Appeal No. EAT/1004/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 18 July 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MRS M L BOYLE

	MR R H PHIPPS

SECURICOR GUARDING LTD	APPELLANT

MR C ROUSE	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR T J A HOOPER
(OF COUNSEL)
The Solicitor
Securicor Ltd
Sutton Park House
15 Carshalton Road
Sutton
Surrey SM1 4LD

For the Respondents	MR G SOLOMONS
(OF COUNSEL)
Gill Walker & Co
Sarrington House
39 High Street
Corby
NN17 1UU

		JUDGE HULL QC:		This is an appeal to us by Securicor Guarding Ltd who were the Respondents before the Industrial Tribunal.  The Applicant, I will not mention any more names for obvious reasons, had began employment with them as a security guard in September 1990.  The business of the company is to provide among other things the services of security guards, and they provided the services of the Applicant to a large and well known commercial organisation in the South Midlands, an industrial organisation.  There he carried on his duties as security guard, so far as we know, without any criticism or complaint.

	Then, in the early part of 1993, a very worrying event occurred.  The Applicant, who is now a man of 54, was arrested and charged with unpleasant sexual offences against children a number of years before; the sort of allegations which of course give rise to the greatest anxiety from every point of view, not least that of the Applicant himself who was put in a very difficult position and no doubt the same could be said of those making the accusations.  But he was arrested and was charged with those offences; he appeared in the Magistrates' Court.  

	That put his employers in a situation where they had to decide what to do.  The view was apparently taken by the employers that this put them in an impossible situation vis-a-vis the Industrial organisation where the Applicant was deployed.  They felt that the manager there was a volatile gentleman and he would simply find this too much: he would not be prepared to have a person who was charged with such offences on his premises.  That was the general view taken.  

	Enquiries were made of the Applicant by his employers, the Appellants here today.  He said that he denied the charges, he emphatically denied them.  There was no admission of any matters at all.  He denied the charges and they were therefore in the situation of having the misfortune to employ a man who was charged with serious offences and the outcome of the trial would of course be quite unpredictable and it was entirely inappropriate for them to conduct their own enquiries into the truth, or otherwise, of the matters alleged against the Applicant; that would be quite improper, as they realised.

	They did make some enquiries.  As I say, they enquired of him about the matter and he said what he did say about it, denying the charges.  They then decided to hold a disciplinary hearing.  That, in a sense, was a rather remarkable thing to do because he was not charged at the disciplinary hearing with the offences, with which of course he was charged by the Police, and I must refer shortly to what was said at the disciplinary hearing.  There had been an enquiry by an officer of the company and at this disciplinary hearing on the 16 April the allegation was as follows; it was written down:

		"ALLEGATION

			As you are on police bail pending the allegation of gross indecency on two counts, the circumstances surrounding this case give the company reasonable belief that a criminal office may have been committed... "

	I will pause there.   It was explained to us today by Mr Hooper that that reasonable belief that an offence might have been committed was simply based on the fact that the Police would not in the belief the employers generally behave in an arbitrary or oppressive way and that therefore there must be grounds, at any rate, for making the charge, whether it was true or not. 

			" ... and also should the case become local knowledge then the reputation of the company will have been severely compromised."

	That was the allegation.  

		"RESPONSE

			The Applicant responded that he was expecting to be called in by the company ref the alleged allegations and understands the predicament the company are in and accepts any action by the company."

	That was said, although he was not represented there.  It was apparently inconvenient for his representative to be there.  He would have wished him to be there but he had agreed to proceed without him.

		"CONCLUSION OF INTERVIEW

			The Applicant's employment was terminated as per the attached form.  He was offered the right to resign but refused on the grounds that he would not be able to claim off the state he was also informed of his right to appeal."

	On the basis that he had been charged with a serious offence he was dismissed.  There was apparently no consideration of any alternative course, and of course, quite properly, no consideration of the truth or otherwise of the allegations.  All the employers knew about those was that there were these serious allegations which were denied.

	He complained that he had been unfairly dismissed.  The Industrial Tribunal heard the evidence and their decision is a short one.  I will refer to parts of it.  They said, I am starting at paragraph 7:

		"Clearly there was no evidence upon which the respondents could have concluded that they had a reasonable belief that a criminal offence may have been committed.  They had no knowledge of the circumstances surrounding the charges and had had no access to the police evidence.  They said, however, that this substantial customer, where they had the contract where the applicant worked, was likely to be concerned about the charges and about the continued employment of the applicant at this customer's site.  It is a fact that there was a Union management agreement which provided that where investigations could not be completed, suspension on full pay would be appropriate.  Suspension on full pay, the respondents said, was not appropriate here as the applicant's trial may be long outstanding and that, in any event, having the applicant on the pay-roll would be prejudicial so far as this large customer was concerned."

	I will just pause there to say that Mr Hooper has suggested to us that this is not a case of misconduct at all, any more than a case of getting influenza is a case of misconduct.  It was something which put the company in a serious position, an embarrassing position.  But this, although it was a disciplinary enquiry, was not a case of misconduct.  

	The answer to that is that it is quite apparent from reading what is said in the disciplinary agreement which was entered into by the company with the unions, and was intended to be acted on, was that misconduct was to be subject of disciplinary enquiries and it is quite plain that when there is a reference to a disciplinary enquiry, misconduct is the subject of the disciplinary enquiry.

	Then they go.  

		"It is a fact that the Respondents did not speak to the particular Manager who controlled the respondents' affairs at the large customer's premises.  The respondents said that he was a volatile person and likely to be upset by news of the charges against the applicant.  The respondents said that telling this person might well be prejudicial.  We cannot see in any way how that would be prejudicial to the Respondents' position vis-a-vis the large customer.  We believe that any reasonable employer in the position the respondents were could not have made a finding as to the applicant's guilt and could not have pre-judged what the large customer would have said unless and until they had seen the representative of the large customer and put the facts on the table.  Only at that stage would it have been appropriate to make the decision to either suspend the Applicant on full pay or leave him working where he was with the full knowledge of the large customer.  In any event, suspension on full pay is clearly appropriate, because that is what the agreement says.  No time limit is indicated in the agreement.  The Respondents are a substantial and national company.  If they are not prepared to limit in their agreement with the Union on the length of time for any paid suspension then they must take the consequences."  

	Pausing there, it appears to us that the Tribunal there are correctly addressing their minds to the test of what is within the range of responses of a reasonable employer.  They are not saying what they would have done, or how they would have set about it, but any reasonable employer, they say, would have in those circumstances approached the customer.  They made the obvious point that it would clearly be better if the customer heard of it in the first instance from the employers;  so that they could say to this substantial company, "well we are taking action and we want to consult you about this.  We are not going to put you to any embarrassment concerning this, we want to safeguard you from that."

	Only then, when they saw what the customer's reaction was, could they judge the matter; the Tribunal say that any reasonable employer would have done that.  We cannot see that that finding of the Tribunal can in any way be criticised.  They go on:

		"It seems to us that any reasonable employer would have regarded it as a prerequisite of any decision to have discussed the matter with the representative of the large customer and take the matter from there, with suspension on full pay being the fall-back position.

		We are satisfied that the applicant was dismissed for "some other substantial reason" but we are not satisfied that the respondents have acted reasonably, having regard to equity and the substantial merits of the case, in treating that reason as the reason for dismissal.

		We do acknowledge, of course, that employers have a duty to protect their commercial position which may well affect the jobs of other people.  We are satisfied in this case that that situation could have been protected by acting in the way I have suggested."

	There Mr Hooper makes the point that it was for the employers to say how they were to deal with the situation and not for the Tribunal to put up intelligent suggestions about how they might have dealt with the situation.  He refers to a decision of this Employment Appeal Tribunal which happened to be on that occasion chaired by me, in which we were dealing with a quite different case: Royal Life Estates v Campbell.  In that case the employee had been guilty of a homosexual offence in a public place and had admitted it straight away to the Police, and to his employers; there was no doubt that he was guilty of the offence.  The employers took the view that they could only safeguard their position by dismissal.  They took into account all the factors.  The Industrial Tribunal observed "well they could have considered suspending him"; no doubt they could.

	It was for the employers in that situation to decide how to deal with the case and if their response was within the reasonable range of responses then they were entitled to have it respected and treated as a fair one, provided they carried out a fair enquiry; and the Industrial Tribunal found that they had carried out a meticulously fair enquiry and considered the matter in every way fairly.  It was the absolute converse of this present case in which the guilt or otherwise of the employee was entirely undecided, and he had strongly denied what was said against him.  

	The Tribunal had to ask themselves whether in those circumstances the employers, not having carried out, indeed being unable to carry out, any enquiry into the truth of the allegations against him; having entirely neglected the obvious enquiry of the customers to see what they thought of the situation and how they would wish it to be dealt with; and having entirely ignored the provisions of their own disciplinary code; could be said to have acted reasonably in dismissing this employee.  We asked Mr Hooper whether he was aware of any case in which an employer whose employee was charged with an offence had been held to have acted fairly in dismissing him before the truth of that matter was determined and he said he was not aware of any such case.  It does appear to us that it would be a very remarkable thing if it could be said that wherever an employee is in a sensitive position the mere fact that he has been charged with an offence will justify an employer not in suspending him; not in taking him away from the sensitive position; but in dismissing him.  

	This Industrial Tribunal, in the circumstances of this particular case, not going into any such generalisations, said that they were satisfied that this employer had behaved in a way which in the circumstances a reasonable employer would not have behaved in.  We all think, unanimously, that they were well entitled to reach that view.  Indeed, it appears to us very doubtful whether they could on the evidence have reached any other view, but most certainly it was a view which they were entitled to reach.  

	On the facts they found that the employers had not conducted themselves fairly and taken steps which they should have done.  They found that a fair employer would not have acted in the way that these employers did.  We cannot find any error in the law in the processes by which the Industrial Tribunal arrived at their conclusion.  We therefore have to say that appeal must fail. 

	It has been submitted to us that, within the words of Rule 34, these proceedings were unnecessary or improper.  In our view there was no arguable point of law here at all.  We think it was the plainest possible case on the facts and we cannot see, and have not been able to see in spite of Mr Hooper's very capable and courteous argument, how it could be said otherwise.  We are all of the opinion this appeal was bound to fail and we therefore think that the Respondent should have his costs.