Appeal No. EAT/66/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Sitting at CARDIFF CROWN COURT
The Law Courts, Cathays Park, CARDIFF CF10 3PG

	At the Tribunal
	On 30 March 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MRS R CHAPMAN
MR D J JENKINS MBE

ASDA STORES LTD	APPELLANTS

MRS S MALYN	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR J DOWSE
(of Counsel)
Instructed By:
Messrs Eversheds
Solicitors
London Scottish House
24 Mount Street
Manchester
M2 3DB	

	MR JUSTICE LINDSAY (PRESIDENT):	We have before us as a preliminary hearing the appeal of Asda Stores Ltd in the matter Mrs Sandra Malyn against Asda Stores Ltd.  It is, as we have said in the course of argument, a difficult case near the borderline; we are only concerned, we emphasise, with what is arguable.  But we need briefly to explain the case.

1	Asda Stores have for their employees a card which entitles employees and nominated parties, nominated by the employees, to a 10% discount on their purchases at Asda Stores.  It is obviously quite a valuable perk.  But one can understand that Asda would be keen to see that the perk was not abused and, indeed, in the interests of all staff, if the perk is to be retained it is important to see that the rules in relation to the perk are observed.

2	The position here is that Mrs Sandra Malyn accepts that the card-user in question here, her son or daughter-in-law, was not a nominated user of the card:  see paragraph 7 of the Extended Reasons of the Employment Tribunal..  She knew that what she did was wrong:  see paragraphs 8 and 19.  It is not entirely clear, when the Tribunal say she knew what she did was wrong, what they had in mind as to what she had done but presumably the wrong consisted of giving the card to her son or daughter-in-law knowing that they would use it or knowing that they would be likely to use it to get a discount to which they were not entitled.

3	Although Mrs Malyn knew what she did was wrong and that that was so held to be the case, she raised the issue of whether it was so wrong that one single incident of wrongdoing could properly lead to her dismissal:  see paragraph 8 of the Tribunal’s decision.  As to that she had signed rules which provided that misuse of the card would be regarded as gross misconduct:  see paragraph 5.  Moreover, the Tribunal held that the Respondent’s documentation in this area was of high quality, well designed to bring matters to the employees’ attention:  see paragraph 15.

4	But, for all that, the Tribunal say, in relation to that documentation:

“Why we say they could not rely on it in this particular case was because of the way that that documentation was brought to employees’ attention at that time and the fact that this particular employee had needs as an unskilled person with a disability.”

The disability was that she is deaf.  A little later in their paragraph 17, they say:

“We should emphasise that our finding in this case is an exceptional one based upon Mrs Malyn’s experience and position and, to an extent, her deafness.”

5	While, oddly, there is no clear holding that she did not know that it was gross misconduct to do as she did - contrast paragraph 10 - she had said that that was the case.  However, there is no actual finding that that was the position.  In paragraph 12, though, the Tribunal say “On those facts we have to decide” and it may be that it intended thereby to describe what was previously described merely as what Mrs Malyn “had said” as a held fact.  

6	But the questions that arise in this area (and we are not suggesting that these are necessarily the only ones that arise) and which seem to us at least arguable, are these:  how far it was necessary in order for an employer to dismiss for a single event of gross misconduct which the employee knew to be a wrong to prove that the employee knew at the time of the wrongdoing that such a single event could lead to dismissal?  How far is an employee, who has signed rules which provide that certain types of events are gross misconduct, then able to claim that she had not realised that that meant that it was possible that she could be dismissed for a single event of that type of misconduct?  Is it not the case that one signs rules at one’s peril if one fails to comprehend them?  That might generally be taken to be the case, but is it applicable here in an employer/employee situation such as arose in this case?  It is also arguable to consider how far the disability that she suffered from should have been relevant.  Why should a deaf person who is asked orally to sign her acceptance of rules be less likely to pay attention to the writing than a fully hearing person?  

7	All these matters are matters on which we have no view save that we recognise that there are here difficulties that give rise to arguable points of law.  We say nothing further as to which way they should be argued and still less about what the outcome of the argument should be, but there are here difficulties that justify the matter, in our view, going to a full hearing.

8	There is no application, at any rate as yet, for the Chairman’s Notes and so all we say, subject to further address from Mr Dowse on behalf of Asda or Mr Gareth Jones who is here as an observer on behalf of Mrs Malyn, is that the matter goes forward to a full hearing, Category B on an estimate of half a day.