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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Anglian Home Improvements Ltd v Kelly [2004] EWCA Civ 901 (16 June 2004) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2004/901.html Cite as: [2004] IRLR 793, [2005] ICR 242, [2004] EWCA Civ 901 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
(HIS HONOUR JUDGE PROPHET)
Strand London, WC2 |
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B e f o r e :
LADY JUSTICE ARDEN
MR JUSTICE GAGE
____________________
ANGLIAN HOME IMPROVEMENTS LIMITED | Applicants/Respondents | |
-v- | ||
KELLY | Respondent/Applicant |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
The Respondent appeared as a litigant in person
____________________
Crown Copyright ©
"Ladies and gentlemen,
It has been brought to my attention that banking within the region is not being undertaken on a daily basis. It is unacceptable not to bank each day. As you are aware, company policy requires that banking is undertaken daily prior to being posted on to JDE. There can be no circumstance when this cannot happen.
The aforementioned will ensure that reconciliation of the banking systems will be accurate when undertaken at weekly intervals."
There is also a reminder that cash must not be kept on the company premises with the exception of petty cash. The memo concludes:
"Please ensure the above is adhered to."
"Mr Kelly recorded as paid and banked only in cases where he was confident that the money would be paid. If circumstances differed, for example if the installer had collected the cheque and was some distance from Truro and too late for banking, that would be recorded as paid into the bank and almost certainly there would be no problem. If Mr Kelly had been assured and was satisfied that the assurances were genuine, that the cheque was in the post or expected to be delivered shortly, he might take a chance and record that as paid into the bank."
However, the Tribunal says at paragraph 13 of the extended reasons:
"The essential point was that banking was recorded on the computer as money actually paid into the bank when sometimes it had not been received at all and was certainly not banked. This gave a false picture of the branch debt due to the central management of the company."
"Installations completed by the following Tuesday could be brought forward in the records to the preceding week. Mr Thurtell, however, gave evidence that his deadline was actually the Tuesday, although the branch understood it to be the preceding Friday. He saw nothing wrong with the practice: He was in a position to authorise it as indeed had Mr Ward been in a similar position relating to early instruction to manufacture taking a chance on cancellation."
The Tribunal accepted that such instructions were simply commercial decisions by authorised managers. They were in totally different category from misrecording cash received.
"(20) The two lay members view all those activities [those are the activities which I have been describing, and found by the tribunal as fact] including those of the applicant as simple massaging of figures to meet targets. There is some evidence that other branches were doing the same. The memo of 16th October 2002 and a comment made to the applicant from one of the members of the Accounts Department suggests that the practice was not isolated, nor limited to the Truro branch. The two members take the view that this is all much of a variation on massaging figures and not so serious as to warrant dismissal.
(21) The Chairman disagrees. He considers that the banking is in an entirely different category and results in a misleading record of the performance of the branch. The practices relating to manufacturing and installation where statistics are brought forward are a matter of commercial decisions. In the case of manufacturing it was to keep the factory in work and in the other case there was no false recording of cash.
(22) The lay members take the view that the practice adopted by the applicant was insufficiently serious to warrant dismissal in all the circumstances of the case. The Chairman takes the view that it was sufficiently serious and within the band of reasonable responses that an employer might have to the problems faced."
The concluding paragraphs went on to deal with matters of contributory fault, which resulted in a 50 per cent reduction in compensation, and to record the agreed figure, which I have already mentioned.
"It may be relevant if we mention in passing that we have nothing but admiration for a chairman who finds it possible in a difficult case to deliver an extempore judgment so that the parties are kept waiting for the minimum time. It was a very considerable achievement on his part to cover the fairly complicated facts as succinctly as he did in the propounding of an unreserved decision. It is, of course, entirely a matter for the discretion of the chairman as to how he expresses the decision of the Tribunal. We would be very far from stating any preconceived view as to those cases in which a decision should, and those in which it should not, be reserved. We would have thought, however, that in cases where the chairman find himself in a minority, it would normally be desirable to reserve, if only for a short time, in order that the lay members may be provided with an opportunity of ensuring that the views attributed to them are being fully and accurately expressed. We confess to some disquiet in the present case because it appears to us to be at least possible that, in the understandable process of compression when the chairman came to paraphrase their view in the course of an extempore decision, the conclusions of the majority and their reasoning were not expressed as fully or as cogently as they might have been if the decision had been reserved and the members had been provided with an opportunity of perhaps noting down their own views or at least correcting a draft of them prepared by the chairman. We wish, however, to say nothing further on this point, recognising as we do that the form of the decision is entirely within the discretion of the chairman, and (apart from the general comment we have just made) we intend to approach this case as though the reasoning of the majority is precisely that attributed to them in the written decision."
Those remarks were made by Waite J, when he was President of the Employment Appeal Tribunal, in giving the judgment of the Appeal Tribunal.
"First of all, where there is a majority decision it is very desirable that the views of the majority and those of the minority should be set out clearly and distinctly in separate paragraphs. Unless that is done neither the parties nor the Appeal Tribunal can really get a clear idea of precisely what are the views of the majority and the minority respectively."
I agree with the comments in those two cases.
"The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him."
Years later, the same test was confirmed by this court in Post Office v Foley [2000] IRLR 827.
"(9) The first ground of appeal is that the majority on the Employment Tribunal, ie, the lay members, did not direct themselves correctly in respect of the well established 'range of reasonable responses' test. In other words they substituted their own opinion for that of a reasonable employer.
(10) It is a fair point, as made by Mr Laddie, that in the reasons no specific reference is made to their applying the band of reasonable responses test prior to their indicating their views. However, on a full reading of the reasons we are not able to accept Mr Laddie's submissions in this respect. There is a specific reference in paragraph 22 of the Employment Tribunal reasons to the band of reasonable responses, which indicates that that test was not overlooked by the Employment Tribunal. We assume that the very experienced Chairman of this Employment Tribunal would not have permitted the lay members to have judged the matter of fairness other than by directing themselves correctly in respect of the necessity for objectivity with a regard to the test."
I am not prepared to make the assumption made by the Employment Appeal Tribunal, though I agree that this was a very experienced Chairman. I am also bound to point out that the reference in paragraph 22 of the Employment Tribunal reasons to the band of reasonable responses test, is only in relation to the Chairman's minority conclusion. There was no expression of it in relation to the recorded views of the members in paragraph 20 and in the first part of paragraph 22 of the extended reasons. I am unable to agree, therefore, with the conclusion of the Employment Appeal Tribunal on this point.
"Further, they clearly also had in mind that dismissal was the consequence of three allegations of misconduct, all of which had to be considered though one of them was regarded as much more serious than the others."
"We assume that the very experienced Chairman of this Employment Tribunal would not have permitted the lay members to have judged the matter of fairness other than by directing themselves correctly in respect of the necessity for objectivity in regard to the test."
In other words, the Employment Appeal Tribunal approached the matter on the basis that the Employment Tribunal would have properly directed themselves privately.
Order: Appeal Allowed with costs