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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> British Telecommunications Plc v Rodrigues [1995] UKEAT 854_92_2002 (20 February 1995)
URL: http://www.bailii.org/uk/cases/UKEAT/1995/854_92_2002.html
Cite as: [1995] UKEAT 854_92_2002
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At the Tribunal
Before
THE HONOURABLE MR JUSTICE MUMMERY (P)
MR K M HACK JP
MR R JACKSON
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants MRS ELIZABETH ANDREW
(Of Counsel)
The Solicitor
B.T.Centre
81 Newgate Street
London
EC1A 7AJ
For the Respondent MR THOMAS KIBLING
(Of Counsel)
Messrs Lawford & Co
102/104 Sheen Road
Richmond
Surrey
TW9 1UF
MR JUSTICE MUMMERY (PRESIDENT): We have reached a unanimous decision on this appeal. We now give the decision and the reasons for it. This is an appeal from the decision of the Industrial Tribunal held at London South over a period of five days in May, June and July 1992. The Tribunal, for reasons notified to the parties on 13 October 1992, unanimously decided that the applicant Mr Rodrigues had been unfairly dismissed by his former employers, British Telecommunications Plc and made an order that British Telecom should re-engage him on specified terms. A remedies hearing was later held to determine the terms, since the Tribunal said at the end of their earlier decision was that it was not possible to ascertain at the hearing precisely what sums should be paid by way of arrears of pay. British Telecom were dissatisfied with the decision on liability and appealed by a Notice of Appeal served on 21 November 1992. On 23 November the British Telecom Legal Services Department wrote to the registrar, making a formal application for an order for production of the Chairman's Notes of Evidence. An order was made for the production of the notes. We have on this file over a hundred pages of notes, transcribed from the Chairman's manuscript notes taken at the hearing. It has not been necessary to refer to the notes for the purposes of deciding this appeal.
In order to decide this appeal it is necessary to look first at the factual background to the dispute, then to consider the findings of fact made by the Tribunal and their conclusions in the light of the legal submissions made on behalf of British Telecom on this appeal. The factual background to the dispute is that Mr Rodrigues was initially employed by British Telecom as a clerical assistant from 2 February 1981 and from May 1983. He became a clerical officer responsible for the functions of a credit control officer. In practical terms that meant that he was responsible for telephone debt recovery, including bankruptcy and liquidation in what was the City of London district.
The origin of this dispute is in investigations which British Telecom's Investigation Department was originally asked to undertake in January 1991, following a report that the User Manager of the Customers Service System database had been unable to log onto her system. It appeared that someone had changed her password by means of an unauthorised access. The enquiries made by the Investigation Department traced the transactions to a specific terminal used by Mr Rodrigues. Transactions on Mr Rodrigues' terminal were monitored by representatives of the Investigation Department. In February 1991 he was observed gaining, or attempting to gain, unauthorised access to the CSS Databases for Northern London and the West End districts. As a consequence he was interviewed. He admitted using other user identities and passwords to gain unauthorised access to databases of other districts. He admitted to altering passwords on a number of user identities.
Mr Rodrigues produced to the investigating department a notebook kept by him, containing ninety user identities and passwords. On 4 February 1991 he was placed on precautionary suspension. The Personnel Manager wrote to him on 20 March advising him there would not be a prosecution, but internal disciplinary proceedings would be initiated. On 17 June a Miss Blackwell, the Senior Debt/Credit Manager for London South, interviewed Mr Rodrigues in the presence of his union representatives. He did not deny the offences of which complaint was made. On 3 July he was informed that he was dismissed summarily. He was entitled to outstanding annual leave. He was advised that the last day of his paid service would be 22 July. Mr Rodrigues appealed the decision. The appeal was heard by Ms McLaughlin. Mr Rodrigues representative admitted that he had committed serious offences, but considered the penalty of dismissal too harsh.
That appeal was dismissed on 19 July. On 9 August, Mr Rodrigues' union representative requested a review of the case. The review was undertaken by a Finance Controller, London, Mr Collins, on 17 October. On 9 December Mr Collins wrote to
Mr Rodrigues saying that he had made further detailed enquiries into Mr Rodrigues case. He informed that the decision to dismiss him was upheld. It was in those circumstances that Mr Rodrigues pursued the claim for unfair dismissal, which he had initiated by an originating application presented on the 25 September 1991. The case was contested by British Telecom. The hearing was one of substantial length. That is the background to the proceedings. In the Full Reasons for the decision the Industrial Tribunal set out the background facts. They gave a description of the CSS Computer System used for the collection of debts for customers and explained how BT employees were allotted a user identity and a password to gain access to the system. The scope of the access depended on the employee's job. Mr Rodrigues did not have access. He had applied in 1990 for direct access by computer to customer accounts and other regions, to speed up the process of debt collection, but that was refused. The Tribunal found that at all times Mr Rodrigues was entitled to obtain information which he requested from Customer Accounts, but he was not entitled to obtain it by computer access. The Tribunal also stated some background facts relevant to the use of the computer. They referred to a "screen warning" which states "unauthorised access to this computer may be an offence, pursuant to the Computer Misuse Act 1990". They also referred to the disciplinary rules from which they quoted. One rule said that BT employees are required to comply with all legislation and common law requirements affecting their work. Employees who commit criminal offences against BT render themselves liable to prosecution as well as disciplinary action including dismissal. It is stated that employees are required to acquaint themselves with, and comply with, Crime Prevention rules relating to their duty and also to report to their supervisor, as soon as possible, all instances of crime and of suspected or proposed crime against BT, of which they learn.
The Tribunal found that the disciplinary rules did not make or specifically draw employees' attention to any rule, that summary dismissal would be automatic for computer misuse. They referred to the Disciplinary Procedures for summary dismissal, which provided that dismissal without contractual notice might result in a number of instances, of which one was:
"3.2 An employee has committed a grave offence amounting to repudiation of contract, particularly in the more serious cases of dishonesty, insubordinate or violent conduct or disregard of security regulations."
The Tribunal noted that the treatment of misconduct ranged in the General Disciplinary Procedure of BT from informal disciplinary action through recorded oral warning to serious offence procedure. It was noted that the tenor of the procedure was for a graduated scale of sanctions, from oral warnings applied as corrective measures, to management options in the case of serious offences. The Tribunal's view was that the procedure was designed to achieve reform before the company decided that the employees behaviour is so bad that the company must dismiss him. Before leaving the question of discipline and the offences which might be the subject of disciplinary procedure, we should mention a document R2 and another document R3 referred to on this appeal. R2 was the CSS Systems document supplied for training purposes by British Telecom, which emphasises the importance of general security in these terms `computer security is important, each user should make themselves familiar with the leaflet. Do you use a VDU or small business computer, a terminal users guide addendum to the computer security manual?' That leaflet is the document R3. That contains a statement to this effect `If you are responsible for the breach of security you could be subject to disciplinary action, including dismissal, without notice or prosecution'.
The Tribunal set out in more detail than our summary the course of the investigations. They accepted Mr Rodrigues evidence that the approach of the investigation officers was such as to make him think that he was liable to prosecution and that they were investigating a criminal offence. He thought they were accusing him of using other peoples user identities to gain some financial benefits for himself. At the interview his object was to disabuse them of the idea that he had been seeking financial gain of any sort. His misunderstanding was the direct result, the Tribunal thought, of the heavy handed quasi criminal investigation approach of the Investigation Department investigators, which, in the Tribunal's view, was inappropriate to the circumstances. The Tribunal commented that it led to replies from Mr Rodrigues which are not to be regarded as indicating guilt of the disciplinary offences with which he was actually charged. They referred to the disciplinary hearing before Miss Blackwell and the charges that were made, first, of unauthorised access to BT Customer Service system, in that he used other BT employees passwords and user identifications in order to gain access to material otherwise unavailable to him; and, secondly, unauthorised modification of user passwords, in that he changed the passwords again in order to gain access to material, otherwise unavailable to him. The Tribunal referred to Miss Blackwell's decision that summary dismissal was appropriate. They then dealt with the appeal heard by Ms McLaughlin and the decision to dismiss that appeal.
The Tribunal, in a comprehensive decision, summarised the arguments presented on each side and referred to the cases cited. The case for Mr Rodrigues was that he conceded that he had committed an act of misconduct. He conceded he had contributed to his dismissal by blameworthy conduct, to the extent of 25%, but not more than 50%. His submission was that dismissal had not been within the bands of reasonable responses for the employer for a first offence by an employee who had been employed for ten years and had an unblemished record. BT had not made it clear to the work force that conduct of the kind under consideration in this case constituted gross misconduct and would lead to dismissal. A further submission was made that he had been authorised to obtain the information, which he had obtained, provided that he had obtained it by telephone and not by a computer. That was the essence of Mr Rodrigues' case.
For British Telecom the case was that the reason for dismissal was gross misconduct. It was accepted that what amounted to gross misconduct was for the Tribunal. British Telecom relied on the various documents referred to paragraph 14 of the Decision. They referred to the "screen warning", which had been flashed up before access to relevant data. That would have informed Mr Rodrigues of the Computer Misuse Act. A proper investigation had been made by British Telecom. Through its managers it had a genuine belief, based on reasonable grounds, that he had misconducted himself. Where an employee admits to his conduct as Mr Rodrigues had during the course of the investigations, investigation was not necessary. There had not been any breach of natural justice in the investigations. Summary dismissal was appropriate because Mr Rodrigues demonstrated that he was not trustworthy. The dismissal had not been unfair. If it had been, he contributed to it between 80%-100%. On the question of remedies, it was not practicable to reinstate or re-engage him.
That summary gives some idea of the detail into which this decision delved in its consideration of the facts, the course of the investigations and the contentions made on each side. The Tribunal directed itself on the law. It is necessary to quote that because it has been submitted on this appeal that, in certain respects, the Tribunal misdirected itself. In particular, it is argued by British Telecom that the Tribunal substituted itself for British Telecom in relation to what was the appropriate way to deal with Mr Rodrigues' misconduct. In paragraph 15 and 16 of the Decision the Tribunal referred to Section 57 and the need for an employer to show the reason for dismissal. They quoted Section 57(3). They referred to the case of Denco Limited v Joinson 1991 [IRLR] 63 at 65 for a passage in the judgment of the Tribunal given by Mr Justice Wood in relation to misconduct in unauthorised use of computers. They quoted the following passage from Mr Justice Wood:
"... in this modern industrial world if an employee deliberately uses an unauthorised password in order to enter or attempt to enter a computer known to contain information to which he is not entitled, that of itself is gross misconduct which prima facie will attract summary dismissal. Although there may be some exceptional circumstances in which such a response might be held unreasonable. Basically, this is a question of `absolutes' and could be compared with dishonesty. However, because of the importance of preserving the integrity of a computer with its information it is important that management should make it abundantly clear to its workforce that interfering with it will carry severe penalties."
The Tribunal made this comment on the passage cited:
"However that does not override or gloss the clear words of Section 57(3). It is not part of the ratio of that case that conduct in relation to a computer is an industrial offence which makes it automatically reasonable for an employer to treat it as a sufficient reason for dismissing a particular employee. The law is well established that a Tribunal must always apply the criteria set out in Section 57(3) of the Act. In our view the passage in Denco does not detract from that position. Furthermore an employer in considering an employees conduct will not act reasonably in treating conduct in relation to a computer as an automatically dismissable offence in the absence of a specific rule to that effect made known to all employees"
We agree with that comment on the passage cited from the judgment in Denco. The Tribunal completed its review of the law by referring to the provisions of Section 68 and 69 of the Employment Protection (Consolidation) Act 1978 in relation to remedies for unfair dismissal and orders for reinstatement or re-engagement.
The main part of the Tribunal's Decision which has come under attack on this appeal is in the conclusions set out in five paragraphs. The first two paragraphs deal with Sections 57(1) and (2). They contain a finding of the Tribunal that the reason for Mr Rodrigues dismissal was that he had gained unauthorised access to the CSS system and that he had used other employees' passwords and user identifications to gain access to material, otherwise unavailable to him by that method, and secondly he had made unauthorised modifications to people's passwords. BTs view was that a penalty less than dismissal was not appropriate, because they thought that he would commit the same offences again. That was correctly categorised by the Tribunal as a reason relating to conduct within Section 57(2).
In paragraphs 21, 22 and 23, the Tribunal dealt with the application of Section 57(3). They stated "we bear in mind all the circumstances of the case". That is a correct direction. They noted that Mr Rodrigues had admitted to the two charges against him at the disciplinary hearing, although maintaining his entitlement to the information he sought. But the Tribunal considered it was not reasonable of British Telecom to infer that he would commit the same acts of misconduct again if awarded a lesser penalty. That is an important finding of fact by the Tribunal. They say "That is so, in view of Mr Rodrigues' ten years unblemished service" and notwithstanding the fact that he previously had made a request for wider access which had been refused. "In view of our findings as to the reason for dismissal, Miss Blackwell's apparent failure to observe the rules of natural justice does not affect the result." That point was not dealt with in any more detail. The Tribunal said this in paragraph 22:
"We consider that the sanction of dismissal was too severe in all the circumstances. We bear in mind in this context Mr Rodrigues's ten years' unblemished service. Secondly, we bear in mind the information which he was trying to obtain was information to which he was entitled if he obtained it by telephone. We also bear in mind that the disciplinary procedure which is part of Mr Rodrigues's contract of employment makes provision for alternative sanctions, some of which are severe, directed to the reform of the employee rather than just getting rid of him. We bear in mind that British Telecom failed to focus its employees sufficiently on the likelihood that they would lose their jobs for unauthorised use of the system of the kind charged in this case. We think this is particularly important in the case of a newly introduced computer system. "
Finally, in relation to Section 57(3) the Tribunal stated that they considered that Mr Rodrigues had contributed to his dismissal by his blameworthy conduct, by doing something which he knew he was not supposed to do, in order to obtain the information which he needed. The Tribunal did not, however, in that paragraph or in the two final paragraphs of the Decision state what they considered to be the extent of his contributory fault in percentage terms.
The Tribunal finally dealt with remedies. It is necessary to refer to those because there has been an appeal against the decision on remedies. They referred to Section 68. They said Mr Rodrigues wished to be reinstated or re-engaged. The Tribunal heard further evidence on practicability of the employer to comply with an order for reinstatement or re-engagement. The Tribunal made an order for re-engagement, having regard to Mr Rodrigues' wishes to the practicability of British Telecom complying with an order for reinstatement or re-engagement and whether, in the light of his blameworthy contribution to his dismissal, it would be just to order reinstatement or re-engagement. He was ordered to be re-engaged on terms which were set out. It was agreed by British Telecom that the Tribunal's order should state that the rate of remuneration was to be the current rate for the grade at the date for compliance of the order, and, as to arrears of pay, that should be expressed as half the average take home pay for the period, from 3 July 1991 to the date of compliance with the order.
To complete the story on remedies, we have been shown, during the course of the hearing, a later decision of the Tribunal, reached after a further two day hearing on 16 December 1993 and 19 January 1994. For full reasons notified to the parties on the 14 February 1994, the Tribunal unanimously ordered that British Telecom pay to Mr Rodrigues a total award of £13,616.28. That hearing arose from the failure of British Telecom to comply with the order to re-engage Mr Rodrigues on or before 31 July 1992. Evidence was heard. The Tribunal summarised the relevant facts and the law relating to practicability of re-engagement. It is unnecessary to look at that decision in detail. It is not under appeal. The relevant purpose for looking at it is to note that, in paragraph 12 of the extended reasons, the Tribunal stated this:
"The Tribunal considers that it would be just to reduce the basic and compensatory awards by 50% to reflect Mr Rodrigues's blameworthy contribution to his dismissal in flouting a legitimate instruction after he had been told that he could not have the access he had asked for."
In support of the appeal Mrs Andrew identified very helpfully at the outset of her argument four areas that were raised by her notice of appeal. They may be summarised as substitution, the appropriate test for misconduct and dismissal, the relevance of warnings and the appropriateness of re-engagement as a remedy. It is unnecessary to conduct a lengthy review of the law on the cases cited. The case does not raise any novel point of law. The only question is whether the Tribunal committed an error of law in the application of well established principles to the facts of the case. In our view, the Tribunal did not commit any error of law in applying the legal principles as stated in the relevant decisions. On the question of substitution we were referred to two cases. Ferodo Ltd v Barnes [1976] ICR 439, in particular passages at 440 and 441 e - f. The important passage at 441 identifies the correct question for the Tribunal. Mr Justice Kilner Brown, giving the decision of the Tribunal, said:
"It seems to this appeal tribunal, therefore, that the law is quite plain and that what the industrial tribunal ought to do is, not to ask itself the question which this tribunal did - "Are we satisfied that the offence was committed?" - but to ask itself the question, "Are we satisfied that the employers had, at the time of the dismissal, reasonable grounds for believing that the offence put against the employee was in fact committed?"
and then he added, which is also relevant to this case:
"It is however only one factor when considering the issue of unfair dismissal."
The other case to which we referred is British Leyland and UK Ltd v Swift [1981] IRLR 91 where on page 93 paragraph 11 Lord Denning MR said:
"The first question that arises is whether the Industrial Tribunal applied the wrong test. We have had considerable argument about it. They said: `... a reasonable employer would, in our opinion, have considered that a lesser penalty was appropriate'. I do not think that that is the right test. The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him."
It was stated by Lord Denning that the Tribunal must take into account all the relevant considerations in deciding the question of fairness and reasonableness.
On this aspect of the case Mrs Andrews submitted that the Tribunal had substituted their own view of what was the appropriate method of dealing with Mr Rodrigues' misconduct, instead of applying the test of what was the reasonable response of a reasonable employer. Mrs Andrews emphasised Lord Denning's approach that, in order to find the dismissal was unfair, it was necessary to come to a view that no reasonable employer would have dismissed him. We were referred, in particular, to the conclusions of the Tribunal in paragraphs 19-22. There are sentences in those paragraphs, as there will be sentences in any decision of any Tribunal, which, taken on their own, might indicate that the Tribunal had failed to apply the correct test. The most striking sentence taken in isolation which would support the view of substitution is the first sentence of paragraph 22, which says "we consider that the sanction of dismissal was too severe in all the circumstances". On its own that sentence might support a view that the Tribunal had wrongly put itself into the position of an employer and then decided what it would have done. We are satisfied however beyond doubt that there was no substitution in this case.
The decision of the Tribunal must be read as whole. It is a careful and comprehensive decision running to a dozen pages. The law, which the Tribunal summarised in paragraphs 15 and 16 in particular, is without flaw. The Tribunal clearly know that the relevant provisions of Section 57(3) required them to look at all the circumstances of the case from the point of view of the reasonable employer. In our view, no error has been made out on the grounds of substitution. We are satisfied that the Tribunal applied the correct law. The second point as to the test for dismissal for misconduct can be dealt with relatively briefly. It involves the well-known decision of British Home Stores v Burchell [1980] ICR 303 which sets out guidelines to be applied in dealing with cases of dismissal for misconduct. At page 304 the Tribunal, in the decision given by Mr Justice Arnold, summarised the position that the employer must establish that he believes in the guilt of the employee of the misconduct at the time of dismissal, that he has in his mind reasonable grounds on which to sustain that belief and that at the stage when he formed that belief on those grounds, at any rate at the final stage on which he formed that belief on those grounds, he carried out as much investigation into the matter as was reasonable in all the circumstances of the case. Mr Kibling who appeared for Mr Rodrigues does not in any way dispute that proposition. He points out that it is important to bear in mind the comments made in the Royal Society for the Protection of Birds v Croucher [1984] ICR 604 and 611(D) that British Home Stores v Burchell does only lay down guidelines in dealing with dismissal for misconduct. As was said in the decision in that case, the test in Burchell is not one which applies automatically whenever reasonableness is an issue in the cases of dishonesty for the purposes of assessing whether a dismissal has been fair under Section 57(3). Mr Justice Wood commented "The Burchell case, it will be remembered, was a case which concerned instances in which there has been a suspicion or belief of the employees misconduct entertained by the employers. Here there was no question of suspicion or of questioned belief; there the dishonest conduct was admitted. There was very little scope therefore for the kind of investigation to which this appeal Tribunal was referring in Burchell's case; investigation, that is to say, designed to confirm suspicion or clear up doubt as to whether or not a particular act of misconduct has occurred. So we think that this may perhaps be another case where an Industrial Tribunal has fallen into error by misplaced and artificial emphasis upon the guidelines in the Burchell case, something to which this appeal Tribunal has had recent occasion to refer and he refers to the case of Lintafoam Manchester Ltd v Fletcher. We repeat what we said then the Burchell case remains, in circumstances akin to those that were there under consideration, a most useful and helpful guideline; but it can never replace the soundness of an appraisal of all the circumstances of each particular case, viewed in the round in the way that Section 57(3) requires them to be viewed." In other words, the Burchell test is not an exhaustive statement of all the considerations relevant to the determination of the fairness or unfairness of the dismissal under Section 57(3). It is necessary, as is said in so many cases, to look at all the circumstances.
Mrs Andrews submission was that, on this part of the case, the decision of the Tribunal was perverse. On that ground she relied on the more recent case of East Berkshire Health Authority v Matadeen [1992] ICR 723. Her argument was that in this case British Telecom had established a belief of misconduct on the part of Mr Rodrigues. They had reasonable grounds for that belief. He accepted the charges against him. He made admissions. There was no dispute about the facts on which the charges were based. He signed the pages of the interview notes. The investigations carried out by British Telecom were very full. In those circumstances how could the Tribunal arrive at a decision, on the application of Burchell, that this was an unfair dismissal? The answer, we believe, is in the warning words of Mr Justice Wood in the case of PSB v Croucher: the guidelines only take you so far in Section 57(3). They do not contain a statement of all the considerations which are relevant. The Tribunal took into account a number of matters that were clearly relevant, though they are not part of the guidelines in Burchell. Mr Rodrigues' ten years unblemished service, and the fact that the information he was trying to obtain was information which he was entitled to obtain by other means; the fact that the contract of employment made provision for alternative sanctions and the fact that the disciplinary code and other documents did not focus, in the view of the Tribunal, sufficiently on the likelihood that employees would lose their jobs if they made unauthorised use of the system, the kind charged in Mr Rodrigues' case. Those are all legitimate considerations to take into account in deciding the fairness or unfairness of the dismissal, even though they are not mentioned in Burchell. That covers the third point which was raised, that is as to the relevance of warnings. In our view, there is nothing in the authorities to which we were referred Castleton Crafts [1979] ICR 218 or Denco Ltd v Joinson [1991] ICR 172 which in any way shows that the Industrial Tribunal misdirected itself in law, in the way in which it dealt with the question of warnings.
Those were the arguments on liability. We accept the submissions of Mr Kibling, on behalf of Mr Rodrigues, that British Telecom have failed to show that there was any error of law in the conclusion of the Tribunal that this dismissal was unfair. We dismiss the appeal on the question of liability. There is remaining the question of remedy. British Telecom appealed against the decision to order re-engagement. We have heard the submissions relevant to that order. There is one particular submission on which we would briefly comment. That is that there was a misdirection by the Tribunal in ordering re- engagement and that misdirection was in relation to Section 69(6) of the 1978 Act. That provides that if the Tribunal decides not to make an order for reinstatement, as was the case here, it shall then consider whether to make an order for re-engagement and if so, on what terms and in so doing the Tribunal shall take into account the following considerations, that is to say:
(a) any wish expressed by the complainant as to the nature of the order to be made
(b) whether it is practicable for the employer, or as the case may be a successor or associated employer to comply with an order for re-engagement.
(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and, if so, on what terms and except in a case where the Tribunal takes into account contributory fault under paragraph (c) it shall if it orders re-engagement do so on terms which are as far as it is reasonably practicable or as favourable as an order for reinstatement.
As already pointed out in the summary of the Tribunal's reasons, they did not assess, at the stage when they decided to order re-engagement, the extent of the contributory fault of
Mr Rodrigues. So there might be a ground for remitting the matter for further consideration. Our comment is that in general, it would be unusual to order re-engagement in a case where a Tribunal had found contributory fault without making it clear to what extent they had found contributory fault. In this case Mr Rodrigues volunteered contributory fault of a minimum of 25% and the maximum of 50%. British Telecom submitted contributory fault to a minimum of 80% up to a maximum of 100%. At the stage when the Tribunal applied Section 69(6) and concluded that it was a case for re-engagement, they did not in express terms state the extent of contributory fault, though their view that it was 50% might be implied from the concluding paragraph 25 of the Decision, which referred to an award of half the average take home pay by way of arrears for the period 3 July 1991 to the date of compliance with the order.
In future it would be advisable for Industrial Tribunals to spell out the extent to which they find contributory fault when considering orders for re-engagement. In the present case it is not necessary to remit the case to the Industrial Tribunal to reconsider the question of the order for re-engagement. Events have already overtaken the case, as appears from the summary of the course of the proceedings. Following the order for re-engagement British Telecom did not comply with it. That resulted in a further hearing and an award of compensation to Mr Rodrigues, which was reduced by 50% on an express finding as to contributory fault. In those circumstances it is unnecessary for the matter to be pursued. We find the Tribunal was right in deciding unfair dismissal. In view of the non-compliance of the order for re-engagement, he now has compensation ordered in his favour, reduced as a result of a clear finding as to the extent of his contributory fault. There would be no purpose served in pursuing the point on remedy.
In brief, for those reasons which I have summarised, we come to the conclusion that this appeal should be dismissed. The Tribunal applied the proper test in relation to dismissal for misconduct. They applied the proper test in Section 57(3) for determining the fairness or unfairness of the dismissal. They did not substitute their decision for that of the reasonable employer. Nor by no stretch of the imagination, can their decision be called perverse. It was a permissible option for the Tribunal to conclude that dismissal was not the reasonable response of a reasonable employer to the misconduct of Mr Rodrigues. We have already explained how the question of remedies has in fact resolved itself.
The final matter on which we would express a view is this. The case has been well argued by each side. Excellent skeleton arguments have crystallized the issues. It is, however, a matter for regret that British Telecom ever thought that it was necessary, for the purposes of this appeal, to request the notes of the Chairman. The request was made. It was acceded to by the Tribunal but an attempt was made by the Tribunal to limit the Notes of Evidence by seeking identification of the issues from British Telecom as to which matters the notes would be relevant. The result of the request, acceded to by the Tribunal, has been over a hundred pages of Chairman's notes which have taken many days for the Chairman and secretarial assistance to produce. I repeat we have not been referred in any significant way to these notes. Notes of Evidence should only be sought where they are necessary for the purpose of deciding the appeal. They should not be requested simply because it is thought necessary to carry out a double-check of the findings of the Tribunal against the notes made by the Chairman. Notes of Evidence are to be ordered only in cases where it is necessary for the decision of the appeal. As both Counsel have demonstrated in this case, it is perfectly possible to argue the points with some elaboration, without any need to refer to notes. For all those reasons the appeal is dismissed.
Costs
On behalf of Mr Rodrigues that the costs or part of the costs of the appeal should be paid by British Telecom under Rule 34 of EAT Rules on the basis that it was unreasonable conduct of the appeal in requesting particular Chairman's notes which were not necessary for the decision of the appeal and were sought in respect of numerous detailed grounds of appeal which were ultimately not pursued. We have given serious consideration to this application which is opposed by British Telecom, we have decided with some reluctance not to order costs, we have reached the conclusion that the costs of the hearing today have not been added to by the notes, because we have not been referred to them, so none of the time has been taken up today. We understand that the Respondents were notified at the end of last week that various points in the Notice of Appeal were not being pursued. We therefore find it difficult to order cost on the basis that the production of the Chairman's notes added to the costs for the preparation of the appeal by the Respondents.
The costs that have really been suffered by the inappropriate request for notes is the public purse, in the time which has been spent by the Chairman and secretarial staff in having them unnecessarily transcribed but we have no power under Rule 34 to order costs to be paid by a party who unnecessarily seeks and obtains Chairman's notes against that party in favour of the Tribunal. In those circumstances we have no power to order costs in favour of those who have actually incurred the most cost. No orders for costs.