United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MRS WENDY OUTHWAITE (of Counsel) Messrs Vizards Solicitors 42 Bedford Row London WC1R 4JL


 


MR JUSTICE KIRKWOOD: This is a preliminary hearing of an intended appeal by South West Trains against the decision of an Industrial Tribunal sitting at London (South) that South West Trains unfairly dismissed Mr Lees. The extended reasons were promulgated on 14th January 1997.

The employer's response to the employee's claim was that he had been dismissed for gross misconduct.

The immediate surrounding facts as found by the Industrial Tribunal were that Mr Lees was the sole member of station staff at Godalming Station in Surrey, that is apart from a ticket clerk. He had been in the job for 25 years. In February 1996 the employer was completing the purchase of the franchise to run the London to Portsmouth line and that line runs through Godalming. The employee was instructed to read all the meters at the station. The water meter is out in the car park under a man hole cover. Mr Lees got permission to cordon off that area, because when he first wanted to read the meter there was a car parked on top of it. Anyway, Mr Lees made the meter the accessible. But Mr Lees had a bad foot, he had difficulty kneeling down, it was a freezing cold day and so he requested a Mr Manktelow to help by lifting the man hole cover. Mr Manktelow did that and cleaned off the dirt on the meter and took the meter reading for him. Mr Lees then allowed Mr Manktelow in to the staff room to wash his hands and to warm up because it was a cold day. It was noted by the tribunal that the men's' toilets at the station were out of operation.

The admission of an unauthorised person to the staff room is not allowed. Whilst Mr Manktelow was there the local manager happened to call. He told Mr Manktelow to leave and he suspended Mr Lees at once. There was an investigation. Mr Lees was charged with gross misconduct, and that attracted a different disciplinary procedure from that applicable to a less serious charge.

Mr Lees had allowed unauthorised people into the staff room on previous occasions. Back in 1980 he had allowed a 12 year old boy, who had missed his train, into the staff room, and was given one days suspension and a final warning. We have been told, though I am not sure whether or not the Industrial Tribunal was told, that that was Mr Manktelow when a 12 year old boy.

In March 1995 Mr Lees was disciplined for allowing what the tribunal described as "a 15 to 17 year old youth into the staff room" and he received a written warning advising him that permitting unauthorised persons into the staff room would not be tolerated. We have been told, but I do not know whether the tribunal was told, that that 15 to 17 year old youth was Mr Manktelow.

In May 1995 Mr Lees was disciplined for gross misconduct for allowing an unauthorised member of the public to escort him with a travelling safe. He was suspended for five days with loss of pay and he received final warning that any incidents allowing unauthorised persons on any British Rail property in the future may result in his dismissal. We have been told, though I am not sure whether the Industrial Tribunal was told, that that unauthorised member of the public was Mr Manktelow.

Then between August 1995 and this incident in February 1996, there were two occasions when Mr Lees allowed unauthorised persons into the staff room. One was a passenger who had fallen down the stairs, the other was a passenger who collapsed on the platform. On both occasions Mr Lees sat with the passengers in the staff room waiting for the ambulance to arrive. On those occasion no disciplinary action was taken.

The Industrial Tribunal found that Mr Lees had been unfairly dismissed.

The grounds upon which South West Trains wish to appeal are firstly that the tribunal made an error of law in considering the tests of misconduct. That is a reference to the well-known decision in Burchell. What is said was that it is a question of whether the employer reasonably believed the misconduct to be established; rather than the tribunal's view of that.

However, the point in this case is not any querying by the tribunal of the reasonable belief in the facts, because it is not and never has been in dispute that Mr Manktelow had been let into the staff room to wash his hands and to warm up. The issue here is the Industrial Tribunal disagreeing with the employer that those facts in those circumstances amounted to exceptionally grave misconduct.

Mrs Outhwaite, for South West Trains, has conceded that the Industrial Tribunal are entitled to their own view as to whether the facts established amount to exceptionally grave misconduct as opposed to misconduct.

Secondly, the appellant wishes to proceed on the basis that the Industrial Tribunal applied the wrong test as to procedure. The Industrial Tribunal in fact found at least that this was not a case of exceptionally grave misconduct. The Industrial Tribunal found in its next finding the employer "thus" mistakenly adopted a wrong procedure. That is to say the grave misconduct procedure rather than the procedure applicable to offences of a less gave nature.

The argument that South West Trains wishes to advance is that the mere adopting of the wrong procedure does not in itself necessarily amount to unfairness. The question for the Industrial Tribunal is whether the employer acted reasonably or unreasonably in treating that breach as a sufficient reason for dismissing the employee. That is the question, it is said, that should be applied.

In its extended reasons the Industrial Tribunal found, as a fact, that the decision to dismiss Mr Lees was a decision that no sensible or reasonable employer could have reached and was well outside the range of reasonable responses to the incident in question.

Mrs Outhwaite, for South West Trains, argues that that is a mere trite formula that is tripped off the tongue by tribunal Chairman day in and day out, and we should not regard it as more than that. But it seems to us to be significant and important, in fact, that it forms part of the extended reasons in a paragraph headed "The Tribunal is unanimously of the view that:". So it seems to us that it is quite clear and, indeed, beyond argument, that the tribunal applied the test of reasonableness in accordance with equity and the substantial merits of the case as they found it.

Thirdly, Mrs Outhwaite wishes to argue perversity on findings of fact. We have heard argument about that; and putting it shortly, found no merit in it at all.

There are two points that have concerned us.

The first is that in argument today Mrs Outhwaite has told us that South West Trains had serious concerns about the presence of Mr Manktelow on the station premises on a number of occasions. Not for any general reason, but specifically because they thought that there was some sort of impropriety in the relationship between Mr Lees and that young man. We were told that the Police charged Mr Lees with some offences, though we do not know what they were; but that the case did not proceed further than that. That information was not put before the Industrial Tribunal, and although it has been put before us, the proper approach for us to take is to put it out of our mind and to consider the proposed appeal on this preliminary hearing on the basis of the material that was before the Industrial Tribunal.

The second matter that has caused us some little concern, is contained in paragraph 7(1) of the Industrial Tribunal's extended reasons, where they express the unanimous view that:

"(1) the action of the Applicant on 3rd February 1996 did not amount to exceptionally grave misconduct nor, indeed, to misconduct."

and if on a proper reading of the extended reasons it emerged that the Industrial Tribunal had indeed found as a fact or purported to find as a fact, that the events of 3rd February 1996 did not amount to misconduct at all, then that would be a finding which the employer would be entitled to challenge and entitled to have this appeal go forward upon.

However, the facts were not in dispute. The tribunal posed a question it was entitled to pose; namely:

"3.(1) did the conduct of the Applicant as known to the Respondent on the available evidence amount to exceptionally grave misconduct?"

In answering that the tribunal found that it did not amount to exceptionally grave misconduct. And we think looking at the tribunal's extended reasons as a whole, the further words "nor, indeed, to misconduct" are mere surplusage. We have reached that conclusion because in the very next paragraph, having addressed the question of misconduct, the tribunal go on to say:

"the Respondent thus mistakenly adopted a wrong procedure."

That follows upon discussion in the extended reasons of the two lines of procedure that are appropriate in cases of misconduct on the one hand, or exceptionally grave misconduct on the other. And so that we are quite satisfied that on a proper reading of the extended reasons, the tribunal did not approach their conclusion on the basis that there had been no misconduct. Indeed if they have, the subsequent findings of the tribunal would have been quite unnecessary. In particular it would not have been necessary for them to go on to consider the provisions of s.98 of the Employment Rights Act 1996, and in particular the provision in sub-section (4) as to whether the employer acted reasonably, and considered that in accordance with equity and the substantial merits of the case. So we do not think that there is a point on this aspect that in the result is realistically arguable. In other words not a point on which the case should go forward.

For all those reasons we have decided that this proposed appeal is bound to fail and it will be dismissed.

Leave to appeal refused.