ROBERT MCBRIDE LTD v (1) MR G M ROONEY (2) MR S J MCCANN (3) MR S THOMASON [2005] UKEAT 0155_05_2807

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2005] UKEAT 0155_05_2807

Case No Appeal No. UKEAT/0155/05

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

ROBERT MCBRIDE LTDAPPELLANT

(1) MR G M ROONEY (2) MR S J MCCANN (3) MR S THOMASONRESPONDENTS

Before

His Honour Judge Ansell Mr D Bleiman Mr P A L Parker

Date 28 July 2005

[1]APPEARANCES For the Appellant MR PAUL GILROY (of Counsel) Instructed by: Messrs Kuit Steinart Levy Solicitor 3 St Mary's Parsonage Manchester M3 2RD For the Respondents MR PAUL MICHELL (of Counsel) Instructed by: Messrs Whittles Solicitors Pearl Assurance House 23 Princess Street Albert Square Manchester M2 4ER SUMMARY Reason for Dismissal and Reasonableness of Dismissal Unfair dismissal. Tribunal did not adopt test of employer's reasonable response but imposed their own view of employer's response for dismissal both as to reason for dismissal and penalty imposed. Remitted for rehearing. HIS HONOUR JUDGE ANSELL This is an appeal from a decision of a Carlisle Tribunal who, following a hearing in August 2004 determined, in Reasons delivered on 13 September, that the three Respondents had been unfairly dismissed. Subsequently, orders were made for their reinstatement and we were told today that, in fact, they are working, although of course, they will have lost possibly some benefits as a result of that reinstatement.

[2]The background to the case is that the Respondents were specialist forklift drivers at a distribution warehouse operated by the Appellants today and they were good workers with no disciplinary problems and had, individually, been working there, each of them, for a number of years, as set out in the Tribunal's Decision. All three of them were dismissed on 16 January 2004 which resulted from an incident which took place on Christmas Eve 2003. On that day, they were working a shift which was due to last from 7am until 7pm. On previous Christmas Eves employees had been allowed to go home early and the production staff at this warehouse started at 6am that particular day and were allowed to leave at 12.30. By that time, the Tribunal found that the employees had nothing to do, had gone for a break and they requested of Mr Benson, who was one of the supervisors that day, as to whether they could go early. Mr Benson said he did not have any information and that Mr Humphries was the person who could decide. Just moving on ahead, in fact, all staff were sent home at 3pm. There was an issue which has formed the subject of a perversity appeal as to whether or not there was other work available after 12.30. We are satisfied that there was no clear evidence before the Tribunal on that issue, although there was a reference to a record on a computer that Mr Benson may have seen that there were further trailers coming in from Tesco. There is no evidence, in fact, that that work could have started by 3pm. The men effectively decided that they wanted to leave early; they saw no point in staying there and, on their own account, had "better things to do on Christmas Eve". There is a procedure laid down for early finishing: a form has to be filled in and has to be signed by either a supervisor or the more senior manager, in this case Mr Humphries; this form has to be filled in where, for instance, someone feels sick or they are going off to see a doctor or a solicitor. On this occasion, the men asked for the forms. They were filled in – there is a dispute whether or not it was actually done in the presence of Mr Benson but there is no doubt that the forms were filled in by the men and left with Mr Benson. The forms were filled in in somewhat of a sarcastic and flippant way. After filling in the forms, the men left the premises and on the way out they saw Mr Quinn, another of the supervisors, wishing each other a Merry Christmas.

[3]Mr Benson's evidence taken before Mr Humphries was that he did not tell the Appellants that they could not leave or that there was further work or, indeed, that Mr Humphries' permission was needed. Mr Benson had authority to sign the forms if he thought appropriate. Mr Benson said that he saw the forms when he came back to the office, read them and took them and left them on Mr Humphries' desk but did not draw his attention to them. He said that he did not think it important to advise Mr Humphries immediately. Mr Humphries was annoyed when he saw the forms and decided to initiate disciplinary proceedings. He suspended the Appellants and interviewed various witnesses. Those interviews were in the bundle of documents. Each of them had a separate hearing when they were represented and effectively put forward a case that they had implied permission by Mr Benson, by reason of his conduct, to leave the premises. They said that they considered that the handing of the forms to Mr Benson without his saying anything, and without any sign of further work, was implicit permission for them to leave the premises. Mr Humphries, on the other hand, believed that on the day they could have waited to see if they had got a signature, and he believed that they had left the site with no regard to their colleagues, the management site or customers and letters of dismissal were sent out. It was treated as gross misconduct in accordance with the disciplinary code which sets out leaving the premises without permission as one of the grounds constituting gross misconduct.

[4]The matter was appealed before a Mr McIntyre who re-interviewed the witnesses. Mr Benson told Mr McIntyre a different version of events: that he had actually told the Appellants that he was not able to sign the forms, that they would have to be signed by Mr Humphries and that the Appellants could not care less. He was asked why he changed his tune as far as his story was concerned. He said he did so because initially, he did not want the Appellants to be dismissed. Mr McIntyre concluded that they did not have implied or implicit permission to leave the site. He took into account certain factors - there was a dispute about how much mitigation he took into account - and confirmed the dismissal.

[5]The Tribunal quite correctly set out the law, reminding themselves of British Home Stores Ltd v Burchell

[1978] IRLR 379

and said this:

"…that we should not substitute our own view. We must take the decision of the manager in the light of the evidence that was before the manager. The employers had concluded that it had submitted that there was a full and proper investigation, that it was reasonable for the employers to conclude that the Applicants had left without permission, the employees knew the procedure to be followed and that lack of affirmation should not have been regarded by them as permission to leave and that there were no mitigating factors"

. The Tribunal's decision is criticised particularly because it is said in this appeal that although the Tribunal gave themselves a warning that they had to look at the matter in terms of how the managers or those conducting the disciplinary hearing viewed the case, that nevertheless the Tribunal itself, as it were, stepped into the arena and imposed their own views on the evidence on effectively what was reasonable or unreasonable. In particular, criticism is made of a sentence at the beginning of paragraph 20 where the Tribunal set out the position as far as approval or otherwise thus:

"It appears to us from the evidence that was before Mr Humphries that there was tacit approval by Mr Benson that the Applicants could leave. The only thing that had not been completed was the actual signing of the form"

. In paragraph 21 they record the fact that Mr Benson changed his story and they said that should have sent alarm bells ringing with Mr McIntyre. Again, in paragraph 22, they say this: "They had tacit approval from Mr Benson".

[6]Complaint is made by Mr Gilroy about that passage, in particular, because it is said that the Tribunal were not asking themselves the proper question which is this: whether both Mr Humphries and subsequently, Mr McIntyre were entitled, based on the evidence before them to effectively reasonably reject the notion that the employees either thought or believed that they had tacit permission from Mr Benson and the Tribunal failed to approach their task in deciding the matter, looking at the evidence that was before the managers rather than revisiting the evidence themselves.

[7]A preliminary issue has been raised as to whether or not that contention actually appears in the Notice of Appeal. We are satisfied that, reading the Notice as a whole, there is a complaint about that finding along with a number of other findings made by the Tribunal where it is said that they have substituted their own view for that of the employers as to whether it was reasonable or not to dismiss. The particular reference to the question of tacit approval is mentioned in paragraph 7 of the Notice of Appeal and if one combines that with paragraph 10, we are satisfied that this issue was sufficiently raised although, perhaps, it could have been dealt with a degree more clarity. The Respondents to this appeal, the employees, represented very ably by Mr Michell, submit that effectively, the Tribunal did not impose their own view and that the manner in which they have dealt with it is, by implication, saying that no reasonable employer could have come to the conclusion other than that tacit approval had been given. Certainly that was the only decision they say, he submits, that Mr Humphries could have come to and Mr McIntyre was in no better a position – in a sense a worse position – because he was faced with the conflict as a result of Mr Benson's change of story. Indeed, it appears from Mr McIntyre's notes of the appeal that he did try to approach the matter, by putting Mr Benson's change of story to one side.

[8]On this issue, we are satisfied that regrettably, it seems to us, the Tribunal may have overstepped the line and having given themselves a very clear warning as to what their proper duties were, they have indeed stepped into the arena and found facts for themselves rather than considering what was the material in particular before Mr Humphries. It may well be that on proper reflection of the matter, they would have come to the same conclusion, namely that Mr Humphries was indeed entitled on the evidence before him to reject the contention being advanced by the employees that they neither knew nor believed that they had tacit approval. That, unfortunately, is not how the Tribunal's conclusions in paragraph 20 are set out. They are set out effectively as findings of fact made by the Tribunal on the material that was in front of them, not views of whether or not the employers were or were not entitled to come to the decisions that they did.

[9]The Tribunal's conclusions in paragraph 22 that the dismissal was unfair starts on the basis and on the premise that the employees had tacit approval. They factor into that a number of mitigating factors that they say would have lead any reasonable employer to conclude that dismissal was not the correct sanction in the circumstances: employee factors such as Christmas Eve, there being no work available, the good employment records and, indeed, the fault of Mr Benson in not making the position clear to them, but those factors are secondary to their basic conclusion that tacit approval from Mr Benson had been given, a finding of fact which, as we have indicated already, we are not satisfied that the Tribunal were entitled to draw, certainly by using the approach that they did.

[10]If one set asides for a moment the issue of tacit approval, it is argued before us today that we should come to a conclusion that even if the men had not had tacit approval, that in the light of the strong mitigating factors, the employers could have only come to one conclusion. But it seems to us that it is not for us to reach that conclusion and that really must be a matter for a Tribunal to reconsider. If they were to come to the conclusion that the men had left without tacit approval, the Tribunal would have to consider the dismissal, balancing a situation of men deliberately leaving a place of work without approval as against with the mitigating factors that were being advanced.

[11]The other argument before us is whether or not we are able to conclude that the dismissal was, in any event, unfair because Mr McIntyre, in particular and possibly also Mr Humphries, had failed to take into account the various mitigating factors, some of which we have already made reference to. The problem that we face with being asked to deal with that aspect of the matter is that if the men had left without approval and there were mitigating factors which had not been taken into account, particularly by Mr McIntyre, that would not necessarily have led to a different conclusion; the finding of unfairness would be limited to procedural unfairness and that could also introduce possible issues of a Polkey deduction or considerations. This seems to be a mine field into which we, as the appeal court, should not enter and therefore our conclusion on the matter is that we should return this matter to the same Tribunal with the guidance, particularly in relation to their correct approach to dealing with the issue of tacit approval that we have given, and inviting them to reconsider the matter as they think appropriate. They have, of course, already heard evidence. Whether or not they can deal with the matter simply on further submissions will be a matter for them. We wish to record the fact that on behalf of the employees, Mr Gilroy has assured us that although we are having to set aside today the finding of unfair dismissal which results from our sending the matter back, this will not result in the men being dismissed until the matter has been either hopefully settled between the parties, and we sincerely hope that can be arranged, or there is a further hearing before the Tribunal. The considerable uncertainty in terms of these men's employment must have already been a matter of great difficulty for them and regrettably, our decision today will not obviously add to that feeling of well-being as far as they are concerned and we have to bear their concerns in mind, although we appreciate that the employers have come here because they wish to establish the sense whether the actions that the managers took were justified or not. We understand that, particularly in a large organisation such as theirs where proper discipline is clearly a matter of great relevance. We understand that consideration.

[12]As we said at the outset, it may well be that the Tribunal had, as it were, the right idea in mind but regrettably, may not have expressed it in the best possible terms. That will be a matter for them to deal with when it is returned to them.