Centrewest London Buses Ltd v Spencer

The statutory meaning of theft applies equally in employment. Theft requires dishonest appropriation of another’s property with an intention permanently to deprive that person of it. There is no separate legal category of unintentional theft.

In an unfair-dismissal case founded on alleged theft, the tribunal must identify the employer’s reason, assess whether its belief in the misconduct was reasonable, and decide whether dismissal fell within the range of reasonable sanctions. If the tribunal’s central reasoning rests on a legal distinction which does not exist, and the appellate court cannot determine the result under the correct law, the decision should be set aside and remitted for a fresh hearing.

The claimant, a long-serving vehicle engineer with an exemplary disciplinary record, took a colleague’s rucksack from behind an office door. He initially gave an untrue account of where he had found it. He said that he believed it was abandoned and had not intended to steal it.

The employer dismissed him for theft and breach of trust. On appeal, the employer had a psychiatrist’s report which described the claimant’s habit of collecting items thought to have been left behind and expressed an opinion that he had acted from curiosity rather than with an intention to steal valuables.

The Employment Tribunal held the dismissal unfair. It treated the distinction between intentional and unintentional theft as central, and held that the dismissing and appeal managers had failed to address it. The employer appealed, contending that this was a legal error.

1. Appeal allowed. The Employment Tribunal’s decision could not stand because its reasoning centrally depended on a distinction between intentional and unintentional theft.

2. Under section 1 of the Theft Act 1968, theft is dishonest appropriation of property belonging to another with the intention permanently to deprive the other of it. That definition applies in employment as elsewhere. The Tribunal had found cogent grounds for the employer’s belief that the claimant had dishonestly taken the rucksack. Its later reliance on a supposed distinction between intentional and unintentional theft was therefore legally incoherent.

3. The correct unfair-dismissal inquiry was: the employer’s reason for dismissal; whether the employer reasonably believed that the claimant had committed the alleged misconduct; and whether dismissal was within the band of sanctions reasonably open to the employer. The claimant’s long and unblemished service could be relevant to the final inquiry, but the assessment required care.

4. The EAT could not say that a tribunal applying the correct law would inevitably reach the same result, either that dismissal was unreasonable or that it was reasonable. The issue required a careful assessment of the facts and of the employer’s response to them.

5. The unfair-dismissal case was remitted for determination afresh by a newly constituted Tribunal. It was unnecessary to determine the employer’s separate appeal concerning remedy.

• Employment Appeal Tribunal: allowed the employer’s appeal, set aside the Employment Tribunal’s unfair-dismissal decision, and remitted the case to a newly constituted Tribunal for a fresh determination.
• Employment Tribunal: held that the claimant’s dismissal for theft and breach of trust was unfair. The citation of that decision was not stated in the judgment.