MANCHESTER AIRPORT PLC v MR J N MCCALL [2008] UKEAT 0230_08_0511

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2008] UKEAT 0230_08_0511

Case No Appeal No. UKEAT/0230/08

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MANCHESTER AIRPORT PLCAPPELLANT

MR J N MCCALLRESPONDENT

Before

His Honour Judge Ansell Dr B V Fitzgerald

Date 5 November 2008

[1]APPEARANCES For the Appellant MISS J C WOODWARD (of Counsel) Instructed by: Messrs Halliwells LLP Solicitors 3 Hardman Square Spinningfields Manchester M3 3EB For the Respondent MR M DOLMAN Representative SUMMARY UNFAIR DISMISSAL: Reasonableness of dismissal Majority view of Tribunal that the investigation was insufficient and dismissal was an impermissible sanction was incorrect in that they did not apply test of reasonable employers but imposed their own subjective view. HIS HONOUR JUDGE ANSELL This is an appeal from a decision of a Manchester Employment Tribunal chaired by Employment Judge Mr J Dawson, who by a majority (lay members) decision determined that the Claimant Mr J McCall had been unfairly dismissed although awarded compensation based on a contribution of 25 per cent. The hearing took place between November and January 2008 with the Reasons sent out on 7 February 2008. This hearing proceeds pursuant to leave given by HHJ Serota QC on 20 March 2008 following an initial sift.

[2]The dismissal followed Mr McCall taking a bottle of Armani aftershave. He was employed at the relevant time as a security officer at Terminal 3, Manchester Airport. As is well-known following the heightening of security at airports over the last few years passengers were not allowed to take liquids in their hand luggage on to planes and bottles were therefore confiscated at the point of security checking. Mr McCall took a bottle of Armani aftershave that had been given up by a passenger and in due course following the reporting of that taking by another security officer he was dismissed for gross misconduct.

[3]The majority decision of the Tribunal that the dismissal was unfair followed the majority deciding that firstly the investigation carried out was not reasonable, secondly, that if a reasonable investigation had been carried out dismissal may not have followed and thirdly, that in any event dismissal was not a reasonable sanction for this employee in the light of his work record and the nature of the offence committed.

[4]The grounds of appeal are based on those that we often have to consider in cases of unfair dismissal, namely that:(a) the Tribunal impermissibly substituted its own standards or views for that of a reasonable employer;

(b) failed to apply or misdirected itself in the application of the band of reasonable responses tests;

[5]Before passing to the background facts and the Tribunal's decision, we would only comment at this stage that the fact that the Tribunal's decision was split is a neutral factor as far as we are concerned. As Morison P said in Thames Valley Police v Kellaway

[2000] IRLR 170

"the fact that the decision was split does not lead to the conclusion that it is somehow especially suspect; rather the contrary". In that case there was a substantial dispute about the facts of the case. In this decision the facts are substantially not in dispute, the issue being one of reasonableness as far as the employer's actions are concerned.

[6]The background facts are that the incident concerning the aftershave took place on 17 December 2006. Having been disclaimed by the passenger it would have normally been put either in a tray or a box and disposed of. However, the Claimant was seen by a fellow security officer, Heather Buckley, to place the bottle in his pocket and thereafter into his bag. She reported the incident to her team leader who thereafter reported the matter to the police and his superiors. Mr McCall was taken to a police station and given a police caution. He explained this by a desire to leave the police station as quickly as possible and return home to his partner.

[7]He was suspended on 18 December and interviewed that day and in the course of the interview, the notes of which were signed by Mr McCall as being a true and accurate record, it is noted that Mr McCall "knew it was wrong but he saw it as waste". He was also asked to confirm that he had attended continuation training where staff were reminded about the policy on discarded items, to which he replied yes.

[8]Mr McCall was thereafter invited to a disciplinary hearing which took place on 31 January 2007 and was conducted by Mr Proudlove. Statements had already been obtained from three employees, Mr Ayres, Mr Kemp and Miss Buckley. Mr Proudlove was unable to say whether Mr McCall had been sent those documents prior to the disciplinary meeting. The Tribunal viewed that they were probably not sent but in any event they added little to that which the Claimant admitted he had done.

[9]At that meeting Mr McCall maintained that he had previously been given permission by a team leader to take disclaimed items on the understanding that if no one saw him taking them then it was "okay" to take them. The team leader using the expression "look round first then stick it in your bag but don't let another team leader see". It was part of Mr McCall's case throughout the disciplinary process and before the Tribunal that the taking of disclaimed items was prevalent amongst the staff and Ms Addie, the trade union representative who represented the Claimant, told the disciplinary process that other staff members had approached her, stating that the rules were not clear and that many people took items that had been disclaimed by passengers. However both Mr McCall and Ms Addie refused to disclose either the names of other persons taking items or the particular team leader who was said to have given approval to what the Claimant was doing.

[10]At the disciplinary meeting Mr Proudlove raised the fact that staff briefings had made it clear that items were not to be taken after they had been disclaimed although the Claimant said he was uncertain whether the issue had been raised at a recent continuation briefing and wished to amend what he had previously admitted at the initial investigatory meeting. Mr Proudlove concluded that the Claimant had taken the aftershave, that the rules were clear which prohibited him from so doing and that he knew what the rules were and that the taking of the aftershave amounted to gross misconduct. He also decided that there was no tacit approval of what the Claimant had done at team leader level and considered that the appropriate sanction was dismissal, which was confirmed by letter dated 9 February.

[11]The appeal was heard by Mr Fazakerley. Mr McCall argued again that the taking of items had been widely accepted, that he had not received any contra briefing and that he had been given "the nod" by a team leader to take the aftershave. It was also his case that the sanction of dismissal was too harsh having regard to his record, particularly that of being "employee of the year". Again both Mr McCall and Ms Addie refused to name names. Mr Fazakerley decided, in the light of matters raised by Mr McCall and Ms Addie, to interview other people and he conducted interviews with three other team leaders and one security officer. They all confirmed that the rules were clear; that it was not possible to take discarded items and that there was no significant difference in practice between the three terminals at the airport, Terminals 1, 2 and 3. When the appeal was reconvened on 26 April Mr McCall stated that it was not a team leader on the day of the incident who had given him approval to take the aftershave but a team leader on a different day and again refused to name the person. Mr Fazakerley concluded that the Claimant must have been tipped off about the investigation. Mr Fazakerley confirmed the dismissal decision and with the confirmatory letter he included copies of briefing material regarding confiscated items which he had considered and which had not been sent to the Claimant before but did not send him the notes of the four further interviews he had carried out.

[12]The final right of appeal was heard by Mr Cornish, the managing director, who dealt with the matter by way of a rehearing. Mr McCall confirmed that it was only one team leader who had given him "the nod" to take things. The Claimant told him that he had taken items on six occasions previously and always asked permission but conceded he did not get permission on the day in question. He confirmed to Mr Cornish that he had had an opportunity to put his points across at the meeting. Mr Cornish upheld the decision on the basis he believed the Claimant knew that it was wrong to take aftershave and that even if a team leader had given approval that would make no difference because such approval was not within the team leader's gift.

[13]The Tribunal noted on 1 December the Claimant had undergone 8 hours of level 1 refresher training. There was an issue as to whether the PowerPoint presentation included a particular slide which confirmed that disclaimed items should not under any circumstances be taken for personal use. Mr Proudlove had spoken to Mr Cordingly, who had arranged the training, who had told him the slide was used in the training presentation although the Tribunal did not make specific findings that the Claimant had seen that slide. A work colleague, Mr Schofield, giving evidence before the Tribunal said that he did not believe the slide was shown and that the taking of discarded or confiscated items by staff happened a lot. Mr Schofield had not been interviewed in the course of the investigation. The Tribunal did accept the Claimant's evidence that there were no signs in Terminal 3 stating that disclaimed items should not be removed although it did accept that it had always been the airport's policy that these items could not be taken home by members of staff. The Tribunal's key conclusions on the facts were set out in paragraphs 49 – 51 as follows:

"49. We take the view that it may well have been the case that airport security officers were taking disclaimed items on a not infrequent basis and we accept that one team leader had given the claimant "the nod" to do so. However we find that insofar as that team leader had told the claimant not to let another team leader see, both the first team leader and the claimant must have realised that taking of items would not be approved of by all team leaders. 50. We take the view that Mr McCall did know that it was not right to take the after-shave, as did his team leader. His team leader would not, otherwise, have made clear to Mr McCall that he should not let the other team leaders see him taking things. Mr McCall attempted to explain that comment by asserting that what was really meant was "don't let other passengers see you taking things", we reject that explanation as being implausible, if that was what the team leader had meant we think he would have said that. 51. We find that whilst one team leader permitted Mr McCall to take the after-shave, no managers above team leader status (including Mr Proudlove) tolerated such behaviour as exemplified by the fact that in similar circumstances two women had been dismissed previously."

[14]At the commencement of the decision the Tribunal had reminded themselves the issues to be determined were those set out in British Home Stores v Burchell

[1978] IRLR 379

and at paragraph 56 set out their task as follows:

"56.. We remind ourselves that the question is whether the investigation carried out and the decisions reached by the employer were ones which a reasonable employer could carry out/reach, having regard to the band of reasonable responses test. We also remind ourselves of Taylor v OCR [2006] IRLR 613 which re-iterates that the question is whether overall the process was fair or not."

[15]The unanimous view of the Tribunal was that the first stage of the disciplinary process before Mr Fazakerley was subject to criticism in that Mr McCall had not been provided with copies of the briefing notes relied on by Mr Fazakerley until after the hearing of the appeal; nor was he provided with copies of the witness statements from the four witnesses seen by Mr Fazakerley. The Tribunal then noted that Mr Cornish had considered matters from scratch, uninfluenced by the early decisions or the witness statements considered by Mr Fazakerley, and had come to an independent conclusion that the Claimant knew what he was doing was wrong because he had asked to take items on six previous occasions and simply took the item without asking on this occasion. The main point that the Claimant had raised at the appeal hearing was that the taking of such items was widespread. In the Claimant's notes in support of the appeal he had raised the issue of there being no notices in Terminal 3 and also the failure of proper briefing or training on the point. The majority conclusions on the issue of the investigation were set out in paragraphs 63 - 65 and at paragraph 68. "63. The majority (being Mr Haydock and Mr McGrath) consider that a fair investigation on appeal required Mr Cornish to investigate those points further. He failed to do so. 64. The majority take the view that a fair investigation may have resulted in Mr Cornish discovering that there were no notices in terminal 3 or that the claimant had not been properly briefed or trained on the issue of taking disclaimed items and therefore he may not have been dismissed. 65. Further, for the same reasons, the majority is not satisfied that the respondent has shown them that a fair procedure would have resulted in dismissal in any event. … 68. Therefore the decision of the tribunal by a majority is that the investigation was not a fair one for the reasons set out above. There were defects in the disciplinary procedure which were not corrected by the appeals process since there was no thorough investigation of whether68.1 the claimant had been properly notified as to the requirement that non-disclaimed items should not be removed;

68.2 the claimant had been properly notified that taking disclaimed items would be classed as gross misconduct; and/or

68.3 whether the practice was widespread."

[16]The contrary conclusions of the Employment

Judge were set out in paragraphs 66 and 67 as follows:

"66. The minority (being the Employment Judge) take the view that given that Mr Cornish had concluded that the claimant knew that what he was doing was wrong based on what he was told in the hearing, and given further that the claimant had not raised the issues of notices and training during the appeal hearing when given the opportunity to state all relevant matters, it was not necessary for Mr Cornish to consider matters further. The minority takes the view that although the disciplinary procedure was in many respects susceptible to criticism, having regard to the totality of the procedure, including the two appeals, overall the process was fair because of the final appeal before Mr Cornish. The minority concludes that Mr McCall did have a fair opportunity to state his case, to consider and criticise the evidence against him and to make representations about the decision to dismiss. 67. The minority also takes the view that even if the dismissal was procedurally unfair a fair procedure would have resulted in dismissal in any event and therefore applies the principles set out in Section 98A(2) of the Employment Rights Act 1996 . There was nothing that the claimant could have said that would have dispelled his employer's belief that he had taken the after-shave, that it was against the rules to take that after-shave and that the claimant knew that it was not right to take the after-shave. On the balance of probabilities even if Mr Cornish had investigated further he would have come to the conclusion that the rules were clear as Mr Fazakerley did. Moreover the minority is of the view that it was not necessary for the claimant to have been told that he should not have taken disclaimed items home. The company handbook is clear as to theft and bringing the company into disrepute and an employee should not need to have it spelt out to him that he should not take disclaimed items home. In any event the Claimant knew that it was not right to take the after-shave. The question of whether the practice was widespread does not affect the fairness of the decision if the Claimant knew or ought to have known that what he was doing was not right and the management of the respondent did not condone the practice."

[17]The Tribunal's conclusions on the sanction imposed were set out further in paragraphs 71 - to 73 and again at 76 – 77 as follows:

"71. The decision of the majority, being Mr McGrath and Mr Haydock, is that the decision to dismiss did not fall within the band of reasonable responses. Their view was that the taking of a bottle of aftershave, which would have been disposed of anyway and, therefore, would have been of no value to the employer, did not merit dismissal. Mr Haydock takes the view that although taking the aftershave did technically amount to theft it did so only in the way that taking a biro from work would amount to theft. Mr McCall does not think that the taking of the aftershave amounted to theft at all. 72. The majority view is that the decision to dismiss was too harsh, given that the claimant had, in 2006, been awarded a Certificate of Chief Constable's High Commendation for "his courage and bravery during a security breach at Manchester Airport when a suspected suicide bomber gained access to the airfield"

. This incident led to the claimant being awarded "employee of the year". 73. As stated, the majority accepted that the taking of discarded and confiscated items was against the rules but their view was that Manchester Airport had not demonstrated that they had communicated this message as clearly as a reasonable employer would have done. There were no notices in Terminal 3, where the claimant was employed. There was also considerable doubt (in the minds of the majority) whether the message that the taking of such items could lead to dismissal was communicated to employees at briefing and training events. Mr Schofield, an ex-colleague of Mr McCall's and who is still employed by Manchester Airport, gave evidence that the message had not been communicated. The majority view was that there was insufficient investigation at the disciplinary stages regarding this. … 76. Given the claimant's record, the relative minor nature of the offence, the evidence that the taking of discarded and confiscated items was not uncommon, and the considerable doubt whether the warning that the taking of such items could lead to dismissal was communicated to all employees, the majority view was that no reasonable employer would have taken the decision to dismiss. 77. The "band of reasonable responses" is the test to be used in these circumstances and this must be to some extent subjective. Using the collective industrial/commercial experience of the non-legally qualified members (the role for which they were appointed) who can put themselves in the place of employers while not substituting their views to that of the respondent far more easily than the Chairman, and having done this the Majority believe that as laid out in the majority view dismissal falls well outside the "band of reasonable responses" in that no reasonable employer would dismiss the claimant in these circumstances."

[18]The minority view was set out in paragraphs 78 – 80 as follows."78. The minority view (being that of the Employment Judge) is that the employer in this case was faced with a position where one of its security officers had taken an item of property which, whilst having been disclaimed, still, at that stage, belonged to the respondent. An ASO is in a position of considerable trust and in particular makes decisions about what items to confiscate from passengers. It was submitted in argument (rightly in the tribunal's view) that the general public would be very unhappy about the idea that security officers can decide to refuse to allow persons to travel on aircraft with particular goods and then take those goods home if they wished to do so. It is easy to see how such a system would quickly undermine confidence in security staff at airports. This could therefore amount to an action likely to bring the company into serious disrepute.

79. The minority takes the view that the taking of the aftershave was an act of theft in circumstances where the claimant knew that what he was doing was not right. The after-shave had been given by a member of the public to the respondent it was for the respondent to decide what it then wished to do with the after-shave and in particular how it was disposed of. Moreover even if the taking of the after-shave did not amount to a criminal act of theft then a reasonable respondent could properly decide that the removal of the after-shave in these circumstances amounted to gross misconduct. The Respondent certainly believed that message had been communicated to the claimant.

80. The claimant was employed in a position of trust. In that position he took something that was not his to take and he knew that what he was doing was not right. The decision to dismiss, notwithstanding the fact that Mr McCall had in the past been awarded employee of the year status, was well within the band of reasonable responses that an employer could come to. With genuine diffidence on the part of the minority (having regard to the industrial experience of the majority), the minority takes the view that to find that this decision was outside of the band of reasonable responses is to substitute our own view for that of the employer."

[19]In her written and oral submissions Ms Woodward on behalf of the Appellant, reminded us of the provisions of s98(4) of the Employment Rights Act 1996 , namely:

"(4) In any other case where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) - (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case." and s98A(2) which provides that: "

Failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure."

[20]She set out three principles that apply to cases of this nature which are well established and were not challenged by Mr Dolman, the respondent's representative. Those principles are:(1) in the application of s98(4) the Tribunal were required to consider whether the employer had a genuine belief in the employee's misconduct based on reasonable grounds following a reasonable investigation (see British Home Stores Ltd v Burchell ). Each element was to be judged by reference to the standards of a reasonable employer (see Sainsbury's Supermarkets Limited v Hitt

[2003] ICR 111

;

(2) a failure to follow a fair procedure would not make the employer's action unreasonable if it shows that it would have decided to dismiss had it followed the correct procedure (see s98A(2)) that issue has to be decided on the balance of probabilities;

(3) dismissal must be within the range of reasonable responses for the misconduct, the subject of the employer's belief.

[21]In Sainsbury's v Hitt Mummery LJ giving the judgment of the court in a case where the tribunal majority had found that Sainsbury's investigation of Mr Hitt's theft of razor blades was flawed and inadequate, the minority chairman concluding that Sainsbury's had done all that they could have reasonably been expected to do in investigating the apparent theft, cited passages of an earlier judgment he had given in HSBC Bank PLC v Madden

[2000] ICR 1283

. The relevant passages are in paragraphs 18 – 20 of the Hitt decision as follows: 18 Another passage cited by Mr Galbraith-Marten was on p.1293, dealing with what is headed the "Substitution point":

"In one sense it is true that, if the application of that approach leads the members of the tribunal to conclude that the dismissal was unfair, they are in effect substituting their judgment for that of the employer. But that process must always be conducted by reference to the objective standards of the hypothetical reasonable employer which are imported by the statutory references to `reasonably or unreasonably' and not by reference to their own subjective views of what they would in fact that done as an employer in the same circumstances. In other words, although the members of the tribunal can substitute their decision for that of the employer, that decision must not be reached by a process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer, which they were not." 19 The next passage cited was from the part of the judgment dealing with the appeal in Madden , under the heading "

Reasonableness of the dismissal", at p.1294:

"In the circumstances did the bank act reasonably or unreasonably in treating that reason [ie a conduct reason] as a sufficient reason for dismissing Mr Madden? In holding that the dismissal of Mr Madden for that reason was unreasonable the employment tribunal erred in law. It did not correctly apply the law as laid down in the authorities already discussed in the Post Office case. It impermissibly substituted itself as employer in place of the bank in assessing the quality and weight of the evidence before Mr Fielder, principally in the form of the investigating officer's report. Instead, it should have asked whether, by the standards of the reasonable employer, the bank had established reasonable grounds for its belief that Mr Madden was guilty of misconduct and whether the bank's investigation into the matter was reasonable in the circumstances." 20. Finally, there was a quotation from p.1295, expressing my conclusions on the appeal in Madden : "

In my judgment no reasonable tribunal, properly applying the approach in British Home Stores Ltd v Burchell ... and Iceland Frozen Foods Ltd v Jones ... to the facts, could have concluded either (a) that the bank had failed to conduct such investigation into the matter as was reasonable in all the circumstances or (b) that dismissal for that reason was outside the range of reasonable responses. Instead of determining whether the bank had made reasonable investigations into the matter and whether it had acted within the range of responses of a reasonable employer, the tribunal in effect decided that, had it been the employer, it would not have been satisfied by the evidence that Mr Madden was involved in the misappropriation of the debit cards or their fraudulent use and would not have dismissed him. The tribunal focused on the insufficiency of the evidence to prove to its satisfaction that Mr Madden was guilty of misconduct rather than on whether the bank's investigation into his alleged misconduct was a reasonable investigation. This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an appeal against, the merits of the employer's decision to dismiss. The employer, not the tribunal, is the proper person to conduct the investigation into the alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response."

[22]Further towards the end of his judgment Mummery LJ said this:

"31. If the correct approach is taken to the application of the test laid down by the Court of Appeal to the facts of this case, the only conclusion which a reasonable tribunal could reach is that the investigation in this case was reasonable in all the circumstances. … The objective standard of the reasonable employer did not require them to carry out yet further investigations of the kind which the majority in the employment tribunal in their view considered ought to have been carried out. 32. In suggesting further investigations of the kind set out in paragraph 6 of the extended reasons, the majority of the employment tribunal were, in my judgment, substituting their own standards of what was an adequate investigation for the standard that could be objectively expected of a reasonable employer."

[23]Ms Woodward's overall submission was that the majority members of this Tribunal had indeed substituted their own standards as to what was an adequate investigation for the standard that could be objectively expected of a reasonable employer and have focussed totally on the insufficiency of the evidence rather than considering the many positives that emerged during the employer's investigation.

[24]By way of general criticism she points to paragraph 71 where the Tribunal compared the taking the bottle of aftershave to an employee removing a biro from work, notwithstanding that, in paragraph 78, the Tribunal appeared to accept the argument that the general public would be unhappy about the idea that security officers can decide to refuse to allow persons to travel on aircraft with particular goods and then take those goods home if they wish to do so, thereby undermining confidence in security staff at airports and bringing the company into serious dispute. She also referred to the phraseology in paragraph 77 where it expressed the industrial and commercial experience of the non-legally qualified members who can "put themselves in the place of employers".

[25]Passing to the first aspect of unfairness, namely that the investigation was not fair, as stated above the majority highlighted three areas where there was not a thorough investigation and which were not corrected by the appeals process. Ms Woodward submitted that it must have been explicit in that conclusion that the majority must have found that no reasonable employer would have failed to carry out further investigation into those issues. She argued that that conclusion was unsustainable in the light of numerous findings from fact made unanimously by the Tribunal namely:(a) as regards the investigatory interview (i) the claimant admitting that he knew it was wrong (ii) that he had attended continuation training 12 days previously in which staff had been reminded that appropriating disclaimed property was against company policy;

(b) at the disciplinary hearing, (i) the Claimant saying that it was a particular team leader who had given him permission to take the items and (ii) that he was no longer sure whether the issue had been raised at the continuation briefing;

(c) consistently refusing to disclose the name of any other persons taking items or the name of the team leader who had given approval;

(d) by the time of the second appeal putting forward a case that he had taken items on six previous occasions with permission and that in fact he did not get permission on this occasion;

(e) the evidence from Mr Cordingly that the relevant slide was used in the presentation advising employees that disclaimed items must not be taken;

(f) the finding in paragraph 49 that both the team leader and the employee must have realised that the taking of items would not be approved by team leaders and that they knew it was wrong;

(g) the finding in paragraph 51 that no managers above team leader status tolerated the taking of disclaimed items;

(h) the finding in paragraph 78 that confidence in the security staff would be undermined if the public knew that these items could be taken by the security staff once they had been surrendered.

[26]Further, Ms Woodward argues that given those clear findings of fact, and in particular the employee's admission that he knew what he was doing was wrong, speculation about what further enquiries might have revealed how widespread the practice of removing disclaimed items was, was irrelevant; and that this Tribunal had failed to ask itself the correct question, namely whether a reasonable employer could fairly have concluded that it was not necessary to carry out any further investigation particularly as the employee had not raised the issue of notices and training during the appeal hearing.

[27]Finally on this aspect of the matter, Ms Woodward argued that in so far as the Tribunal were concerned as to possible unfairness in relation to the non-provision of certain documents, such a conclusion was unsustainable in the light of the fact that by the time of Mr Cornish's hearing the employee was in possession of all relevant documents and indeed confirmed to Mr Cornish that he had had the opportunity to say anything that he wanted to in relation to the case and the necessity of the Tribunal of considering overall the process rather than particular items.

[28]For the Respondent, Mr Dolman argued that the majority had proceeded on the basis of the Burchell test and had reminded themselves in paragraph 56 that the test was whether the decisions reached by this employer were ones which a reasonable employer could carry out or reach having regard to the band of reasonable responses test. He argued that the language used by the majority was that of the hypothetical reasonable employer applying objective standards rather than the subjective views of what they would have done had they been an employer in those circumstances and that therefore the conclusions particularly from paragraph 63 are that no reasonable employer would have completed this investigation without investigating the three matters highlighted by the majority.

[29]In his written submissions Mr Dolman reminded us of the numerous authorities where both the EAT and the Court of Appeal have cautioned against the appellate court interfering with a view taken by the tribunal as the industrial jury of what was or was not reasonable. However, we are quite satisfied that the majority of this Tribunal did overstep the mark and came to a decision by the impermitted process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer focussing thereby on the insufficiency of the evidence rather than on whether the employer's investigation was a reasonable one.

[30]In our view the majority failed to have regard to the totality of the procedure including the two appeals and particularly the process of the final appeal before Mr Cornish. It is quite clear that Mr McCall had a fair opportunity to state his case, to consider and criticise the evidence against him and to make full representations on his position. Given the Tribunal's unanimous findings that Mr McCall did know that it was not right to take the aftershave as did his team leader, given his initial admission that he had attended continuation training where staff were reminded about the policy on discarded items and given the fact that he had changed his version, we share the view of the minority and agree that it was not necessary for Mr Cornish to consider matters further. It seems to us that the question of whether the practice was widespread was irrelevant given the admission by the Claimant that he knew or ought to have known that what he was doing was not right and that the management of the employers clearly did not condone the practice. Similarly the absence or otherwise of notices in the terminal in our view were of little weight compared to the admissions made as to wrong doing by Mr McCall. Accordingly it seems to us that the majority of the Tribunal were in error in suggesting that further investigations might have produced a different result as far as dismissal was concerned. As we have already set out those further investigations were largely irrelevant, and based on the Tribunal's findings of fact Mr Cornish would still have concluded that Mr McCall knew that the taking of the aftershave was wrong and that only one team leader, who he refused to identify, had given him "the nod" to take items but not apparently on the particular day in question. Mr Cornish would also have been able to consider the statements of the further witnesses, Messrs Wright, Kemp, Miah and Ms Buckley, which would have confirmed that the rules were clear. In particular we were struck by the fact that Ms Buckley, the fellow security officer who reported Mr McCall, was clearly in no doubt that his actions were wrong.

[31]Finally on the issue of sanction, Ms Woodward argued that it was unusual for a Tribunal to interfere with the employer's view in relation to a sanction of dismissal imposed for what was gross misconduct: namely theft committed by a security officer in the course of his employment. As we have already indicated the comparison drawn by one member with the taking of a biro from work was indicative of the lay members deciding what they would have done as employers rather than considering the reasonableness of this employer's actions. Indeed the other lay member did not consider that the taking of the aftershave amounted to theft at all. These comments were against the finding in paragraph 78 where the Tribunal accepted the view in arguments as to the harm that could be caused in terms of the undermining of confidence in the security staff leading to the company itself being brought into serious disrepute. Whilst it is correct that the employee had been awarded a certificate of commendation and awarded the title of 'employee of the year', these were factors that still had to be balanced against the serious act of misconduct and again the Tribunal majority failed to analyse whether this employer came to a reasonable decision having carried out that balancing act.

[32]Again we repeat that the wording of paragraph 77, which we have set out above, clearly indicated that the majority have erred in using a subjective approach.

[33]In his submissions Mr Dolman, whilst conceding that the language of paragraph 78 did create a degree of confusion, argued that the language of the majority decision as a whole indicated that the Tribunal were carrying out a comparison in terms of assessing the reasonable responses of a reasonable employer.

[34]We cannot agree with that view. The manner in which they chose to downgrade the seriousness of this offence seems to us to be the clearest indication that they have unfortunately entered into the arena as participants rather than objective observers.

[35]Accordingly, this decision cannot stand and the only decision for us is whether or not we should send it back to the same or a different tribunal for a rehearing or whether we can substitute our own view that this was a fair decision. Again we are unanimous that the Tribunal has made sufficiently clear findings of fact, particularly in paragraphs 49 – 51, to enable us to say without any hesitation that the Burchell conditions are satisfied and that this was a fair dismissal.