United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A SERR (of Counsel) Messrs Howard Cohen & Co Solicitors 3 Park Square Leeds LS1 2NE
For the Respondents	MR S NEAMAN (of Counsel) Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4TY


 


JUDGE REID QC: This is an appeal from a decision of an Employment Tribunal sitting at Leeds on 20th July 1999 by which it determined that Mr Fowler, the applicant/appellant's claim for unfair dismissal failed and should be dismissed.

1. The brief employment history of Mr Fowler is that he was employed as a Senior Steward on what eventually became Cross Country Trains Ltd t/a Virgin Trains. His employment with Virgin Trains' predecessor began on 26th June 1984 and he was dismissed on 11th December 1998. He had therefore had almost 14½ years service.
2. So far as material facts of this appeal are concerned, he was given an informal warning on 5th October 1998 in relation to a matter which involved the use of unfortunate language to a fellow Virgin Trains employee. On 6th October 1998 he went to visit his doctor who prescribed him some Valium and on 7th October 1998 the incident occurred which led to his dismissal. He had on that occasion been a steward, (the job title senior steward being somewhat misleading, since there was apparently no steward who is not a senior steward) on a train from Leeds to Plymouth. From Plymouth he was due to act as an assistant to another Senior steward on the short journey to Taunton where he would change trains and travel back to Plymouth for the night. On his arrival for the first time at Plymouth he left all his equipment at the hotel where he was due to spend the night and picking the story up from paragraph 2(c) of the extended reasons, his troubles started on the journey from Plymouth to Taunton because nobody turned up to act as Senior Steward. When the train reached Taunton a new team would take over the rest of the journey north. There were only about 20 people on the train for that short trip to Taunton.
3. The tribunal had to determine whether Virgin Trains had reasonable grounds for believing that the applicant did not intend to work on the journey from Plymouth to Taunton. What had happened was that on that journey the respondent's Business Manager South, Mr Davis, saw Mr Fowler on the platform at Plymouth wearing a track suit top which was not company issue and when he carried out a check on the train he discovered that the buffet car was padlocked. He spoke to Mr Mooney, the train manager, who told him that there was no senior steward allocated to the buffet. Mr Davis decided to run the buffet himself. Mr Davis was told by Mr Mooney that Mr Fowler was booked as assistant steward for the journey between Plymouth and Taunton and an announcement was made for the applicant to go to the buffet. He did not have with him his uniform jacket or waistcoat. The applicant said that he had left his equipment in his hotel room. By this he meant his uniform jacket and waistcoat and his 'pot' used for drawing hot water. However, the applicant did the trolley seat service when instructed to do so.
4. Following that journey, there was an investigatory interview on 8th October 1998. On 19th November 1998 there was a disciplinary hearing at which it was resolved to dismiss Mr Fowler. He appealed against that decision and the appeal was heard on 11th December 1998. That appeal upheld his dismissal.
5. The original decision, so far as the relevant part is concerned, is at page 22 of the bundle, where the gentleman conducting the disciplinary hearing, Mr Ron Dixon, said:

"You can appreciate that the driving force in this company is customer service and our employees are charged with the responsibility of providing that service. I note was you [Mr Fowler's representative] said about Billy's letter of commendation but I also have examples of the failures in his record and have therefore not included them in my deliberations. I believe that Billy did fail to carry out his duties and it is my decision to dismiss Billy from the employment of Cross Country Trains Limited."

6. Then appeal conducted by Mr Knight contained by this, by way of concluding remarks by Mr Knight:

"You [Mr Fowler's representative] raised the issue of the written warning and I have taken cognisance of what you have said however it is there to get someone back on track without resorting to the formal disciplinary procedure. You presented this as part of the appeal but I can only say that Billy ignored this warning. Your reference to way the home visit and welfare policy are applied I think is awry as it is the intention of the Company to look after all of its employees but I have noted your concerns. In respect of the length of service Billy has, I would expect someone with his experience and commitment as you have put it to have provided a service without being asked to do so by Ian Davis. I have listened to what you have said and have taken into consideration the particular points that you have raised, some of which are new, but I find that the charge was correct and despite your reasons for mitigation it is my decision to uphold the dismissal of Mr Fowler from employment."

7. Dealing with that conclusion at the end of the extended reasons the Employment Tribunal said:

"When considering penalty, Mr Knight is clear that he knew of the Applicant's long service as well as having knowledge of the unofficial warning that the Applicant had received only 2 days earlier. Although the Applicant is termed senior steward, it was explained that there is no such person as an ordinary steward. All stewards are called senior steward. Sometimes they act in that capacity and sometimes they assist somebody else at the same level. There was therefore no way of demoting the Applicant. Transfer to another job, when he had been in the catering department from the beginning of his career, was impossible. The Tribunal is not empowered to substitute its own penalty but finds that dismissal in circumstances of this sort where the employer believes an employee to be taking steps to be paid whilst not carrying out his duties is not an unreasonable response and the application therefore fails."

8. Two grounds of appeal are pursued before us by Mr Serr on behalf of the Mr Fowler. We are grateful both to Mr Serr and Mr Neaman for the cogent arguments which they have put before the Appeal Tribunal.
9. The first of the grounds of appeal is that the Employment Tribunal erred in law in that despite findings of fact that:

"(i) the appellant had 14 years service with no serious disciplinary problems during his entire career;

(ii) on 6th October 1998 the appellant received a written warning which was "unofficial" and was not to be put on his personal file;

(iii) when considering penalty Mr Knight had knowledge of the unofficial written warning that the appellant had received only two days earlier;

The tribunal failed to conclude that the said written warning should have played no part in the disciplinary proceedings against the Appellant and knowledge and reference to the said warning during the said proceedings constituted an irrelevant consideration by the Respondent."

10. That informal written warning was not something which formed any part of the formal disciplinary code which governed the appellant's employment. What it was, in effect, was an informal letter which warned him as to his future conduct. The terms of the letter, which was headed "Written Warning" are as follows:

"Dear Andrew

With reference to the recent Investigatory Interview I can advise you that the Disciplinary Procedure will not be implemented. However you are aware of that this type of behaviour is unacceptable and I re-iterate the contents of our discussion in that this sort of verbal abuse to any Virgin Trains employee must not happen again at any time and no such outburst on your part will be tolerated.

This letter confirms the warning that you have received and I must advise you that any re-occurrence may result in more formal action being taken."

That was signed by a Virgin Trains Customer Service Leader.

11. What is said on behalf of Mr Fowler is that that was a matter which should not have been considered at all; that any warning must be construed strictly against the employer; and that the warning was not a relevant circumstance which should not therefore have played any part in the tribunal's findings or in the dismissal decision. It was further submitted that it was clear that the consideration of the warning was a vital fact in leading to the decision to dismiss rather than some other lesser penalty.
12. So far as the construction point, that the warning should be construed strictly against the customer, we were referred to three cases Bevan Ashford v Malin [1995] IRLR 360, Tower Hamlet Health Authority v Anthony [1989] IRLR 394 and Auguste Noel v Curtis [1990] IRLR 360. We do not find that any of them are of any great assistance to us. It seems to us that the position in the Bevan Ashford case was that that was a dismissal which depended entirely on a dismissible offence being a second offence during the period of a pre-existing warning. The question of construction was as to the date on which the earlier warning expired. That is nothing to the purpose in this particular case. So far as the Tower Hamlets case is concerned, there the Court held that it was wrong to ignore a warning simply because it was subject to appeal, but equally it would be wrong to ignore the fact that it was subject to appeal. Thirdly, the Auguste Noel case, so far as material, merely points out that it is all a question of balance.
13. In our judgment the informal warning was a part of the overall circumstances. It was a matter which had in fact been canvassed very largely by Mr Fowler's representative as part of the overall picture, because what was said was that the warning had immediately preceded a visit to Mr Fowler's doctor resulting in his being prescribed Valium and that part of the lacklustre performance of Mr Fowler on the day might be attributable to that.
14. But be that as it may, in our view the existence of the written warning, although informal, was something to be taken into account, particularly against the background where Mr Fowler was seeking to present to the disciplinary authorities a number of commendations.
15. The question of the weight to be given to it was another matter. But as to that, we take the view that when one looks at the decisions, it is clear that this was far from being the overwhelming or determinative matter. The disciplinary hearings came to the conclusion that Mr Fowler had deliberately turned up and got onto the train for that Plymouth to Taunton leg of the journey without his equipment and with a view to being paid for a leg on which he was not proposing to work.
16. It is not for us to determine whether we should have taken the same view of the totality of the evidence, though it can I think be said that there were strong reasons why the fact-finding authorities should have taken the views that they did.
17. So far as we are concerned, the position is that the tribunal was correct in saying, so far as it did, that the warning was a factor but that the submission that it was in any way a determinative factor is one which is not borne out by a consideration of the totality of the documentation. It follows, therefore, that the first of the two grounds fails for two reasons: firstly, that the tribunal did not make an error of law and secondly, that it is based upon a wrong factual premise.
18. The second basis of appeal is that the decision to dismiss was one which was perverse. We have, as has now become customary on these occasion, been referred to the passage in the judgment of Mummery J, the then President of the EAT, in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 at paragraph 33, where he sets out the various forms of language which have been used to identify perversity. I do not think I need reread those words, they might almost be engraved in stone over the entry to the Court.
19. Suffice it to say that, in our judgment, despite Mr Serr's gallant efforts, it cannot be said to be perverse for the Employment Tribunal to have come to the conclusion which they did or for the dismissing disciplinary bodies to have taken the view that they did. Here was an employee who in the view, and a reasonable view of the employer, was acting dishonestly in that what he was trying to do was to get paid for work that he was not intending to do. As it happens he was made to work that leg because circumstances conspired against him, he was rooted out from the place where he was relaxing on the train and was eventually made to conduct a trolley service through the train.
20. The particular points which were prayed in aid as pointing to perversity were these. Firstly, Mr Fowler had over 14 years service; secondly, he had not been subject to any serious disciplinary problem; thirdly, he had received letters of commendation for good service; fourthly, he had started work on that day at Leeds on the 06:05 train; fifthly, there were only 20 people on that particular leg of the journey and sixthly, in the end, he did work the service.
21. All of those were matters which were well known to the dismissing authority and were properly ventilated before the Employment Tribunal. Taken individually or taken collectively they do not, in the judgment of the Employment Appeal Tribunal, provide any basis for saying that the decision to dismiss was perverse.
22. In those circumstances, despite Mr Serr's best efforts, this appeal fails and will be dismissed.