Appeal No.	 EAT/770/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 October 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR I EZEKIEL
MR R JACKSON

MR I AKHTAR	APPELLANT

MARKS & SPENCER PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr Wilson
(of Counsel)
ELAAS	

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing is to determine whether there is an arguable point of law in a Notice of Appeal which has been filed on behalf of the Appellant, Mr Akhtar against a unanimous decision of an Industrial Tribunal held at London North at the end of December 1997 and February 1998.

	Mr Akhtar had brought a proceedings against his former employers, Marks & Spencer Plc alleging that he had been unfairly dismissed by them.  He was an operations assistant and he was employed by the company from 23 October 1989 until his dismissal in April 1997 and therefore he had seven and a half years of unblemished good service to the company.

	The general operations department in Marble Arch where he worked comprised various elements including stock movement.  The Marble Arch shop had a 24 hour system and in late 1996, it was decided that deliveries would be carried out at night rather than through the day and accordingly, the Applicant and others went on to working on the night shift whereas previously he had been on days for very many years.

	It was Mr Akhtar’s responsibility to be dealing mostly with textiles, but he also had some responsibility in dealing with food.

	In January 1997 it appeared to the management that standards were falling.  Details of the circumstances in which those standards were falling are set out in paragraph 7 of the decision and the Tribunal found that those problems seemed to coincide with the departure on leave of absence of one of the Applicant supervisors.  

	Management made a number of visits to see what was going on, but could find nothing wrong on their visits.  They were suspicious and decided to put a covert video camera in the lounge area where the Applicant and his colleagues would go for their breaks.  This camera was installed for the period from the 4 to 24 February and when they were examined, they showed that the operation assistants including Mr Akhtar were playing pool for long periods outside their break periods.  In order to see what was going on, Mr Micklewright, the manager examined 100 hours of the video tape.  He identified 14 employees who were involved, plus some employees of subcontractors whose services were used by Marks & Spencer.  In relation to those four individuals they were, as the Tribunal put it, removed and the other 14 who are all employees of Marks & Spencer was suspended on full pay.

	The company having carried out their investigation through Mr Micklewright, then called in the suspended employees to ask them what their explanations were.  There was a first meeting with Mr Akhtar on 27 March, he admitted he had taken excessive breaks, but said that he had good reason for doing so and said that it was because he had some gout and pains in his leg and sometimes it was too cold to be on the loading bay and sometimes there was no work for him to do when he was there.

	He was asked if he had permission to go for a break over his permitted break times, but he said that did not need permission once Mr Singh had left.  Mr Singh was on extended leave of absence.  He explained that he would play pool and cards and chat in the lounge and sometimes rest when he felt unwell.  The actual amount of time that Mr Akhtar appeared on the video was in the region of 8 hours excess on 4 separate nights.  He was called to a second interview, Mr Micklewright then concluded that he should be dismissed.  He took into account the fact that the relief deputies who were his effective supervisors had carried out the same wrongdoing but decided that the Applicant was fully aware of the position as he was a long serving employee.  He was sent a dismissal letter which gave as the reason for dismissal, gross misconduct and it was stated that it was for taking excessive breaks over and above his break entitlement for which he gave no acceptable explanation.

	Of the 14 employees who were suspended, one resigned, eleven were also dismissed and two were kept on.  In relation to the two who were kept on, one was kept on because he was a man who believed that if he had not joined the others he would have been a victim of racial abuse and the other on the basis that he had just started to work for Marks & Spencer and therefore bore much less blame than the others who should have known better.

	It was confirmed that the Applicant could clearly be seen on the video for long periods of time and on one occasion over three hours in one night.

	The Industrial Tribunal having considered the totality of the evidence which I have summarised, then set out the submission made to it on behalf of both parties.  Paragraph 25 indicates that there was a complaint being made on behalf of Mr Akhtar that he should have been told what the allegations were before he went to an investigatory interview.  He never had a satisfactory explanation of what duties it was said that he had not carried out, despite the fact that he was playing pool, thirdly it was said that the video evidence was not shown to him even though it was available and therefore he was not in a position to challenge what was on the video.  The evidence obtained from witnesses during the investigation was not shown to the Applicant, no notes of any interviews were provided and that Mr Micklewright was involved from beginning to end, both as investigator and judge.

	There were other points which I think do not need to be dealt with.  The Industrial Tribunal concluded as follows, they said that they did not believe that it was improper for Mr Micklewright to hear the first hearing and we do not believe he had reached a conclusion at the outset, but did make his mind up at the end of the second interview.  That deals with the suggestion that was made by Counsel on Mr Akhtar’s behalf, that in a company of this size it was inappropriate that there should be one person doing the investigation and taking decisions as to whether there should be dismissal.  

	In truth in this case the investigation simply required Mr Micklewright, as it turns out, to look through 100 hours of video tape material so as to identify the involvement of each of the 14 employees who were suspended.  This was not a case where extensive investigation was required, on the contrary the material was there, the question was, what was the explanation and in the light of that explanation, were the employers entitled to say that this was a gross or serious misconduct.

	The Tribunal went on to ask themselves this question:

“If we use the “range of responses” test in this case, it is very difficult indeed for the Applicant to succeed.  The Applicant himself admitted he expected he would be warned and as a Tribunal we found it very difficult to see how anything other than a severe disciplinary sanction should be applied in these circumstances.  This was a continuing breach of trust and confidence and while the Applicant would have found it difficult to stand up against his colleagues it was necessary for someone to take a stand and he was of long service.”

	They indicated that they were satisfied that the Burchell test had been fulfilled, that there was a genuine belief that the Applicant had misconducted himself and that they had carried out a very thorough investigation internally as well as conducting very detailed appeals.  As the Respondent themselves said, this was a case that was unfortunate, that it was difficult for anyone to stand up against the group and that they all knew that they were doing wrong.  It is not for Mr Akhtar to say that he couldn’t carry out the job or that he could carry out the job as well from the canteen as he could from the loading bay; that is a matter that could have been discussed with management but it was not.  It was clear that there were other jobs that the Applicant could do.  Accordingly they dismissed the application.

	On his behalf  Mr Wilson from the ELAAS scheme to whom we are grateful, made a number of submissions to us.  The first and prime submission was that with an organisation of this size, it should be expected that a fair minded employer should separate the investigation function from the disciplinary function.  There was no reason he submitted why with an organisation of that size Mr Micklewright should be involved in both aspects.

	We see the force of that submission but it seems to us unfair to criticise the relatively brief way that the Industrial Tribunal dismissed that complaint.  They were satisfied that wearing his disciplinary hat, Mr Micklewright had acted in a fair minded way, in the sense that he had not formed any view as to what should happen until after the disciplinary interviews, the second one had been concluded.  Furthermore, there was an appeal which was of a fairly sophisticated form which took place.  Taking all those circumstances into account, we think it was for the Industrial Tribunal to weigh that submission as they did and not for us to interview with it.

	During the course of his argument, the President raised with Mr Wilson the question as to whether it was appropriate for an employer to make secret video recordings of his staff’s activities, but having regard to the points raised by the Applicant’s at the Industrial Tribunal  which did not include a submission that it was improper or unlawful for an employer to behave in that way, it does not seem to us that this is the occasion to examine that question.  Mr Wilson, it should be recorded, was submitting that where an employer suspected that a criminal offence had been committed, it would be fair and reasonable to put in secret video cameras, but that it was not fair and reasonable that an employer should have such cameras where he was simply looking to see whether there was a disciplinary case against the individuals.

	Without in any way seeking to decide the point, I should make this observation that it seems to me difficult to draw a hard and fast line in the way in which he was suggesting.  In this case there was some fear on the employer’s behalf that goods were being mishandled.  In those circumstances, it seems to me that the dividing line may not always be clearly drawn, but as I say, it does not arise for consideration on this appeal and we therefore do not take it into account.

	The second point that was made was that what should have happened is that some part way through the recording, the employers should have stopped to look at the film and then to have warned the individuals that if they persisted in playing pool when they should have been on duty, they would or might be dismissed.  Again that was as it seems to us a matter for the Industrial Tribunal to take into account in the whole context of the case.  As we understand the evidence in any event, it would appear that the management did not stop at any stage to look at the film and that they did not know what was on the film until after about 100 hours of it had been made.  It was for the Tribunal to say whether that was fair and reasonable behaviour, they obviously concluded that it was.  We have not been persuaded despite the able submissions made to us that this is an appeal which raises an arguable point of law and therefore it must be dismissed.