AAH PHARMACEUTICALS LTD v MR A CARMICHAEL [2003] UKEAT 0325_03_2407

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 0325_03_2407

Case No Appeal No. EAT/0325/03

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

AAH PHARMACEUTICALS LTDAPPELLANT

MR A CARMICHAELRESPONDENT

Before

His Honour Judge D M Levy

Date 24 July 2003

[1]APPEARANCES For the Appellant MR R WHITE (of Counsel) Instructed by: Messrs Addleshaw Booth & Co Solicitors 100 Barbirolli Square Manchester M2 3AB For the Respondent MR D BROWN (of Counsel) Instructed by: USDAW Oakley 188 Wilmslow Road Fallowfield Manchester M14 6LJ HIS HONOUR JUDGE D M LEVY QC This is an appeal from a decision of the Tribunal sitting in Liverpool on 6 February 2003. The decision was promulgated on 25 February 2003. The issue before the Tribunal was whether Mr A Carmichael ("the Respondent") had been unfairly dismissed by AAH Pharmaceuticals Ltd ("the Appellant"). The unanimous decision of the Tribunal was that he had been unfairly dismissed but he contributed to his dismissal by 30%.

[2]The decision followed the lodging of an Originating Application early in December 2002 and a Notice of Appearance on 19 December 2002. There was an appeal by the Appellant from the decision on 1 February 2003 and on the sift system the appeal was set down for full hearing by Judge Clark on 30 April 2003 and the Respondent's Answer followed on 14 May 2003.

[3]The facts can be stated fairly shortly. They are set out in the Extended Reasons. The Respondent was a driver for the Appellant. The Appellant is a pharmaceutical wholesaler and it is required by the Home Office to keep its drugs in safe custody at all relevant times. The Respondent was employed from 23 March 2002 until 27 September 2002.

[4]On 20 September 2002 the Respondent had a heavy day. He had difficulties in his delivery run when he returned to the depot he believed all drugs had been removed from the vehicle he had been driving. That was proved not to be so on a random check carried out overnight. As a result, on 21 September 2002, he was suspended from work and on 27 September 2002, following a disciplinary hearing, dismissed for misconduct. At that hearing, the Respondent raised the question of comparators who had not been dismissed. On 16 October his appeal by Mr Bomphray was heard from the disciplinary hearing. In the absence of mitigating circumstances Mr Bomphray concluded that there could be no variation of the decision to dismiss. At the appeal hearing the situation of comparators was known and considered.

[5]The Tribunal set out the law at paragraph 12 of the Extended Reasons. In paragraph 14 it reached the conclusion, first, that the dismissal was not within the range of reasonable responses. That conclusion led to this appeal, primarily because the Appellant complains that the Tribunal has substituted its own reasons for that given by the employer, although a number of other points are made by Mr Brown, who appears for the Respondent, on the contents of paragraph 14. Mr Brown submitted the Tribunal placed too much reliance on the comment made by Mr Grundy that others may have found there were mitigating circumstances which justified a lesser penalty than dismissal. He, as dismissing officer, did not.

[6]The Tribunal found that:(a) the Appellant's policy was rarely, if ever, mitigating circumstances when drugs were found as they were and the dismissal was the automatic penalty;

(b) that the Respondent had been a good employee for ten years with a fine record;

(d) the dismissal was despite the good opinion of the Respondent held by the Appellants.

[7]It is necessary for us to consider the whole of paragraph 14.

(a) The first two sentences of that paragraph read:

"The Tribunal finds that the dismissal was unfair. It finds that the reason for dismissal was the conduct of the applicant, but the Tribunal finds that this is a rare case where dismissal is not within the range of reasonable responses, because no real consideration [was] given to mitigating factors."

It is apparent to us, looking at the case histories which we were shown that the Appellant had a clear policy which, given the goods which were carried, was sensible; the usual response when somebody was found guilty, as the Respondent was, of disobeying the strict rules, the likelihood was that there would be a dismissal. Real consideration was given when mitigating circumstances existed, reflected in two instances, where it had been shown. One of those was when the lights in the van and in the yard where the driver packed and unpacked delivery stock were faulty and thus the benefit of the doubt was given to the driver. The other was when there had been an error in the disciplinary hearing, when again the benefit of the doubt was given to the transgressor. (b) "The Tribunal found both the dismissing officer and the appeal's officer to be inflexible and disproportionate." Those were findings which, in our judgment, go beyond what the Tribunal were entitled to find on the facts, given the serious nature of the complaint made by the driver and the drugs which were being carried. (c) "The Tribunal noted the evidence of Mr Grundy that there were circumstances where other dismissing officers might have found mitigating circumstances, but he did not." We have not had the notes of evidence but we have seen Mr Grundy's witness statement and we think that the criticism of Mr Grundy is probably misfounded. (d) "The whole tenor of Mr Grundy's evidence and that or Mr Bomphray was that there were rarely, if ever, mitigating circumstances." The fact that 'rarely' was used there suggests that the dismissing officer and appeals officer were not inflexible and disproportionate, that they looked into the facts of the cases. (e) "Both the examples cited to them and to the driver, involved circumstances which did not relate to the employee, but to other factors." Certainly the first one, where the lights were faulty, related to the employee in the circumstances of where he had left dangerous goods in the van. (f) "It was accepted by the Respondent's witnesses that for ten years the Applicant had been a good employee and had had no disciplinary action taken against him. It was also accepted that this was a one-off mistake in ten years. The Tribunal finds that in these circumstances dismissal was a disproportionate sanction, which not even the Home Offices' regulations could justify." As to the second part of that sentence, it is not for the Home Office Regulations to tell an employer how to enforce the policy which it is required to follow. That is a matter for the employee and we do not understand the importation of the Home Office Regulations there. (g) "The Tribunal accepted that there has to be strict security for the transport of controlled drugs and that there is a duty on the Respondent to establish proper procedures and to enforce those procedures. However, the Tribunal finds that it does not follow that the sanction should be automatically dismissal and the Home Office's Regulations do not require it." That is a second reference to the Home Office Regulations and, as we have seen from the fact that there were two cases cited to it where automatic dismissal did not follow, it seems to us that the Tribunal went overboard. (h) "Despite their expressed good opinion of the Applicant and his unblemished record and the fact that it was clear this had been a one-off mistake in ten years, the Respondent dismissed the Applicant and the Tribunal finds that no reasonable employer would have dismissed in these circumstances." The lay members who sit with me do not reach the same conclusion as did the Tribunal; judgment with which I respectfully agree. In our view it is a reasonable response in the circumstances of this case for an employer to have reached the decision which it did. The Tribunal quite clearly substituted its own views for that of the employers. The holding of the Tribunal was correctly castigated as perverse by Mr White.

[8]Our attention has been drawn, perhaps not surprisingly, to another decision involving this Respondent, Wade v AAH Pharmaceuticals Ltd (

EAT/272/01

). There the same Counsel appeared for the parties as represented the parties today; Mr Brown appeared for the Mr Wade and Mr White appeared for the present Appellant. The circumstances were the converse of those which we have considered today. In that case I was the Chairman of the Tribunal sitting with different lay members than are sitting today.

[9]This decision is consistent with that one. We have been referred by both Counsel to the decision in Dobie v Burns International Security Services (UK) Ltd

[1984] IRLR 329

, where Sir John Donaldson (then MR) stated: 14 "In deciding whether the employer acted reasonably or unreasonably, a very important factor which he has to take account, on the facts known to him at the time, is whether there will or will not be injustice to the employee and the extent of that injustice. For example, he will clearly have to take account of the length of time during which the employee had been employed by him, the satisfactoriness or otherwise of the employee's service, the difficulties which may face the employee in obtaining other employment, and matters of that sort."

[10]That comment, as Mr White submitted, must be read in the light of the fact of Dobie where such matters were relevant, section 98 (4) (b) and the substantial merits of the particular case and paragraph 16 of the relevant ACAS Code of Practice, which was quoted in paragraph 16 of the Wade case.

[11]It is clear in this case that the employer took very seriously conduct of the kind of which the Respondent was guilty and Lock v Cardiff Railway Company Ltd

[1998] IRLR 358

gave a number of examples about the range of cases. We can well understand that 'no hats, no boots, no job' rule, to enforce safety on a construction site or a rule on personal hygiene in the food preparation industry, or the rules against carrying a cigarette lighter or matches in a petrol-chemical installation may all be vigorously enforced. In any particular case, exceptions can be imagined where, for example, the penalty of dismissal might not be imposed, but equally, in our judgment, when a breach of a necessarily strict rule has been properly proved, exceptional service, previous long service and/or previous good conduct may properly not be considered sufficient to reduce a penalty of dismissal.

[12]In our judgment the only conclusion which the Tribunal could properly have reached was that the dismissal of the Respondent was fair. In those circumstances we set aside the decision of the Tribunal and make a finding, by way of substitution, that the dismissal was not unfair.