Author: jury
Company: IALS

Appeal No. EAT/971/93 

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 14 November 1994

	Before

	HIS HONOUR JUDGE HULL QC

	MR P DAWSON OBE

	MR A D SCOTT

SECURICOR VEHICLE SERVICES LTD	APPELLANTS

I.T. CORNISH	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	FULL HEARING

Revised

	APPEARANCES

For the Appellants	Mr Andrew Hogarth
(Of Counsel)
Mr Harry Tool
The Solicitor, Securicor Limited
Sutton Park House
15 Carshalton Road
Sutton, Surrey SM1 4LD

For the Respondent	Celia Cleave
(Legal Officer)
G.M.B. Legal Department
22-24 Worple Road
LONDON
SW19 4DD

	JUDGE HULL QC:  This is an Appeal to us by Securicor Vehicle Services Limited which is part of the large concern known by the name of Securicor.  

	Securicor Vehicle Services Limited has a large number of depots where vehicles are serviced and kept and maintained, and the depot with which we are concerned in this case was at Brentwood in Essex, a relatively small one, and that was where Mr Cornish worked as a vehicle technician.  He was engaged in maintenance and repair, so if one referred to him as a skilled mechanic, or practical engineer, or something of that sort, that would be clearly correct.  He was a skilled and trusted employee.  He was first employed by Securicor in 1988 and he is now aged 37 years.  

	He, according to him, lost some of the sympathy of his employers (to put it in a very cautious way) when he complained that there was too much smoking at work and in places where it was not allowed.  He is a non smoker, and he felt that after that he was less well regarded by his employers.  Whether that is right or wrong, of course, is not for us to say.  He says that warnings which he received thereafter in respect of bad work as a mechanic, were in fact motivated by that loss of regard by his employers.  We are not concerned with any of those matters and certainly we cannot go into them.

	There came an occasion, on the 18th January 1993, when an event occurred with which we are very much concerned.  Securicor not only serviced their own vehicles, they serviced and maintained the vehicles of other companies and there was another large company, British Rail, who had one of their trucks in for servicing.  There was a complaint about the brakes.	 

	Another skilled mechanic, a Mr Jones, started the work and he dealt with the rear wheels on the left-hand side, the near side of the vehicle, and he dealt with any defects that were there.  Then he started work on the off side rear wheels.  But at that point, it was his time to go home.  He had a short conversation with Mr Cornish and gave him certain information about what he had been doing and, according to Mr Cornish, what Mr Cornish was to do.  Mr Cornish did certain work to the vehicle.  He did not pay any attention to the hydraulic piston in the rear off side brake mechanism.  He took the vehicle for a short road test, and then his task, as far as he was concerned, was complete and the vehicle was returned to British Rail.  It went some miles along the road.  At the end of that time, there was smoke pouring from it, and the reason for that was that the brakes that had been the subject of Mr Cornish's work were found to be seized; the hydraulic piston could not be moved by hand; and not surprisingly, perhaps, Mr Cornish was blamed for not doing the work which was required of him. 

	He was a skilled mechanic.  He should not have allowed the vehicle to go out with the brakes, on which he had been working, in this absolutely unsafe condition.  An accident might have happened, it was a very serious matter.  Quite apart from anything else, Securicor would clearly attract a great deal of blame from British Rail.  And it might well be that Securicor would have found themselves with some enormous claim for damages, if matters had gone worse than they did, and there had been an accident.  So the question was, of course, whether Mr Cornish had been guilty of any breach of his duties. 

	Statements were taken from various people concerning exactly what had happened.  It became clear that Mr Jones had started the work.  There were statements about what Mr Jones had told Mr Cornish to do.  There was some suggestion that Mr Cornish had only undertaken limited work because that was all he was instructed to do.  There was a report from an expert assessor.  One thing they did not do at this enquiry stage was to take a statement from Mr Cornish.  But all the other statements were sent up to Headquarters from this rather small depot where Mr Cornish worked.  There was a report on the matter.  One can find that at page 41 of the bundle R1.  It was sent to the Personnel Department, by 
Mr Bunkell.  Mr Bunkell was the Transport Manager, and it was therefore on his authority that these investigations were undertaken.  The various statements were sent and the view was taken by Mr Bunkell that they showed a case of neglect by Mr Cornish.  He makes a comment at page 42: 

		"I. Cornish is a fully skilled technician conversant with this model of vehicle, he therefore showed gross negligence in failing to fully examine the off-side rear brake caliper assembly.  This caliper assembly contained a corroded piston which resulted in the vehicle being returned to service in an unroadworthy condition."

So that was what Mr Bunkell reported to the Personnel Department.  As a result of that report, a decision was taken to issue to Mr Bunkell a form which is called PM76; that is an authority to take disciplinary action against the employee.

	It says at the top, after setting out short particulars:

		"Please arrange to interview and, if appropriate, terminate the services of the above-named employee...."

That is addressed to Mr Bunkell.

		"...... as soon as possible, but not later than 3rd February 1993" [and then underneath the nature of the matter is set out] Failure to competently service Ford Cargo 7.5 tonne vehicle Registration No. etc. resulting in the seizure of the braking system, having been previously warned for incompetent work [which as I say, we are not concerned about at all, and it goes on]  The interviewer must ensure that the company's investigation has been completed, that the employee is made completely aware of the allegations against him, and that he must be given every opportunity of stating his case."

And one says, having looked at the Authorities, the very important Authorities in this Tribunal and in the Court of Appeal and in the House of Lords, that there could hardly be a more skilful summary of the duty which is cast on an employer, who faced with an allegation of incompetence or misbehaviour by an employee, is required to look into the matter fairly and reach a decision to dismiss fairly, if that is to be the decision.

	With that form having been issued, Mr Bunkell was in effect told to get on with it.  And he did get on with it.  We find at page 60 onwards in the same bundle, the record of the interview and there the allegation is set out:

		"Due to serious incompetence, I Cornish failed to diagnose a seized foot brake piston in the off-side rear caliper on a Ford Cargo.  This failure resulted in the vehicle being returned to service in an unroadworthy condition rendering it a hazard to the driver and other road users." 

	Mr Cornish was represented.  Mr Bunkell was in charge.  Mr Cornish had his Union representative there and there was a Mr Macro, the workshop co-ordinator, who was also there. 

	At the conclusion of it, Mr Bunkell said:

		"You have been previously warned [and so on] Due to your failure to competently service the off-side right brake caliper, I award the penalty of dismissal."

Then Mr Cornish was told of his rights of appeal.  

	He exercised those rights of appeal, but it is not contended before us today that they cured anything which had gone wrong, although there was equally no allegation whatever that the two senior executives who held the first appeal and the second appeal were guilty of any unfairness.  In those circumstances, on that very same day, Mr Cornish issued his complaint of unfair dismissal asking for compensation.  We do not need to go into any further matters before we come to the Decision of the Industrial Tribunal who heard the matter.

	They sat at Bury St Edmunds on the 13th and 14th October under the Chairmanship of 
Mr Carruthers and they reviewed the facts.  It appears that they did so thoroughly and carefully.  They set out the matters which I have already referred to and indeed they added some details which we do not need to go into.  They say in paragraph 11:

		"11.		An investigation was held into the matter and the brake unit was sent up to Mr Bambra of C Angell, the assessors, for consideration of what had happened to the brake unit.  The part of the unit in question was the condition of the brake caliper and piston, which were on the offside rear hub of the vehicle.  Statements were taken from those who were involved with the vehicle except for the applicant.  A statement was taken from Mr Jones; there was one from Mr Griffiths; there was one from the workshop foreman; nothing however was taken from the applicant.

		12.		The documents were then sent to the personnel department for consideration of the issue of a PM76 form. [That is a form which I have just read from].  This is a form which the respondents issue as a necessary preliminary as an authority for any discipline.  The necessary authority was issued.  The applicant in the meantime had been suspended on pay by the respondents and he was requested to attend for a disciplinary hearing.  He had the chance of a representative of his own choice.  This was after initially another representative had been put forward.

		13.		The hearing came before Mr Bunkell.  Mr Bunkell decided that the applicant should be dismissed.  His reasoning was that the applicant was the person who had finally worked on the offside brake system.  It was his responsibility to see that it was put back properly.  He had failed to carry out this responsibility.  There was the possibility of danger to life as there was a brake system involved.  Dismissal was an appropriate penalty.  He accordingly dismissed the applicant."

	And then they deal with the appeals.  They say that there was no dispute that he was in fact dismissed.  And they go on to the important matters.  They say at paragraph 17:

		"17.		The next matter to consider is the reason for the dismissal.  The onus is on the employer to show a reason.  This needs some little consideration.  The reason is that, whilst the respondents for their part have pointed out the defects of the repair work done on the brake system of the vehicle and the applicant's responsibility for this, the applicant for his part has been saying that in effect the respondents' management were, if I might use a colloquialism, "out to get him", and this arose because of the fact that he had raised these questions concerning health and safety at work."

That of course, was an averment of bad faith, saying the charges were brought not because of genuine concern by the management and the genuine wish to preserve the integrity of their organisation and their good reputation, and to discipline Mr Cornish in good faith, it was being said by him that the employers were not acting in good faith.  Now that allegation was rejected.  

		"18		We have discussed this question amongst ourselves and we are satisfied that the respondents did dismiss the applicant for the failure, as they perceived it, of his responsibility to carry out the work correctly on the braking system of the vehicle.  We do not accept his contention that the reality of the position was that the respondents dismissed him because he had brought up matters of health and safety at work.  We find that they dismissed him for capability.  That is one of the reasons which an employer may rely upon."

Then they go into other matters:

		"20		There has been a suggestion that the whole procedure involving a PM76 is somehow flawed.  We do not accept this argument.  We can see the sense of the line management having an authority from personnel who looked at the whole picture before deciding whatever is the appropriate sanction in a case.

So they found, as indeed is self-evident, that everything had been laid before Personnel and they had looked at it all.  They then go on to talk about the disciplinary procedure. And they say:

		"22		The reason we have found the dismissal to be unfair concerns the question of investigation.  When there is an incident like this, the question of investigation is of some importance.  Indeed, it is particularly important in the procedure of the respondents because of the question of the PM76.  The question of investigation has two aspects.

		23		One of them is what actually happened to the mechanical unit in question.  This was covered in the report from Mr Bambra.  However, in addition to this report from Mr Bambra, there is the question of, is there any responsibility in connection with this faulty piece of equipment, and where does the responsibility lie?  In this connection, statements were taken from relevant personnel except for the applicant.  One would have thought he was the first person one would take a statement from."  

That appears to us to be a wholly irrational comment.  To take a statement from the person who is suspected of this conduct or incapability before a proper foundation has been laid for any proceedings or for any investigations, by seeing exactly what the nature of the complaint is, would be positively vexatious.  It would be a fishing expedition by the employers.  If the employee said, as he very justly might, "But who is saying this about me, and what are they saying?"  The employers would have to say, "Well, we don't really know, we haven't taken any statements yet, we want to know what you say about it."  That would be a very unsatisfactory state of affairs, and one would have thought would have founded a serious complaint of unfairness by the employee.  

	They go on to say that he was the most closely connected with the work on the vehicle, particularly at the end.  Statements were not taken from him.  This, in their view, was a serious defect in the procedure.  Then they go in paragraph 25:

		"25.		If a statement had been taken from him, then the whole picture would have been put before the personnel department and then they could decide as appropriate whether to issue a PM76.  They did not have the whole picture before them.  The question of the applicant having a right to attend at a disciplinary hearing is not a substitute for this.  That is at a later stage and, by the time the disciplinary proceedings took place, a decision had been made on insufficient material to sanction the possibility of the disciplinary procedure.

		26.		Furthermore, on the facts as they have come out, the applicant's contention before this Tribunal has been that he was doing what he had been told to do, and accordingly it was not his responsibility what eventually happened to the vehicle.  If this had been set out at an earlier stage, then that contention could have been considered before the disciplinary proceedings were launched.

	What this is saying is that fairness required not that Mr Cornish should be fully and properly heard before he was dismissed, but that he should be fully and properly and fairly heard in the form of a statement before the question of disciplinary proceedings was considered by personnel management.  We asked Miss Cleave whether there was any authority for such a proposition and she said that she was aware of none.  Neither are we.  The whole concept of disciplinary proceedings is that it is the opportunity, with proper fairness, with the employee properly advised what is alleged against him, for him to say what his side of the story is.  His case, as we have been reminded many times, was that he was not the first person to work on this, that it was Mr Jones' duty to diagnose the problem, and that he, Mr Cornish had done what Mr Jones asked him to do and what his employers asked him to do, and he was not in any way to blame for the misfortune, indeed the possible disaster, which occurred when the vehicle went out with the brakes in this unsatisfactory condition. That was his case.

	On the fact of it, the disciplinary enquiry was the proper occasion for him to make that case.  It is of course true that there is nothing to stop an employer, at the enquiry stage, from taking a statement from the employee concerned.  And indeed, one has heard cases in which that has been done.  But one difficulty which immediately occurs is, will the employee say: "Well, this is rather unfair, you are not opening this to me in the way that a disciplinary enquiry would.  I am not entitled to see all the statements, I rather object to making a statement."  He might feel that that was unfair.  It all depends on the circumstances.  But to say that it is a necessary ingredient of fairness that, before the decision is taken to bring disciplinary proceedings, a statement must be taken from the employee, seems to us really a contradiction in terms.  The employer is charged and, indeed, was charged by the very terms of the form, PM76, to conduct a proper enquiry.  If that inquiry has to be pursued and completed before the decision to hold a disciplinary enquiry is actually taken, then what is going to be the point of the disciplinary enquiry?  Presumably, what is being said is that the employers here, having taken a statement from Mr Cornish, were then under a duty to consider it very carefully with all the other matters, and decide whether to proceed with the disciplinary enquiry, thus, in effect anticipating in what appears to be in an unsatisfactory way the actual disciplinary enquiry itself.  

	Now these other statements having been taken, it was of course up to the employers to conduct a disciplinary enquiry carefully.  They were under a duty to make quite sure that Mr Cornish understood what was being said, in the statements against him, and that might well involve giving him more time to consider them, if he said, "Well, I haven't had enough time to think about this, these are new to me."  No allegation of that sort is made and there is no finding of that sort.  Fairness also involved giving Mr Cornish a proper chance to say what he made of these statements, and what his answer to them was.  

	If he were treated unfairly in that respect, not given a proper opportunity, having looked at the statements and considered them properly with the aid of his advisor, to put his side of the case, then that would be another very serious blemish.  There was no averment to that effect before the Industrial Tribunal, and certainly no finding that the disciplinary enquiry was conducted unfairly.

	It might well be that Mr Cornish might have said, "Well, that is the evidence which you have, I have given you my answer, or I am prepared to give you my answer now, but I want to call a witness, or witnesses, or find a document, or documents, and put them in front of you.  And I have not been given a proper chance to do that.  I asked for an adjournment for that purpose."  Again, if that was unreasonably refused, that would be a very serious blemish but no such averment was made, and there is no such finding. 

	The only finding of unfairness in this case, by a Tribunal which considered the entire case, was that a statement should have been taken from Mr Cornish before the matter was submitted to the personnel department, so that they could fairly authorise the taking of disciplinary proceedings, involving, as they said in their own form, a full enquiry, and a full opportunity for the employee to be heard.

	It appears to us, with great respect to Miss Cleave, who said everything that can possibly be said on behalf of Mr Cornish, that it is a complete non sequitur.  This is a decision of the Tribunal which is irrational on its face.  We do not need to talk about perversity; there is a complete and obviously irrationality.  If there is irrationality of that order, and that is the only basis on which the decision rests, it is quite clear to us that the decision cannot stand.  It is based on no authority in law and if you analyse it as a matter of common sense, it does seem, with great respect, to make a nonsense of the accepted ideas of discipline in an industrial or commercial organisation.  There was a half-hearted attempt by Miss Cleave, to raise a fresh averment of unfairness to the effect that Mr Bunkell should not have taken the enquiry because he was the man who had submitted the request for the PM76.  That was not put before the Tribunal.  It was not suggested that Mr Bunkell was disqualified by his position, or by his manner of taking the interview, or by prejudice or anything of that sort.  He was, it appears, the natural and normal and proper person, the responsible officer, to reach the decision whether to dismiss or not.  

	So having considered all those matters as carefully as we can, we turn again to the question, "Can this decision, that the employers behaved unfairly, be supported on any basis?"  There is only one basis on which it is supported and that basis appears to us to be wholly irrational and therefore it cannot stand.  

	There is no other finding of unfairness by this Tribunal and in those circumstances, we feel obliged to substitute a decision that this was a fair dismissal and that the complaint ought to have been dismissed.  The appeal will be allowed.
	
	Leave to Appeal refused.

© Copyright 1994

EAT/971/93/AB

EAT/971/93/AB

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