United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 819_95_0406

Appeal No. EAT/819/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4th June 1996

Before

HIS HONOUR JUDGE J HULL Q.C.

MR R SANDERSON OBE

MR A D SCOTT

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MR J BARRETT          APPELLANT

THE POST OFFICE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR P HESTER

(of Counsel)

Messrs Gales

Solicitors

188-192 Alma Road

Bournemouth

Dorset

BH9 1AH

For the Respondents MS K ANDREWS

(Solicitor)

The Solicitor

The Post Office

Impact House

2 Edridge Road

Croydon

Surrey

CR9 1PJ


 


JUDGE HULL Q.C.: This is an appeal to us by Mr John William Barrett who has was employed by the Post Office from 1962 onwards in the rank of Postman. His employment continued until he was dismissed on 17th May 1994. During that time it appears that his conduct was not the subject of any criticism until the matters with which we are concerned arose. He had apparently given faithful and proper service to the Post Office. What happened is set out with great care and in great detail in the decision of the Industrial Tribunal. He was employed at the main sorting office in Bournemouth, and some time apparently in the early part of 1994 became infatuated with a young woman, not an employee of the Post Office, but who worked not far away from the main sorting office. He saw her when she passed the main sorting office and it appears that he began to watch her regularly, indeed leaving his actual place of work which was in addressograph department of the main sorting office, he apparently used to wait in the car park or in places like that where he could see this young woman going past. As I said, the actual facts are set out with great care by the Industrial Tribunal in their decision.

On 14th February 1994, of course St Valentine's Day, he emerged from behind a hedge and confronted Miss X, as she was referred to, as she walked along the road on her way to work and he handed her a package and a card. It is pointed out to us, as was pointed out to the tribunal that this was not an offensive message or an offensive thing to do, it was perhaps a rather ridiculous thing to do on the part of a man of 48. There was a box of chocolates in the package with some verses of admiration for the young woman.

After this apparently, Miss X noted him staring at her from the car parking area of the Post Office, and then there was an incident on Maundy Thursday, 31st March 1994, he was on leave at the time, but he went to Wellington Road where the main sorting office was, and he laid in wait for Miss X. Suddenly he appeared in front of her and presented her with another parcel. He implied, as he had on the previous occasion, that this was on behalf of a friend who worked in the sorting office, and she told the appellant to tell his friend not to do this. At this point he disclosed that he was the donor of the gifts. She said she had a boyfriend, she was not interested in this, but he handed her the package and she found later that it contained an Easter egg and a card with four verses of a poem.

That evening she travelled back home, it is apparently a long journey by bus, about 45 minutes for 10 miles, and in fact the appellant had been lying in wait and followed the bus, and when she got out of the bus he followed her to her home. This was a more serious and objectionable type of behaviour on any view.

She in fact lived with her parents. He followed her to her home and parked the car and waited for a considerable time, indeed such was his behaviour that a neighbour became suspicious of him and called the police who questioned the appellant. That resulted, after he had told his story about his infatuation with Miss X, in a confrontation which was perfectly orderly, which, indeed, the police were largely responsible for. Miss X told the appellant that his behaviour was unacceptable, his attention was unwanted, she gave him back the Easter egg and cards, she rebuked him angrily for following her home and told him not to speak to her again and he said "fair enough". Then Miss X told him to throw the present away and the appellant could see that she was upset.

He was not arrested, fortunately, or charged with any offence, and the police no doubt in the circumstances felt that having been rebuked like this and left in no doubt about Miss X's true views about him, the matter would not recur. Indeed that view was reinforced by what happened the next day, because Miss X's father, who had attended at the scene and had also been upset, received a letter of apology. The appellant wrote in what were apparently quite candid and unreserved terms:

"The blame for the whole shabby incident lays entirely with me. I give you my honest assurance that no offence was intended and apologise without any reservation for my actions to you and your family. Yours faithfully, John Barrett."

That was, any sensible person would hope, be the end of the incident. It is pointed out to us that until he followed her home at any rate, the appellant's behaviour was reminiscent of an old-fashioned classic love affair in which he gives presents to the lady of his heart, and at first goes through the almost Shakespearean affectation of pretending they are from somebody else, and then finally makes matters plain. But it had been pointed out to him that it was quite unwelcome and so he wrote this letter. It would be hoped that this would be end of it. But it was not.

There was an incident on 20th April 1994, when Miss X walking to work saw him staring at her, and she noticed that the Easter egg which she had handed back was still in the back window of his car.

Then on 25th April 1994, she found that he had followed her to her place of work further down the road, and there he was just watching her. She became very distressed, she spoke to her own employer, Mr Wilding the manager. Mr Wilding was satisfied that she was seriously upset, and he made a complaint to the Post Office.

There is no criticism before us of the way in which the Post Office conducted their subsequent enquiry into the way in which the appellant had behaved or the appeal which was conducted by the Post Office. It appears to us to have been a thorough and fair minded investigation of what had happened.

The Post Office manager, Mr Taylor, was absent on this occasion, but Mrs Bardens, the personnel manager took the matter up. She saw Miss X. Then on the same day, 25th April 1994, Mr Avery, the Acting Late Shift Manager, interviewed the appellant and told him about the matter. He said that he would require an explanation. The appellant said he would give an explanation the next day.

The next day Miss X saw the appellant staring at her and again complained, and she decided to report the matter to the police. Mr Avery was told by the appellant that he had changed his mind, he was no longer prepared to provide a written statement. He suggested that there had been an unsubstantiated allegation against him by Mr Wilding and accused Mr Wilding of harassing him at his place of work. He said it was a criminal offence and that he would be reporting Mr Wilding to the police that day and so on. So he showed a defiant attitude on the next day.

Those were the matters which the Post Office had before them. Mr Taylor eventually conducted a disciplinary interview on 3rd May 1994, and heard what the appellant had to say. The appellant again made certain rather defiant and perhaps inappropriate remarks on that occasion, but he was fully heard.

There is no doubt that the enquiry was conducted with great thoroughness and the decision was that he was guilty of gross misconduct in relation to Miss X; conduct likely to bring the Post Office into disrepute; and that the appropriate penalty was dismissal.

He appealed and the appeal was heard by Mr Fitzpatrick, who was the Appeals Manager for South Wales and the South West. Mr Fitzpatrick considered the matter again. He heard the appellant, who was represented by his union, and he too concluded that the conduct was such that it merited dismissal and upheld the decision of Mr Taylor.

Amongst the matters which were remarked on by Mr Fitzpatrick was that except for the incident of following Miss X home, the appellant had at all times been on duty and neglecting his duties for the purpose of watching this young woman and speaking to her, and that it was in Post Office time that these matters occurred.

The matters which were put before us were canvassed in front of both the representatives of the Post Office.

Mr Barrett complained to the Industrial Tribunal sitting at Southampton under the Chairmanship of Mr Cowling. The Industrial Tribunal, as I say, clearly devoted great care to the matter. They heard it over two days on 11th November 1994 and 9th March 1995. They promulgated their decision and registered it on 5th June 1995.

Their decision occupies no less than 16 close typed pages, and I have cited from it, but of course not read the whole of the decision. It is a decision in which all the directions of law which the tribunal gave themselves were correct, and in which, so far as we can judge from reading it, they carefully considered the evidence and the contentions which were put before them. We have not, of course, considered the evidence. It is not a case in which it is suggested that the tribunal ignored the evidence or important parts of it or that they misinterpreted or misunderstood the evidence, and they reached their decision at the end by a majority.

The majority were of the view (and this is the important part of their decision) that the penalty of dismissal, though severe, was one which was within the range of responses open to a reasonable employer in all the circumstances.

The minority, that is one of the industrial members, Mrs Strawson Payne, took the view that the dismissal was unfair, being outside the range of reasonable responses of a reasonable employer. She particularly relied on the fact that the appellant had been employed for 32 years, had never before been accused of any type of harassment, and had a good work record and Mrs Strawson Payne felt:

"that it was unreasonable of the respondent to conclude that a transfer to another location would have served no useful purpose in the belief that the applicant would have re-offended."

She agreed with the facts as found. It was her view that the appellant had become infatuated and as a result had behaved foolishly, but that his actions did not justify dismissal. She obviously took a severe view, as she was well entitled to, of the appellant's behaviour and she would have reduced any compensation by 75%. But the view of the majority, as I say, was that the employer was entitled to take the view that the Post Office had done, and was entitled in the circumstances to dismiss and had behaved fairly in conducting its enquiry. That part, as I say, is not in any way criticised.

The appeal to us in on the short and straightforward ground that the decision was one which no reasonable Industrial Tribunal was entitled to reach. It was simply not a permissible option, a permissible view. That is to say to put it legal language it was a perverse decision by the Industrial Tribunal itself.

Clearly, that is a difficult contention when a tribunal has taken such obvious care as this one had. It is for the Industrial Tribunal, as the jury and the tribunal of fact, to say what is or is not a permissible option in any particular case for an employer in the particular circumstances. They of course, have advantages which we cannot share. They have seen the witnesses, they know the standards which they expect employers to follow in their jurisdiction, and they are able to judge matters far better than we can.

But having said all that, this is a decision which had given us great anxiety. We were referred by Mr Hester to what is said in Dobie v Burns International Security Services (UK) Ltd [1984] 3 AER 333. In that case the Court of Appeal referred particularly to the need for the employer to be just. Sir John Donaldson MR said at page 336G:

"In deciding whether the employer acted reasonably or unreasonably, a very important factor which he has to take account, on the facts known to him at the time, is whether there will or will not be injustice to the employee, and the extent of that injustice. For example, he will clearly have to take account of the length of time during which the employee has been employed by him, the satisfactoriness or otherwise of the employee's service, the difficulties which may face the employee in obtaining other employment, and matters of that sort. None of these is decisive, but they are all matters of which he has to take account, and they are all matters which affect the justice or injustice to the employee of being dismissed."

We, of course, accept that dictum as representing the law.

We can say, though this is something which we perhaps ought not to say, that we all feel that had we been sitting on this Industrial Tribunal we would probably have reached a decision which agreed with the minority view rather than the majority view. Speaking simply for myself, that is a matter of no great importance because I am not so to speak an industrial member and have no experience of these matters, it is a matter in which I must be particularly guided by the members who sit with me, who of course have very long and very valuable experience of these matters. Nonetheless, that is our view.

But we have asked ourselves whether, giving full effect to that view, we are satisfied that this is a decision which no Industrial Tribunal properly directing itself was entitled to reach. We have considered that as carefully as we can. We have considered in particular the great care which the tribunal devoted to all the aspects of this case. Having thought about it as carefully as we can, we have decided that directing ourselves in accordance with the law as we understand it in the decisions to which we have been referred, we are unable to say that the tribunal was not entitled to reach the conclusion that they did.

We all are inclined to think that the decision of the Post Office in this case was a harsh one, and that looking at the matter from the distance which we do and simply giving effect to common sense, it might very well be that they were not indeed obliged to take so harsh a decision, and might very well have reached a different decision. It is harsh in the effects which it causes to a man of such long service and previous good conduct. But nonetheless, that is not the question for us. We mention it only to show that we have fully taken on board, fully understood and accepted the general submissions made to us by Mr Hester. But applying the test of whether this was indeed a perverse decision, we are all unable to say that it was. It therefore follows, since we are only allowed to consider matters of law, that we are obliged, as I say with considerable regret, to dismiss this appeal.