United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 427_93_2012

Appeal No. EAT/427/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20th December 1993

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS P TURNER OBE

MISS D WHITTINGHAM

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MR M AHMAD          APPELLANT

LEICESTER CITY BUS LIMITED          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR P WALLINGTON

(Of Counsel)

Lawson-West

45 Long Street

Wigston Magna

Leicester

LE8 2AJ


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal held at Leicester on the 13th January and 2nd March 1993. The Tribunal unanimously decided that Mr Ahmad, a Bus Driver with the Respondent, Leicester City Bus Company, had been fairly dismissed and his complaint of unfair dismissal failed.

He had made that complaint to the Tribunal on the 12th August 1992 and the Originating Application had been responded to by Notice of Appearance from the Bus Company on the 18th September 1992.

The Tribunal, in a detailed decision, gave the background to the complaint of unfair dismissal. Dismissal was admitted. The case of the Bus Company was that it was by reason of gross misconduct. The Tribunal said that, in coming to its decision, it had regard to the size and administrative resources of the Bus Company. The Tribunal made it clear in paragraph 3 of its decision that it should not impose its own judgment in hindsight. The Tribunal said:

"We have to ask ourselves not what our judgement would be in the circumstances, but whether the respondents investigated the matter properly; upon that investigation did they come to a reasonable conclusion and was that conclusion within a reasonable response that any employer of a similar size administrative resource could come to."

The Tribunal then stated the factual background. The reason for the dismissal of Mr Ahmad was breach of regulations of the Company. He had failed to stop and pick up passengers waiting at a bus stop. That incident occurred on the 9th May 1992. This was followed by disciplinary procedures on the 26th and 27th May which resulted in a decision to dismiss. That decision was upheld on an appeal on the 2nd June 1992 and on an appeal to the Chairman of the Company on the 10th June 1992. A crucial part of the decision of the Tribunal refers to the failure of the bus drivers to pick up passengers. Paragraph 10 reads:

"The disciplinary procedures are agreed with the union. As a result Mr Hilditch called the union in. Mr Coleman, then the senior shop steward, Mr Neale and one other shop steward went in to see Mr Hilditch. Mr Coleman did not give evidence, Mr Neale did. Mr Neale disagrees with the outcome of that particular meeting: (not with what Mr Hilditch says what the outcome was, but simply disagrees with what the outcome was). What Mr Hilditch wanted to do was to give a notice to all staff about what was going to happen if they were caught failing to pick up passengers. Mr Hilditch wanted to make it quite clear to bus drivers that if they did not pick up passengers, and they did so deliberately, then dismissal from the service would automatically follow. Mr Hilditch went in to negotiations with Mr Coleman, the senior shop steward. It is quite clear that there was an agreement between Mr Coleman and Mr Hilditch to allow a change in the rules. Failure to stop was to become a dismissible offence. Mr Neale agrees that there was an agreement. At a branch meeting later the work force approved this basic change. By the beginning of April 1992, everyone including even the applicant in Leicester City Bus knew that failing to pick up passengers was a disciplinary offence which would lead to dismissal.

11. The applicant knew about the new rule, but he carried on in his normal fashion."

His "normal fashion" is a reference to the history of Mr Ahmad's conduct as a Bus Driver summarised in earlier paragraphs in the decision.

Later in its reasons the Tribunal came to the conclusion that there was a basis for the view taken by the Bus Company that there had been a deliberate failure to stop. It is stated in paragraph 18:

"We feel compassion for the applicant because he is in his late middle years and he has not got a job, but people like Mr Hilditch have to run a competitive business. We are told that for every one job there are 100 applicants. He had to balance everything out. It is a hard world; hard decisions have to be made. The right decision was made in this case. This dismissal was fair."

The appeal against that decision is by Notice of Appeal dated 3rd June 1993.

There are numerous grounds of appeal. In the judgment of the Tribunal at this preliminary hearing none of them discloses an error of law on the part of the Tribunal. The appeal will be dismissed. The particular grounds set out in detail are these:

"that the Industrial Tribunal erred in law in that

(a) It failed to consider whether there are/was any inconsistency of treatment by the Respondent between the Appellant and one Kelly, who was found to have committed the same offence as the Appellant had allegedly committed but who, despite very short service (two weeks compared with the Appellant's 20 years was re-engaged by the Respondent."

This is then put in another way by saying:

"the Tribunal failed to make any finding in relation to the matter of Kelly."

It is put in yet another way:

"disregarded the undisputed evidence related to the dismissal and re-engagement of Kelly."

It is said that the decision was therefore perverse.

The difficulty is that nothing is said in the decision about Kelly and his case. We have no idea whether it was the same offence committed in similar circumstances or different circumstances. It appears to be accepted in the ground of appeal that there was a difference between the position of Mr Ahmad and Mr Kelly in relation to length of service. Whether there were other differences we do not know, because the Tribunal does not deal with it. Mr Wallington, who appeared for Mr Ahmad, was unable to say on instructions what other differences there were. Without this basic material there is no possibility of establishing that there was an error of law. Mr Wallington suggested that this was a case for the Chairman's Notes. Chairman's Notes are not to be produced simply on a suggestion that there might be an error of law. There must be some ground laid for saying so. It does not appear to us that there is any information about Mr Kelly's case which enables one to say that the decision of the Tribunal was perverse on the grounds of inconsistency of treatment.

Ground (b) goes on for a whole page:

"The Tribunal erred in law in failing to consider alternatively failing to make findings as to whether in all the circumstances the Respondent's decisions to dismiss the Appellant and to reject his appeal were within the range of responses open to a reasonable employer."

Then is a list of circumstances, length of service, the fact that prior to the end of March 1992; the failure of a driver to pick up passengers had been dealt with as minor misconduct meriting only the giving of advice; the fact that at the date of the incident the Appellant was not subject to any current warning under the disciplinary procedures of the Bus Company; the fact that the dismissing Manager Mr Greensmith, and the Manager who heard the first appeal, Mr Nichol, both considered dismissal to be the automatic penalty for failure to pick up passengers; the taking into account by Mr Hilditch, who dismissed Mr Ahmad on the final appeal, of his disciplinary record notwithstanding that warnings therein were stale and/or no longer current under the Respondent's disciplinary proceedings; the case of Mr Kelly who was re-engaged.

This is simply an attempt to persuade another different Tribunal to come to a different decision on the facts. It is not an error of law.

There is a similar kind of complaint in ground (c) that the Tribunal took into account irrelevant matters in determining fairness and/or reasonableness of the dismissal.

There are complaints of the comments made by the Tribunal at various point in their decision; in particular, the fact that there were 100 applicants for each vacant job and that the Appellant's disciplinary record extending back over twenty years was considered. It is said that the wrong test was applied. This is all fact. We are unable to detect what matter of law is said to have been incorrectly interpreted or applied.

Ground (d) complains of a failure to make any or any proper finding as to evidence. It is wrapped up in another way "or made contradictory findings"; or as another alternative, misunderstood the evidence in relation to the status of the Respondents' rule and the deliberate failure to pick up passengers was a dismissible offence. The Respondents' evidence was that dismissal was the automatic penalty but also that Mr Hilditch, the Chairman, at the second appeal stage exercised a discretion in affirming the penalty against the Appellant and that the penalty was remitted in the case of Kelly for the same offence. The Tribunal found that this was a dismissible offence, that the offence would lead to dismissal and that the rule required immediate dismissal unless there were compassionate circumstances. This is a matter of fact dressed up in different ways.

As to ground (e) it found as a material fact that the introduction of the rule that failure to pick up passengers was a dismissible offence was agreed by the relevant trade union, notwithstanding that the only material evidence before the Tribunal, namely that of Mr Neale (a shop steward who had attended the discussion with management of the proposed sale) that it was not so agreed; further the Tribunal mis-stated the evidence in fact given by Mr Neale.

There is no basis for this ground. We have been shown the Notes taken by Mr Wallington's instructing solicitor. The crucial fact which appears from those Notes is that the matter did go to a Branch Meeting. Whatever might have been the position about Mr Neale's agreement, there appears to us to be no grounds for saying that the last two sentences of paragraph 10 of the decision were perverse in the sense that they were made without any evidence or contrary to undisputed evidence.

Then ground (f) In finding that the Respondent acted reasonably in believing that the Appellant had deliberately failed to pick up passengers, the Tribunal failed to have regard to the fact that Mr Loyal, the originator of the complaint against the Appellant and only witness to the incident other than the Appellant, admitted under cross-examination that the Appellant might well in fact have stopped to pick up passengers on the occasion in question. In the premises the Tribunal was bound to conclude that the Respondent did not have sufficient reliable evidence to conclude that the Appellant was guilty, alternatively the Tribunal's conclusion that the Respondent acted reasonably in so concluding was perverse.

That is a complaint about the facts. There is no error of law shown in this case. The Tribunal asked itself the correct question in paragraph 3. It came to a conclusion that it would be a reasonable response in the circumstances to dismiss somebody when it had been agreed that the offence would be one leading to automatic dismissal.

The fact that the Tribunal may have made some irrelevant comments about the circumstances of the dismissal does not make the decision erroneous in law. The fact that the Tribunal has not dealt, in its full reasons for decision, with certain arguments that have been advanced by Mr Ahmad, such as alleged inconsistency of treatment, does not make the decision erroneous in law.

For all those reasons we find that none of the grounds set out in this lengthy Notice of Appeal provides an arguable case for error of law. The appeal will therefore be dismissed at this preliminary stage.