Appeal No.	 EAT/259/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 May 1997

Before
HIS HONOUR JUDGE D M LEVY QC
MR R H PHIPPS
MR S M SPRINGER MBE

MR K ASHTON	APPELLANT

W H SMITH LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR S BALL
(of Counsel)
Messrs Sproulls
Solicitors
42 Fore Street
Bodmin
Cornwall
PL31 2HW	

	JUDGE LEVY QC:   On 27th August 1996 an Industrial Tribunal received an application from Mr Kenneth Alan Ashton claiming that the termination of his employment was unfair. Paragraph 1 of his application said:

“THE REASON GIVEN FOR DISMISSAL WAS “MISCONDUCT ON THE GROUNDS OF AN IRRETRIEVABLE BREAKDOWN OF TRUST”. IT IS CORRECT TO SAY THAT THERE HAD BEEN A BREAKDOWN OF TRUST, BUT THAT RESULTED FROM ACTS AND OMISSIONS BY THE RESPONDENT AND NOT THE APPLICANT, AMOUNTING TO A BREACH OF THE IMPLIED CONTRACTUAL DUTY OF THE RESPONDENT TO TREAT THE APPLICANT WITH DUE RESPECT, CIVILITY AND TRUST.”

The respondent, W H Smith Ltd [“the Company”], put in a Notice of Appearance dated 30th September 1996 stating that the reason for the dismissal was that:

“During the night of 16/17th April 1996 the Applicant and another member of staff gained entry to the locked House Manager’s office. An unauthorised key was used. The Applicant had no authority to enter the office for the purposes for which he entered.”

Mr Ashton was the night manager of the premises owned by the Company and was in a managerial position of trust.

	There was hearing before an Industrial Tribunal at Plymouth on 2nd, 3rd and 4th December 1996. A number of witnesses were called. The unanimous decision of the tribunal sent to the parties on 8th January 1997 was that Mr Ashton’s application should be dismissed. The representation shows that the applicant was represented by Messrs Sproulls, Solicitors, and the respondent by Messrs Eversheds, Solicitors. 

	Mr Ball who has appeared before us today on an ex parte hearing of a Notice of Appeal by Mr Ashton dated 14th February 1997 tells us that he represented Mr Ashton at the proceedings below. It is a matter of regret to us that he is not credited for the representation which we are sure was of assistance to the tribunal. He tells us that at the end of three days written submissions were made to assist the tribunal in their considerations. 

	Put shortly, and there has been a helpful lengthy skeleton argument submitted by Mr Ball, the grounds for the appeal are that there was disparity of treatment; a third man who gained illegal entry to the locked office was not disciplined at all, and indeed was promoted to the job from which Mr Ashton was dismissed, and that on appeal the second man’s penalty was reduced during the internal hearings from dismissal to a lesser penalty. The second ground is that Mr Ashton was dismissed for conduct, but not gross misconduct. The third ground of appeal is a failure to find proper facts by the tribunal.

	The facts in our judgment are very simple, and the position of Mr Ashton is very bleak.

	He illicitly went into an office in the middle of the night, photographed documents there and was caught red-handed. He admitted misconduct. He was dismissed for an implied breach of trust and not, as Mr Ball submits, for gross misconduct. In those circumstances, Mr Ball says for the reasons which we have summarised, the dismissal was unfair.

	The Industrial Tribunal in a decision which is, in our judgment, fair, goes through the facts in some detail. It deals with the disciplinary hearing, and it deals with the appeal from that, which is criticised by Mr Ball. It reached a conclusion that the decision taken by the Company, “was not a decision that no reasonable employer would take”. 

	In our judgment, this is not a case where the Industrial Tribunal can be criticised for the form of words used. It is a decision which on the facts any Industrial Tribunal would have reached. The findings of fact which Mr Ball says were made wrongly, are, in our judgment, irrelevant to the central issue. Here is a case of an employee in a position of trust who misbehaved. Disproportionality in sentence is not something which would stop a reasonable employer dismissing this employee in these circumstances.

	We would thank Mr Ball for his careful skeleton argument and the able submissions which he has addressed to us this morning. Nonetheless, at the end of the day, this is a case which cannot succeed on appeal. Mr Ashton has had his day in Court. He is not entitled to another one. We dismiss the appeal at this stage.