Weddel (W.) & Company Ltd v Tepper
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE WALLER,LORD JUSTICE CUMMING-BRUCE |
| Judgment Date | 20 December 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J1220-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 1979 |
[1979] EWCA Civ J1220-4
Lord Justice Stephenson
Lord Justice Cumming-Bruce and
Lord Justice Waller
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(On Appeal from a Decision of the Employment Appeal Tribunal of 10th November 1978)
MR. F. BRESLER (instructed by Messrs. R.A. Roberts) appeared on behalf of the Appellants.
MR. E. LEWIS (instructed by Messrs. Cattlemole Dehn & Co, Welling, Kent) appeared on behalf of the Respondent.
This is an employers' appeal (by leave of this court) from a decision of the Employment Appeal Tribunal on 10th November 1978. An industrial tribunal had heard the respondent employee's complaint about unfair dismissal over three days in September, November and December 1977. He was a meat salesman who had been employed for 14 years or more by his employers at Smithfield Market. They dismissed him on 19th July 1976. The reason for which they dismissed him is to be found in paragraph 15 of the industrial tribunal's reasons for decision, which was that they:
"Had grounds for believing that he had sold meat without issuing a ticket and had then dishonestly retained the money and for believing that he had thereby been guilty of gross misconduct."
The industrial tribunal unanimously expressed themselves as satisfied that that was the reason for his dismissal and that they had no doubt that such a reason would fulfil the requirements of paragraph 6(1) (b) of the First Schedule to the Trade Union and Labour Relations Act 1974. That is a finding which it is difficult to fault.
Having found, unanimously, that the employers had fulfilled the requirements of paragraph 6(1)(b) of the First Schedule they were then divided (two to one) over the question whether the employers had also satisfied the requirements of paragraph 6(8). I will read those two veil known paragraphs.
Paragraph 6(1) provides:
"In determining for the purposes of this Schedule whether the dismissal of an employee was fair or unfair, it shall be for the employer to show -
(a) what was the reason (or, if there was more than one, the principal reason) for the dismissal, and
(b) that it was a reason falling within sub-paragraph(2)below, or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.
(2) In sub-paragraph(1)(b) above the reference to a reason falling within this sub-paragraph is a reference to a reason which -.….
(b) related to the conduct of the employee,…."
Paragraph 6(8) provides that (subject to two paragraphs which are not relevant to this appeal) -
"… the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether the employer can satisfythe tribunal that in all the circumstances (having regard to equity and the substantial merits of the case) he acted reasonably in treating it as a sufficient reason for dismissing the employee."
The majority (the lay members) of the industrial tribunal were not satisfied that the employers had acted reasonably. They took the view, as expressed in paragraph 17, that the employers had a strong prima facie case for thinking that the employee had broken the company's regulations and a prima facie case for thinking that he had acted dishonestly. But they were -
"not satisfied that the (employers) had acted reasonably" - because they thought, first, that the employers -
"had a responsibility to gather further evidence to complete their case, but in addition Mr. Marmon, as the manager directly concerned, had a responsibility to give the employee a fair opportunity to defend a hitherto good name."
And that responsibility he did not discharge. The Chairman disagreed, as is shown by paragraph 20 of the industrial tribunal's reasons.
It was submitted by Mr. Bresler on appeal to the Employment Appeal Tribunal and on appeal to this court: first, that the majority of the industrial tribunal were misled to that conclusion by an error of law in applying an erroneous test which has now been corrected. Secondly, that whether that test was right or wrong they came to a perverse conclusion which no reasonable tribunal could have come to. He failed to persuade the Employment Appeal Tribunal who dismissed the employer's appeal. Ought we to be persuaded to allow the appeal on either ground?
The facts I take from the summary of them at the start of the judgment of the Employment Appeal Tribunal, delivered by Mr. Justice Slynn; there seems to me to be no reason to elaborate them further in the light of the extremely detailed and careful review of the evidence in the admirably clear decision of the industrial tribunal. As I have said, the employee was dismissed from his employment in Smithfield on 19th July 1976.
"What happened in this case" -
said the Employment Appeal Tribunal in their summary of the facts-
"is that Mr. Tepper worked from five o'clock in the morning until two o'clock each day. He worked at Stall 103, which is in one of the avenues of the Meat Market and he was concerned with selling a particular type of meat known as 'bone in beef. The company by which he was employed had a procedure by which sales were to be recorded and stock records kept. On a sale a ticket had to be issued by the meat salesman and on that there had to be recorded the name and account number of the customer"or a record that it was for cash and a statement of what meat was being sold. The procedures of the Company as to the way in which the various copies of this ticket should be dealt with are set out in detail in the findings of the tribunal, as are the procedures adopted by the Company for the recording of stock.
It seems that shortly before July 1976" -
it should be and not 1977-
"the Company had been having some trouble with loss of meat or with balancing their stock against cash receipts and that some warnings had been given to the staff. On 15th July" -
this was a Thursday-
"an incident occurred which really led to the dismissal of Mr. Tepper and to the present dispute. On the Thursday morning, the 15th, Sergeant Neeson, who was one of the market police officers, was standing in the market observing stall No. 103. He gave evidence that the only salesman on the stall was Mr. Tepper. At 5.25 a.m. he said a man (Mr. Moore, as he later discovered) had approached Mr. Tepper, and it is said that a different type of meat than 'bone in beef', 'naked beef' was taken down, wrapped in cloth and handed over to Mr. Moore and a piece of paper was given to Mr. Moore recording the price of the meat. That incident led to enquiries. Sergeant Neeson stopped Mr. Moore"-
that was in fact at another gate a little distance from the stall which between two gates -
"and asked him what had happened, although he was quite satisfied that Mr. Moore himself had done nothing wrong. So the matter was reported and considered by Mr. Marmon, the supervisor in charge of this particular section of the Company's business. Mr. Marmon and other members of the company, in particular a Mr. Hermsen," -
he was the industrial relations officer-
"considered what they should do and they decided not themselves to do anything - not to see Mr. Tepper and put the matter to him but to wait to see what happened in the course of the day. The tribunal appear to have accepted that the Company thought it was a possibility that during the day a sales ticket would be made out. But there is no doubt that they wanted to see whether Mr. Tepper did make out a sales ticket or not. They thought that if the matter was put to him at this early stage, then he might do it. If there had been any misappropriation it could have been covered up. At the end of the day there was a check on the stock and some meat was found to be missing.
On the following day, the Friday, there was another incident involving another salesman. The other salesman was interviewed by the police. Mr. Tepper"also was asked to go to the police station on the Friday and he was questioned about the document he had issued recording the price of the meat and his knowledge of the sale to Mr. Moore."
I pause to say that that document was in evidence before the industrial tribunal and did not comply with the regulations of the employers.
"After going to the police station Mr. Tepper went back to see Mr. Marmon, but he was not there. However, there was in the course of that Friday morning, the 16th July, a meeting to consider what had happened in Mr. Tepper's case. The general manager, the industrial relations officer (Mr. Hermsen) and Mr. Marmon had to consider what they should do. They were troubled about possible 'fiddles', as they were called, which were going on at the stall and they considered the evidence, the report made by Sergeant Neeson and the document, which was thought clearly to be in Mr. Tepper's handwriting recording the sale of the meat, and the discrepancy in the stock at the close of the day. The men appear to have accepted that if what had happened was merely a breach of the procedure of the Company" -
that means the men at managerial level who were present at this meeting.
"as to the way these documents should be made out, Mr. Tepper should not be dismissed. But they thought that if there was no attempt to repay the money or to correct the discrepancy, then there was a strong suspicion of dishonesty on his part. And the meeting accordingly agreed and instructed Mr. Marmon that he should see Mr. Tepper on 19th July and, if he could not give an explanation satisfactorily to Mr. Marmon for what had happened, Mr. Marmon was to dismiss Mr. Tepper.
So on the Monday morning, that is the Monday following this...
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