United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 162_94_2103

Appeal No. EAT/162/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 March 1995

THE HONOURABLE MR JUSTICE HOLLAND

MRS R CHAPMAN

MRS P TURNER OBE

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WEST MIDLANDS TRAVEL LTD          APPELLANTS

MR J HILL          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised

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 ADVANCE \D 170.10 APPEARANCES


 


For the Appellants MR J SWIFT

(of Counsel)

Eversheds

Phillips & Buck

Fitzalan House

Fitzalan Road

Cardiff CF2 1XZ

For the Respondent MR T LINDEN

(of Counsel)

Pattinson & Brewer

30 Great James Street

London WC1N 3HA


 


MR JUSTICE HOLLAND: We have before us an appeal from a decision of an Industrial Tribunal sitting at Birmingham on 3 December 1993. Before that Tribunal was a complaint made by the Respondent, Mr John Hill, of unfair dismissal. In the event, the Tribunal upheld that complaint.

Mr Hill's employers, West Midlands Travel, appeal against that finding, contending that it reflected an error of law.

The following chronology underlies this matter. On 25 June 1979 Mr Hill, then aged 22, took up employment with the Appellants, as a public service vehicle driver. During the subsequent period of employment he gained some commendations for safe driving but that record was off-set by 14 formal disciplinary warnings. The last such warning was recorded on 9 May 1991 and it reflected an allegation that he had left a bus unattended. On 18 January 1992 he was involved in a serious road accident when driving one of the Appellants' buses. At 6.40 am, whilst it was still dark, he was driving an empty bus along the A34 road. He negotiated a left-hand bend at a point at which the road was subject to a 30 mile per hour speed limit. The road at that point was 7.5 metres wide and we infer that his clear half of the road was 3.75 metres wide. His bus was 2.5 metres wide.

In the event, he found himself unable to drive his bus through that available 3.75 metres. It seems that the vehicle veered, first to its near-side and then to its off-side, eventually going quite out of control, notwithstanding fierce braking which left an 88 metres' skid mark. Further and tragically his progress to the off-side of the road involved a collision between his vehicle and an on-coming minibus, so as to kill the driver of that latter vehicle. In the final result, the Respondent's bus finished up broadside across the A34.

Following this accident, investigations were undertaken into its causes, not only by the Police but also by the Appellants and, in the result, on 20 January 1992, the traffic manager, Mr Bateman, completed a report which expressed as its conclusion:

"It is therefore my professional opinion that the accident would not have happened had the driver of the Double Decker been travelling at the recommended legal limit of 30 MPH."

Earlier, in the body of the report, he had done certain analysis based upon skid marks, which led him to suggest that the bus had at the material time been travelling in excess of 50 miles per hour. With respect to his essential conclusion, namely, that it had been travelling at more than the recommended legal limit, there appears to have been no issue because in his own report to his employers, the Respondent put his speed at between 30 to 40 miles per hour.

On 30 January 1992, the Appellants, as employers, held a disciplinary hearing. This was conducted by Mr Arthur, their garage manager. In the result, having had evidence put before him and having had the advantage of representation of Mr Hill by a trade union representative, Mr Arthur concluded that:

"he could see no other cause for the collision other than Driver Hill failing to drive his vehicle in a competent and safe manner. ... there were different measurements quoted in the reports and there had been no intention to hide any of the information. All the reports however indicated that our vehicle was being driven at excess speed."

As was open to him, Mr Hill, the Respondent, appealed against that finding and, in the result, there was an appeal hearing before Mr Jones, the chief general manager. Again, for the purposes of that hearing, Mr Hill had representation by Mr O'Connor. There was, further, present the employment law research officer and the chairman of the traffic central negotiating committee. In the event, Mr Jones found himself driven to uphold the decision already arrived at by Mr Arthur. The matter is put thus:

"Mr Jones said to Mr Hill that he had been dismissed for failing to drive his vehicle in a competent and safe manner and that no further facts had emerged to persuade him to change that decision, thus, the appeal had failed."

By a letter of 24 February, that decision was confirmed in writing.

To complete the chronology, on 26 July 1992, the Respondent was convicted by the magistrates, on his own admission, of driving without due care and attention on the instant occasion. It seems that there had been an apparent intention to prosecute him for causing death by reckless driving but that, in the event, the Crown were content to have the matter dealt with by the magistrates on the basis of his plea.

It is in these circumstances that the matter came before the Industrial Tribunal. It is at this stage that we remind ourselves that the provisions relating to fairness of dismissal are provided by s.57 of the Employment Protection (Consolidation) Act 1978. The relevant terms are these:

"(1) In determining for the purposes of this Part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show -

(a) what was the reason (or, if there was more than one, the principal reason) for the dismissal, and

(b) that it was a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.

(2) In subsection (1)(b) the reference to a reason falling within this subsection is a reference to a reason which -

(a) related to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, or

(b) related to the conduct of the employee,

...

(3) Where the employer has fulfilled the requirements of subsection (1), then ... the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case."

That being the relevant statutory provision, two issues emerged for consideration by the Industrial Tribunal. First, did the employers have a reason for dismissal as defined by s.57(1) and (2)? If so, was dismissal within the range of responses of a reasonable employer having regard to the equity and substantial merits of the case? Unhappily, it is not easy, turning to the full reasons given by the Industrial Tribunal, to identify their approach to those two issues.

Dealing with the first such issue, in paragraphs 7 and 8, there is a passage which does suggest a finding that there was a reason, as so defined. The passage reads:

"However, Mr Arthur concluded that he could see no other cause for the collision than failure by Mr Hill to drive his vehicle in a competent and safe manner, all the reports indicating that it was being driven at an excessive speed, He saw no alternative but to dismiss Mr Hill for this reason.

8. Whether the dismissal was fair or unfair depends on whether Mr Arthur acted reasonably or unreasonably in treating his reason as a sufficient reason for dismissal ..."

At this point, the Tribunal appears to have been regarding the issue before them as one turning on s.57(3), that is, as to whether the reason identified by Mr Arthur (and adequate for s.57(1) and (2)) was a reason which provided for dismissal as being within the range of responses.

In the event, however, turning to the subsequent passages in the reasons, it is as arguable that the Tribunal was concerned as to whether in truth there was a reason for the purposes of s.57(1) and (2). This arises because at this stage, particularly in paragraphs 10 and 11, the Tribunal proceed to analyse with some care, first, Mr Bateman's report and, second, the circumstances to see whether there were any explanations other than speed which might have accounted for the accident. It is difficult to see how those considerations enter into a s.57(3) adjudication and, indeed, it has been suggested that what the Industrial Tribunal were doing, was seeking to decide whether the reported finding of a reason by Mr Arthur was perverse as a basis for dismissal. Thus, this approach emerges from the following two paragraphs:

"10. The doubts about Mr Bateman's conclusions were justified. As explained to us his equation depended on assumptions for driver's reaction time and road surface acceleration rate as well as the distance figure he used. He had used a figure of 1 second for reaction time instead of the .68 used for Highway Code figures and 10 in one place but not another, instead of 6.47 for road surface acceleration rate. It was very questionable how far these applied to a bus or in a case which was not one of a vehicle stopping as quickly as possible in a straight line in good conditions. Mr Bateman's report supported suspicion about Mr Hill's speed but it was not dependable enough to sustain the reasonable belief needed to support the decision to dismiss Mr Hill. His calculation omits the values for reaction time, putting these in it comes to a lower figure than 53 m.p.h, but the assumptions produce such a wide margin of possible error that any result is of little value.

11. It perhaps appeared to Mr Arthur that driver error was probably the cause of the accident as no mechanical fault was found but there were other possibilities. Mr Hill was an experienced driver, with 9 years safe driving awards. His statement was clear and candid, and his account deserved respect. He had no reason to hurry and there was no eye witness evidence that his speed was abnormal as he rounded the bend. The bend, the road, cambers, and possibly surface irregularities could have affected his course and the handling of the bus when he corrected it. Because of the narrowness of the road the deviations from a correct course were not great. Mr Hill himself believes that the brakes were unbalanced; no fault was found with them but the possibility of a mechanical fault could not be excluded purely on the Ministry of Transport examination particularly if there was no expert evaluation of Mr Hill's statement that he had experienced an unexplained air pressure failure, with no instrument indication, when he left the garage."

It seems to this Tribunal that at this point the reasoning of the Industrial Tribunal is open to serious criticism. The criticisms are as follows: first, there is no clear indication as to what issues these particular comments were directed, that is, as to whether they were directed to the existence of a reason for the purposes of s.57(1) and (2) or whether they were directed to evaluating the reason that was found for the purposes of making a s.57(3) assessment. The second criticism is that properly advanced by Mr Swift on behalf of the Appellants based upon the decision of the Court of Appeal in British Gas plc v McCarrick [1991] IRLR 305. Mr Swift draws our attention to the passage at 308 wherein the Court of Appeal makes it quite plain that:

"... it was an error of law for the Industrial Tribunal to seek to reopen the factual issues on the basis of which the domestic tribunal [in this case, the disciplinary bodies] had reached its conclusion."

Essentially, it is an error of law, as the Court of Appeal points out, to engage in seeking to emulate the expertise and experience which is peculiarly the province of the employers, not least when it could hardly be said that the decision of the employers that the vehicle was not being driven in a safe and competent manner, was perverse. We say that because, at this stage, the Industrial Tribunal seem to have lost sight of various matters. First, they seem to have lost sight of the fact that the driver himself admitted that he was driving at a speed that was in excess of the speed limit. The second matter they lost sight of was the fact that if he were not driving at a fast speed, then there was something drastically wrong with his capability as a driver, if he could not manoeuvre his vehicle through that appropriate space at a speed that was less than 30 miles per hour.

The essential conclusion of Mr Bateman's report that the speed was in excess of 30 miles per hour was not in dispute. The only issue that arose on his report was as to precisely how high it was and that issue clearly did not go to the question as to whether there was a reason, for the purpose of s.57(1). Yet, further, when the Industrial Tribunal came to speculate as to the possibility of other explanations for this accident, it did so purely as such, that is, without any basis in terms of evidence before it. Indeed, earlier in its reasons the Industrial Tribunal had cited the available evidence, namely, that there was no mechanical fault found with this vehicle at this time.

It is the view of this Tribunal that had the Industrial Tribunal correctly directed itself, it would have been bound to find that the requirements of s.57(1) and (2) had been satisfied, that is, that these employers did have a reason within subsection (1) and that that reason fell within subsection (2)(b), that is, it related to the conduct of the employee. We so assert because we have regard to the facts of the accident, to the admission made by the Respondent and to the product of the two prolonged hearings conducted on behalf of the employers for disciplinary purposes. Yet further, at this stage, one cannot ignore the subsequent and entirely realistic plea entered in the Magistrates Court to driving without due care and attention. Nobody could say that the finding that there was a reason was perverse. The only matter that remains, therefore, was to make an assessment of that reason, as is required by subsection (3) to decide whether dismissal was within the appropriate range of responses.

Turning to that latter matter, it is again unfortunately not at all clear that the Tribunal ever properly considered the test as set out in subsection (3). There is no finding at all as to whether dismissal was within the range of responses of a reasonable employer having regard to the equity and substantial merits of the case. There has been an issue before us as to whether, at this stage, we should remit this matter to the Industrial Tribunal to make a finding under this subsection. Mr Swift submits that this should not be necessary and that the matter is entirely clear in that, having regard to a reason sufficient for s.57(1) and (2) based on a finding that the vehicle was not being driven in a safe and competent manner, then dismissal must have been within the range of appropriate responses. Mr Linden, on the other than, submits that the matter cannot be dealt with in that fashion and that it must be appropriate to remit the matter to the Industrial Tribunal for further findings to be made.

It is this part of the matter that has caused us to consider very carefully the evidence and the overall position but, at the end of the day, we remind ourselves that these employers run public service vehicles and Mr Hill is a public service vehicle driver.

Turning from that premise to the reason that was found by Mr Arthur and sustained by Mr Jones and sustained yet again by us, then we cannot see how it could be argued that dismissal was not within the range of responses. The range of responses for a public service company, such as the Appellants, in the face of a finding of driving that was neither safe nor competent must, we think, include dismissal.

Thus it is we see no point at all in prolonging the agony in this matter by sending the case back to the Industrial Tribunal for the purpose of further findings. What we propose to do is to allow the appeal and to quash the finding that the dismissal was unfair and to substitute a finding that dismissal was fair, that is, it was a dismissal which satisfied all the requirements of s.57 as already set out in this judgment.