Appeal No. UKEAT/0453/10/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 February 2011

Before
HIS HONOUR JUDGE PETER CLARK
MRS A GALLICO
MR P M SMITH

ASDA STORES LTD	APPELLANT

MR J E COUGHLAN	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR D MASSARELLA
(of Counsel)
Instructed by:
Messrs SAS Daniels LLP Solicitors
30 Greek Street
Stockport
SK3 8AD	
For the Respondent	MR P WAKER
(Representative)	

SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal

Conduct unfair dismissal.  Employment Tribunal substituted own view as to penalty of dismissal, notwithstanding correct self-direction in law.  Appeal allowed and finding of unfair dismissal reversed.

HIS HONOUR JUDGE PETER CLARK 
Introduction
1.	This case has been proceeding in the East London Hearing Centre.  The parties are Mr Coughlan, Claimant, and Asda Stores Ltd, Respondent.  This is an appeal by the Respondent against a judgment of an Employment Tribunal chaired by Employment Judge Jenny Jones.  The case was first heard on 5 November 2008 and then adjourned until 24 February 2010.  No explanation for that 15 month gap has been provided to us.

2.	The Tribunal then met in private on 23 March 2010 and the judgment with Reasons was finally promulgated on 24 June 2010.  The Tribunal held that the Claimant was unfairly dismissed by the Respondent but had contributed to his dismissal by his own conduct to the extent of 85 per cent.  

The Facts
3.	The facts of the case are relatively uncontroversial.  The Claimant had 21 years’ unblemished, continuous service with the company, having transferred from Sainsbury’s in 2004.  On his own account, recorded at paragraph 7 of his witness statement at the Tribunal and summarised at paragraph 23 of the Employment Tribunal Reasons, on 2 August 2007 he spoke to an Asda member of staff who was well-known for supplying cannabis.  She was taking orders in the canteen.  By agreement they met outside the back door of reception during his break at about 1.45pm and she handed over an eighth of an ounce of cannabis wrapped in a polythene bag.  He then put it in his staff locker, intending to take it away at the end of his shift at 4.00pm.

4.	The smell of the cannabis attracted attention.  The locker was searched in his presence and the cannabis was seized.

5.	Disciplinary proceedings followed.  Unlawful possession of drugs is treated as gross misconduct under the Respondent’s disciplinary rules.  Cannabis was, at the relevant time, a Class C drug, having been previously downgraded from a Class B drug.  

6.	Following a disciplinary hearing held on 9 August he was summarily dismissed by Ms Stewart.  An appeal against that decision was dismissed by the general manager, Mr Baguena following hearings held on 13 November 2007 and 7 December 2007, and finally on 15 January 2008.

7.	At the appeal hearing the Claimant had the advantage of representation by a trade union official, Mr Waker, who appeared on his behalf before the Employment Tribunal, and now does so before us.  We are entirely satisfied that during the appeal process Mr Waker emphasised the Claimant’s personal mitigation, his length of service and clean disciplinary record, his medical condition and that of his partner which caused him some stress.

8.	In considering his case, the Tribunal directed themselves impeccably as to the law relating to conduct unfair dismissal at paragraphs 3 to 15, in particular, that it is not for the Tribunal to substitute its view for that of the employer, Iceland Frozen Foods v Jones [1982] IRLR 439 approved by the Court of Appeal in Foley v The Post Office [2000] ICR 1283.

9.	The question ultimately for the Tribunal was whether dismissal fell within the range of responses open to a reasonable employer.  That is to say, if one group of reasonable employers would dismiss in these circumstances, the fact that another group might impose a lesser sanction does not mean that the dismissal falls outside the range and is unfair.

10.	Asda have a disciplinary procedure, as we have mentioned.  They also have what we regard as an enlightened alcohol and drugs policy which was before the Employment Tribunal. We quote two paragraphs from it:

“Alcohol and drugs.  At Asda, first and foremost it is our aim to offer support and guidance to any colleagues experiencing difficulties through alcohol or drug misuse.  We will however, deal firmly but fairly with anyone whose workplace performance or behaviour is affected by their misuse or who causes a potential or real detriment to our business, customers or other colleagues.  
We do not allow colleagues to consume alcohol or non-prescription drugs on the Company premises, nor will we allow colleagues to work under the influence of alcohol or drugs, as it may impair their ability to work safely.  It may also amount to a disciplinary offence, which may result in dismissal.  If you do have any drug or alcohol issues please see your People Manager for further information with regard to our Drugs and Alcohol Policy which is designed to provide support.”

The Employment Tribunal Decision
11.	The Tribunal accepted that the Respondent’s reason for dismissal related to the Claimant’s conduct.  Indeed, they found, paragraph 81, that the Respondent reasonably categorised the Claimant’s behaviour as gross misconduct.

12.	They went on to find the dismissal unfair under section 98(4) of the Employment Rights Act 1996.  Their grounds for so finding appear to be that (a) the Respondent did not give any or sufficient weight to the Claimant’s personal mitigation, and (b) the application of the company’s drugs and alcohol policy.  

13.	Although at paragraph 90 the Tribunal assert that they are not substituting their views for that of the Respondent, we accept Mr Massarella’s submission that that is precisely what they have done on the face of their Reasons, and in so doing have approached their task impermissibly in the light of the legal principles which are earlier rehearsed in their Reasons.

14.	The question of how an employer balances personal mitigation against the disciplinary offence found is a matter for the employer.  Only if his conclusion falls outside the range can he be said to have acted unfairly.

15.	The disciplining managers told the Tribunal in evidence that they had taken into account the Claimant’s mitigation, albeit that was not set out in their decision letters.  Their oral evidence on this aspect was not rejected as incredible by the Tribunal, Reasons, paragraph 85.

16.	The range of reasonable responses question has not, in our judgment, been properly addressed by the Tribunal.  

17.	As to the company’s drugs policy, we are satisfied that the Tribunal completely misunderstood the evidence before them.  From the passage earlier cited, it is absolutely plain that a distinction is drawn between assisting employees in difficulties with drugs, and the sort of misconduct identified in the disciplinary code.  The Claimant told his employer that cannabis was new to him as Mr Baguena observed in his appeal decision letter.  Accordingly, the drugs policy simply had no application to this employee.

Conclusion
18.	Having identified an error of law in the Tribunal’s approach, we shall allow this appeal.  Further, on the facts found, we accept Mr Massarella’s submission that we should reverse the Tribunal’s decision and substitute a finding that the dismissal was fair.  Dismissal for this single act of gross misconduct involving the acquisition and possession of unlawful drugs on the Respondent’s premises plainly and unarguably fell within the range of reasonable responses, there being no suggestion of any procedural failings on the part of the Respondent, notwithstanding the personal mitigation which was advanced on the Claimant’s behalf.