United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 875_93_2009

Appeal No. EAT/875/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20 September 1995

Before

HIS HONOUR JUDGE HICKS QC

MR J A SCOULLER

MR J D DALY

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MR J D WILSON          APPELLANT

CITY PLUMBING SUPPLIES LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR A FARRELL

Welfare Adviser

Southampton Unemployed Centre

11 Porchester Road

Woolston

Southampton

SO19 2JB

For the Respondents MR J HOSKIN

(Of Counsel)

Messrs Bevan Ashford

35 Colston Avenue

Bristol

BS1 4TT


 


JUDGE HICKS QC: As the Industrial Tribunal stated at the outset of their reasons this was a curious and unusual case and, we would add, an anxious one. The indisputable fact by the time this application was heard by the Industrial Tribunal, and indeed from a comparatively short time after the dismissal of the Appellant, Mr Wilson, was that he was wholly innocent of the supposed misconduct for which he had been dismissed by his employer the Respondent, City Plumbing Supplies Ltd. Nevertheless the Industrial Tribunal, entirely correctly, appreciated that the question before them was not whether by hindsight he should have been dismissed, but whether the employers in the terms of Section 57(3) of the Employment Protection (Consolidation) Act 1978 acted reasonably or unreasonably in treating the misconduct which they believed to have occurred, and which was their reason for dismissal, as a sufficient reason for dismissing the employee, that question being determinable in accordance with equity and the substantial merits of the case. The Industrial Tribunal held that the employer acted reasonably. Equally we accept that the question before us is whether the Industrial Tribunal erred in law in reaching that decision.

The relevant facts are found by the Industrial Tribunal as follows:-

"5 The applicant commenced employment with the respondents on 3 July 1990. He was involved in accidents on 29 May 1991, 5 September 1991 and 10 August 1992. On the latter occasion, he had collided with a lamp post. The respondents were, understandably, displeased and in November 1992 Mr Douglas gave him a verbal warning as a result of this accident. (Mr Douglas was the Respondents' Southampton branch manager.) The company were anticipating that they would be called upon to bear some expense as a result of the accident although, at that stage, the amount was not known. On 18 February 1993, they wrote to the respondent (respondents document 1(i)) advising him that the total cost to the company of his accident was just over £2,000. The letter stated that they regarded his record as a poor one and further incidents would be treated seriously. Full disciplinary action would be taken in future which would involve the recovery of their insurance excess and would lead to the suitability of his being a driver with the company being reviewed. Although that letter was properly addressed, the applicant denied receiving it although he admitted in evidence that he had been given a verbal warning. (We think it plain that the Industrial Tribunal found as a fact the letter had been sent, but clearly they reached no finding one way or the other on whether they accepted the Applicant's evidence that he had not received it.)

6. On or about 5 May 1993, the respondents received a letter from Lowndes Lambert (UK) Limited, a firm of Insurance Brokers. They claimed that the respondent's lorry registered number F768 JMR had been involved in an accident on 22 February 1993. This was 4 days after the warning letter had been sent to the applicant. The communication from the Brokers quoted the drivers name as "R Hunt" but gave no further detail as to the nature or the place of the accident. (Mr Robert Hunt was the only other driver employed by the Respondents at the Southampton depot.) Both Mr Benjamin, the Managing Director, and Mr Douglas, the Southampton Manager were away at a conference until 17 May so that no action was taken immediately. On 18 May, Mr Hunt was interviewed about the matter in the presence of Mr Douglas and Mr James, the Assistant Manager. The respondent's document R3 is a note of that interview. The complaint was put to Mr Hunt and he vehemently denied being involved in any accident. As a result, the respondents queried the date of the accident with the Insurance Brokers. The Brokers sent them a fax, document R2(ii)) confirming a telephone conversation when they advised that the accident had apparently occurred at about 2 pm on 22 February 1993 at a junction on the A287 near Church Crookham, Hampshire. Mr Douglas contacted the respondents Head Office in Salisbury to obtain the tachograph recording relating to the vehicle for that date together with the drivers route sheet. The route sheet would be completed by the driver who loaded the vehicle the night before. The same driver would normally drive the vehicle although, on some occasions, this might not necessarily be so. The tachograph recording would, however, have been signed by the driver who actually drove the vehicle. These documents were obtained. They are documents R4 (i) and 4 (ii). Both are signed by the applicant.

7. The Applicant was summoned to a meeting in the Manager's office when he returned from his deliveries on Friday, 21 May. This was in the late afternoon. He was interviewed by Mr Douglas in the presence of Mr James, the Assistant Manager. A note of the proceedings in that meeting appears as document R5. The applicant was asked if he had been involved in an accident on 22 February 1993. He calmly replied that he had not. He was then shown the route sheet and the tachograph recording for that date, both of which he had signed. He was shown the Insurance Company's letter which quoted the date of the accident as "22 February". There is some dispute as to the applicant's exact response. The respondent's evidence was that he replied, perfectly calmly, words to the effect: `If you say I was in an accident then I was'.

8. The applicant when he gave his evidence, stated that he did not remember saying those words but said something to the effect that he had been "stitched-up." Mr Douglas recalled a remark to this effect but was adamant that the applicant was perfectly calm throughout the interview. He did make the remark attributed to him to the effect that if they said he had been in an accident then he must have been and at no stage did he ever deny that he had been involved in an accident on that date. (That sentence is plainly a recital by the Tribunal of Mr Douglas's evidence and not their own findings, which come in the next sentence.) We accept the respondents version of the conversation and are satisfied that the applicant made the remark attributed to him by Mr Douglas. (They do not of course accept Mr Douglas's evidence that Mr Wilson had never denied being involved in an accident on that date, because it is quite apparent that at the outset of the interview he did.) Mr Douglas then indicated that he regarded the matter as a serious one of not reporting an accident. It was a breach of the company's rule. In view of this and the applicant's previous record, he dismissed him summarily. The applicant still made no protest but calmly left the building."...

In the remainder of paragraph 8 and in the next paragraph the Tribunal deal with matters which occurred after that interview. We do not go into the question of whether those matters - which might have supported in the view of the Tribunal the employer's reasonableness were in fact taken into account by the Tribunal for that purpose, or whether that would have been an error of law, because we find ourselves able to decide this appeal on other grounds.

What subsequently emerged, and is not as we understand it now in dispute, although the Respondent's acceptance of it at the Industrial Tribunal was somewhat grudging and partial, was that no accident happened on 22 February 1993 when Mr Wilson was driving. The accident complained of by the third party's brokers occurred, if at all, which the Respondent was at the Industrial Tribunal for some reason reluctant to admit, on 23 February 1993 when Mr Hunt was the driver.

In paragraph 13 of their reasons the Industrial Tribunal refer to the guidance as to the application of Section 57(3) given in the case of British Home Stores v Burchell and identify the three elements involved of which the third, they say, concerns whether the Respondents had made as much enquiry into the circumstances as was reasonable, and we are content to take that as a sufficient summary for present purposes of the third limb of Burchell.

The Notice of Appeal raises a number of grounds, of which one is expressed as mis- application of that requirement. We address that issue first. The Industrial Tribunal dealt with it in paragraphs 14 and 15 of their reasons as follows:-

"14. The position that confronted the respondents on 21 May was this. They had a complaint that their vehicle had been involved in an accident on 22 May. There were only 2 drivers, Rob Hunt and the applicant. Rob Hunt was named as the driver. Mr Hunt denied being involved in an accident. The respondents queried the date with the Insurance Brokers and it was confirmed that it was 22 February. They looked at the route sheet and the tachograph for that date and found that both had been signed by the applicant. They interviewed the applicant and put the allegation to him. He made a reply which was capable of being construed as an admission and we are satisfied that they did so construe it. Mr Douglas told us that he formed the view, at that stage, that the applicant had been involved in an accident and that he had failed to report it and that he had given the third party Mr Hunt's name. Applying the Burchell tests, we are satisfied, and find, that the respondents satisfied the first two. We find that Mr Douglas had a genuine belief on 21 May that the applicant had been guilty of gross misconduct and that this was the reason for the dismissal. We find that he had sufficient evidence before him to justify that belief.

15. We have to consider the third Burchell test, namely, whether the respondents had conducted a sufficient enquiry in all the circumstances, and, in particular, whether they should have undertaken an analysis of the tachograph recording in the way that the applicant had suggested. It is, furthermore, clear from the documents that they did not obtain a copy of the accident report form from the Insurance Brokers until 26 May 1993 and until that date, had no clear idea of the exact way in which the accident was alleged to have occurred. The allegation is that a length of piping had not been secured on the lorry and, when the vehicle braked, it shot forward and struck the vehicle in front. In considering the third Burchell test, we must deny ourselves the benefit of such hindsight as is afforded by the knowledge that the date of the accident was wrongly quoted. In our judgment, the respondents had made such enquiry, at that stage, as was reasonable. It might have been a sensible precaution to have asked for some detail as to the way in which the accident occurred but we doubt that this information would have affected the issue in any way. We take the view that to have undertaken a lengthy analysis of the tachograph recording as the applicant suggested, would have placed too high a burden on the respondents in the particular circumstances of this case and we find that the respondents had made as much enquiry into the allegation as was reasonable. We are satisfied that the penalty of dismissal is one which might have been imposed by a reasonable employer and, accordingly, we find that the dismissal was fair on the basis of the information available to the respondents as of 21 May 1993."

There were before the employers on 21 May 1993 and before the Industrial Tribunal a facsimile from the Insurance Brokers of 20 May 1995 alleging, as indeed is recorded in the Industrial Tribunal's reasons, that the accident occurred at 2 p.m. at the junction from Church Crookham, Hampshire, to the A287, and secondly the employers and the Industrial Tribunal had the tachograph. A sophisticated analysis of the tachograph to estimate the exact history of the lorry's journey would, no doubt, have required an analysis of some complication and knowledge of the precise route followed. However, what leaps to the eye even of a lay-person, and should have been even more apparent to a transport manager such as Mr Douglas, who had examined it before the interview as he told the Tribunal, is that the lorry completed its day's journey at 2.30 p.m. and that between 2.00 p.m. and 2.30 p.m., and indeed for the preceding hour or so, it rarely exceeded a speed of 60 km. per hour, 37.1/2 miles per hour, and never that of 80 km. per hour, 50 miles per hour. Church Crookham is, we understand, (and this a matter of simple geographical fact) some 35 miles or more by road from the Respondents' depot. That also must have been known to or readily ascertainable by Mr Douglas; indeed he seems to have commented upon the possibility of Church Crookham having been on the Appellant's route.

References in the Industrial Tribunal's reasons to this point are as follows:-

"11 Mr Douglas when cross examined, said that he was unaware whether any detailed analysis had been undertaken of the tachograph recordings.... He confirmed that on 22 February, the applicant had had to deliver to a firm called "Buildability Limited" in Basingstoke and although he had not investigated the exact time of the applicant's movements, he would have been in the vicinity of Church Crookham during that day."

The Appellant had given evidence to the Industrial Tribunal, recorded in the Chairman's Notes as follows:-

"... Nearest location I was to accident was about 10/11 (which we take to be 10 or 11 a.m.) on 22 Feb. 3 hours later. (The 3 hours "later" must in the context obviously mean that the alleged time of the accident was that amount later than when he would have been in the vicinity, rather than vice-versa.) Could have worked that out from the tachograph."

That is quite a brief reference in the note. What the Industrial Tribunal said about that in paragraph 12 of their reasons is:

"12. ... He (the appellant) said that such analysis (he had been referring to that possibility) of the times and sequence of his various deliveries, the distances involved, together with a calculation of the speeds and periods of time for which the vehicle had been driven would have shown that it was highly unlikely that he would have been in the Church Crookham area at about 2 pm on 22 February. He said that he had not been given an adequate opportunity to defend himself..."

It then goes on to other matters but it comes back to the point:

"... criticised the respondents for failing to undertake an analysis of the tachograph in the way he had indicated as he felt they should have done."...

That is clearly a much fuller account than the note of the evidence and it may be that that was the way the Appellant, who had conducted his own case, put it in argument as it were in supplement of the short evidence which is recorded.

At paragraph 15 the Industrial Tribunal expressed the conclusion which I have already read but it is important to see exactly how they put it:

"15. ... We take the view that to have undertaken a lengthy analysis of the tachograph recording as the applicant suggested, would have placed too high a burden on the respondents in the particular circumstances of this case and we find that the respondents had made as much enquiry into the allegation as was reasonable."

In our view it was a mis-direction to put the question themselves in terms of whether the respondent should have undertaken a "lengthy" analysis of the tachograph. Had the Industrial Tribunal asked themselves, simply and properly, whether the Respondent had paid any regard at all to the contents of the tachograph, as distinct from using it simply to establish that the Appellant was the driver on 22 February 1993, the answer must have been in the negative. Equally, the answer to the question whether, relying as they did on the tachograph as against Mr Wilson for the question of date, they should have paid some attention to its record of the journey as well as to the name, must have been in the affirmative.

A second point which concerns us arises out of the implications for Mr Wilson's honesty of the view which the employer took, that he had been involved in an accident on 22 February 1993. While a failure to report, if that were the case, was clearly a serious breach of his obligations and one with which the Respondent was naturally concerned, what was plainly much more serious in terms of his character and integrity was the implication that he had deliberately given the third party a false name, and not any false name but the false name of his colleague Mr Hunt, who would thereby be implicated.

At the time of the interview the Respondents had had three days at least in which to reflect upon the implications of Mr Hunt's denial and this point was clearly in their mind. Mr Douglas, as recorded in paragraph 14 of the reasons already quoted, gave evidence that he formed the view during the disciplinary interview but it seems to us obvious that it must have been in his mind already that Mr Douglas had given the third party Mr Hunt's name. Moreover that was one of the two reasons given in the letter of dismissal of 24 May 1993. After the first paragraph, in which the reasons are simply described generally as gross misconduct, the Respondents go on:

"You failed to notify the Company of the accident. (That is one reason.) You gave the name of another employee to the other party involved.".... (That is the second reason.)

They go on to say that that was in breach of specific rules of the staff handbook.

It does not appear that it was ever put to the Appellant at the disciplinary interview that that was a material allegation against him. There was no evidence that it was. It does not appear in the notes of that meeting. The Industrial Tribunal found as a fact that, after Mr Wilson's initial denial, the Respondent reasonably took his words when shown the documents as amounting to an admission, even against Mr Douglas's admission that at the same time he referred to being "stitched up". Mr Farrell rightly accepts that he cannot go behind that finding of fact by the Tribunal but it seems to us inconceivable that an innocent man, as it is now clear he was, would not have denied the accusation of falsely giving Mr Hunt's name had that been plainly put to him. Mr Hoskin for the Respondent submits that that allegation was implicit in the letter from the insurance brokers giving Mr Hunt's name, but whereas the Respondent had had plenty of time to consider that implication this all came as a complete surprise to Mr Wilson and the interview apparently lasted only some 10 or 15 minutes.

In our view the Industrial Tribunal's failure to address this point shows that it mis- directed itself in considering the Respondent's duty of reasonable investigation as if this were a straightforward case of a single suspect with documentary evidence against him of simple failure to report an accident and an apparent admission of that, instead of one where there was a plain conflict between the implications of the date on the one hand and the name of Mr Hunt in the documents on the other, and where the accusation against the Appellant, as the Respondents knew at the time of the interview and as they relied upon as one of their reasons for dismissal, involved the implication of dishonestly giving his colleague's name.

We therefore conclude that the Industrial Tribunal mis-directed itself in these two material ways and that its decision cannot stand. In the circumstances it is not necessary to consider the other matters advanced by Mr Farrell in particular, and in addition to the matter we have already mentioned, the failure to accord Mr Wilson any right of appeal, investigation of which by us would entail difficult questions both of law and of uncertainty of facts against the background of the omission of the Appellant to raise the point before the Industrial Tribunal.

We have considered whether we should remit the liability point for a fresh hearing. We were not referred to the primary authorities on the point, but they are familiar to us and are in our understanding accurately summarised in Harvey on Industrial Relations Vol.4 Section T paragraph 1713. We consider that this is a case within the last sentence of that paragraph, which reads:

"But where the decision is, as a result of the misdirection, `plainly and unarguably wrong' on the facts found by the tribunal, and those facts do not require amplification or re-investigation, then, remission to the tribunal is inappropriate and the EAT is `entitled and bound' to substitute its own conclusion based on a correct application of the law to the facts."

It is apparent from the admitted fact of the Appellant's innocence, and from the fact that as soon as adequate enquiries were made, that was quite quickly established, that any reasonable investigation within the range of conduct open to a reasonable employer would have resulted in the Appellant's not being dismissed, because this went not at all to the seriousness of his conduct but whether he had been involved in any conduct whatsoever of a kind which could be criticised. We therefore allow the appeal and substitute a decision that the Appellant was unfairly dismissed.

The application will have to be remitted for a remedies hearing and subject to any submissions on behalf of the parties as to the Tribunal to which that should go we are provisionally minded to say that it should be the same Tribunal if that can conveniently be reassembled, but otherwise a new one.

[Neither party made any submission to the contrary.] That, then, will be our order.