Appeal No. EAT/661/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 6th December 1993

	Before

	HIS HONOUR JUDGE B HARGROVE OBE QC

	MISS J W COLLERSON

	MS S R CORBY

NATIONAL TYRE SERVICE LIMITED	APPELLANTS

MR B TONGE	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR N GRUNDY
(Of Counsel)
Messrs Alsop Wilkinson
Solicitors
11 St James's Square
Manchester
M2 6DR

For the Respondent	MR B TONGE
(In Person)

	JUDGE B HARGROVE OBE QC:  By Reasons dated the 15th October 1991 the Industrial Tribunal found that the Respondent had been unfairly dismissed.  He had been employed by the Appellants from September 1967 until his dismissal, about the 20th March 1991 (he appealed from that dismissal and both appeals were turned down).

	He had been an excellent salesman and in 1987 he had been appointed Depot Manager at the Trafford Park Depot.  During the period until late 1990 it appears that Mr Tonge complained about the pressure of work and, his then Divisional Manager, accepted that that was so.

	In December 1990 a new Divisional Manager was appointed.  He found the depot in a disorganised state, enquiries were made and it was found that substantial stock losses had occurred and a disciplinary hearing took place.  Mr Tonge's explanation for the losses was that there was pressure of work;  there was no proper back-up and no proper supervision.  It was not in dispute is that Mr Tonge had signed a stock-taking certificate, in November, which confirmed that he had personally checked the stock.  That was incorrect and was known by Mr Tonge to be incorrect.  His explanation for that was that he honestly believed that the stock was present upon the premises because, as he was first to arrive and last to leave, he had been present during the entire period.  The Appellant regarded this as serious misconduct and if one looks at the disciplinary procedures which the Appellant had they classify under:
"CLASS 1 - (SERIOUS MISCONDUCT)

-	Falsifying documents

-	Gross negligence

-	Serious breach of rules and regulations"

and this comment is made:
"A Class 1 offence is misconduct serious enough to result in instant dismissal.  The following are examples of Class 1 offences (this is not an exhaustive list and offences of a similar gravity will be dealt with in the same manner)"

The Tribunal found the following matters, and I read from paragraph 8 of the Reasons:
"There can be little doubt there was overwhelming evidence that there was a substantial stock deficit at the Trafford Park depot.  There was equally no doubt that the applicant had signed a Stocktaking Certificate which he knew to be incorrect.  It is also an indisputable fact that should have been within Mr Wilson's knowledge that the applicant had been allowed to run the depot in, to put it mildly, a haphazard manner during Mr Whittlesea's tenure of office.  There was evidence there had been a deficit at the end of 1988 but no action had been taken with regard to this.  Mr Wilson would have had cognisance of the fact that the applicant was a first class salesman and was an honest man;  there was no imputation whatsoever of dishonesty against the applicant with regard to deficits at Trafford Park."

Then paragraph 9, which is the principal bone of contention in this case:
"It seemed to us that a reasonable employer would have concluded, taking into account all the facts which I have mentioned, that the applicant was incapable of the administration required to run a depot like Trafford Park and that this fact ought to have been dealt with well before Mr Wilson came on the scene.  We believe, therefore, that a reasonable employer would have suggested a return to sales for the applicant rather than dismissal.  The applicant had clearly demonstrated himself to be a loyal and valuable employee in the sales role.  Had he been properly supervised as a Depot Manager it would have been apparent within a matter of months probably that he was not suited to the administration work required by to run a depot.  We believe, therefore, that a reasonable employer would not have regarded dismissal as one of the sanctions appropriate in this case but would have sought a sales role for the applicant for the future.  It is not good enough for the respondents to say now that there was no sales vacancy at that time because Mr Wilson himself told us that he never enquired.  The respondents are, as I have said, a large organisation, and have a number of depots within the Manchester area."

The objection taken by the Appellants here is first and foremost that the approach made by the Tribunal to their findings was flawed in three ways:  the first is that they never asked themselves the question whether it was right for the employers to categorise what had occurred as serious or gross misconduct.  Because it is right to say that the grounds upon which the dismissal took place was gross negligence, serious breach of the rules and regulations.  The Appellants say that had that question been asked then it would have been obvious from that point onwards to the Tribunal that if it was gross misconduct therefore the dismissal was within the band of reasonable responses.  The second objection is that the band of reasonable responses approach has not be utilised.  It is correct to say, and it was put to Mr Grundy, that the expression used from paragraph 9:
"We believe, therefore, that a reasonable employer would not have regarded dismissal as one of the sanctions appropriate in this case"

that is really adumbrating the reasonable response approach in slightly different language.  Mr Grundy says that that is ruined on a fore and aft basis, by which I mean, that that which precedes it and that which follows it undermine that particular approach.

	This Tribunal dislikes tampering, on a fine tooth comb basis, with decisions of an industrial tribunal.  It is obvious that a tribunal working, as it does, very much at ground level, is entitled to take a broad brush approach to matters and it would be quite wrong for us to go through on a detailed analysis of a decision picking out phrases here or there in order to set aside a decision which has been come to after considerable consideration.  However, we have had regard to what has been said in the case of British Leyland Ltd v. Swift [1981] IRLR 91 the facts do not concern us, but the Court of Appeal held as follows:
"The Industrial Tribunal had wrong applied a test of whether a reasonable employer would have considered that a lesser penalty than dismissal was appropriate.  The correct test is was it reasonable of the employer to dismiss the employee?  If no reasonable employer would have dismissed him, then the dismissal is unfair.  But if a reasonable employer might reasonably have dismissed him, then the dismissal is fair.  There is a band of reasonableness within which one employer might reasonably dismiss the employee whilst another would quite reasonably keep him on."

When one looks at paragraph 9, in its relationship with paragraph 8, it is quite clear that the Tribunal has reached the conclusion that they would not have dismissed a man of this fine record against whom nothing is said in relation to personal dishonesty, by which I take it is meant, that he did not profit from the deceit, one can call it nothing else, which he practised upon his employers by signing the certificate knowing it to be false.  Moreover, when one looks at paragraph 9 in more detail it is even more obvious that the Tribunal is saying that the employer ought to have taken a particular course of action.  The difficulty is that that very course of action which they are suggesting, namely, that Mr Tonge should have been allowed to go back to sales was precisely the course of action which Mr Wilson decided he would consider and he told the Tribunal that he had made reasoned decision against that course of action.  One of the matters which had affected his mind was that over £20,000 of stock had been lost at this depot during the period when Mr Tonge was in charge.  The following seems to encapsulate the difficulty which the Tribunal has had in trying to marry up the test, which they ought to have applied to their own personal opinions of what the employer ought to have done:
"We believe, therefore, that a reasonable employer would not have regarded dismissal as one of the sanctions appropriate in this case but would have sought a sales role for the applicant for the future.  It is not good enough for the respondents to say now that there was no sales vacancy at that time because Mr Wilson himself told us that he never enquired."

They have not only usurped the function of the employer in general but they are even deciding that the opinion of Mr Wilson, the man on the ground - the man charged with the duty - was erroneous. In our view that, unfortunately, was not a view that they were entitled to take and they have ignored the direction given by the Court of Appeal in the British Leyland Ltd v. Swift case.

	Taking those matters into account we have considered was is the correct approach in this case.  With very great reluctance, because we recognise the delay that has already occurred and the hardship that our decision will mean to all, we have decided that this case must go back to a different tribunal and we accordingly allow the appeal and remit the case.

	I will merely add this, for the guidance of those listing this matter before the industrial tribunal, we hope that it can be done at the earliest possible moment.