Appeal No. EAT/1162/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 18 January 1996

	Before

	HIS HONOUR JUDGE J ALTMAN

	MR D G DAVIES

	MR A D SCOTT

(1) MRS G HUGHES	APPELLANTS
(2) MRS B BROADHEAD

LYONS BAKERIES (UK) LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR D TOWLER
(Solicitor)
Messrs Whittles
Suite 9C
Josephs Well
Park Lane
Leeds
LS3  1AB

For the Respondents	MR R W ASTON
(Solicitor)
Messrs Aston's
57 Love Lane
Pinner
Middlesex
HA5  3EY

				JUDGE ALTMAN:   This is an appeal from the decision of the Industrial Tribunal sitting in Sheffield on two days, 22 December 1993 and 26 September 1994.  Extended reasons were promulgated on 21 October 1994 and in due course Notice of Appeal was filed.  The two Appellants whom we shall refer to as the Applicants, (that was their status before the Industrial Tribunal) were dismissed on 6 April 1993 for smoking at the Carlton factory of the Respondents.   One, Mrs Hughes, had worked for them for seventeen years, the other, Mrs Broadhead for fourteen years.  Mrs Hughes, sadly, in between the hearing before the Tribunal and this appeal, has died.  The appeal has proceeded nonetheless in relation to both Appellants.   

	The reason that the Applicants were dismissed was that they smoked in the ladies toilets  during the course of their work, this being contrary to company policy which prohibited smoking altogether.  The Applicants' case before this Tribunal is that the Industrial Tribunal erred in law by coming to the conclusion that in spite of the inconsistency of treatment between these Applicants and other employees, the dismissals were not unfair.  It has been argued by Mr Towler on behalf of the Applicants that the inconsistencies were so glaring that no reasonable Tribunal properly considering the facts could conceivably have come to the conclusion that the Respondents acted within the traditional band of reasonable responses of a reasonable employer.

	The facts of this matter can be shortly stated.  The first hearing in the disciplinary procedure on 6 April 1993, whilst being regarded as the date of dismissal, was in format we understand essentially an investigative procedure, the Applicants denying that they were smoking and the Respondents determining that issue against them at that hearing.  The Respondents mounted appeals on the application of the Applicants on 8, 16, and 22 April 1993.   At the first of those the issue seems to have remained to some extent an issue as to whether they had been smoking, but at the subsequent appeals the issue was what the penalty should be, on the basis of the earlier findings.

	The background so far as the Respondents were concerned was that as time had gone on smoking had become regarded as an increasingly serious breach of discipline in this food factory.  In 1992 the Respondents had agreed with the union representing the workforce, or at least some of the workforce, that the act of smoking on the Respondents' premises was to be regarded as a serious offence; it previously having been simply a general offence.  We understand that it then came into a category which would normally be dealt with by warning, but which in particular serious cases where appropriate, could lead to dismissal.  That was underlined, it appears, that year, by a notice placed by the union on the noticeboard which the employees had regular access to, pointing out that the general rule had been narrowed, to the extent that the Respondents had announced that anyone found smoking would be instantly dismissed.  The reason for the union representative (the Branch Secretary of the Bakers' Union at that time representing employees) putting that notice up, was that he wished to draw his members' attention to the seriousness of the problem.

	The issues that confronted the Respondents therefore were first of all to ask themselves the question whether or not these Applicants had been smoking.  They found in the affirmative in both cases.  Their next question was, in effect, to consider whether it was misconduct within their disciplinary procedure as a serious offence, and the inevitable answer to that appears to have been yes.  The third question that had to be considered was what, if any, disciplinary action was to be taken, and they had concluded that there should be dismissal.  

	The matter after the appeal hearings came before the Industrial Tribunal and we have had an opportunity of considering the reasons of the Industrial Tribunal.  The Tribunal echoed the history of the matter to which I have referred, and no issue arose before them which questioned the Respondents' finding that the Applicants had in fact been smoking, or that the particular disciplinary rules applied.  No issue was taken as to the way in which the Respondents had handled the disciplinary process, but the main argument by Mr Towler before the Industrial Tribunal was that there were discrepancies in the way in which these employees had been treated, compared with others, of such a kind as to place dismissal outside the sort of reasonable response which a reasonable employer would have contemplated in this situation.

	Those inconsistencies came to light in the following way.  Presumably amongst other places, the Respondents operate two factories fairly close to each other; the Carlton Barnsley factory where these Applicants worked and another factory in Wakefield.  There had been an incident of smoking which had been dealt with in a particular way at the Carlton factory, before these matters, but it was regarded by both the trade union and the employers as an isolated incident, which would not be regarded by anyone as setting a precedent, and therefore no criticism could lie with the Respondents for failing to compare the two situations.  There had however been incidents of smoking at the Wakefield factory, which had been variously dealt with, and a summary of them is helpfully set out in the Skeleton Argument before us produced by Mr Towler, at paragraphs 5 and 6.  Those different treatments related to an occasion on 26 March 1993, some eleven days before the Appellants were dismissed, where an employee at the Wakefield site had received a written warning for three months for smoking in the ladies toilet.  She had worked for seven years for the Respondents.  Between January 1992 and 7 April 1993 there had been nine other instances of employees found smoking at the Wakefield site who had received warnings, one of which was verbal, seven were written, and one was a final written warning.  Whilst they were not in the actual ladies toilet, some were in the ladies cloakroom, one woman was in the gents' cloakroom, some were outside, in various positions, some closely analogous to the secrecy and deliberateness of a toilet or a cloakroom, and some perhaps more considerate such as in an outside yard.  Nonetheless those matters were before the Tribunal as being referred to.

	 However when the matter had been dealt with by the Respondents, whilst at the latter appeals for the first time the issue of discrepancies had been raised, it was raised by the union on behalf of the Applicants in general terms, and it was left to the Respondents to rely upon the knowledge which they brought to the meeting.  At the final hearing the Personnel Officer who was based at the Wakefield site, was also present.  There was no detailed argument as to the instances to which I have referred.  However, it is clear that there was reference to inconsistencies which were before the Tribunal, referred to at pages 27 of the bundle before us, being a record of the final appeal stage.  The union relied upon management's judgment that the instances at Wakefield were in different circumstances and it is true that Mr Deards on behalf of management there also asserted that he would dismiss anyone who was caught smoking in the toilet and that would apply also at Wakefield.  He presumably did not have in his mind the very instance to which reference has been made, so that there was an area of imprecision about other employees before the employers at the time.  Indeed, whilst it has been suggested by Mr Aston on behalf of the Respondents that, in a sense, it was up to the union to argue the point of discrepancy and produce information, it must be the responsibility of the employer to act reasonably in accordance with equity and the substantial merits of the case, and therefore that must impose upon him an onus to take reasonable steps to acquaint himself with his own company's approach in general terms, so far as he as the employer can, with similar acts to those with which a particular member of management is dealing at any time, and to act reasonably upon that information.

	We have been helpfully referred by Mr Towler to a number of authorities and we are indebted to him for the way in which the legal and other arguments have been presented to us.  He referred to the case of Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 in which the Employment Appeal Tribunal presided over by Mr Justice Waterhouse stated that the disparity argument, if I may so describe it, is a relevant one in considering the fairness of the dismissal for a number of reasons including this, that:

	"... evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument, in a particular case, that it was not reasonable on the part of the employer to visit the particular employee's conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances.  Industrial Tribunals should scrutinise arguments based upon disparity with particular care and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for argument.  It is of the highest importance that flexibility should be retained and employers and Tribunals should not be encouraged to think that a tariff approach to industrial misconduct is appropriate."

So that brings within the ambit of both an employer's and an Industrial Tribunal's consideration, the need to consider arguments as to disparity.  Whilst the Appeal Tribunal in that case anticipated that there would not be many very similar cases in the ordinary situation, it may well be, on the facts in this case, that there were a number of very similar cases.  We would observe that the Appeal Tribunal fell short, and indeed eschewed the danger, of laying down any conclusion which should be drawn from a consideration of disparity; whilst underlining the fact that it appears as an argument and a matter that requires consideration, the Appeal Tribunal did not go further to invite any Tribunal or employer to draw particular conclusions.  That is the view with which, respectfully, we would agree, because it is a matter of judgment in individual cases.  

	We were referred to the case of Procter v British Gypsum Ltd [1992] IRLR 7, this came before the President, Mr Justice Wood, and the Employment Appeal Tribunal held:

	"The requirement that employers must act consistently between all employees means that, before reaching a decision to dismiss, an employer should consider truly comparable cases of which he knew or ought reasonably to have known.  The overriding principle must be, however, that each case must be considered on its own facts and with freedom to consider mitigating aspects.  Not every case of leniency should be considered to be a deviation from declared policy."

and the instance which was regarded as, if I can use the phrase casually "a one off" that had taken place at the Carlton site, is obviously that sort of case.  So they should consider not only what they know, but what they ought reasonably to have known.  That is why I said at the outset of this judgment that the responsibility and onus must be on an employer to take reasonable steps to be acquainted with the way in which he, as an employer, has dealt with similar cases in the past. 	It is clear that whilst perhaps not as precise as researches eventually revealed for the benefit of the Tribunal, there was some knowledge on the part of the Respondent of approaches at a different factory in this particular case.  

	The next case to which we were referred was Cain v Leeds Western Health Authority [1990] IRLR 168 where the Employment Appeal Tribunal under the Chairmanship of Sir David Croome-Johnson found that: 

	"... the Industrial Tribunal had misdirected themselves in law, in not properly considering disparities... where employees guilty of gross misconduct had not been dismissed in other cases, on the ground that those cases had been dealt with by different people. 

	Consistency must be consistency as between all employees of the employer."...

We were also referred to the body of the judgment in itself.  That of course is the other side of the coin to the decision of Procter to which I have just referred and demonstrates that it is not in law a defence, as it were, for an employer to say "ah well, that was a different person dealing with it".  There is some responsibility on the employer to be aware overall.  That does not mean to say that the courts are imposing upon employers a need to provide and set up data banks which contain all information about all disciplinary procedures at all levels, and to go through a sorting exercise every time someone is disciplined in order affirmatively to introduce regularity.  That has been avoided by the courts quite properly in our judgment.

	The next case we were referred to was Securicor Ltd v Smith [1989] IRLR 356, which was a decision of the Court of Appeal, in which it was found that the two people were dealt with differently and that was regarded as something within the discretion of the Tribunal, because of different circumstances nonetheless, but it was very much on its own facts and particularly on the issue of the approach of the Industrial Tribunal in that case.  Then United Distillers v Conlin [1992] IRLR 503, was referred to.  The Employment Appeal Tribunal in Scotland found that:

	"The Industrial Tribunal had erred in finding that it was unfair to dismiss the respondent employee for having committed a deliberate fraud by overbooking an item under the appellant employers' payment-by-results scheme, in circumstances in which he had received a previous written final warning for a similar fraud.  The Industrial Tribunal had substituted their own judgment of what was reasonable for that of the employer,... Dismissal of the respondent was an inevitable result of the repetition of an offence of dishonesty...

	Although consistency is an important consideration in disciplinary proceedings and, therefore, in considering whether a particular dismissal is unfair, it is also important that due flexibility should be preserved, and that employers should remain entitled to consider each case on its merits."

This case was considered on Appeal, but that part of the decison remained undisturbed.  So that notwithstanding the Industrial Tribunal's finding there was a clear inconsistency between the actions of the employers in similar cases, the facts of that case were so striking as to lead the E.A.T. to say that they find that the Tribunal had substituted its own judgment.

	Here again the threads which run through all the cases are first the importance of employers' taking into account other instances where they are relevant and of being seen to do so in a reasonable way, but secondly at the same time the need to ensure that the Courts or the Tribunals do not impose any procedural straitjacket upon employers, or indeed Industrial Tribunals, in the way in which they approach these matters, for there is a need for flexibility which requires all the facts to be looked at, not only those relating to disparity.

	Those are the cases to which reference has been made.   We were also referred to the case of Paul v East Surrey District Health Authority [1995] IRLR 305, a decision of the Court of Appeal, which simply really enforces the authorities and decisions to which I have already referred, and particularly upholds the way in which Mr Justice Waterhouse set the matter out in Hadjioannou v Coral Casinos Ltd.

	We come now to the criticism of the decision of the Industrial Tribunal.  Two facts were really argued before this Tribunal, first of all that the Respondents did not put themselves in possession of sufficient knowledge of disparity on the other sites, secondly that in the light of those other instances on the other site, the disparity was so glaring, that no reasonable Tribunal could conceivably have come to the conclusion that it was within the band of reasonable responses for the employer to dismiss in these circumstances.  The Industrial Tribunal set out the facts of this matter, pointing out that the Respondents had the option of dismissal, referring to the warning notices that had gone out, concluding that there had been a thorough investigation and observing that this particular incident involved a denial by the Applicants that they had been smoking: although an admission was made on their behalf to the Industrial Tribunal that they probably had been.  They referred to the way in which the matter was dealt with at the different stages and the fact that mitigating factors had been put forward.  They pointed to the fact that there had been reference to the need for consistency, although they said that the representatives for the Respondents before the Tribunal argued that there were significant differences.  They adverted specifically to one particular instance which, on the face of it, looked similar (the Wakefield site where Mrs Gosney had been simply warned for smoking in the toilets) and they observed that this had not been drawn by the Applicants to the attention of the Respondents, at any of the Respondents' hearings into this matter.  They observed that the law makes it clear that it is no answer for the Respondents to say "well it was dealt with by different people, or on a different site" or something of that kind.  They accepted the principles here stated.  Notwithstanding that particular feature, and the fact of inconsistency, and recognising its relevance, they also considered all the facts of the case.  

	In conclusion, the Tribunal said this:

	"15.	Notwithstanding the Industrial Tribunal's finding that there was some inconsistency between the actions of the respondents in similar cases, the Tribunal found, therefore, that the matter of inconsistency although an important issue, is relevant within the duty of the employer to act reasonably within Section 57(3) of the 1978 Act.  The Tribunal found that the respondents were unable to take into account the particular example put forward to the Tribunal because it had not been put to them either by the applicants themselves or their representative at the time of the hearings."

	16.	It was therefore the unanimous decision of the Tribunal that the decision of the respondents to 	dismiss the applicants was fair."

	It is clear to us that the Tribunal had in mind both matters which have been raised before us.  Whilst on the one hand, bearing in mind that it is no answer in law for an employer to say that "this matter was dealt with by someone else and therefore they did not know about it at the time", they nonetheless looked at the facts about that in this particular case, and came to a conclusion which involved a practical look at the facts, and a realistic statement that the matter had not been mentioned to the Respondents at the time.  So far as the consideration is concerned of whether the disparities were so gross as to be outside the range of reasonable responses of a reasonable employer, the Tribunal emphasised and we respectfully agree, that the question of inconsistency was not the only factor to be considered.  It was a considered along with all the rest.  Therefore, it seems to us, that to single it out and put, as it were, the "spotlight" upon it, and to say that that in itself was so glaring as to make a decision of reasonable dismissal perverse, is to say not only that it was a very glaring inconsistency, but also that it stands alone apart from all the other factors which properly should be balanced against it.  We do not accept that proposition of law and nor do we accept it in the context of this particular case.  It seems to us that the Industrial Tribunal looked at the facts of this case in what was an admittedly terse decision.  They set out all their findings of fact upon which the parties have been able to draw in their submissions to us.  They set out quite properly the principles of law which were to be applied in this case  and cautioned themselves in relation to those facts which require them to look at the very issues which have been drawn to our attention.

	It seems to us that they applied that law to those facts in a way which was well within the legal requirements placed upon them, and they came to a conclusion in exercising their discretion and judgment in the way they are called upon to do.  They of course had the advantage of hearing such witnesses as were called in hearing the arguments and getting a feel of the case, closer to the events themselves than we have been.  We find it quite impossible to find within the decision of the Tribunal, and the very helpful arguments that Mr Towler has put before us, any proposition that can say that the Tribunal fell down in that application of the law to the facts, by failing to conclude that what took place was outside the range of reasonable responses of a reasonable employer.  It does seem to us if we were asked to express a view, that the dismissals in this case, bearing in mind the very long working records and exemplary working records of these two ladies, were most harsh.  This was not, it seems, a firm in which there had been a traditional approach which banished smoking in a food factory, it was a change of practice over a number of years and it does seem to have been harsh, and one does not know if for those who were traditional and long standing smokers were assisted by the provision of smoking areas within these Respondents' premises.  But that is completely beside the point, because our own view can only be based on the reading of the documents, which in itself may be misleading.  We would be failing in our duty if we sought to form a judgment of the facts and invade the area which is properly left to the discretion of the Industrial Tribunal.  Accordingly we can find no fault whatsoever in the decision of the Industrial Tribunal and for the reasons which I have set out, our judgment is that this appeal must be dismissed.