Appeal No.	 EAT/561/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 November 1996

Before
HIS HONOUR JUDGE D M LEVY QC
MR R H PHIPPS
MS B SWITZER

MS S HUSSEIN	APPELLANT

SHERATON SKYLINE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR S GILL
(of Counsel)
Southall Rights Legal Advice Centre Ltd
54 High Street
Southall UB1 3DB	
For the Respondents	MR J A MUIR
(Employee Relations Consultant)
High View Lodge
Charlbury
Oxon OX7 3ET	

	JUDGE D M LEVY QC:  Mrs Sarah Hussein, the Appellant, was employed by the Sheraton Skyline Hotel, the Respondent, as a cocktail waitress.  Her employment commenced in 1977.  On 19 June 1995 she was dismissed from her employment.  She thought she was unfairly dismissed.  By an application dated 8 August 1995, received by the Industrial Tribunal on 9 August, she sought the decision of an Industrial Tribunal as to whether her dismissal was unfair.  her complaint stated:

“On Monday 19th June 1995 at about 5.30 pm I took my break.  The food being served in the canteen was pasta with bacon.  I am a strict Muslim and this forbids me to eat pork.  Without eating I returned to work.  I finished my shift at about 1.10 am on 20th June.  I went to the canteen and started eating some chicken and potatoes, which was left out for the staff.  As I was eating I was called that my minicab had arrived.  As I had not finished eating I put the food in a container and went to the minicab. As I was leaving the premises I was stopped by security and told that we were not allowed to remove the food from the premises.  He called the duty Manager, she suspended me immediately and asked me to come and see the personnel on Wednesday 21.6.95.  On Wednesday I went to see the personnel who told me not to explain anything and that she would contact the union.  Because she was unable to contact the union, she said I should attend again on Thursday 22nd June at 12 noon.  On Thursday the personnel took me to see the food and beverage manager, and the Head Housekeeper.  I was told that they had come to a decision that because of the seriousness of this matter they had no choice but to dismiss me.  I was told if I wanted to appeal to see the personnel.  I appealed, this was dismissed.
I wish the Tribunal to determine whether I was unfairly dismissed.”

	The employee’s appearance was received on 22 September 1995.  The salient parts of it read:

“Sarah Hussein (now Yacoubain) was suspended at 01.15 on 20.6.95 due to her leaving the hotel with a plastic container (not hotel property) containing pieces of Chicken, Potatoes and Mushrooms which had been on the Cafe Jardin menu that evening, without a passout.  She asked the security officer to be allowed to put the food back.
The night chef confirms that the night menu in the staff restaurant to have been sweet and sour pork or fish in mushroom sauce.  Chicken was not served to the staff.  Another member of staff who ate at 0130 confirms this.  The Head Chef confirms the policy regarding high risk foods, i.e. chicken and desserts.  Because of the risk of food borne illness these foods are not cooled and reheated for staff, but are thrown away.  Separate food is cooked for staff.
A colleague of Sarah said that she went to dinner at 17.30 and returned at 18.15 approx - she went in the direction of the staff canteen.  Our policy is to always have at least one meat dish and a vegetarian dish available.
During the disciplinary process Sarah said that the evening meat dish was pasta with bacon, which she does not eat for religious reasons.  She did not ask anyone for a vegetarian dish which would have been provided and there was ample time.
A previous incident involving another member of staff had resulted in dismissal and as a result of this a notice from the General Manager stating that ‘no item may be removed from the Hotel without following the correct procedures, i.e. a passout or removal of assets form properly authorised’ was displayed at the staff entrance and highlighted in red.  Sarah claimed not to have read this and not to have a good understanding of written information generally.  As part of her work she has to take written orders and use a computer.
Sarah claimed not to have a staff handbook with the passout rules, which specifically refer to the removal of food.  When shown the signed receipt she said she could not remember 9 years ago.  She was told the rules have not changed.
Sarah said she had used the passout system when purchasing a birthday cake for her daughter.
We look to our long servicing staff to set an example to all staff, and everyone is aware of the passout system.  Everyone knows that we dismiss staff who remove any item without authority.  There was no reason to make an exception in this case.
We wish to point out, that although it is not clear from Sara Hussein’s IT.1 the disciplinary action which was taken was thorough and in complete accordance with both the hotel’s disciplinary and appeals procedures.”

	There was a hearing before the Industrial Tribunal on 24 November 1995. The facts as found by the Industrial Tribunal do not contain all the allegations contained in the answer but they sufficiently appear from paragraph 4 of the decision.  Their decision was sent to the parties on 10 April 1996.  The Industrial Tribunal held that the Appellant was fairly dismissed for a reason relating to her conduct.  In the final paragraph of their decision the Tribunal said:

“It should be said at the outset [and we find it a little strange that that should be in the final paragraph of the decision] that the Tribunal felt the sanction of dismissal to be somewhat ‘harsh’ in Ms Hussein’s case, particularly given her length of service with the Respondent.  However, it is not for the Tribunal to substitute its own view of the appropriate sanction for that of the employer.  Applying statutory test, the Tribunal finds that the action of the Respondent in deciding to dismiss the Applicant for ‘gross misconduct’ fell within the band of reasonable responses open to a reasonable employer.   Furthermore, the Tribunal finds that the disciplinary steps leading to the decision to dismiss, as well as exhaustive subsequent appeal procedures, were undertaken by the Respondent in an entirely fair and proper manner, and accepts that recourse to the sanction of dismissal in such a situation was consistent with the previous treatment of other staff in similar circumstances.  Procedurally, therefore, the Tribunal finds that the Respondent acted reasonably in its treatment of Ms Hussein.  The Tribunal accordingly finds that Ms Hussein was fairly dismissed by the Respondent for a reason relating to her conduct.”

	She appealed against that decision by a notice of appeal dated 21 May 1996.  That appeal has been before us today and we have had the benefit of the same advocates before us as appeared before the Industrial Tribunal.  We should say that Mr Muir, for the Respondents, has very properly accepted that no allegation of dishonesty is made by the Respondent against the Appellant.  His case is quite simple.  The Appellant knew the passout rule.  She broke the rule.  The dismissal would follow from other breaches of the rule.  The Industrial Tribunal found that there had been a breach and proper procedure follows.  The harsh decision was not outside the range of reasonable responses and therefore, accordingly, the decision was right.

	We entirely accept, as Mr Muir submitted, that the approach of an Industrial Tribunal, as it recognized, had to be based on s.57(3) of the Employment Protection (Consolidation) Act 1978, as interpreted in case law.  We also accept Mr Muir’s admonition that we cannot interfere with the Industrial Tribunal’s decision unless they have erred in law and that we should not interfere with the employer’s decision if it was one which fell within the band of reasonable responses which a reasonable employer might have adopted was not within that band of responses unless satisfied that the tribunal erred in law and we are ourselves satisfied that the dismissal of the Appellant.

	We further entirely accept that a hotel in the position of the Respondent may well want to have rules which stop staff taking out from the hotel property of any sort which might reasonably be considered to be hotel property without getting written permission so to do.  If there is a breach of such a rule we can also accept that dismissal on a first offence might be appropriate.  We think that this was accepted by Mr Gill, although he added the rider that if an employee breaks such a rule, he may be liable to be dismissed for gross misconduct, subject to the proviso that there must, in any rules of this sort, be an exception for particular circumstances.  One matter which arises for determination on this appeal is whether there was any such a rule in force at the time of the Appellant’s dismissal on which the Respondent was entitled to rely.

	Mr Gill took us through the material on the Respondent’s rules which was before the Tribunal.  It is common ground that there was a staff handbook given to the Appellant as long ago as July 1985.  The material rule as to the conduct now in question is found at page 23 of our bundle.  The only relevant line is :

“Any action constituting any criminal act whatsoever.”

We assume that was what would entitle dismissal for gross misconduct and we note that here no criminal act was alleged.  There was no allegation of dishonesty.  

	At some stage the rule was changed.  That is found at page 18 of our bundle.  That rule read:

“Any action constituting any criminal act whatsoever - eg theft.”

It was accepted by Mr Muir that there was no evidence that this amendment was brought specifically to the Appellant’s attention.

	The third change occurred late.  We have it at page 19 of our bundle and the passages to which our attention is drawn are these:

“Gross Misconduct which could result in Summary Dismissal
-	Any action constituting any criminal act e.g. theft. (this includes the removal of hotel 	property without a signed ‘pass-out form)
	...
-	Misuse of the property of guests or members of the company.”

Again, it was properly accepted by Mr Muir that there was no evidence that this change in the rules was provided to the Appellant.

	At the same time, there was this passage which we find at page 20 of our bundle.  It reads:

“Pass Outs
You must obtain written authority from a listed Manager before removing food or other Company property from the premises.”

We do not know whether food or other company property means that the food removed or which was forbidden was only Company property.  If that was what was intended, it would mean that an employee taking something like a Kit Kat or Tic Tacs into the office would have to get written authority from a listed manager before he took it out on each and every occasion.  We cannot think that that was what was meant.

	Later there was a memorandum put on the notice board which was alluded to in the Respondent’s IT.3.  That read:

“TO:	ALL EMPLOYEES
...
DATE;	3 March 1994
SUBJECT;	REMOVAL OF HOTEL PROPERTY
A recent incident has prompted me to remind everybody that no item may be removed from the hotel without following the correct procedures, i.e. a Pass-Out or Removal of Assets Form, properly authorised.  This will ensure that all misunderstandings and resulting disciplinary actions can be avoided.
If you require any further clarification regarding this hotel policy, please speak to your Department Head or myself.”

The heading, of course, on that, is “Removal of hotel property”.  It does not refer to food as does the last cited passout “rule” and the question, of course, arises in this case as to whether the food which was removed by the Appellant was, indeed, hotel property.

	Mr Gill accepted, as was indeed the evidence, that the Appellant may well have known of the notice on the Board but he submits that the notice does not make clear what is or is not to be regarded as hotel property.  Secondly, it does not make clear that conduct referred to on the notice would result in dismissal for gross misconduct on the happening of a single offence.  The fact that other people had been dismissed for gross misconduct did not take the matter further because in specific allegations of gross misconduct, there was no evidence that these were actually known by the Appellant.

	We turn to some passages in the disciplinary hearings, hearings which the Industrial Tribunal found satisfactory.  At page 24 of our bundle there is the report of the minutes of the meeting with Edwin Wijkhuys.  This passage appears:

“[Mr Wijkhuys] 	commenced by reading out the statement from Security.  Roy Branch asked [Ms Hussein] to open a carrier bag which contained Chicken, Mushrooms and Potatoes.
[The Appellant replied]:	I was very busy - when I had my break they only had bacon which I do not eat.  I went back to work and had no time to eat at 12.30pm when there was food left out in the canteen so I took some to eat as I have no time to cook at home.  The transport was waiting and I had to hurry.
EW	Are you aware that anything going out of the hotel should have a pass out?
SH	Yes but I was too busy I had no time I did not want to miss my transport.  I thought I could eat in the mini cab - I swear this.
EW	But you should have eaten in the canteen or contacted the DM for a pass out.
SH		I am sorry I made a mistake.
...
EW	In your Handbook P19 it is written down do not take things off the premises this is regarded as theft with out a pass out.
SH		The food I had was for us to eat from the canteen.”

The question which was put on the facts which we have found was quite inappropriate.  The handbook which had been given to one Appellant did not contain what was put to her and, in these circumstances it was improper and unfair for Mr Wijkhuys to make his last statement or indeed to discipline the Appellant on a wrong premise.
	
	We turn to the next stage, which was the appeal meeting with Mrs Grace.  At page 27 of our bundle there are these passages from the minutes:

“GG	Are you aware that you should have had a Pass out?
SH		I have never done this before.
GG		You were unaware that you needed a pass out.
SH		No, I didn’t know that the staff canteen food needed a pass out.
GG	Are you aware that all past cases show that any time anyone has removed property without a Pass out they have been dismissed.
SH		Yes but this was for staff to eat, not property.
GG	It was clearly taken from the property.  Did anyone else see you remove the food from the staff restaurant.
SH		Yes a few people were eating in the restaurant.
GG		Who?
SH		I don’t know.
GG		You are aware that if people are caught removing property they are dismissed.
SH		Yes things not belonging to us.”

We remind ourselves again that dishonesty by the Appellant is not alleged.  A little later there was a break in the meeting.  After it resumes Mrs Grace is recorded as saying:

“The rules have not changed.  Rules are rules and we all must follow them or else we can end up in serious trouble.”
“GG	I accept what you are saying with your long service and I appreciate your hard work in the past.  However there are clear rules for this procedure.  I personally ask for a pass out and I have never been refused one and I cannot see that your request would have been refused.

	We accept that rules are rules and, as we have said, if appropriate rules were properly in place, they had to be obeyed.  We do not accept, however, that the rules in place were the rules that Mrs Grace wished them to be.  As we have shown the rules were not clear and the rules, qua the Appellant, if they were rules, appear to have changed without her being sufficiently informed.  In any event if there was such a rule as was put to the Appellant by Mrs Grace, it was made known to her after the offence had been committed for which she was disciplined but in our judgment there was no such a rule.  It therefore follows that we cannot agree with the findings of the industrial tribunal that the disciplinary hearings were fair or the decision which was taken was correct.  

	Further, there is an elementary point in employment law to which Mr Gill referred us, which is found in the decision of an industrial tribunal in Ladbroke Racing Ltd v Arnott [1983] IRLR 154.  This is a decision from the Court of Sessions in Scotland and it is sufficient for me to read a passage from the head note at page 155:

“A rule which specifically states that a breach will result in dismissal cannot in itself necessarily meet the requirements of s.57(3) of the Employment Protection (Consolidation) Act.  The statutory test of fairness is superimposed on the employer’s disciplinary rules which carry the penalty of dismissal.  The standard of acting reasonably set by s.57(3) requires an employer to consider all the facts relevant to the nature and cause of the breach, including the degree of its gravity.”

We cannot think that this was something which was addressed in the circumstances of this case on the facts as found by the Industrial Tribunal.  We therefore conclude that the Industrial Tribunal erred in law in reaching its conclusion.  

	There is another issue on which a point of law arises.

	There has been some debate in the course of the appeal as to what was meant by “property”.  Mr Muir has submitted that food in the staff restaurant remains the property of the Respondent until such times as the morsels of it have been mouthed, if not digested, by an employee.  Mr Gill has submitted that once the employee has seen food on offer to staff for a meal and has chosen from it what he requires, it ceases to be the property of the hotel and therefore the Appellant did not remove hotel property..  We test these submission in two ways.  Can it really be suggested that if an employee takes an apple to eat for her desert it remains the property of the hotel until such times as the employee has taken the first bite?  We cannot think that that can be right.  To support his submission, Mr Gill has given us an attractive analogy based on the Sale of Goods Act 1979.  He refers to passages in Part III of that Act:  

“EFFECTS OF THE CONTRACT
Transfer of Property as between Seller and Buyer
Goods must be ascertained
16.	Where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained.
Property passes when intended to pass
17.	(1)	Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.
	(2)	For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case.
Rules for ascertaining intention
18.	Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.
...
Rule 5  (1)  “Where there is a contract for the sale of unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods then passes to the buyer;  and the assent may be express or implied, and may be given either before or after the appropriation is made.”

	We think in the circumstances of this case it is not unfair to apply by analogy this Rule 5(1).  Having regard to the factual matrix in which the Appellant took away what appears to have been her meal and that dishonesty was not alleged by the Respondent, we cannot think that the “property” on the balance of probabilities was or could properly be considered “hotel property” at the time and in the circumstances she was leaving the hotel with it.

	In the event that we conclude the Industrial Tribunal’s decision to be wrong, unusually both advocates have asked us not to remit the matter back for a further hearing on unfair dismissal but to substitute a finding of our own.  This we would have hesitated to do but for the joint invitation;  we can, of course, well understand the wishes of parties to avoid the expense of issues being retried yet again and therefore accede to the request.  We find there was no clear pass rule in force on which the Respondent was entitled to rely to dismiss the Appellant for what the Industrial Tribunal found she had done.  If the Respondent wished to have such a pass rule, it had to be in clear terms and readily understandable by employees such as the Appellant.  In the alternative, in so far as the Respondents rely on the memorandum placed on the notice board, it is up to the Respondent to prove that the property taken from the hotel by the Appellant was property within that description.  On our findings, they failed to do that.

	In any event, we note that no dishonesty was alleged and a mistake was admitted.  On the pass out rule as it then stood and as the Appellant appeared to have known it, in our judgment the penalty of dismissal must be outside the bound of reasonable responses by an employer in respect of the conduct of the Appellant.

	In these circumstances, subject to further submissions from the advocates, we will allow the appeal.  We will substitute for the decision of the Industrial Tribunal a decision that the Appellant was unfairly dismissed.  We will remit to the Industrial Tribunal for it to determine whether the conduct of the Appellant contributed to the dismissal and to decide on quantum.  That, of course, will not be necessary if the parties themselves reach agreement.  We will hear from the advocates whether they think it appropriate that the further matter should be heard by the same Tribunal or by another Tribunal.