinary hearing, as well as to the ultimate decision."

They then continue with these paragraphs:

"Ms Mallick who has ably represented the Applicant tried to persuade us that there were flaws in the procedure, she refers to the fact, for example that the Applicant did not know precisely what the allegations were against him, that Ms Warner should have investigated victimisation allegations. The fact that a previous final written warning had been overturned after the Applicant raised a grievance that should have been considered. That the Applicant should have been given copies of the witness statement, that he should have been allowed to cross-examine the witnesses. All points, to some extent well made in unfair dismissal cases generally, but the over-riding consideration in any case is justice and fairness. In this case there was no need for a detailed investigation, because the Applicant admitted the conduct which formed the basis of the dismissal. Certainly, this Tribunal does not consider that the Respondents were unreasonable in the way they conducted the disciplinary process."

Reasonableness of the decision to dismiss was it in the band of reasonable responses? We remind ourselves that it is not for this Tribunal to substitute its view for that of the employer. Safety of individuals (of staff and customers) must be a paramount consideration, particularly in large buildings such as this store was, where there is abundance of highly combustible material. For the Applicant to succeed it would be necessary for this Tribunal to find that no reasonable employer would have dismissed an employee for a breach of these regulations by committing the conduct which the Applicant did. This Tribunal is unable to say that no reasonable employer would have made the decision which this Respondent made. On the contrary the unanimous view of all of this Tribunal is that it is a decision on the facts that, indeed they themselves would have made, and it is well within the band of reasonable responses open to an employer. It therefore follows that this application fails and is dismissed."

[6]In the Notice of Appeal filed by the Appellant the principal grounds relied upon this morning begin with paragraph 2, that:

"The Tribunal wrongly found that the Applicant admitted the conduct which formed the basis of his dismissal. This finding was wrong because: (i) The Tribunal failed to explore the context in which the admission was made; and (ii) There was no evidence that the Applicant had in fact admitted breaching Health and Safety regulations known as Fire Sip. The Notice of Appeal goes on to argue at paragraph 3 that: "

The Tribunal wrongly found that the Respondents acted reasonably in the way they conducted the disciplinary process. This was improper because the Respondent in conducting the investigatory and disciplinary hearing had no regard to justice and fairness. Witness statements were not provided to the applicant prior to the hearing; witnesses were not called to be cross-examined and the allegations were not precisely set out." Therefore, it is argued that the Tribunal was wrong to find the employer to have acted reasonably. Those grounds are 'fleshed out' in a helpful skeleton argument placed before us this morning by Mr Mannan, who has also addressed them in oral argument.

[7]In essence, the argument came down to criticism of the manner in which the Respondent conducted the investigation and a submission that the Employment Tribunal should have considered the circumstances surrounding the admission; the mere fact that there had been an admission was not, it was submitted, sufficient. The Tribunal's hands were not tied simply because an admission had been made. The circumstances of which that admission had come to be made needed to be fully investigated. Mr Mannan also criticised the manner of the investigation by the Respondents along the lines that I have already indicated. Mr Mannan also relied upon the case of John Lewis plc v Coyne in which the Employment Appeal Tribunal dismissed an appeal by John Lewis from the decision of an Employment Tribunal in which the latter had found the dismissal unfair in circumstances where Mrs Coyne had been using the telephone to make personal calls and in which there had, to all intents and purposes, been no investigation of any kind. The employer, John Lewis, appears to have relied simply on that fact as a means of dismissing her.

[8]We have, of course, considered the submissions made by Mr Mannan with some care but we do not think there is sufficient substance in them to allow this appeal to go forward to a final hearing. The Tribunal found as a fact that the Appellant had locked the fire exit doors on the upper levels before the shop was emptied of staff, and after the exit doors had been closed the Appellant and at least one other member of staff had gone to the upper floor, thereby putting themselves at risk. They found, as they were entitled to find (and indeed was plainly the case) that this was a breach of the Respondent's fire regulations and one which both the Respondent and the Tribunal were entitled to regard, and did regard, as a wilful and serious breach of health and safety regulations sufficient to warrant a summary dismissal. Accordingly, within the terms of Section 98, this was clearly a reason for dismissal which fell within the category of 'conduct' and the Respondents acted reasonably in treating it as a sufficient reason for dismissing the Appellant. In all the circumstances the Tribunal were satisfied that it was reasonable for the Respondents to dismiss the Appellant and applied Section 98. Accordingly the dismissal was in accordance with equity and the substantial merits of the case.

[9]In our judgment the Tribunal were entitled to make the findings it did as a result of and consequent upon a detailed investigation which is apparent from the number of witnesses that they heard, and where the essential conduct which formed the subject matter of the dismissal was not in dispute. We do not think that any further investigation, if indeed it was necessary, would have altered that result. The Tribunal heard three witnesses from the Respondents and were plainly satisfied that the disciplinary process had not been conducted unfairly. It is of course a classic statement of the law that the Tribunal is not entitled to put itself into the position of the employer; and the Tribunal was right, in our view, to hold that its powers were restricted: it was not for them, or indeed for us, to substitute views for those of the Respondent. It follows that this Tribunal can only interfere if the Tribunal below made an error of law in deciding that the Respondent's decision to dismiss the Appellant was one which a reasonable employer was entitled to make. We cannot find any error of law. It is plainly within the band of reasonable decisions. Some may consider it harsh, but it is within the band. As a consequence there is, in our view, no error of law by the Tribunal. It must follow that if this appeal was allowed to go forward to a Full Hearing it would have no prospect of success and therefore we feel it must be dismissed at this stage. It will be so dismissed.