Appeal No. EAT/936/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 20 February 1995

	Before

	HIS HONOUR JUDGE D M LEVY QC

	MRS M L BOYLE

	MR A D SCOTT

KWIK SAVE GROUP PLC	APPELLANTS

MR M REEVE	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MISS J TRACY-FORSTER
(Of Counsel)
Messrs Bullivant Jones & Co
Solicitors
State House
22 Dale Street
Liverpool
L2 4UR

For the Respondent	NO APPEARANCE BY OR
ON BEHALF OF THE RESPONDENT

	JUDGE LEVY QC:   Mr Michael Reeve was 36 when on 26 March 1991 he commenced his employment with Kwik Save Group Plc ("the Company") a well known supermarket group.  On 20 April 1993 he was dismissed, he alleged, unfairly.  He brought proceedings before an Industrial Tribunal on 30 April 1993.  

	The Company entered its Notice of Appearance on 4 August 1993.  There was a hearing at Exeter on 23 September 1993 and the Full Reasons were sent to the parties on 1 October 1993.  The majority decision of the Tribunal was that the Mr Reeve's decision was unfair and the Company was ordered to pay to him compensation of £3,612.14.  The Company appealed from that decision on 11 November 1993.  The Company has had the benefit of Miss Tracy-Forster appearing for it today.  Mr Reeve has played no part in the appeal.

	The facts which led to Mr Reeve's dismissal can be relatively shortly stated.  After Easter 1993, there was a visit to the Company store at Weston Zoyland by a Trading Standard's Officer.  Immediately prior to Easter, Mr Reeve had been acting as Acting Manager in the place of Mr West, who had been off ill for some time.

	Immediately after Easter, Mr West came back.  The Trading Standard's Officer who made a visit found food on display after its sell-by date had passed.  There then followed an investigation by the Company.  So far as the Manager who would have been on duty that day is concerned, there was a disciplinary hearing which led to a punishment short of dismissal.  So far as Mr Reeve was concerned the enquiries which the Company made led to them dismissing him for gross misconduct.  

	In fact, on 26 February 1993, the Company had sent around a circular dealing with the manner in which reduced price goods had to be dealt.  On 30 March Mr Reeve had attended a training session.  In that training session the Company's procedures were fully explained to him and he was required to make them known to staff, which apparently he failed to do.

	 So far as concerns the Company's dismissal procedures, Mr Reeve was interviewed on 16 April by Mr Forward, the Area Manager and he was suspended on pay.  There was a disciplinary hearing held by Mr Forward on 20 April.  Mr Forward's decision was made known on 21 April that Mr Reeve should be dismissed for misconduct.  There was an appeal hearing before a Mr Robinson which upheld that decision.

	At the hearing before the Industrial Tribunal much seems to have turned on the Company's disciplinary rules which are in front of us in documents which were there below.  We do not have the benefit of the notes of evidence below.  The Company's disciplinary procedures are in an edition dated 16 September 1991 and paragraph 20 of the code deals in full with disciplinary procedure.  Having set out principles, it sets out what the Company considers less serious misconduct but ends by saying, "these are purely examples and the list is not exhaustive or exclusive".  

	It then follows by saying what is gross misconduct and there is a passage within the paragraph which says "The Company considers that any of the following amount to gross misconduct - (this list is not exhaustive or exclusive)".  And there is a list which follows from which it is difficult to find what Mr Reeve actually did, among those matters listed.  However, as Miss Tracy-Forster has drawn to our attention, though we doubt it was drawn to the attention of the Tribunal below, labelling and lists have not got to be investigated with enormous care.  She referred us to the cases of The Distillers Company (Bottling Services) Ltd  v  Gardner [1982] IRLR 47 and also to the decision of this Tribunal in C A Parsons & Co Ltd  v  McLoughlin [1978] IRLR 65.

	We take up the decision of the Tribunal at paragraph 17 of the Full Reasons.  

		"17.  On the face of it, the reason given for the dismissal comes within (e) as less serious misconduct.  We have had some difficulty between us in considering whether this case can be taken out of the list of examples of `less serious misconduct' and put into `gross misconduct'.  There is provision for doing so because at the end of the list there is this phrase, `These are purely examples and the list is not exhaustive or exclusive'

		18.  The lay members of the Tribunal and the Chairman differ unfortunately on this aspect.  The Chairman's view is that the Applicant admitted that there was a deliberate refusal to follow the procedure.  He had gone back to the store after the meeting and had failed to instruct the staff as required.  On his own admission he had told them to carry on as before as indeed had happened.  Had he not done so, he might well have avoided the problem with the Trading Standards Officers.  In those circumstances of a deliberate refusal the Chairman takes the view that what might otherwise have been `less serious misconduct' becomes `gross misconduct'.

		19.  The two members however do not agree.  Their view is this:  Dismissal is a very final sanction and if the Applicant had been the responsible Manager on that Thursday they would have accepted that there would have been gross misconduct on his part by leaving the goods out.  There is no evidence that he personally did anything wrong in respect of those goods.  That is accepted by the Respondents.  He had no opportunity to do anything after the Bank Holiday.  On Tuesday he was heavily engaged and in any event Mr West the Manager was back and he was then responsible.  On Wednesday the Applicant was not there at all, nor was he on Thursday.  The Respondents have said that they do not blame him for the goods being out on the Thursday when the Trading Standards Officer had arrived.  If they are blaming him for not carrying out the policy that must fall within the category of less serious conduct and although his cavalier attitude was reprehensible, that in itself was not gross misconduct.  The Respondents were obliged to apply the provisions for less serious misconduct and there are various stages which have to be dealt with.  The essential point is that in the view of the majority of this Tribunal, the Respondents were not entitled to go straight to dismissal.  For those reasons by a majority we find this dismissal was unfair".

	Miss Tracy-Forster has trenchantly criticised that paragraph and said, we think with very great force, that the majority below took things into account which were clearly irrelevant.  But a much stronger criticism of the whole decision is that there is no reference to the well known decision in British Home Stores  v  Burchell [1980] ICR 303, or the later decision following it, Iceland Frozen Foods Ltd  v  Jones [1983] ICR 17.  In the latter case, one of the members who are sitting here today, sat in it and Miss Tracy-Forster was the successful Counsel for the Appellant.  Browne-Wilkinson J., said, giving the judgment of this Tribunal in that case at page at 24 G:

		".... We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the Act of 1978 is as follows:  (1) The starting point should always be the words of section 57(3) themselves; (2) In applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;           (3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer; (4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another; (5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal is fair:  if the dismissal falls outside the band it is unfair".

	It seems to us that there has unfortunately been a blatant disregard by the Industrial Tribunal to have regard to that well known test and in those circumstances the decision below simply cannot stand.  We have had considerable debate as to what steps it is appropriate for us now to take.  

	We bear in mind that we have not seen the notes of the evidence below and we do note from the documents, through which Miss Tracy Forster has taken us, that it was part of Mr Reeve's case that, even after the meeting at which he had been given instructions as to the manner in which goods which were out of date were to be treated, there is some suggestion that a more senior member of the staff stood by when he was doing, or permitting others to do, what he was enjoined not to do.  We do not know what the evidence amounted to.  We do not know with that evidence before it, what the answer would have been to the fifth question which Mr Justice Browne-Wilkinson poses. 

	In the circumstances, we do not feel it would be appropriate for us to substitute a finding that the dismissal was fair, but what we think we have to remit this to another Tribunal for a further hearing.  

	Having heard further submissions from Miss Tracy-Forster, we will remit this to be re-heard before a freshly constituted Tribunal.  To this extent the appeal is allowed.  We should add that Miss Tracy-Forster, in the absence of Mr Reeve, drew our attention to all that might have been said on his behalf, had he been here.