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Cite as: [1992] UKEAT 43_91_1510

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BAILII case number: [1992] UKEAT 43_91_1510

Appeal No. EAT/43/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15 October 1992

Before

HIS HONOUR JUDGE J HULL QC

MRS P TURNER OBE

MISS A P VALE

MR S C HAYCOCK APPELLANT

THE POST OFFICE RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant MR R CLAYTON

(Of Counsel)

Messrs Loosemores

Alliance House

18 high Street

Cardiff CF1 2BP

For the Respondents MR R LEMON

(Of Counsel)

Solicitors Office

The Post Office

Impact House

2 Edridge Road

Croydon

CR9 1PJ

JUDGE HULL QC: In this case Mr Haycock, who was a postman employed by the Post Office, appeals to this Tribunal from the decision of the Industrial Tribunal which sat to hear his complaint of unfair dismissal on 16 November and finally promulgated its decision on 13 December 1990, having adjourned so that Mr Haycock could call any evidence or obtain any information or make further submissions to the Tribunal, which in the event he chose not to do.

The unanimous decision of the Tribunal was that Mr Haycock's complaint of unfair dismissal should be dismissed and the Tribunal of course considered, as it was bound to do, the reason for the dismissal and the way in which the employers, the Post Office, had behaved in deciding that that reason was a proper reason for the dismissal of Mr Haycock.

Mr Haycock is a young man. He had been employed for just over three years when the events which led to his dismissal occurred. On 30 March 1990 his van, which he used for his post office rounds, was searched at about mid-day by a Mr Singh. According to Mr Singh, and other evidence put before the Tribunal, the reason for the search was that a complaint had been made of the untidiness of the vans and so Mr Singh went to examine this particular van which Mr Haycock was responsible for. Mr Haycock was not the only person who drove the van. There was at least one other postman who did, a Mr Matthews. Mr Haycock had been on his round that morning, which was a Friday, and Mr Matthews would shortly have taken the van out on his, Mr Matthews', "walk" and that was a different walk from Mr Haycock's.

Mr Singh, in the course of his inspection, opened the glove compartment in the van and there he found, apparently wrapped up in a bit of plastic, the record book for the vehicle and inside that, put between the leaves, were three letters; they bore addresses on Mr Haycock's walk and certainly two of them should have been delivered that morning. One of them should perhaps have been delivered earlier. About these facts there is no doubt or difficulty at all.

Mr Singh at some stage in this search was with Mr Matthews, who as I said would have taken the van out, and Mr Matthews, when these letters were produced, said "Haycock has done it again", or words to that effect - A remark suggesting that this was something of a sort which Mr Haycock had been guilty of before. What this amounted to, in the view of a number of post office officials who considered it, was that Mr Haycock, in breach of a very important duty of every postman, had deliberately delayed the mail. Mail which he should have delivered he had put into this glove department - whether for his own convenience or not it does not matter. He had not delivered it when he should have done. That matter was reported. It is recognised in the Post Office as being grounds for summary dismissal of a postman, even if it should be a first offence, so it was an important matter.

Mr Singh reported it. Mr Haycock was seen successively by several different officers of the Post Office who enquired about the matter. All the documents are before us in which these matters are recorded. He was seen by a Mr Hughes, he was seen by a Mr Bridger and he was seen by Mr Stoodley who was the Chief Inspector - all this on the day after the discovery. He made a number of statements to those officers in which he said what had happened and each of those officers said they were not satisfied with the explanation that Mr Haycock gave. He told them that he had no idea how the letters had come to be in the glove pocket. He had never used the glove pocket and he said that over recent days he had told Mr Bridger that he had been coming to work to find that his walk had been "sorted off" for him, as he put it. Somebody else had arranged his letters and on checking his mail he was finding mis-sorts which he felt were being done purposely so as to make him misdeliver, thus getting him into trouble. In other words somebody was maliciously interfering with his work.

As I say, none of these officers were satisfied with his explanation and Mr Stoodley took the decision to suspend him. That was on 31st March and there were a number of investigations thereafter.

Mr Haycock said that he wanted an oral hearing, a hearing at which he was entitled to be present, and that hearing was held by Mr Throw, the Head of Personnel and Industrial Relations for that part of Wales. Mr Throw conducted what on the face of was a very thorough enquiry, starting on 19th April. His notes are at pages 63 onwards in the bundle of documents. He heard Mr Haycock. Mr Haycock amongst other things told him that he never used the glove compartment to store items of mail. In other words it could not have been he who was responsible for these letters being there.

Now this is very important. Mr Haycock was accompanied on this occasion by Mr Bell, who is the Branch Secretary, a union officer who was present during this part of Mr Throw's enquiry. Mr Throw asked a large number of questions and examined the envelopes and he heard Mr Haycock at considerable length. Amongst other things, as one sees at page 65, Mr Throw asked Mr Haycock why anybody should wish to treat him like this, because Mr Haycock was saying "somebody has been maliciously interfering with me". He said he had no idea.

The question of his relationship with Mr Matthews was to some extent investigated by Mr Throw. He had said he did not know anybody who would hide the mail and he was asked about Mr Matthews by Mr Throw. Mr Throw said that it had been reported that Mr Haycock had visited Mr Matthews' parents' home and Mr Matthews' own house after the items had been found and Mr Throw asked Mr Haycock to explain his version of the incident and Mr Haycock told him about that. He said that Mr Matthews was the next person to use the van and he had gone to Mr Matthews' house to see if Mr Matthews could throw any light on the incident, to see if he knew who had put these letters in the glove compartment. Mr Throw asked Mr Haycock directly if he suspected Mr Matthews, and Mr Haycock replied that he didn't know, but he could not think that Mr Matthews would do such a thing (that is at the bottom of page 65). Mr Throw then asked Mr Haycock if he suspected anyone else and he repeated that he got on well with everyone and could not think that anyone had done it.

It does appear that at this stage Mr Throw did not say anything to Mr Haycock about Mr Matthews' reported remark to Mr Singh that "Haycock has done it again". On the face of it this was a prejudicial remark, and, insofar as it was suggested that this was part of a course of behaviour, of course it deserved investigation if it was made seriously. Mr Throw did take it seriously enough to interview Mr Matthews about this very topic and he notified Mr Bell to come with him then. This was a week later on 26 April and Mr Haycock, the Complainant, was not present but Mr Bell was. Mr Throw (this is at page 66 where he reports this further investigation) questioned Mr Matthews and Mr Matthews replied that he had made the remark which Mr Singh reported. He was asked to explain. Mr Matthews said that Mr Haycock was "always doing silly things". He was always bringing things back from his delivery.

Mr Bell took part in this conversation. Mr Throw asked Mr Matthews if he knew whether Mr Haycock had brought back items proper to his walk and Mr Matthews said "Yes, well sometimes Mr Haycock did do that". Asked if he knew any reason why this should happen Mr Matthews replied "he thought time was a problem and that Mr Haycock perhaps did this when he encountered a problem".

Mr Bell was asked to comment and he said more than once that perhaps the items which Mr Haycock had brought back were people who had gone away, or misdelivered or missorted items, and Mr Throw noted that he had not pressed Mr Matthews, but Mr Matthews had answered his questions quite straightforwardly. It is fairly obvious that Mr Throw did attach weight to what Mr Matthews had told him. Then we come to the events at Mr Matthews' house where Mr Haycock had gone round and I will not read all that out. Again Mr Bell was asked to take part in the consideration of that part.

Having conducted this interview with Mr Matthews, to which as I say Mr Throw attached some importance, he then conducted a further interview with Mr Haycock himself. On this occasion Mr Bell was not there but another trade union officer, Mr Oliver, was there and it does not appear from Mr Throw's note that he took up the matter of Mr Matthews' allegations at that stage. He did take up the question of where the van had been parked and there was a good deal of detailed discussion, because Mr Throw was interested in the suggestion that somebody else might or must have put the letters in the place where they were found; and so he took the history from Mr Haycock about that.

It does not appear from the note, but in fact it does appear now that the question of what Mr Matthews had said - "Haycock has done it again" - was in fact canvassed on this occasion. I must go forward in time to explain this. At a later enquiry, it appeared that Mr Haycock did know about this conversation. So at the Industrial Tribunal, where the Post Office was represented by Counsel, Mr Lemon, who has appeared before us today, he was asked how he had come to learn of this remark of Mr Matthews - "Haycock has done it again" - and he said that he had learned of that in the course of this conversation about parking the van. Mr Throw had told him about that he said, so as I said the note is not complete. Mr Haycock said that he had learned about it on 26 April.

The conclusion that Mr Throw reached was after a patient and lengthy enquiry in which of course he had at the front of his mindthe suggestion that Mr Haycock was being blamed, or set-up; that a malicious person or persons were trying to damage him by making it appear that he had committed this very serious offence. Mr Throw sets out on page 70 what he took into account. He said as follows:

"Taking into account the following:-

1)The mail was proper to Mr Haycock's delivery

[That was the three letters]

2)Two out of three items, by their datestamp would have been processed overnight previous to Mr Haycock using the OMV, thereby limiting the opportunity for someone else to place items in the OMV.

3)There being no reason why, on Mr Haycock's evidence, anyone should maliciously place items in order to discredit him.

4)Mr Matthews' evidence, that Mr Haycock had, in the past, brought items back and stating no personal experience of practical jokes relating to mail, or dumping of mail, on the fitting in question.

5)The limited opportunity someone would have in placing items of mail in the vehicle, and particularly, as they would have, if seen, been seen at a vehicle which was known not to be their OMV.

I conclude that, the weight of probability is that Mr Haycock placed the items in the glove compartment himself. This is a decision which has been reached without an admission but based on as much circumstantial evidence as has been possible to collect."

It is pointed out on behalf of Mr Haycock that Mr Throw did not say, anywhere in his decision, that he had explained to Mr Haycock exactly what Mr Matthews had said or indeed the substance of what Mr Matthews had said; and it is submitted, quite rightly, that it is plain that what Mr Matthews had said played a substantial part in Mr Throw's consideration of this matter, which he was on the face of it approaching very fairly. But there are two answers to that. The first is that according to Mr Haycock himself, Mr Throw had in fact told him what Mr Matthews had said and any intelligent person would understand from that that what Mr Matthews was accusing his colleague of on the 30th when this was discovered, was that this was not the first time such behaviour had been noticed by, Mr Matthews. More important, what is said by Mr Lemon on behalf of the Post Office is - well, at this interview Mr Bell, the trade union representative, was present, and says Mr Lemon - you could not have fairer than that; you do not have to have the man himself present, there may be very good reasons why he does not want to be there or why Mr Throw might not want him there, but his representative was there and indeed not merely there but taking part in an intelligent way in the discussion with Mr Matthews. So the appointed representative, the trade union representative of Mr Haycock, was there and knew all about it.

On the basis of Mr Throw's conclusions the decision was taken to dismiss Mr Haycock.

He was not content with that decision and he appealed to Mr Allen, the Appeals Manager, on 29 June 1990. The Notes are at page 101 and go right through to page 112. They are a closely reasoned document. On this occasion Mr Haycock was not represented by either Mr Bell or Mr Oliver, but by Mr Cheater, another UCW representative. Mr Allen went right through it again. Mr Haycock told Mr Allen that he had been picked on by management and victimised and Mr Haycock alleged that he had suggested right from the start that his fingerprints should be taken so that it could be seen whether his fingerprints were on these envelopes. He said he mentioned that to Mr Hughes, Mr Stoodley and Mr Bridger and he said he had also mentioned it to Mr Throw. I should say that each of those gentlemen denied that.

According to Mr Allen, Mr Haycock himself said "why should Mr Matthews make the remark "Haycock has done it again" to Mr Singh?" and as I say he was asked about that at the hearing and said he had learned of it not from his union representatives but from Mr Throw himself on the second occasion, 26 April. Towards the bottom of page 102, Mr Allen asked Mr Haycock if he had any reason to doubt Mr Matthews' reliability and Mr Haycock said that he trusted no-one.

Mr Haycock protested his innocence and Mr Allen considered the matter with, it appears to us and to the Tribunal, great care. At page 108 of our bundle Mr Allen directs himself on his duties in the matter. He writes:

"I must first say that wilful delay is a very serious matter indeed affecting as it does the Post Office service given to customers and it can result in dismissal even for first time offenders. I must also state that it is not necessary (as it would be in criminal law) for the Post Office to prove beyond all reasonable doubt that the employee had committed the offence. However, in processing a case to dismissal, basic principles must still be adopted by Post Office managers and they are:-

(a) there must be genuine belief on the part of the manager in the employee's misconduct

(b) there must be reasonable grounds for that belief arising out of as full an investigation as possible

(c) the decision to dismiss, taken with the evidence available to the manager at the time, was a reasonable response to the misconduct

I too, therefore, must bear these principles in mind when reaching my decision in Mr Haycock's case."

He then said that many new points had been made by Mr Haycock and he considered them all. He had called for further evidence before the hearing and he considered all those matters. As a result of Mr Allen's enquiry he was of the opinion that Mr Haycock was indeed guilty of what was alleged against him and rejected what had been said about these envelopes being put there by some malicious person. He said:

"I am unable to find any reason to alter the decision taken by the Head of Personnel and Industrial Relations, Cardiff LDO to dismiss you and your appeal has, therefore, been unsuccessful".

So that that was the state of affairs when Mr Haycock presented his complaint to the Industrial Tribunal and it does seem that the Industrial Tribunal also heard the matter with great care. Their decision is a long one. They set out the matters which I have set out and because it was a written Judgment they set them out very logically and clearly and economically in their decision. They set out how Mr Haycock had told them that Mr Throw had referred to Mr Matthews' statement "Haycock has done it again" and that was how he learned of it.

Mr Haycock made a number of complaints. Not all of them were regarded by the Tribunal as equally important. He complained to the Tribunal that the Post Office were at fault in failing to draw to his attention to the statement made by Mr Matthews that he had previously left mail undelivered. Concerning that, the Tribunal, having mentioned the matters which to I have referred, said:

"The evidence of the respondents was that the UCW officer dealing with the disciplinary interview or appeal would be given access to the file (unless it was the subject of investigations by the enquiry branch which it was not in this case). That officer would then be given copies of anything which he specifically requested. We reserved our decision because Mr Haycock wished to take up with Mr Bell and Mr Cheater [they are two of the union officers] the question as to what documents had been made available to them. He complained bitterly that neither officer had told him about Mr Matthews' statement. Yet it is clear to us that he knew about the remark made by Mr Matthews to Mr Singh. That in essence was a clear indication that Mr Matthews was saying Mr Haycock had done this sort of thing before. He says himself that it was discussed when Mr Throw interviewed him subsequent to the disciplinary interview ie when they discussed the positions of his vehicle"

What the Tribunal did at that stage was to say - well we will reserve our decision, but you, Mr Haycock, may have an opportunity to get in touch with these trade union representatives and if necessary call further evidence and they put it like this:

"Although the decision was reserved to enable the applicant to consult his trade union representatives and to make further submissions or call further evidence nothing further has been heard from him. In those circumstances we propose to adjudicate without further delay."

As I say, this was in their written decision on 13 December 1990.

Mr Haycock had made a number of allegations against various people and the way they dealt with it was this:

"We accept the evidence of the respondent's witnesses. Their evidence was consistent with the detailed documentary records (which apart from the items mentioned above were not disputed). In particular we are satisfied that the respondent's disciplinary file was made available to the trade union representatives both before the disciplinary and the appeal hearings. They therefore made available to the applicant through his representatives all the evidence against him to enable him to deal with the charges on both occasions. We are satisfied that he raised the question of fingerprints for the first time at the appeal hearing.

That is saying, I am afraid, we are satisfied that Mr Haycock is not telling us the truth about that matter.

"He did not do so to any of his managers or to Mr Throw at the disciplinary hearing....

We are entirely satisfied with the good faith and honesty of Mr Throw who made the decision to dismiss and of Mr Allen who dismissed the appeal. Indeed the only complaint against Mr Throw is that he did not specifically raise at the disciplinary interview on 19 April the statement which Mr Matthews had made (in the presence of Mr Bell) and then confirmed in writing (page 41). We are satisfied that Mr Throw reasonably believed that if it was appropriate Mr Bell would have raised it with the applicant himself. He had made available to Mr Bell all the relevant information. In our view the fact that he did not go further and relate to the applicant in person all the details of his investigation does not indicate bad faith. There is no allegation of bad faith against Mr Allen."

and one would add by way of gloss not merely did Mr Bell hear all about it, he was present at the interview with Mr Matthews.

The Tribunal go on to say:

"Did Mr Throw and Mr Allen have reasonable grounds on which to support their conclusion? Mr Throw's report is comprehensive and detailed. It is a well reasoned document. We have already quoted the final considerations above. It would be impossible for any tribunal to say that those were not reasonable grounds for his conclusion that Mr Haycock had deliberately delayed the mail.

And they go on later to say of Mr Allen's report:

"no stone was left unturned. The conclusion to which he comes is unimpeachable."

At para 20 they say:

"As to the third limb of the Burchell test, it is obvious that at each successive stage matters were the subject of the most rigorous enquiry. At the two formal hearings the applicant was accompanied by his trade union representative; first Mr Bell and then Mr Cheater. Each of those had been given access to the Post Office's file. It is not necessary for any employer with a mass of information to relate the individual details to the individual applicant at the oral hearing. He made the details available to the representatives and left it to them to challenge such matters as they saw fit. That seems to us to be an entirely satisfactory and proper procedure. As we have said we are satisfied in any event that quite apart from the fact that Mr Bell had been present when Mr Matthews was interviewed the applicant himself knew what had been said by Mr Matthews when Mr Singh discovered the delayed envelopes. That was clear notice to him of what was being said."

And they go on in the next paragraph, para 21 to say at the end:

"The employers were therefore perfectly entitled to come to the conclusion that Mr Haycock had deliberately delayed three items of mail."

They finally say that they are quite satisfied in the light of the policy of the Post Office as explained, not merely in a formal document which Mr Haycock had signed when he became a Post Office worker, but in the light of a letter which had been sent to all postmen at the beginning of the year, that the Post Office were indeed entitled to dismiss on that view of the matter, to which they had come in a perfectly rational and fair way. That was the decision of the Industrial Tribunal and therefore they dismissed the complaint of unfair dismissal.

Mr Haycock has appealed to us and of course we are only allowed, under the statute, to hear appeals from Industrial Tribunals on matters of law. We are not concerned to say whether we would have found the same facts as the Industrial Tribunal or whether we would have approached the task which the Industrial Tribunal did in exactly the same way or what inferences were to be drawn from the facts; all those were matters for the Industrial Tribunal, which had the great advantage of hearing the witnesses, including Mr Haycock and which gave Mr Haycock an opportunity to call further evidence if he wished, which he did not take up.

The complaint which is made on behalf of Mr Haycock by Mr Clayton is as follows.

He says - and I hope I summarise it fairly - that it was not enough to satisfy the requirements of natural justice, when Mr Throw and Mr Allen were carrying out their enquiry duties, that a trade union representative should be present or that a trade union representative should have seen all the files and all the papers in the case. That would be enough, says Mr Clayton clearly if the trade union officers concerned made everything known to Mr Haycock. But if in fact they did not do so, then the employer has not acted fairly and the Tribunal should have so found.

Mr Clayton says that it is a requirement of a fair enquiry that the allegations against the employee should be made known to him in sufficient detail and substance for him to know exactly what is alleged against him. Secondly, says Mr Clayton, it is the duty of the employer having made that disclosure to give the employee a proper opportunity to answer those allegations made against him. This Tribunal has held that that duty generally involves, if there are statements, making those statements known to the employee and giving the employee an opportunity in that way, or in some of the way, of knowing exactly what is alleged. We do not doubt the general validity of those propositions but it seems to us that there are grave difficulties in the further leap which Mr Clayton wants us to take; saying that these trade union officials did not do their duty, as Mr Haycock complained to the Tribunal - they did not pass on to him the contents of the file or make known to him what they had read; and Mr Bell did not pass on to him what had passed at the interview with Mr Matthews. Mr Clayton says the proceedings were flawed and the Industrial Tribunal, who heard Mr Haycock, should have acceded to his submission on that point.

It seems to us that there are great difficulties in that submission, starting off with the facts, from which the law seems to have become somewhat distanced in this case. When one looks at the facts the Tribunal received the evidence of the Respondents; and they heard Mr Haycock. They gave Mr Haycock an opportunity, by adjourning, to call further evidence; to make further enquiries of the trade union officers. They had preferred the evidence of the Respondents' witnesses at that stage, or were minded to do so. Mr Haycock went off and did nothing further. He could have called the trade union officers if he had wanted to. He could have given further evidence himself if he thought that would be any good. He did not even notify the Tribunal of his desire to do nothing further. It was his unsupported word, and pretty surprising too if one may make the comment, because he had admitted in the Tribunal that Mr Throw had told him about the comment against him by Mr Matthews. He had actually told Mr Allen about that and he explained that that was because Mr Throw had told him. One asks "how could Mr Haycock say that he was quite unaware that there was an allegation against him that this was not the first time he had done it?".

There is a grave difficulty for Mr Haycock in establishing the factual basis for his submission because, as I say, where the evidence conflicted the Tribunal preferred the evidence of the Respondents' witnesses. Mr Clayton made the submission to us nonetheless and Mr Lemon met it on the broader basis as well - quite apart from inviting our attention to the matters to which I have referred. "The employer", said Mr Lemon, "is bound to act fairly"; but, he said "fairness does not involve him acting as some sort of supervising officer to make sure that those who attend in front of the employer, whether they are trade union officers, or as it might be a solicitor or a friend, are doing their obvious duty and communicating, if the employee is not there, everything that they have seen and heard". The employer acting fairly must be seen to act fairly according to the ordinary criteria of objective people and if the employer makes known the entire substance of the case, every document in the case , to the union representative and conducts all the proceedings in the presence of one or other of the union representatives, then, says Mr Lemon, it is sufficient. The employer does not have to go further and say - "Now, Mr Bell" for example "Are you quite sure you have done your duty and passed on all the information and everything you heard from Mr Matthews to your member and made sure he understands it". Indeed one can see that quite apart from its being considered officious and unpleasant for an employer to treat the union representatives in that way, suggesting they did not know their duty, if it were a solicitor or other legal representative, an enquiry along those lines would be met by the answer - "You mind your own business, it is a matter of legal privilege what I discuss with my client and how I discuss it". So Mr Lemon says that the submission which is made is misconceived as a matter of law, even if the facts did support it, the employer not having any reason to suppose that the union officers had not done their duty was entitled to suppose that they had. The employer had done his duty by proceeding openly and in consultation with the union officers and was not obliged to go further and make enquiries to see whether they had done their duty properly.

Mr Clayton also invites our attention to the fact that there were three different union officers here and says there really was no evidence that each of those had passed on to his colleagues all that he knew about the case and his knowledge about the documents. But if Mr Haycock chose to be represented by his union as he did, and if it was convenient either for him or for the trade union to have different officers there on different occasions, it would be quite extraordinary if that were a ground for complaint. It might be inconvenient for the union officers, it might be inconvenient to the employer or to Mr Haycock, but nonetheless that was a matter which was entirely on Mr Haycock's side of the fence so to speak, and not a matter of which the employers were entitled to make any complaint or which would have led them to do anything other than what they did in fact do.

We have considered this as carefully as we can. We think first and foremost that the Post Office carried out their duties of enquiry and on the appeal as carefully as might be and in a very great deal more detail and much more meticulously than many employers might do. We note that the Tribunal, who heard all the witnesses, preferred the evidence of the Respondents and accepted that and found expressly that the employers had acted fairly throughout, that all documents had been made available to the trade union officers and that everything had happened in the presence of the trade union officers or one or other of them. In those circumstances we are not able to find any fault in law whatever with the conclusion reached by the Industrial Tribunal.

It appears to us that that Tribunal also conducted itself with scrupulous fairness and considered the evidence with care. When it adjourned, on the basis of Mr Haycock's complaint that he had been ill-served by his trade union representatives, and gave Mr Haycock the opportunity to see those representatives and if necessary to call them, we think that so far from Mr Haycock taking advantage of that opportunity, he seems to have treated the Tribunal in a most off-hand way. Not merely did he not choose to put any further evidence, written or oral, before the Tribunal, he did not even get in touch with the Tribunal to tell them how matters stood. Eventually they felt obliged to give their decision without hearing any further from Mr Haycock.

In all the circumstances therefore, there being in our view no flaw in the Industrial Tribunal's proceedings, we are quite satisfied that this appeal must be dismissed.