On the third of April 1974, a Wednesday, a man by the name of Mr Yates was observed by the site foreman on the factory floor of a British Leyland factory engaging in “certain gymnastic activities”. That man was summarily dismissed for said activities the following day.
In due course Mr Yates made a claim for unfair dismissal and the case proceeded to the Employment Appeal Tribunal. The case is not freely available online (so far as I can see) but for those with access to legal databases the full citation is Yates v British Leyland UK Ltd [1974] IRLR 367. As an aside, it is remarkable that this case concerned alleged misconduct on 3 April, summary dismissal on 4 April, a hearing at the ET [Industrial Tribunal at time] on 4 July, and then an EAT judgment heard and reported in December 1974. How times have changed in unfair dismissal hearing timescales, not more than seven months from alleged offence to final conclusion!
I happened to chance upon the case report for Yates earlier today and was drawn in by the reference to dismissal for gymnastic exercises and, having read the case, think the case is worthy of a re-airing.
It is interesting that it would be another four years after this decision before the EAT would lay down its ‘Burchell Test’ in British Homes Stores Ltd v Burchell (1978), but the case shows these principles did not drop from the sky, Yates is a good case study on the requirement for a reasonable investigation.
On the 3rd of April 1974, a factory foreman later reported how he had observed Mr Yates performing “certain gymnastic exercises which were consistent with a man completing the natural function of urinating and restoring himself to what one might call his personal comfort“. Or, in other words, Mr Yates was believed to have been urinating on the factory floor – conduct that if proven is very likely to justify a finding of gross misconduct.
The foreman did not however challenge the worker or take a look at the floor to see whether it was indeed wet but reported the matter to a senior manager (3 minutes later). The employer did take a sample from the floor to test for urine which appears to have been positive but there was no suggestion that the floor was itself moist when the sample was taken. The EAT upheld the unfairness of the dismissal because there had been no attempt to gain corroboration of recent urination by seeing if the space in which the claimant had performed certain gymnastic exercises consistent with “restoring himself to what one might call his personal comfort” was moist. And, because of that investigative failure, the dismissal was found to be unfair and the order that Mr Yates be reinstated to his job was upheld.
Placed within the rubric of the Burchell Test the investigation merely proved there had been urine on the floor, not that this was recent or that Mr Yates was the source. A visual investigation of the site of the gymnastics could have revealed the presence of moisture on the floor which would have been either inculpatory or exculpatory evidence – but no such investigation was conducted. The employer may have believed that Mr Yates had engaged in the misconduct, but the employer did not have a reasonable belief in the same because of the lack of investigation. In law, the employer did not have good grounds to believe Mr Yates had urinated on the factory floor, he was instead just dismissed for his gymnastic activities alone.
And so, along with the question who shot JFK, we must consign to history another mystery: did Mr Yates really relieve himself one April day in 1974 whilst standing on a British Leyland factory floor?
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