Appeal No.	 EAT/37/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 January 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR D CHADWICK
MR P DAWSON OBE

MR P A BURROWS	APPELLANT

TIBBETT & BRITTON LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR C KENNEDY
(of Counsel)
Messrs Latimer Lee
Solicitors
35 Bury New Road
Sedgley Park
Prestwich
M25 8JY	
For the Respondents	MR O BRABBINS
(Consultant)
Peninsula Business Services
Stamford House
361-165 Chapel Street
Manchester
M3 5JY	

	MR JUSTICE MORISON (PRESIDENT):   This has been a well argued appeal. It arises out of and follows on from a decision of an Industrial Tribunal held at Manchester, sent to the parties in November 1995, which, by a majority, concluded that the applicant had been fairly dismissed.

	The employee applicant appeals to this court and the matter has come on for a full hearing before us. We are grateful to Mr Kennedy and Mr Brabbins in this case for their succinct and clear arguments.

	The background facts to this appeal may be shortly stated. We take them from the decision of the Industrial Tribunal. 

	The applicant was employed by the employers as a Transport Supervisor and Planner. He had commenced his employment in November 1992 and worked at his employer’s premises at their Middleton depot which had some 300 employees. He was thus in a senior position of some considerable responsibility.

	The employers are a distribution company predominantly distributing perishable products to companies such as Sainsburys. There had been problems at the depot over stock losses, and as a result the Company introduced stop and search procedures. A security guard would stand at or near a security gatehouse, and on a random basis, about 15 people leaving the premises would be searched at the end of each of the three shifts which the Company operated. To reinforce the requirement for this procedure, large notices had been placed near the clock card machine (where employees clocked on) and the security gate. Those notices made it plain that all employees had to submit to the search procedure if requested, and that any refusal to stop and be searched would constitute gross misconduct resulting in dismissal. Those terms were known to the applicant at the date of the events giving arise to his dismissal.

	On 14th February 1995 at about 6.55 a.m. the applicant was leaving work when a security guard, Paul Walsh, asked him to submit to a search. He did not stop in order to be searched but instead he walked off the site telling the guard either to “Fuck off” or saying words to the effect of “Bollocks”. 

	The guard did not seek to prevent the employee from leaving, and indeed, the Industrial Tribunal, correctly in our view, doubted whether it would have been within his power to have done so. 

	Later that morning the Company wrote to the employee requesting him to attend a disciplinary hearing and suspending him meanwhile. 

	At the disciplinary hearing the applicant admitted that he had failed to submit to a search, but said that he done so because he did not think that the security guard was being serious. He was saying that he had a close relationship with the security guards.	His suspension was continued pending further investigation. 

	The matter then came back on 20th February 1995 at a reconvened disciplinary hearing. The Company’s view of the incident was given in evidence by Mr Bedford and is summarised in paragraph 3(j) of the decision:

“... He concluded that as a request had been made to the applicant to stop and be searched, the seriousness of such a request should have been clarified by Mr Burrows himself, given that the search rules were so well known and given the importance of such rules. Further, Mr Bedford felt that as a member of the management team the applicant had set an appalling example to other members of staff by refusing to submit to a search. Yet further, Mr Bedford felt that if the applicant escaped being disciplined by contending that he had not taken the request seriously it would thereafter become impracticable for the respondent to enforce its stop and search procedures. Therefore, taking all these matters into account Mr Bedford formed the view that the applicant had been guilty of gross misconduct and that it was appropriate that he should be dismissed. Although Mr Bedford did consider if a final written warning could be substituted for dismissal, he felt that such lesser penalty would not be appropriate. In particular he felt that if important rules were seen to be relaxed in relation to members of the management team it would become extremely difficult to enforce any of the other site rules if such rules were broken. Moreover, the respondent had earlier experienced industrial relations problems at the site which had resulted in the site rules being clearly spelt out to all members of staff and a clear warning being given that breaches of site rules would not be tolerated. Thus, Mr Bedford terminated the applicant’s employment as from 20 February 1995.”

	The appeal against Mr Bedford’s decision that the applicant should be dismissed was itself dismissed, and the employee made a complaint of unfair dismissal.

	The majority decision of the Industrial Tribunal is set out succinctly in paragraph 5 of their decision. That was, that the dismissal was fair having regard to the criteria set out in section 57(3) of the Act:

“In this case there can be no doubt that the dismissing officer believed that the applicant was guilty of misconduct and he had reasonable grounds upon which to base such belief. Clearly a proper investigation was carried out and a fair disciplinary procedure was followed. The majority does not find it objectionable that Mr Bedford both carried out some of the investigations and also conducted the disciplinary hearing. The majority is also of the view that the decision to dismiss was a reasonable response in the circumstances of this case. In reaching this decision the majority have had regard to the decision in Iceland Frozen Foods Limited -v- Jones [1982] IRLR 439. We have reminded ourselves that in judging the reasonableness of the employer’s conduct we must not substitute our decision as to what is the right course to adopt for that of the employer. We consider that in the particular circumstances of this case, the decision to dismiss the applicant fell within the band of reasonable responses which a reasonable employer might have adopted. Therefore the decision of the majority is that the applicant was fairly dismissed.”

	Equally succinctly, the decision of the minority member is set out in paragraph 6. He or she was of the view that the security system which was adopted by the employers was effectively a nonsense. It was put in this way:

“... it seems to me that any security system that allows an employee who has been requested by an authorised security guard to stop and be searched, casually to walk off the premises without stopping or being searched, is a nonsense that cannot be taken seriously.”

The minority member also considered that the security guard, who did not give evidence to them, had said to the Company, during the investigations, that he had admitted that the applicant might have regarded his request to stop and be searched as a joke, though such was not his intention. Nor was it his intention that the applicant should lose his job. If the request was serious, the applicant should have been stopped forthwith and proper procedures followed. The minority member said that in the event the applicant was allowed to go home without further challenge. It therefore seems reasonable that Mr Bedford should at the time, and since, have regarded the incident as a misunderstanding that should not have occurred in a well-run security system, and for that reason, he/she believed that the applicant was unfairly dismissed.

	The appellant in this case, in a succinct submission, submits that the majority of the Industrial Tribunal have simply approached the task incorrectly because they have failed to consider the incident itself from the point of the view of the applicant, or to make any assessment of his state of mind. 

	It is submitted to us it is a necessary requirement of a decision of a Industrial Tribunal in a matter such as this to form an assessment of the culpability of the individual. It was wrong for them to treat as a refusal what the applicant did in this case because if the applicant thought that the security officer was not being serious, then it would be an abuse of the language and spirit of the rule to say that he had refused to comply with that request.

	It was submitted to us that the state of mind of the employee was something which was crucial to their determination, and reference was made to the decision in Laws v London Chronicle Indicator Newspapers Ltd [1959] 2 AER 285 and particularly the passages at 287B to 288B.

	In reply, it was submitted on behalf of the employers that the decision of the majority cannot be faulted; whereas the decision of the minority member appears to be imposing the minority member’s own view of the nature of the security system which the employer had established, and to that extent the minority member had strayed from the task which had been set for the Industrial Tribunal. It was a decision, it was submitted, which the evidence justified.

	Furthermore, it was submitted that the decision of Laws was a wrongful dismissal case, that there can be cases where a dismissal is fair and wrongful, although it was argued before us that this was not such a case.

	We therefore turn to our decision in the light of that summary of the submissions which we have received and the background of the Industrial Tribunal decision.

	We start with a reference to section 98 of the Employment Rights Act 1996 which is the successor to the old section 57 of the Employment Protection (Consolidation) Act 1978. As the 1996 Act is a consolidating statute, we are content to refer to this section rather than to the section which was replaced after the Industrial Tribunal’s decision had been given.

	It requires an Industrial Tribunal to determine whether the employer has shown a reason for the dismissal which falls within subsection (2) of that section. There is no dispute in this case that the reason for the dismissal was the conduct or related to the conduct of the employee, which is a statutorily permissible reason. Therefore they were required under section 98(4) to apply their minds to the test there set out.

“	(4)	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 reasonable 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.”

	It seems to us important to note the words “in the circumstances”. The circumstances in a case such as this will include the nature of the misconduct relied upon, and the culpability of the employee, and to that extent it will involve an examination of his own motivation and intentions and state of mind. It seems to us manifestly clear that in every unfair dismissal case where the reason is conduct, those factors will always be relevant.

	It seems to us that the case of Laws, to which our attention was drawn, adds nothing to the words of the statute which is capable of and plainly does embrace the culpability of the employee. It is to be noted that effectively the Laws decision is a case where an employee was confronted by two conflicting orders. We do not find it of any further assistance to us on the facts of this case having regard to the wording of section 98(4).

	We consider that the majority of the Industrial Tribunal were quite entitled to arrive at the conclusion which they did on the material before them. The applicant was in a senior position. What he did on the morning in question was either a refusal outright to participate in the stop and search procedure because he felt that he was too senior to participate in it, or, if he thought that the security guard was not serious in his request, it would have been his responsibility to check whether it was a serious request, rather than to walk off, and that by walking off without having so checked, that constituted a refusal. The employers were entitled to take account of the fact that this was a senior employee whose conduct would have been observed by other employees, and that as a senior management man it was his duty to set a proper example to others. Accordingly, it seems to us, that the majority of the Industrial Tribunal were quite entitled to reach the conclusion that they did. 

	We also would add that it simply is incredible to suggest that the Industrial Tribunal did not have regard to the state of mind of the employee. Both because of the terms of paragraph 3(j) to which I have referred, and to the terms of the minority member’s decision. It was plainly that point which caused the dissenting decision. It must plainly have been in their mind as it lay at the heart of the case. It seems to us accordingly, that the criticism made of the Industrial Tribunal in this case cannot be sustained. They have not failed to approach the matter in a correct manner. They have not failed to consider the incident itself from the point of view of the applicant, nor have they failed to assess his state of mind. Those were all matters which informed the decision of the Industrial Tribunal both for the majority and minority. This was, as we thought when we read the papers before the hearing, a case which could have been decided either way. That remains our view and the room for conflicting views is reflected by the split decision of the Industrial Tribunal. It is for the Industrial Tribunal to determine the fairness or otherwise of the employer’s decision to dismiss. We are not persuaded that there are any grounds for suggesting that they have erred in law in this case in arriving at their majority conclusion, difficult though it was for them arrive at their conclusion.

	Accordingly we dismiss this appeal.