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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Austin v Tesco Stores Ltd [2009] UKEAT 0022_09_2708 (27 August 2009) URL: http://www.bailii.org/uk/cases/UKEAT/2009/0022_09_2708.html Cite as: [2009] UKEAT 22_9_2708, [2009] UKEAT 0022_09_2708

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APPEARANCES

 

For the Appellant	MS C DALLEY (Representative)
For the Respondent	MR O HOLLOWAY (of Counsel) Instructed by: Messrs Hammonds LLP Solicitors 2 Park Lane Leeds LS3 1ES


 


SUMMARY

UNFAIR DISMISSAL

Reasonableness of Dismissal

Dismissal reasonable after a reasonable investigation.


 


HIS HONOUR JUDGE ANSELL

Introduction

1. This has been the hearing of an appeal from a judgment of a Bristol Tribunal sitting on 21 October 2008, with reasons sent out to the parties at the beginning of December. They determined that a dismissal for gross misconduct was fair. There was also originally a disability claim but that was in due course withdrawn.
2. The essence of the decision was whether the well-known test set out in British Homes Stores Ltd v Burchell [1980] ICR 303 was satisfied and, in particular, in the circumstances of this case, whether the employers had in their mind reasonable grounds to sustain the belief that the employee was guilty of misconduct and whether at the stage that they formed that belief they had carried out as much investigation into the matter as was reasonable in all the circumstances. There was an application for a review of the Tribunal decision which in fact appears to have been made before the reasons were actually received but, in any event, that review was refused.

The Background

3. This case comes before us following initially a sift by the President on 22 January 2009 and then a preliminary hearing presided over by Mrs Justice Slade. It appears that the area of concern that allowed this matter to proceed to this hearing centred around the reasonableness of the investigation, and in particular the issue of three cash receipts to which we shall refer below.
4. The background facts can be taken from the Tribunal's reasons. Mr Austin had worked for Tesco since March 1999 and at the time of these events in early 2007 was working at the petrol filling station attached to the store in Blandford. We use the expression "attach" but in fact it is not attached other than being on the same campus. They are separate buildings and the evidence before the Tribunal from those that had walked from the filling station to the ATM, which is presumably on the outside of the Tesco store, place the walk at around about one minute. The Tribunal referred to a distance of 50 metres. That in fact may well be incorrect. We are told that the accurate distance is in the area of around about 90 to 100 metres.
5. On 1 March, a customer, Mr Ralls came in to see the Store Manager, Mr Garlick, and complained that on 13 February he had bought petrol at the filling station, had paid for it with a debit card and had also handed over a Tesco Club card. He was handed back two Club cards. He only noticed that later and arranged to go back and collect the card, which he did. On checking his bank statement some days later, he had noticed that £300 had been withdrawn in two separate transactions around the same time from the ATM at the main Tesco store at Blandford on that day, 13 February. It appears that Mr Austin was either pointed out or identified by description as the person who had both served Mr Ralls and had given him the card back. The bank statement that Mr Ralls had, showed that the time of the withdrawals was at 1503 and 1504 on that date, 13 February.
6. By coincidence, Mr Austin went off sick that afternoon, 1 March, but on his return to work he was suspended on full pay and an investigation meeting was conducted by Mr Wheeler. It also appeared that there was a similar incident involving another customer on 27 February, again when the same device of handing back a Club card rather than the credit card was used; although, certainly, for the purposes of the Tribunal in this hearing, the case figured around the Ralls' incident.
7. By the time of the investigatory interview, it appears that Mr Austin had also been arrested and interviewed by the police, although not at that stage charged. At this preliminary interview, Mr Austin accepted that contrary to company policy he had not put the card back into the safe to await collection because he was expecting somebody to come in later that day to collect it. Other than that, he had no specific explanation about the incidents, either the Ralls incident or that involving a lady.
8. He was summoned to a disciplinary hearing that was due to take place on 12 March. On that date he attended and said he did not feel well enough to proceed. He referred to depression and also to an accident which the employers were aware of had occurred some years before, and had as a result caused Mr Austin to develop a diabetic condition with at times dehydration problems.
9. The meeting was reconvened on 15 May, and at that stage Mr Garlick only had notes of Mr Wheeler's investigation, did not have witness statements, did not have any till records or information as to who was on the tills, but proceeded on the basis of his conversation with Mr Ralls. Mr Austin maintained his denial. He said he could not remember where he had been or had been doing at any particular point, but again admitted that he had not put the card into the safe and that it was he who had given it back when Mr Ralls called later that day. Mr Garlick's view was that, on balance, it was reasonable to conclude that Mr Austin had been responsible for credit card fraud and he was summarily dismissed.
10. An appeal took place before Mr Leach, the Stores Director for the region, and by that stage Mr Austin had in fact been charged with five counts of dishonesty, presumably relating to Mr Ralls and the other customer. The only substantial additional point raised by Mr Austin at that hearing was that because of his medication he could not have gone to the ATM and back quickly because he could not run. The dismissal was confirmed.
11. The second appeal was heard by Mr Feeley who conducted more investigations. Initially it was thought that Mr Austin had been signed off his till at 1500, though in fact further investigation show that he was signed on his till until 1508, past the time that the monies were withdrawn from the ATM machine. It was established by Mr Feeley that Mr Austin was still logged on to his till at the time of the two withdrawals, 1503 and 1504. Initially it was thought to be a 10-minute gap although subsequent enquiries revealed that it was probably an 11-minute gap during which time there were no credit or debit card transactions on Mr Austin's till. Mr Feeley was also told about the walking pace test to go down to the machine conducted by another member of staff, which took around about a minute.
12. One matter that was not before Mr Feeley was that it now appears through checking the sequential numbers of till receipts that there were three non-credit or debit card transactions that took place during the period that we are concerned with. Mr Feeley, having investigated these further matters, decided that the dismissal was a reasonable one.
13. It is right to say that in due course Mr Austin was subsequently acquitted at the Crown Court but as we have stressed to the Appellant and his representative, Ms Dalley, today, a family friend, who has certainly said all that possibly could have been said on his behalf, both employers and indeed the Tribunal were not dealing with absolutes. The test is one of reasonableness. As was made clear in the decision of Sainsbury's Supermarkets Limited v Hitt [2003] IRLR23, when considering an employer's investigation the relevant test is whether the investigation fell within the range of reasonable responses that a reasonable employer might have adopted in all the circumstances. The Tribunal found that that investigation was a reasonable one and therefore the belief that the Respondent had was based upon reasonable grounds.

The Claimant's Case

14. It appears from the Tribunal decision at paragraph 26 that before then Mr Austin was making three particular points about the defects of the investigation. First of all, the fact that in order to carry out the transactions he would have needed to actually see the customer entering his PIN number and that he did not because of the way that the PIN machine is located; that Mr Feeley had not taken into account the additional three non-card transactions on the till; and the difficulties that he had in moving at any speed which could obviously affect the time it would take him to get to the ATM.
15. The Tribunal, however, accepted the issues raised by the employers as to the reasonableness of their belief: first of all, that Mr Austin had served Mr Ralls and given him the wrong card back; that he had left the card out in breach of procedure; that there was, as the Tribunal put it, markedly less activity than would have been expected on the tills during the crucial 11 minute period. We note there that the Tribunal in particular appeared to be taking account of the fact that there were the three other transactions; that even at walking pace it was possible to carry out the activities and get back to the store within only a few minutes; and in due course Mr Ralls was given his card back by Mr Austin; also that it was an assumption to make that the only person who was able to see the PIN being entered must have been Mr Austin, allowing him to facilitate the withdrawals.
16. Before us today Ms Dalley has referred to a number of pieces of evidence but it is right to say that the issues can be really be reduced to four main headings: first of all, that whether or not it can be said that there was a reasonable investigation, if Mr Feeley had failed to appreciate that there were these missing three receipts; secondly, that he had not taken sufficient notice of Mr Austin's disability; thirdly, the alleged impossibility of him being able to see the PIN number as it was entered; and fourthly, a failure by Mr Feeley or the other investigatory officers to speak with other employees to check firstly whether or not they had any recollection of Mr Austin leaving the store for a few minutes on that particular afternoon and as to general activity on the tills at around 3.00pm which might explain why there were no credit or debit card transactions for that 11 minute period.

The Respondent's Case

17. Taking that last point, the Respondent make the point, and we accept, that the Claimant at no stage, it appears, during the disciplinary procedure complained about the failure to check with other employees. Certainly from looking at paragraph 26 of the Tribunal's decision it does not appear to have been an issue that was raised before the Tribunal.
18. Mr Holloway, on behalf of the Respondent, makes the point that of course it was not until 1 March that these matters were brought to the attention of the employers and therefore, in practical terms, asking employees to remember what happened during a 10 or 11 minute period on a particular afternoon may not have proved very fruitful. However, we bear that in mind as a complaint against the thoroughness of the investigation.
19. As far as the missing till receipts are concerned, the fact is that Mr Feeley did not have those three receipts. However, he did have the particular piece of evidence that there were no credit or debit card transactions during that 11 minute period; and further, that even taking into account any transactions that may have taken place there was still a clear window of opportunity to allow somebody to walk to and back from the ATM.
20. Certainly the Tribunal in assessing the reasonableness of the investigation referred, as we have indicated already, to the till being markedly less active. The Tribunal certainly therefore had picked up the fact that there were three non-card transactions, and indeed they make specific reference to them in paragraph 19.
21. The next issue is that of disability. The Appellant's case was always put on the basis that he was not able to run. It was never suggested to the Tribunal that he would not have been able to walk down to the ATM and back again within that 11 minute period. All the evidence pointed to a round trip, at the very longest, taking no more than around four, possibly five minutes, although one employee had timed it, even carrying out a transaction, at just under three minutes.
22. Lastly, the issue in relation to the reading of the PIN, again that was an inference which the Respondents say that they were entitled to draw from the fact that, firstly, Mr Austin was the person who served and dealt with the payment through the credit card; and secondly, that to use that credit or debit card in the ATM would have required a PIN number. The Tribunal certainly accepted the submission made that the employers were entitled to make that assumption, that it was the Appellant who had seen and later used that PIN number.
23. To summarise, the employers' investigation and the Tribunal's decision confirmed the following matters in this case: that Mr Austin had served Mr Ralls; that Mr Ralls paid by means of a debit card accompanied by a Club card; that a PIN number was used; that two Club cards were given back; that Mr Austin did not put the card into the safe; that Mr Austin was the person who had given the card back to Mr Ralls later on in the day; that the money was withdrawn at 1503 and 1504, during an 11 minute period when Mr Austin's till showed no debit or credit card transactions, as opposed to the other till, which had shown at least six, possibly eight transactions out of a total of 12, and that, other than saying that he had kept the card out because he was aware that somebody was coming back to collect it later that day, at no stage did he offer any particular explanation for any of these activities.
24. The Tribunal formed the view that against that backdrop, and reminding themselves that they were not dealing in absolutes but in reasonableness, that notwithstanding the one particular area in relation to the three other transactions, that the employers at the time of dismissal had carried out as much investigation into the matter as was reasonable, in particular cured by the further investigations that Mr Feeley carried out, with as a result the belief as to the dishonesty of Mr Austin was one which the employers were reasonably entitled to draw from these various facts which were not in dispute.

Conclusion

25. Accordingly, we can find absolutely no error in the Tribunal's analysis or conclusions. The Burchell test was clearly satisfied on the facts of this case. This appeal is dismissed.