United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR A DOUGLAS (Consultant) Angus Douglas Associates Ltd Kingfishers 5 Riverside Close Bartley Hampshire SO40 2LW
For the Respondent	MRS A FULLER (Wife)


 


JUDGE PETER CLARK: This is an appeal by the employer, British Gas Transco, against a majority decision of the London (North) Industrial Tribunal sitting on 19th June 1996 that the respondent employee, Mr Fuller, had been unfairly dismissed. Extended reasons for that decision are dated 3rd October 1996.

The facts

The respondent was employed by the appellant from 20th March 1989 until his summary dismissal on 23rd November 1995. He was an Assistant Distribution Fitter, whose duties included driving a company van, which he was permitted to take home, and also he was from time to time on standby to deal with gas emergencies.

He worked as part of a two man team and on 7th June 1995, after finishing their last job at about 7 p.m., the respondent went to his colleague's home where he drank two cans of beer. He left at about 11.15 p.m. to drive home in the van and on the way home was involved in a road traffic accident which resulted in some £3,000 worth of damage being done to the van. He was breathalysed at the roadside by police who attended the scene. The test proved positive. He was recorded as having exceeded the legal limit of 80 mg. The reading was 86 mg. He was taken to hospital, having suffered minor injuries.

The following day he attended for work and mentioned to his supervisor that he had been breathalysed. He was sent home for the day.

On 29th September 1995 the respondent attended court and pleaded guilty to driving with excess alcohol. The tribunal's reasons are silent on the point, but we understand that the usual 12 month period of disqualification was imposed.

The respondent reported his conviction at work on 2nd October 1995. He then attended a disciplinary interview on 4th October 1995 before Mr Maloney, the Network Operations Manager, who prepared a report. On 11th November 1995 he was asked to attend a disciplinary hearing before Mr Robinson, Senior Chairman, and Mrs Grystar, the Human Resources officer. They referred the matter to a Disciplinary Panel which was convened on 23rd November 1995. The panel decided that the respondent should be summarily dismissed.

The Panel found that the respondent was in breach of the appellants' Disciplinary Code of Conduct, which included amongst the list of offences constituting gross misconduct which were liable to result in summary dismissal, being or appearing to be under the influence of drink or drugs or any other substance on duty to the extent that an employee's work performance which included driving their own or company vehicles or behaviour may be adversely affected. (This included standby or similar duties.) The respondent had been on standby at the time of accident.

In particular, the Panel found the following breaches of their Code:

"(a) he had been under the influence of drink so that his ability to undertake his work was adversely affected.

(b) he had caused damage to the Company vehicle and that he had been reckless in regard to that in that he had been unfit to drive through drink.

(c) he had endangered the Company's good name in that he had been observed by third parties to be over the blood/alcohol limit whilst driving on the Company's business, and

(d) he had damaged the efficiency of the Company's operations in that he had been over the legal blood/alcohol limit whilst he was on standby and could have been called to an emergency involving the public safety."

The Disciplinary Panel noted that the respondent's alcohol level was only marginally over the legal limit. However, they took the view that he was either driving legally or he was not. They took into account in reaching their decision, the fact that he was available on standby to deal with any type of emergency affecting gas supply. If his judgment was sufficiently impaired to prevent him from driving safely, as was evidenced by the blood test, they thought it was also impaired for purposes of attending to gas escapes. Furthermore, they thought it was reckless to accept the risk of driving and therefore the damage to the Company's vehicle was recklessly caused.

The tribunal were told of cases of other employees convicted of drink driving offences who had not been dismissed. However, the tribunal unanimously concluded that this was not a case in which there was disparity of treatment such as to render the dismissal unfair on that ground.

The respondent appealed against the decision of the Panel and that appeal was dismissed on 19th December 1995.

The Industrial Tribunal decision

The tribunal set out an impeccable self-direction at paragraph 6.2 of the reasons. They summarise the law in this way:

"6.2 In applying the section [that is s.98(4) of the Employment Rights Act 1996, formerly s.57(3) of the Employment Protection (Consolidation) Act 1978], the Tribunal has to consider the reasonableness of the employer's conduct in deciding to dismiss, in the light of the circumstances and information known to the [employer] at the time of the dismissal. It is not a question of whether the Members of the Tribunal consider the dismissal to be fair, and it is not for the Tribunal to substitute its own decision as to what was the right course to adopt for that of the employer. In many cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another. The Tribunal's function is to decide whether in the particular circumstances of the case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair; if the dismissal falls outside the band it is unfair."

The majority expressed themselves in paragraph 7.4 of the reasons in this way:

"7.4 As to these allegations, the only evidence which the Respondents had before them during the disciplinary process leading up to their decision to dismiss the Applicant, apart from the Applicant's own assertion that he had drunk only two cans of beer and that he was not affected by alcohol, was the conviction for driving with excess alcohol. The question for the Tribunal was whether this was sufficient evidence. The view of the majority was that there was insufficient evidence for the Respondents to come to this conclusion, having regard to the wording of the Code of Guidance. The Code specifically refers to the offence of being under the influence of drink so that the ability of the employee was impaired. The Respondents had no evidence about the Applicant's ability to do his work other than his own assertions. The Code is silent on the question of drinking whilst on duty or standby. It is concluded by the Tribunal that there is no prohibition on drinking so long as the ability to undertake normal duties is not impaired. In the view of the majority of the Tribunal the Respondents were unreasonable to conclude from the evidence before them that the Applicant's abilities had been so impaired. The legal limit for drink driving is arbitrary, and the actual effect on ability to carry out various tasks at that level will vary according to each individual. Having regard to these conclusions, the Respondents had insufficient evidence to justify their findings that the Applicant had been guilty of gross misconduct in relation to these matters."

The dissenting minority member expressed his view at paragraph 7.5 in this way:

"7.5 In the view of the minority, it was reasonable for the Respondents to conclude that the Applicant was under the influence of drink so that his ability to carry out his work was impaired, on the basis of the conviction alone. The law has fixed a level of alcohol over that limit will be unfit to drive. It was reasonable, therefore for the Respondents to apply that presumption in deciding whether the Applicant was unfit to carry out his normal work, that work involving the use of equipment and having implications for safety."

The Appeal

Mr Douglas submits that the majority fell into error in three respects.

First, he contends, that they placed the onus of proving the reasonableness of the dismissal on the employer. Had they done so that would have amounted to an error of law. However, having carefully considered paragraph 7.4 of the reasons, we are unable to find that that submission is made out.

Secondly he submits that the majority substituted its own view for that of the employer. To do so amounts to an error of law. See Iceland Frozen Foods v Jones [1983] IRLR 439. We think that this grounds of appeal is made out. Although the tribunal were correctly directed as to the law in paragraph 6.2 of the reasons, we have concluded that the majority fell into error in failing to apply that direction. Instead of asking themselves whether a reasonable employer could conclude that the respondent's ability to undertake his duties was impaired by drink, they asked themselves whether the fact of a conviction for excess alcohol (not unfitness to drive under s. 4 of the Road Traffic Act 1988, as Mr Douglas has argued) was sufficient evidence to reach that conclusion. That is not the question. It indicates clearly to us that the majority have put themselves in the shoes of the Disciplinary Panel. That is not permissible.

Thirdly, Mr Douglas submits that the majority failed to apply the proper test of whether dismissal fell within the band of reasonable responses. Again, we feel compelled to accept that submission. Nowhere in paragraph 7.4 of the reasons do the majority address that question. Their reference to unreasonableness is directed to the finding by the appellants, that the disciplinary offence had been committed, not to the range of reasonable responses open to the employer so far as sanction was concerned.

In these circumstances we have concluded that the majority misdirected itself in two material respects. The decision cannot stand and must be set aside.

The question then arises as to what we should do with this case. Both parties have asked us to invoke our powers to exercise the jurisdiction of an Industrial Tribunal and determine the complaint on the basis of the facts as found by this Industrial Tribunal. We shall do so. In our judgment, for the reasons given by the minority member of the Industrial Tribunal, this employer was entitled to conclude that the disciplinary offence had been made out, and that dismissal fell within the range of reasonable responses. Accordingly we shall substitute a declaration that the dismissal was fair.

Finally, although not material to our decision, it has been pointed out to us that the tribunal's extended reasons are defective in that they fail to record the tribunal's finding, set out in their summary reasons, that the respondent had contributed to his dismissal to the extent of 30%.