United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 521_94_0512

Appeal No. EAT/521/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5th December 1994

Before

HIS HONOUR JUDGE HULL QC

MISS C HOLROYD

MRS T MARSLAND

---

MR D JONES          APPELLANT

MERSEYSIDE TRANSPORT LTD          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellant Mr A Robertson

(Trade Union Officer)

T.G.W.U

Transport House

Islington

Liverpool

L3 8EQ


 


JUDGE HULL QC: Mr Jones was employed as a public service vehicle driver by the Respondents to this Appeal. He was employed at Liverpool. His employment began on the 13th August 1989. What gave rise to his dismissal was that on the 30th March 1992, an Inspector, Mr Clark, boarded one of the employers' buses, which like all their buses, apparently, was furnished with a machine for producing tickets; the passenger would pay the money and then the machine would produce the ticket. The bus driver was in a position to do various things to the machine, in particular, if the roll of paper jammed, or if a new roll was required, he would replace it and he could then produce a particular piece of paper from the roll, which would show whether the machine was working properly or not. What the Inspector found was that one of the passengers on the bus had a blank ticket, which should never have happened. The passenger told the Inspector that she had paid money for the ticket. So that was one matter which happened.

Two days after, on the 1st April 1992, the same Inspector, on another bus, again manned by Mr Jones as driver, found another passenger with a blank ticket. What was suggested, of course, was that this was evidence of dishonesty and that since the sum of money was not accounted for by means of the ticket machine, what Mr Jones was suspected of doing was operating the machine in an irregular and improper way, so as to pocket the money. That was the suggestion.

There was a disciplinary hearing. Putting it very shortly, the case for the employee was "It must have been a mistake." The decision was taken to dismiss. That was on the 1st April, the very day that the second of these incidents took place. Mr Jones was represented by his union branch secretary.

He exercised the right of appeal. On the 2nd April, the next day, he came in front of a Mr Gillmoss, and there he did put forward what has become his case. He said:

"I don't fiddle. It must have been a fault on the machine."[or one would say putting it perhaps more accurately] "There must have been a fault on each of these two machines on the different buses."

Mr Gillmoss, the manager concerned, commented:

"I've pointed out that the odds against two machines on two separate vehicles having the same fault as shown on the tickets would be impossible."

In other words, putting that in more literal English, it would be so improbable that one could simply disregard that chance.

There was a further appeal. That was exercised before Mr Moran, on the 3rd April. The notes of all the appeals were in front of the Industrial Tribunal. That appeal was unsuccessful. Then there was a special meeting to consider the matter further because of the representations that were made. The Tribunal say that:

"On the 23d April 1992, a further meeting took place on the Chairmanship of a Director, Mr R L Holme. On this occasion a full-time officer of the Transport and General Workers Union was present, namely Mr Robertson, who has represented the Applicant before this Tribunal. Mr Jordan was also present. For management, Mr Moran and Mr Davey were in attendance. The Respondent, Minutes of that Meeting are in Exhibit R1."

They looked at those.

It is clear that on this occasion there was detailed consideration of all the circumstances, including possible causes of malfunction in the machine. The Trade Union demonstrated that a machine would produce blank tickets, but they were different in form to those issued by the Applicant, being only half the size. After a recess, the Chairman announced his Decision. That is recorded in the Minutes in the following way:

"The Chairman stated that he had listened to both submissions. The Trade Union's case was based on the malfunction of machines but in this case it was the Chairman's opinion that the probability of this type of malfunction would not have happened on the two occasions and the Chairman could not recommend a variation to the dismissal"

The Applicant was dismissed.

He applied to the Tribunal on the 29th April 1992. On the 18th January 1993, the Industrial Tribunal sat at Liverpool under the Chairmanship of Mr Heppel with two Industrial Members. That Industrial Tribunal, by a majority, found that there had been an unfair dismissal.

There was an Appeal to this Tribunal on the 6th July 1993. The Appeal was heard by a division of this Appeal Tribunal chaired by Mr Justice Tuckey with two Industrial Members. This Appeal Tribunal decided that the majority had misdirected themselves and therefore, being in no way sure as to the correct answer, did not substitute any verdict of their own, but remitted the matter to be further heard by a differently constituted Tribunal. Thus it was that the Industrial Tribunal with whom we are concerned sat at Liverpool under the Chairmanship of Mr Coventry, again of course with two Industrial Members, on the 18th and 24th January and the 23rd February of this year.

The majority of the Tribunal, and it is the majority with whom we are concerned, found that the dismissal was not unfair. They promulgated their Decision on the 9th May and there is an Appeal to us.

The Appeal is in our list under our practice direction to see whether we can discover any arguable ground of appeal. Appeals to us lie only on matters of law and not on questions of fact. Of course it is entirely meaningless to say, it is self-evident, that in any particular case different Tribunals may reach different findings of fact. We ourselves, if we were putting ourselves in the shoes on this Industrial Tribunal, might have reached a different view on the facts. That is not the point. What we have to look to do is to see whether there is, here, any error of law.

We note that this Industrial Tribunal directed themselves meticulously on the law. It appears to us, and there is no challenge about this, that the directions which they gave to themselves, referring to the celebrated cases on the subject, such as Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, Taylor v Alidair Ltd [1978] IRLR 82, Weddell v Tepper [1980] IRLR 97, and finally and most important British Home Stores v Burchell [1978] IRLR 379, were impeccable directions. They record that they have heard evidence from many of those who took part in this story, including of course the Applicant. They found facts proved. They set them out of course, more fully than I have done. They refer to the way in which the employer proceeded with the Appeals, all of which I have referred to.

Having come to their findings of fact about that, they say as follows:

"10. Applying the relevant law as set out in the earlier paragraphs of this Decision to the above facts, the finding of the majority of the Tribunal is as follows. The respondent was entitled to decide, on the balance of probabilities, the applicant had committed the alleged misconduct. Balance of probabilities means what it says but, of course, that said, it has been made clear that the more serious an allegation, and this was a serious allegation, the greater the proof required. The standard nevertheless still remains that the balance of probabilities and in relation to that the majority consider that what is set out in paragraph 8 (above) is particularly relevant and the decision of the majority is decided accordingly. Had there been only one incident requiring an investigation the matter might have been viewed differently but, as it was, blank tickets had been issued from two different machines on two different buses. Against that background, and having regard to the inquiries which were made, and the hearings which took place, we find that the decision which was made was within the range of reasonable responses of a reasonable employer and, accordingly, the application fails and is dismissed."

Then they record that one of the Members of the Tribunal disagreed with the majority and they set out his view of the facts. He did not, of course, differ from the propositions of law which the Tribunal had set out. But the minority Member found, basing his views essentially on the possibility that the machines might have faults, that the employers had not done, in his view, all that they should have done.

So that was the result of the Hearing in front of the Industrial Tribunal. Clearly, it was a patient and careful inquiry by the Tribunal.

What is said is said very shortly, in the letter from Mr Robertson which serves as a Notice of Appeal, page 1:

"The Tribunal erred in failing to apply the principles established by Burchell...insofar as such investigations as were carried out by the Respondent employer were insufficient in quantity and quality to establish a reasonable ground for belief. The evidence given to the Tribunal on behalf of the Respondent employer clearly states that the Respondent failed to conduct a full and proper investigation and in particular, failed to test the equipment which was referred to within the minority member's conclusions."

So that was the contention which was made.

We have to ask ourselves, is that a contention of law at all, or is this simply a matter which the Industrial Tribunal had to consider and did consider as carefully as they could to decide whether, in their view, a fair and reasonable inquiry had been made by the employers, in view particularly of the seriousness of the allegation which was made against Mr Jones? They directed themselves, in our view, entirely correctly. In our view, having heard Mr Robertson, to whom we are grateful, the contention raised is essentially one of fact. If we were to entertain this Appeal, we should be putting ourselves in the shoes of the Industrial Tribunal and asking ourselves the same question that they had to ask themselves; was this, in all the circumstances, a sufficient inquiry into the matter?

Essentially, it was for the employers to say, of course, what inquiries they would make and it was then for the Industrial Tribunal to say whether those, in the view of the Tribunal, were reasonable and proper and sufficient inquiries. They said that they were, having directed themselves properly. In our view there is no reasonably arguable point of law in this Appeal and in those circumstances we have to say that the Appeal must not proceed and it will therefore have to be dismissed at this stage.