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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lincoln Co-Operative v. Hill [2000] EAT 1411_99_2803 (28 March 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/1411_99_2803.html Cite as: [2000] EAT 1411_99_2803

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APPEARANCES

 

For the Appellant	T J Knowles. Solicitor.


 


JUDGE COLLINS:

1. This is the preliminary hearing of an appeal against the decision of an Employment Tribunal sitting at Nottingham whose extended reasons were promulgated on 13 October 1999. By their decision the Tribunal held that the respondent had been unfairly dismissed and awarded him compensation of totalling £6,066.12.
2. The facts may be shortly stated. The respondent is now 39 years old and from 8 February 1988 until his dismissal on 28 April 1999 he was a Dealer Principal at a Rover dealership owned by the appellants. The reason why he was dismissed was that it was discovered that he had used the services of an employee of the appellants in a different dealership to install a kitchen at his own home, that he had allowed that employee to use a courtesy car owned by the appellants to drive to and from his home for the purposes of that work and that he had made that employee a gift of property, namely a child car seat worth £109. There was a disciplinary procedure and he was dismissed for gross misconduct.
3. The Tribunal in its decision recited those bare facts and noted that it looked as though on the face of it it was an open and shut case. Here is a case where an employee in a senior management position had appropriated company property. It looked as though the proposition that in those circumstances he was not fairly dismissed was unarguable. However, the Tribunal in a careful, thoughtful and detailed judgment eventually came to a contrary view. Their reasons essentially were these. So far as the disciplinary procedure was concerned, the Tribunal thought that it was bungled and incompetent. Where a serious allegation is made against a senior employee the need to ensure that the procedure is carried out correctly and fairly is obviously great. They took the view that the person conducting the investigation was not adequately briefed and did not make adequate investigations. They said that the respondent was not properly warned in advance of the nature of the allegations with sufficient precision to be able to explain himself fully and, in sum, they formed a very dim view of the procedure, which the appellants employed.
4. So far as the merits of the case are concerned the Tribunal held that the employers had no adequate reasons to suppose that Mr Ball had installed the respondent's kitchen in company time. They took the view that the respondent did have authority to allow members of staff to use courtesy cars, although it was a plain and admitted misjudgement for the respondent to allow Mr Ball to use a company car for the purpose of doing work at the respondent's home. And they held that what looked on the face of it like a serious instance of theft of company property was very much less than that in reality. The car seat in question had been gathering dust in the window of the showroom for some 16 months; no one wanted to buy it and it was due to be written off the books under company accounting policy in a month or two anyway.
5. Mr Ball did not want any payment for installing the kitchen and it is not suggested that he did have any payment. Although no one can deny that the respondent was quite wrong effectively to steal company property, the offence according to the Tribunal, who looked into all the facts, was very much less grave than appeared on the face of it. And they held that if the company had adopted a proper procedure it would have disclosed facts making the situation appear much more favourable to the respondent and that no reasonable employer would have regarded those reasons as sufficient reasons to dismiss him, particularly in the light of his 11 years of service without any complaint. Mr Knowles argues that the decision that the dismissal was unfair was perverse. It is perfectly true that theft of company property is serious misconduct and there will be very many cases where there is no adequate or fair response to be made by the employer, other than to dismiss. But Mr Knowles concedes that it is not automatic that every dismissal for theft of company property will be fair and in this case it seems to us that the Tribunal considered all the facts in depth, balanced all the arguments and came to the conclusion in the circumstance of this case that the dismissal was unfair, even though the allegation was an admitted one of misuse and appropriation of company property.
6. Although another Tribunal might have come to a different conclusion, in our judgment it was open to the Tribunal on the facts which they found to come to decide that this was an unfair dismissal and we do not detect a reasonably arguable point of law to the contrary. For the same reasons we think that the tribunal's decision that a proper procedure should also have led to the same finding is not appealable.
7. When it comes to the question of contribution the situation is different. The Tribunal held that the respondent was not guilty of any contributory conduct and no deduction from the compensation should be made. We find it reasonably arguable that this conclusion was incorrect. Mr Hill did not deny the conduct which founded his dismissal. Whether or not there was a specific technical admission of theft or not does not seem to matter. There is no doubt that he accepted that he misused or misappropriated company property. In those circumstances, it is clearly arguable that the tribunal should have found that he was guilty of contributory conduct and reduced the compensation accordingly. We shall order that this appeal should go forward to full hearing on the question of contribution only - listing category C - time estimate 2 hours - skeleton arguments 14 days before the hearing. We shall direct that the Chairman's notes of Mr Hill's evidence be produced.