British Leyland (U. K.) Ltd v B. J. Swift

This is a troublesome case. Mr. Swift had been employed by British Leyland at their works in Coventry for some 18 years. In October 1977 he was working near a car park where there was a Land Rover. It was the company's vehicle. Its registration number was G-RW 110L. In October 1977 the tax disc (that is, the Road Fund Licence) was found to be missing from that Land Rover. The company reported it as missing: and got a duplicate from Swansea.

About six or seven months later, in April or May 1978, Mr. Swift was driving a Land Rover. Something was wrong with the tail light. The police stopped his Land Rover: and asked him to show his Road Fund Licence. Lo and behold - it was the very same tax disc which someone had taken from the works in October 1977. The police asked Mr. Swift about it. He said that he had "found" it outside the factory. He was then charged with the theft of a road fund licence or alternatively with the fraudulent use of a road fund licence. The matter came before the magistrates. He pleaded not guilty to theft: but guilty to fraudulent use of the licence. He was fined £15 for fraudulent use; £10 for having no excise licence; and £5 for having no test certificate.

Mr. Swift's conviction came to the knowledge of the company. The company held some inquiries.

Firstly, there was an inquiry by the machine shop superintendent. Before him Mr. Swift told a different story from that which he told the police. He said that he had lent his Land Rover to a friend on the understanding that his friend would have it taxed and tested before using it. When the vehicle was returned to him, the tax disc was in position and he had no idea that it was false. So he blamed his friend. The machineshop superintendent was not satisfied with Mr. Swift's explanation. He suspended him without pay pending further inquiries. But he told Mr. Swift that he had a right of appeal.

Secondly, there was an internal appeal before the area manager. Both the management and the union were represented. Mr. Swift told the same story about a friend. He said that the friend was named Rawlins. Mr. Rawlins was not present on that occasion. Another hearing was later held when he was present. After listening to all the evidence, the area manager dismissed Mr. Swift's appeal. As a result, he was dismissed. On a further inquiry, the dismissal was upheld.

Mr. Swift took the case before the industrial tribunal. He complained that he had been unfairly dismissed. In answer, the company said:

"It was discovered that the applicant had been convicted for fraudulent use of a road fund licence belonging to the company. Following an investigation into the matter, the company decided that it was reasonable in all the circumstances to treat the applicant's conduct as sufficient reason for his dismissal. This decision was upheld following an appeal hearing"

The industrial tribunal had the circumstances before them. They inquired very closely into the matter. They said:

"It is our unanimous view that there was abundant evidence available on which any reasonable employer would have come to the conclusion that the applicant" - Mr. Swift - "had been guilty of gross misconduct".

They added later:

"… there is in our view abundant evidence as already stated on which the employers reasonably formed the view that the applicant had been guilty of gross dishonesty".

Strangely enough, the industrial tribunal went on to find that there had been an unfair dismissal. I will read the whole of paragraph 12 in which the tribunal set out their reasons:

"The employers have to satisfy the additional onus under paragraph 6(8) and we are of the view that they failed to do so. The applicant is a man of long service with a good work record.

We were told that there was only one warning recorded in relation to something quite different from this matter. It is conceded by the respondents that that played no part in their decision to dismiss. It is said on their behalf that the reason for the dismissal is that the fundamental confidence between employer and employee has been destroyed. The offence was a relatively minor one for which he has already been dealt with in the Magistrates Courts so far as the criminal aspect is concerned Mr Swift is not employed in a fiduciary capacity. There is no evidence that they have suffered in any way as a result of this lapse in the interval between the conviction and it being brought to their notice. The penalty should obviously be related to the offence and we consider that the employers have over-reacted. They have chosen the ultimate penalty of dismissal when a reasonable employer would, in our opinion, have considered that a lesser penalty was appropriate. Therefore we find that the dismissal was unfair and the application succeeds".

But the industrial tribunal did say that Mr. Swift was three quarters to blame. So they would reduce the compensation. Nevertheless they found that it was an unfair dismissal. There was an appeal to the employment appeal tribunal.

They by a majority of two to one affirmed that decision. Now there is an appeal to this court.

The first question that arises is whether the industrialtribunal applied the wrong test. We have had considerable argument about it. They said: "… a reasonable employer would, in our opinion, have considered that a lesser penalty was appropriate". I do not think that that is the right test. The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him.

But there is a further point. It is whether the industrial tribunal took into account all relevant considerations. It seems to me that they failed to take into account the conduct of Mr. Swift after the offence was discovered. He did not come forward and say, "I am sorry; I made a mistake. I ought not to have done it, I will not do anything of the kind again". He did not even tell the same story he told to the police officer. He put forward a "cock and bull" story about his having lent his Land Rover to another man: and the other man had got the tax disc: and it was the other man's fault: and so forth. As to that, the industrial tribunal were quite outspoken. They said: "It is flying in the face of probability to suggest that he and Mr Rawlins were giving a truthful and accurate account". So there it is. Mr. Swift did not "come clean" when he was foundout. He put forward a wholly untruthful account. That seems to me to be a most relevant consideration for the employers to take into account in deciding whether it was reasonable to dismiss him or not. But there is not a word about it in paragraph 12 when they set out their reasons. On the contrary, the offence was mentioned as being "a relatively minor one". They refer...