Appeal No. EAT/148/91

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 18th February 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MISS J W COLLERSON

	MRS P TURNER OBE

MRS L E IREDALE	APPELLANT

HOLLAND AND BARRETT LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS L TAGLIAVINI
(Of Counsel)
Gateshead Law Centre
Swinburne House
Swinburne Street
Gateshead
NE8 1AX

	

	MR JUSTICE WOOD (PRESIDENT):  Mrs Linda Iredale alleged that she had been unfairly dismissed by her employers Holland and Barrett Ltd that Company is part of the large Booker plc nationwide chain of retail shops specialising in health products.  They have some 1,300 employees and are obviously a large concern.

	The Applicant was Manageress of one of their shops.  As one would expect the Company had the most detailed rules and regulations, in particular concerning the handling of goods and cash.  Some might have thought them over oppressive, it is the argument that one has heard before now in these courts, but put against that must be the problems which those in retailing face as the Tribunal themselves mentioned, of what some would refer to as "shrinkage" one has also heard it referred to as "slippage".  It is therefore vitally important that the most minute observance of the rules are essential for the satisfactory working of the retail trade in these huge concerns.  

	The Applicant had a jug which she had received from a representative, she received it at about Easter of 1990 and some months later she wished to obtain goods or cash from the store where she was manageress and she wished to exchange that jug.  It had a value of £11.99.  She went through the refund procedure under the rules because there was no exchange procedure and she took goods to the value of £10.44 and the remainder £2.34 was not taken from the cash till.  Ultimately the matter was examined by a senior representative of the Company, Mr Bohdan Helmut Harasymiw who was referred to as Mr Bo, and he looked into the matter, there was a disciplinary hearing followed by an appeal hearing, the result was found that Mrs Iredale was in breach of the cash handling rules in two ways and she was dismissed.

	The case before the Industrial Tribunal on behalf of the Applicant was conducted by a Solicitor, Mr Buchanan-Smith and his submissions were carefully recorded and mentioned in the Decision.  Before us today Miss Tagliavini has made a number of points, we are grateful to her for the clear and concise way in which she has made her submissions.  The first point that she takes is that in truth and in fact there was no breach of the rules of the Company.  We have read the Notes of Evidence from the two hearings internally, and it is quite clear from those, as indeed the Tribunal found, that the Applicant was well aware not only of what are called the Class A rules but of also the detailed handling of cash through the register.

	We have looked at the Decision.  The Tribunal in paragraph 4(h) on page 6 explain the rules which were breached and they find that there was a breach.  It was a mixture of the Class A rules under Rule A5 and also the cash handling and cash register procedures.  There is nothing on that first point raised before us.

	The second point was that there had been no warning in this particular case.  We were surprised if that point had been taken by Mr Buchanan-Smith that it was not expressly set out as part of his submissions by the learned Chairman, it is not so mentioned and indeed one would have expected it to be had it been mentioned, however, we are quite satisfied having read the Notes of Evidence that it was one of the points that was in the documentation and if any point had been taken upon it it would have been mentioned in the Decision and indeed if the Tribunal had thought there was any merit in the point it would have been dealt with specifically.

	The fourth point taken, I leave the third point until last, was that the procedure here should have been found to be unsatisfactory.  This point is put in this way.  The Tribunal early in its Decision in paragraph 4(a) indicates that because of the size and the administrative resources available:
"the highest standards of personnel procedure can be expected of them."

	The procedures are criticised particularly in two ways.  During the disciplinary hearing notes were taken in long hand but during a journey back in the train to headquarters, those long-hand notes were reproduced in more legible form for typing, they were eventually typed.  It is said that the typed notes were not an identical copy of the long-hand notes and that was right, but the Tribunal looked at this matter and decided that there was nothing sinister and that although it was undesirable to conduct the matter in that way none of the "tidyings up" if that is the right phrase, were really such as to undermine the way in which the disciplinary hearing was conducted.  The Tribunal say this in the middle of page 6:
"The Tribunal are not satisfied that there was anything sinister in this.  Overall they consider that the tidying up exercise was genuine if misguided.  There can be no question whatsoever - and indeed Mr Buchanan-Smith did not argue - that the respondents manufactured a case by including admissions in their later versions of the disciplinary hearing."

and they then go on to examine the matter further.

	At the Appeal hearing there were different Members there hearing the case and of course the notes of the disciplinary hearing were before them.  We have looked at the notes of the Appeal hearing and it is quite apparent that there was a careful investigation with every opportunity being given to the Applicant to deal with the matter.

	Again, the procedures were examined by the Industrial Tribunal and were not open to criticism.

	Lastly, and this was the second point taken before us, it is said that when one looks at the breadth of these rules, and clearly they are very detailed and cover a very wide field, it was not within the bands of reasonable response of this employer in these circumstances to dismiss, and indeed during the Appeal hearing it is apparent from the notes that what was being sought by the Applicant was a final warning and a reinstatement.

	The Tribunal deal with this question of whether dismissal was appropriate in the circumstances in the very last paragraph of the Decision, which is in fact paragraph 5(e).  They deal with the wording of the Rules themselves;  they deal with the facts, the say this:
"The fact is that the applicant did not seek permission.  It was on her own iniative that she carried out the incorrect procedure of `exchange' and the respondents therefore had no control whatsoever over a transaction which amounted to `trading in' an unwanted gift in exchange for goods from the shop.  The respondents were entitled to, as they did, view this as a fundamental breach of trust."

That being the view taken by the Tribunal it seems to us that they were entirely within their discretion in deciding that the course taken by the Company in the present circumstances of this case were such as not to be open to criticism.

	Despite therefore, the careful submissions of Miss Tagliavini, we find ourselves unable to discern any error of law in this Decision which merits a full hearing of the case inter partes, and this Appeal is dismissed at this preliminary hearing stage.