Appeal No. EAT/1080/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 February 2001

Before
HIS HONOUR JUDGE COLLINS CBE
MR B V FITZGERALD MBE
MS B SWITZER

BUDGENS STORES LTD	APPELLANT

MR FREDERICK JOHN FLOYD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR O CAMPBELL
(Of Counsel)
Instructed by
Messrs Shoosmiths Solicitors
The Lakes
Northampton
NN4 7SH	

JUDGE COLLINS

1.	This is a preliminary hearing of an Appeal against the decision of an Employment Tribunal sitting at Bedford whose Extended Reasons were promulgated on 28 July 2000.  They held that the Respondent had been unfairly dismissed and awarded him compensation of £13,894.65 on the basis that he had not in any way contributed to his dismissal.  That sum included a sum in excess of £7,000 for loss of pension contributions which he would have enjoyed until the age of 65.

2.	Mr Floyd was a heavy goods driver employed by Budgens at a distribution centre.  He had been so employed since 1993.  It was clear in the Terms and Conditions of  Employment which were issued to employees that there were security and search procedures.  At the operative time the relevant term reads as follows:

“The Company reserves the right to search any employee and their property whilst on company premises and the company will undertake random searches as a normal practice” and “gross misconduct” is defined as including actions which “breach company security procedures including company security policy.”

3.	On 17 December 1999 Mr Floyd finished his shift at about 2 o’clock in the afternoon, went through the company’s security barrier and proceeded to his car.  He was then called by the security guard who wanted to search him.  He objected to his bag being searched and was not searched, but reported.

4.	I ought to mention one matter of fact in which this Tribunal is interested as to which there is no clear answer.  This Tribunal was concerned with the question of whether or not Mr Floyd was on company’s premises at the time when he was asked to be searched.  We are told by Mr Campbell who did not appear at the Tribunal that this was a subject which was of considerable debate at the hearing for obvious reasons; if he was not on company premises there was no right to search him.

5.	The Tribunal appears to have proceeded on the basis that he was on company premises and that the company’s procedures applied to him.  For the purposes of this preliminary hearing we do not seek to go behind that finding.  But the Tribunal decided that the Respondent had not been fairly dismissed and they put it in this way:

“It is the unanimous decision of the Tribunal that the Applicant did not commit an act of gross misconduct pursuant to the Respondent’s Terms and Conditions of Employment.”

6.	We are not sure that was the right test for the Tribunal to apply.  The Tribunal’s role is to express a view about the facts relied upon by the employer and whether the employer acted fairly and reasonably in all the circumstances of the case in the light of those facts and it was not for the Tribunal to have come to its own conclusion on the essential question of fact.

6.	However, that being so, the Tribunal analysed the Terms and Conditions and contrasted them with previous Terms and Conditions.  They came to the conclusion that the omission of words which had appeared in a previous version namely ‘including failure to submit to a security search’ from a list of example of gross misconduct meant that the second set of Terms and Conditions which were operative at the time, removed that from the category which was capable of being gross misconduct.

7.	That seems a very debatable conclusion and one in relation to which the matter ought to proceed to a full hearing.  In any event, whether or not that conduct amounted to gross misconduct it was certainly a breach of Clause 9 to which I have already referred.  The Tribunal could and should arguably have considered whether or not there was any contribution to the dismissal which ought to have been laid at Mr Floyd’s door.  In addition, it is difficult to follow the Tribunal’s reasoning in relation to the calculation of the compensatory award in so far as it refers to the loss of pension contribution.

8.	For all those reasons we should direct that the matter proceed to a full hearing.  We direct that this be listed in Category C with the time estimate of 2 hours.  Skeleton arguments 14 days before the hearing.

9.	In the light of my observations at the outset of this judgment about the factual position in relation to the security barrier on company’s premises Mr Floyd should be aware that if he desires to support the decision of the Tribunal on the additional ground that on the evidence they should have concluded that the company’s security procedures did not apply to him because he was not on company premises, that would be a matter which he would have to take in a notice of cross appeal.  It may then become necessary for the Chairman’s notes to be produced which at present may be restricted to the question of the assessment of compensatory award.