Appeal No. UKEAT/0179/03/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 September 2003
Judgment delivered on 13 January 2004 

Before
HIS HONOUR JUDGE J BURKE QC
MR G LEWIS
SIR WILLIAM MORRIS KBE OJ

MR D J TROTTER	APPELLANT

GRATTAN PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT 
In Person	
For the Respondent	S RICE-BIRCHALL 
Messrs Eversheds
Solicitors
Cloth Hall Court
Infirmary Street
Leeds
LS1 2JB	

HIS HONOUR JUDGE BURKE QC

1.	This is an unusual and, in some ways, a sad case.  The Respondents, Grattan Plc, who are in some of the documents referred to as “Electinfo” but to whom we shall refer as “Grattan”, are a very large mail order company; they have 37 sites throughout the country.  Their headquarters is at Anchor House in Bradford where there are also a warehouse, a call centre and a canteen/restaurant used by all employees.  Two thousand eight hundred staff are employed on the site.  Also in Bradford at Listerhills is another large warehouse where 5,700 employees worked.  Because of large scale internal theft, Grattan have for some time operated a random stop and search policy at all of their sites with the exception of Anchor House.  Such a policy has been enforced at Listerhills since 1989 when that site opened.  The workforce and both recognised Trade Unions, USDAW and MSF (as it was at the relevant time) have accepted and cooperated with the random stop and search policy.

2.	Until recent years the warehouse at Anchor House held only large items which could not readily be removed by stelf.  However, the nature of the items held there changed so as to include smaller items - in particular mobile telephones - which could be more easily smuggled out; and Grattan recognised the risk that employees in the call centre could record in mobile phones or on pieces of paper credit card details and account details given by customers phoning in to place orders; such cases had occurred and employees had been dismissed.  Because of the opportunities for office staff and warehouse staff to intermingle on sites, particularly in the common canteen/restaurant, the policy had to include all of the staff.  Therefore it was decided to introduce the random stop and search policy to all staff at Anchor House.  The policy included random body searches and random searches of mobile phones.

3.	The Tribunal found that the introduction of the policy to Anchor House was not foisted on the workforce but was the subject of consultation and information and was agreed with the Unions who accepted it readily because it meant that all employees at Grattan’s various sites across the country would now be treated equally.  

4.	Mr Trotter was employed by Grattan at Anchor House as a senior analyst programmer from January 1997.  He objected to the implementation of the stop and search policy at Anchor House and made his objections plain to his line manager but lodged no formal grievance before the policy was introduced on 28 May 2001.  On 5 June 2001, pursuant to the policy, he was stopped by a Security Officer; he refused to be searched.  He offered to be searched by the Police if they were called; they were not.  He was briefly suspended but thereafter, as the Tribunal found, there was substantial dialogue between Grattan and Mr Trotter about the policy and his objections to it.  The Tribunal found that Grattan listened to what he said and, indeed, made a change to the policy by providing that, on refusal to permit a random search, an employee should only be suspended if there were reasonable grounds to suspect him of dishonesty.  Mr Trotter then lodged a formal grievance; that grievance went through all stages of Grattan’s grievance procedure and concluded without agreement.  The Tribunal found that Mr Trotter wanted the abolition of random stop and search but was prepared to agree to stop and search on reasonable grounds; at paragraphs 31 and 32 of their decision they identified 2 specific objections to the policy which Mr Trotter held namely objections to random body searches and to random searches of mobile phones.  At the end of the process which we have described there was deadlock between Mr Trotter and Grattan.  On 8 October 2001 Mr Trotter wrote to Grattan as follows:-

“… As I cannot accept the ‘random’ body and ‘phone searches at Anchor House, and I can be disciplined and ultimately dismissed for refusing to submit, my attempts to build a career here can be cut short at any time, at the whim of a security officer.  This is clearly an untenable position … I must conclude that I have been constructively dismissed …

The termination of contract requires three months notice by either party.  I therefore presume that my last day of employment will be 6 January, 2002, …”

As a result Mr Trotter’s employment ended on the date stated in his letter, 6 January 2002.

5.	Mr Trotter claimed before the Employment Tribunal that he had been unfairly constructively dismissed, saying in his Originating Application that he would continue to refuse to undergo random body and phone searches.  His claim was heard over 2 days by the Employment Tribunal, sitting at Leeds and chaired by Mr Humphreys.  The Tribunal rejected his claim; and it is from that rejection that he now appeals.  Mr Trotter also made an application for a review which failed after an inter partes hearing; there is no appeal against the rejection of his review application.

6.	At the Preliminary Hearing of his appeal Mr Trotter was limited to 2 grounds of appeal only.  He has developed those grounds before us with courtesy and skill and with, of course, genuine conviction in the correctness of the principled stand which he has taken.  Grattan have been represented by their solicitor, Mr Rice-Birchall, as they were before the Tribunal; and he, too, put his arguments before us succinctly and with skill.

The Tribunal’s conclusion
7.	It is necessary briefly to set out the Tribunal’s conclusions.  They decided, firstly, at paragraphs 35 and 36 of their decision that the introduction of the new policy to Anchor House involved the unilateral imposition of a change to Mr Trotter’s contract of employment.  They directed themselves, at paragraphs 19 - 21, that not every such unilateral change amounted to a fundamental breach of contract such as to entitle the employee to treat himself as constructively dismissed; but they said, at paragraph 20, that a breach of the implied term in the contract of employment of trust and confidence would always be likely to amount to such a breach; and, at paragraph 37, they concluded that there had been a fundamental breach of contract by reason of the unilateral imposition upon Mr Trotter of the new policy.

8.	The Tribunal, at paragraph 22, correctly directed themselves that, if there was a fundamental breach of contract and a constructive dismissal, they would have to consider what was the reason for the dismissal (which, in the case of a constructive dismissal, on authority, means the reason for the fundamental breach which the employee treats as repudiatory of the contract of employment) and whether the dismissal (ie the constructive dismissal) for that reason was fair or unfair, pursuant to Section 98(4) of the Employment Rights Act 1996.  The Tribunal concluded, at paragraph 22, that the reason for the “dismissal” was the introduction of the stop and search policy and that that reason constituted some other substantial reason within Section 98(2) of the 1996 Act.  They therefore turned to consider whether dismissal for that reason was fair or unfair which, as they correctly said - involved consideration of the reasonableness of the position taken by Grattan.

9.	The Tribunal’s analysis of the issue which they had to determine and the conclusions which we have thus far set out are not the subject of criticism either by Mr Trotter or by Grattan.

10.	At paragraph 24, the Tribunal referred to Article 8 of the European Convention of Human Rights which sets out the right of everyone to respect for his private and family life and which is, by virtue of the Human Rights Act 1998, part of our law.  The Tribunal said, of Article 8:- 

“It is to be noted that this is not an absolute right.  It is also clear that this Respondent is not part of the state or an emanation of the state and therefore Article 8 cannot be applied directly or relied upon directly by the Applicant in that respect.  However, we are a public body and we must act in accordance with the Convention.  We have to bear the Convention in mind in order to reach our decision.  In our view the convention does bolster the claim of the Applicant to the extent that it heightens our awareness of the rights of the individual.

25.	The Convention is designed to govern the relationship between state and individual.  It is not suggested that Section 98 is incompatible with Convention rights. …  It seems to us to following the introduction of the Convention it is arguable that there is room for an implied term in a contract that the employer will have respect for the private life and privacy of an employee.  If there has to be such respect it cannot be absolute and any interference must be reasonable and justifiable.  That, perhaps, is not much of an extension on the recent development in relation to the implied term of trust and confidence.”

The Tribunal’s approach to the interrelationship between Article 8 of the Convention and Section 98(4) of the 1996 Act was, also, not in dispute before us.

11.	The Tribunal then turned to consider reasonableness and decided, at paragraph 39, that Grattan were justified in introducing the stop and search policy.  They said:-

(The policy) “was introduced after consultation with the Unions, it was trailed by a number of newsletters and other information to employees.  The reason for the policy was to deter people from stealing property which is a problem in this sort of business.  While Mr Trotter considered that other steps could have been taken … we do not consider that there was anything unreasonable in the introduction of this policy or its content.  Such policies are common throughout industry and provided they are introduced reasonably, they have reasonable provisions, and are not used arbitrarily against individual persons then in our view the introduction is within the band of reasonable responses or actions open to an employer.”

12.	Accordingly the Tribunal concluded that Mr Trotter had not been unfairly dismissed.  

First Ground of Appeal
13.	Mr Trotter’s first ground of appeal is founded on the assertion that the Tribunal erroneously approached the issue of reasonableness on the basis that he objected to all aspects of the stop and search policy when, by the time of the dismissal, his position was that he was prepared to accept much of the content of that policy but not the use pursuant to it of random body searches and mobile phone searches.  This error, he submitted, adversely affected the Tribunal’s consideration of reasonableness and, also, their identification of the reason for the breach of contract.

14.	Mr Trotter relied particularly on paragraph 12 of the Tribunal’s decision in which they said:-

“The real concern and objection was in respect of the randomness of the searches.”

and referred to an extract from a letter from Mr Trotter to Grattan dated 3 September 2001 in which he indicated his acceptance of random searching of bags, e-mails and desks, as long as it did not become apparent that certain kinds of people were being singled out, and that even frisking would reveal less private and personal information than the examination of phones and pockets, as was envisaged under the policy.

15.	Mr Trotter contrasts those limited reservations with paragraph 14 of the Tribunal’s decision in which they said that Mr Trotter wanted the abolition of random stop and search; and he points to paragraph 22 of the decision in which the Tribunal, in identifying the reason for the “dismissal” said:-

“In this case the reason was the introduction of stop and search policies.”

16.	We do not accept these arguments, for a number of reasons.  Firstly, it is clear that for some time and to the point at which the formal grievance procedure began, Mr Trotter was objecting to the random search policy generally; in his letter of 21 August 2001 in which he registered his formal grievance he said:-

“The ‘random’ search policy, particularly concerning body searches and mobile-phone searches, does in my opinion violate my privacy, to which I am entitled by article 8 of the Human Rights Act.”

While in that letter Mr Trotter was emphasising the 2 facets of the policy which gave him most concern, he was objecting to random searching in general.  Thereafter Mr Trotter’s objections focussed on random body and mobile-phone searches.  The Tribunal recognised this in quoting from his letter of 3 September 2001 in paragraph 12 and in saying, in paragraphs 31 and 32:-

“31  In essence, in respect of the stop and search policy, Mr Trotter objected to the randomness of the search and in particular the body searches … 

32.	In respect of mobile phone searches, Mr Trotter regarded this as especially intrusive …”

In those 2 paragraphs the Tribunal specifically recognized and addressed those particular objections of Mr Trotter.

17.	If the decision is read as a whole, as it should be, it is clear, in our judgment, that the Tribunal did not approach the case on the basis that, by the time of the dismissal, Mr Trotter objected root and branch to all aspects of the policy.

18.	In any event even if, contrary to our view, the Tribunal had made the error for which Mr Trotter contends, it is clear that their conclusions were not affected by such an error.  The precise nature and extent of Mr Trotter’s objections to the stop and search policy were not material to the Tribunal’s assessment of the reason for the “dismissal”; whether Mr Trotter objected to all or only to some elements of the policy, the Tribunal were entitled to find that the reason for the “dismissal” was “some other substantial reason”, that is to say the introduction, in breach of contract as the Tribunal found, of the stop and search policy.  
 
19.	As to reasonableness, what the Tribunal had to consider was the reasonableness of Grattan’s actions in the face of Mr Trotter’s objections and not the reasonableness of Mr Trotter’s objections.  Grattan could not have been expected to have differentiated between Mr Trotter and any other employee in their introduction of the policy; the same policy had to be introduced for all.  In those circumstances we do not see how the reasonableness or unreasonableness of the introduction of the policy by Grattan could have been assessed differently by the Tribunal had they avoided making the error for which Mr Trotter contends.  The introduction of the policy, including the 2 features of the policy to which Mr Trotter took particular objection, caused Mr Trotter’s resignation; the Tribunal had to decide whether, irrespective of the extent of Mr Trotter’s objections, it was or was not reasonable for Grattan to introduce the policy.

Second Ground of Appeal
20.	Mr Trotter’s second ground of appeal focussed on the Tribunal’s conclusion, in paragraph 39 of their decision, that “Such policies are common throughout industry.”  Mr Trotter submitted that there was no evidence that random body and mobile phone searches were common throughout industry, and that he had submitted to the Tribunal what he described as expert opinions which suggested that such searches were not normal in industry.

21.	The expert opinions on which Mr Trotter relied consisted of an article in IDS (Income Data Services Ltd) Brief Number 691, August 2001, and a Draft Code of Practice concerning the use of personal data and employer/employee relationships under the Data Protection Act 1998 prepared by the PPRU (Personnel Policy Research Unit) in February 2002.  The Tribunal did not refer to either of these documents in their decision; and we can readily understand why.  The IDS article, which is anonymous, discusses various aspects of stop and search policies but does not express a view as to the extent in industry of the adoption of random body and mobile phone searches.  The Draft Code of Practice (and it was no more than that and had no formal standing in the material time) - proposed, at paragraph 3.14, that employers should not authorise inclusive surveillance of employees or search employees unless they had a contractual right to do so and these existed good prima facie grounds for suspecting industrial espionage, fraud, serious pilferage or any other such illegal infringement.  That paragraph would include within its scope Grattan’s stop and search policy on a wider basis than the random search of persons or mobile phones.  It says nothing about how common such searches are in industry.

22.	However, the Tribunal did have evidence about industry practice; Mr Lambert, Grattan’s Group Security Manager, said, in his witness statement which formed the basis of his evidence in chief, at paragraph 36:-

“All the other major mail order companies carry out stop and search of employees, as do many businesses that have staff who have the opportunity to steal at work.”

Earlier passages in his witness statement described the security reasons for body and mobile phone searching.  

23.	It must have been plain that, in paragraph 36, Mr Lambert was referring to all aspects of the policy which he had described and sought to justify earlier in his witness statement; but Mr Trotter accepted that he did not cross examine or challenge Mr Lambert on the contents of paragraph 36 of his witness statement or ask questions of him to explore whether the particular aspects of the policy to which Mr Trotter objected were common in the mail order industry as opposed to stop and search policies in general.  Mr Trotter submitted to us that, because he had made his particular objections clear, the Tribunal ought to have understood that he challenged the assertion made in paragraph 36 of Mr Lambert’s witness statement.  However, in our view Mr Trotter’s objection to particular aspects of the policy did not constitute any evidence that those aspects of the stop and search policy were not common in industry.

24.	In the circumstances the Tribunal were, in our judgment, entitled to accept the evidence of Mr Lambert as to industry practice and to make the factual findings which are set out in paragraph 39 of their decision.  

25.	We have come to the conclusion for the reasons set out above that the Tribunal did not make any error of law in their approach to the issue of reasonableness; and in the absence of any such error, the decision on that issue was one of fact for the Tribunal.

Conclusion
26.	For these reasons neither of Mr Trotter’s grounds of appeal succeeds; and his appeal must be dismissed.