Appeal No.	 EAT/1299/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 June 1997

Before
HIS HONOUR JUDGE J HULL QC
MR L D COWAN
MR J D DALY

REVLON MANUFACTURING UK LTD	APPELLANT

MR L HOPKINS & MR S BATER	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P OLDHAM
(Of Counsel)
Messrs Eversheds
Solicitors
Fitzalan House
Fitzalan Road
Cardiff
CF2  1XZ	
For the Respondents	MR A FREER
(Representative)
GMB
22-24 Worple Road
London
SW19  4DD	

		JUDGE HULL QC:   This is an appeal to us by Revlon Manufacturing UK Ltd, who carry on a well-known business in manufacturing in Maesteg, Glamorgan.  The Respondents to the appeal are two employees, Mr Hopkins who is a line-loader and Mr Bater who is a maintenance fitter.  Mr Hopkins had been employed since 3 August 1987 and Mr Bater since 14 February 1977.

	The events which gave rise to the matter before us are as follows.  The employers had been concerned about certain events at their works and they installed concealed cameras with a view to catching individuals who it was suspected, amongst other things, had been guilty of acts of sabotage, with dangerous consequences to health and safety.  

	What was alleged, and indeed proved, was that on 22 October 1995 Mr Hopkins had approached one of these concealed cameras, having correctly decided what it was, and had stuck a label on the lens thus making it impossible for it to be used.  On the same date it was said that Mr Bater had taken off the cover of another of the cameras and a friend or colleague of his had disabled that camera by smearing the lens with lipstick, and then Mr Bater had apparently replaced the cover.  

	Those were the allegations which were indeed eventually admitted.  There was an enquiry.  The two men were both dismissed for gross misconduct and they applied to the Industrial Tribunal and their cases were heard together.  Each of them complained of unfair dismissal and asked to be reinstated.  The answers by the employers, which contained a number of matters which the Industrial Tribunal did not go into and which we certainly have not gone into, alleged gross misconduct against each of the two Applicants.

	The case was heard by the Industrial Tribunal sitting on 12 and 13 September 1996 at Cardiff.  Mr Davies presided with two Industrial Members.  They found that Mr Hopkins and Mr Bater had both been unfairly dismissed.  They held that they were in contribution to the extent of 25%, it being admitted by them that they had done what was alleged against them.  The decision was published on 2 October 1996 and the appeal was brought on 11 November 1996.

	Before I discuss the grounds of appeal it is convenient to refer to the decision itself and the reasons given for the decision so as to see the substance of the appeal by the employers.  The Industrial Tribunal set out the facts - I am only going to read the material parts of the decision - and in paragraph 6 the Tribunal said:
“It was stated by the respondent that security cameras had been installed covertly in various locations throughout the factory following incidents of sabotage which were potentially hazardous to the health and safety of employees.  The respondent maintained that the cameras were installed as a security measure with a view to identifying the culprits.  On Friday 20 October 1995 two employees, not the applicants, were suspended on suspicion of theft from the respondent’s finished goods warehouse.  Immediately thereafter, there were rumours and conversations between the staff concerning the covert cameras and their locations within the factory.”

	There was, as Mr Oldham said to us, no finding that the reasons for installing these cameras were in any way improper.  Indeed, we are told, although there is no evidence about this that is recorded by the Industrial Tribunal, that the Health and Safety Executive had been consulted and had recommended installing the cameras and that the Trade Union was happy; although the question of the secrecy, the clandestine nature of the cameras, was not apparently, discussed, at any rate with the Union.  

	One can see that there are a number of comments that might be advanced about that.  First of all, nobody likes being watched or, as it might be put, spied upon.  Secondly, of course, if cameras are obvious, they may deter much unpleasant behaviour and people who know that the television camera is trained on them will clearly be reluctant to commit any offences, whether of dishonesty or dangerous sabotage.  But it can be said that if somebody is carrying on dangerous acts of sabotage in a factory, the employers’ concern would not merely be to deter such acts but if possible to detect the offenders and exclude them altogether, dismiss them straight away.  There would no doubt be many other arguments which could be advanced, but that was what the employers did and of course they must accept, inevitably, responsibility for what they are doing.

	The Industrial Tribunal set out the facts about the offences which were alleged against these two men - breaches of discipline in rendering between them two cameras inoperative for the time being, although there is no suggestion whatever that the cameras were permanently damaged.  Their solicitor conceded their respective actions and that each should have been disciplined but not dismissed.  It was also conceded that the disciplinary procedure followed by the employers was not to be criticised.  They were fairly and properly heard.  In those circumstances of course the question was whether it was open to the employers to dismiss them, in all the circumstances, as a matter of fairness.

	The Tribunal referred to various matters and in particular the disciplinary procedure which we have mentioned.  The Respondent relied on its code of disciplinary procedure.  The Tribunal said in paragraph 10 of their reasons:
“... Thereby it was provided, inter alia, that any employee’s general misconduct, such as to behave maliciously to one’s colleagues or cause malicious damage might result in the employee being summarily suspended and then immediately dismissed for failure to conform to standards of the outlined discipline.  It also stated that the seriousness of the offence would determine whether or not the person went into the usual disciplinary procedure or the exceptional disciplinary procedure.  The respondent also decided that there was a breach of trust by both applicants, primarily because Mr Hopkins had initially denied his conduct and Mr Bater did not disclose to the respondent the involvement of Mr Julian Morgan.” [The man who had done the actual smearing of the lipstick on the lens.]

	The Tribunal then go on to say what their views were: 
“11	  The tribunal considers that the entire situation was caused and emanated from the cameras being installed covertly as far as the staff at large were concerned.  Once the alleged thefts by other employees were recorded on video and the numerous conversations had started amongst the staff concerning the cameras, it was inevitable that intrigue and reaction amongst the staff would result.  The admitted conduct of both applicants was witness to that.  The respondent’s reason for the covert installation of the cameras was that the cameras did not scan the entire floor area of the factory.  The tribunal does not accept that such explanation was reasonable in the circumstances but that instead the staff should have been informed originally of the installation of the cameras.”

	Now that, Mr Oldham says for the employers, is going much too far.  It is, he says, entirely for the employers, subject to the rules of law and the safety of their employees, to say what the working environment is to be: whether there is to be a clocking-on procedure; whether there are to be cameras; whether those cameras are to be obvious or concealed.  It is going beyond the function of the Industrial Tribunal to tell the employers how to run their business and that includes matters of that sort.  He says this was not a question of the Industrial Tribunal even considering what steps of that sort would be open to a reasonable employer.  They were putting themselves directly in the position of the employers, saying, in effect, they should not have installed these cameras covertly; not accepting the employers’ explanation for it; saying that the staff should have been informed.  Now all those are matters for the employers, said Mr Oldham.

	The Tribunal go on to say:
“12	   The tribunal has no doubt whatsoever that the admitted actions of both applicants amounted to misconduct but is not satisfied that, on the evidence submitted to the tribunal, such actions were gross misconduct to justify dismissal of the applicants.  As to the question of breach of trust by each applicant, it is not at all surprising that the applicants were not open and candid with the respondent when the respondent itself had acted secretly in installing the cameras.”

There again, says Mr Oldham, this was going far beyond the prerogative of the Tribunal.  The Tribunal had to ask themselves not whether they found the reaction of the employers surprising, but whether the reaction of the employers in deciding to dismiss was within the band of responses which reasonable employers might adopt.  Different employers no doubt would adopt different approaches to this.  The question was whether dismissal was within the appropriate band of responses and here the Tribunal, on the face of it, had not asked themselves that question.  They say that they are not satisfied - they, the Tribunal - that such actions were gross misconduct such as to justify dismissal of the Applicants.  They were asking themselves the question which the employers had to ask themselves, and so the Tribunal were not doing what they were required to do, says Mr Oldham as explained in many authoritative decisions by this Tribunal and more important by the Court of Appeal, the Industrial Tribunal must not say what the Tribunal would have done in the circumstances and whether that would have been reasonable, but must say whether, looking at it objectively, this fell within the band of reasonable responses that employers might adopt.

	In paragraph 13 the Tribunal says this:
“Therefore, the finding of the tribunal is that the dismissals of both applicants were unfair having regard to the criteria and provisions in Section 57(3) of the 1978 Act (now Section 98(4) of the 1996 Act) because the respective reasons, relative to the two applicants, of the respondent for their dismissals do not amount to the respondent having acted reasonably in treating the same as sufficient for the dismissals.”

	Were the Tribunal saying that no reasonable employer could have so reacted? Or were they saying again, as they seem to by saying in our view, “it was wrong to dismiss - we apply our own standards here?”  Mr Oldham was disposed to say, and did say to us, that it was simply no business of the Industrial Tribunal whether the employers had installed cameras, whether those cameras had been installed openly or otherwise, whether they were hidden; that was simply no business of the Industrial Tribunal.  Nor were they entitled to say, if this was their view, that that had impaired the relationship of trust with employees.  He might have said, but did not, that an honest man has, unless there is some abuse or prying in his private life or something like that, nothing to fear from being observed whether by the foreman or by a camera, but Mr Oldham says that these matters are simply nothing to do with the Tribunal.  We are not sure and we do not need to decide whether that submission in its fullness is correct.  

	Certainly we accept that the employers are perfectly entitled, in the interests of preventing pilfering and most certainly in the interests of preventing dangerous behaviour which would threaten the health and safety of other employees, to install television cameras.  It was faintly suggested by Mr Freer that that might involve some derogation from the fundamental human rights of employees.  All we can say about that is that that was not adjudicated upon by the Industrial Tribunal or, so far as we can see, raised before them, or gone into before them.  We think that an employer on the face of it is perfectly entitled to do what these employers did, but we do think that the Industrial Tribunal is entitled to regard that as part of the whole picture at work.  Was there some circumstance which rendered this particularly provocative?  Or were these two employees particularly incensed for some reason by this and, if so, why should that be?  They were entitled to enquire into that to see what the whole picture was, because just as the employers are fully entitled to run their factory in the way that seems right and safe and proper to them, so the employees of course, the ordinary human men and women, the reasons for what they may do or not do, which is alleged to be misconduct, are matters which are perfectly (it seems to us) within the remit of the Industrial Tribunal, who are entitled to look at them.  But having done that, the Industrial Tribunal must of course say to themselves, where these employees have deliberately put out of action the cameras, “is that something which, if fairly investigated as this was, the employers are entitled to treat as being so serious that it is reasonable to dismiss these employees?”  Does that, the Tribunal must ask themselves, fall within the range of responses of a reasonable employer?

	A number of matters which were raised before us are not fully dealt with by the Industrial Tribunal here and on certain matters, as we say, it is far from clear what they were in fact deciding.  Is this language which they have used, which on the face of it suggests that they were departing from their duty - we accept Mr Oldham’s submission about that - does it truly indicate that, or were they in fact carrying out the duty which was laid on them at that time by Section 57, as, of course, explained by authoritative decisions of the Court of Appeal?  We cannot be sure of that, and we certainly cannot take it on ourselves to carry out the duty which the Industrial Tribunal had to carry out.  

	We do not feel able, in the circumstances, to say that this decision was in fact correct or incorrect.  All we can say is that having regard to the matters which Mr Oldham has pointed out to us, notwithstanding what Mr Freer has said to us, we think that the reasons for this decision are flawed.  They do not satisfactorily set out reasons for holding, as the Tribunal did, that the men were unfairly dismissed and were 25% to blame for what happened.

	We think that the course which we should take in the circumstances is this.  An error of law has been disclosed in the sense that both parties are entitled to have reasons which satisfactorily and lawfully set out the reasons for the Industrial Tribunal’s decision.  These reasons, in our view, do not do that.  We think the proper course is to remit this case to an Industrial Tribunal differently constituted, so that they can hear the case again and decide it in accordance with the law.  Bearing in mind the reservations which we have, we propose to say nothing whatever about the way in which they should approach their task.  They themselves must of course decide upon the relevance of those matters which have been canvassed and hear such evidence as is laid before them and reach a decision which appears to them to be right.  That is the judgment of us all.