United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR DAVID WICKS (of Counsel) Director of Legal Services John Lewis Plc 171 Victoria Street London SW1E 5NN
For the Respondent	MR EDWARD FITZPATRICK (of Counsel) Messrs Procaccini Farell & Co Solicitors 213a Clapham Road London SW9 0QH


 


MR JUSTICE BELL: This is the appeal of John Lewis PLC against the decision of the Employment Tribunal held at London (South) on 4th and 5th February 1999 that the appellant had unfairly dismissed Mrs Coyne. The tribunal made an order that the appellant re-engage Mrs Coyne on stated terms and the appeal originally challenged that remedy as well as the finding of unfair dismissal, but the appeal against remedy has been withdrawn and dismissed, so the appeal today is against the finding of unfair dismissal alone.

As the appeal in large part depends upon the contention that the tribunal reached a number of conclusions and ultimate conclusion which were not open to it on the facts which it found or which were perverse, it is necessary to look at the tribunal's findings and the route which it took to its conclusions as they are set out in the written extended reasons for its decision.

Before doing so, we note that the tribunal heard evidence from Mrs Coyne and Mr Hunt, the General Manager of Peter Jones in Sloane Square, which is one of the appellant's stores and the store where Mrs Coyne worked, and from Mr Cloake, a Partners' Counsellor and Director. The appellant did not call Mrs Coyne's line manager or departmental manager or indeed anyone with whom she actually worked.

All the appellant's employees are known as "partners". There is some substance in the title in that they benefit from the scale of the appellant's profits, but they are technically and in reality employees.

The facts

1. The facts as found by the tribunal are that at the material time Mrs Coyne was a department clerk. She started working for the appellant on 1st October 1984. She was dismissed without notice on 22nd August 1998, that being the date of termination set out in the letter of dismissal sent to her on 20th August 1998, although the tribunal found that the effective date of termination for the purposes of the unfair dismissal claim was 14th November 1998. That latter date was originally challenged in the Notice of Appeal, but at the beginning of his submissions this morning, Mr Wicks on behalf of the appellant, said that that ground of appeal was no longer pursued. In any event Mrs Coyne had been in continuous employment for some 14 complete years with the appellant at Peter Jones when she was dismissed. She was then 34 and married and with no disciplinary problems before the matters which in fact led to her dismissal.
2. The tribunal found that Mrs Coyne's written contract of employment drew attention to the appellant's disciplinary code, which highlights that dishonesty is "normally regarded as serious misconduct and normally leads to dismissal and possibly prosecution". The disciplinary code also set out a procedure for the conduct of disciplinary proceedings. A guide for employees at Peter Jones was produced by the appellant entitled "Your Guide to Peter Jones". It contained the warning "You must not use the department telephones for making personal calls. Any breach of this regulation is viewed very seriously and may lead to dismissal if the circumstances justify it. There are several public telephones in the building."
3. When Mrs Coyne was dismissed she was working in the television and audio department, behind the scenes. A colleague, Mrs McMorrow, covered her job on Saturdays and Mrs Coyne, as the tribunal found, often spoke to Mrs McMorrow during the week to discuss details of the work. Over the years they worked together that was how the two women had developed the job and how they ensured continuity. They had also become friends and would have a chat during their discussions as well as talking about work. As a result of the very long time Mrs Coyne had been a partner, she was keeper of quite a bit of information that was useful to the department and when she was not at work colleagues would sometimes telephone her from the department to her mobile telephone or to her home. Such calls might be read, therefore, as if she had actually called from the department to her mobile which, on occasions, she lent to her husband, or as if she had rung her home.
4. In April 1998 Mrs Coyne suffered a miscarriage. The tribunal found that she was very distressed about that and that she was still distressed at the time of the tribunal hearing. She had been very depressed. When she was very upset she spoke to her husband who sometimes had her mobile telephone with him. Sometimes she used the telephone on her desk to make a quick call and sometimes she went to one of the public telephones in Peter Jones.
5. In the early part of 1998 Mrs Coyne was also experiencing considerable difficulties in respect of a house that she was renting out. That necessitated calls to and from the relevant letting agency, which of course could only be made during their daytime office hours. The tribunal found that Mrs Coyne told her department manager, Mr Bye, some of her troubles and broke down in tears in his office.
6. On 29th May 1998 a "Management Bulletin" was circulated to partners. It contained an official notice generally forbidding private telephone calls. We have been referred to parts of that bulletin. Under a heading "Use of Telephones" it says:

"You must not use the department telephones for making personal calls. Any breach of this regulation is viewed very seriously and may lead to dismissal if the circumstances justify it."

There was no document, as Mr Wicks accepted, which in terms equates use of departmental telephones with dishonesty however.

7. Mrs Coyne was aware of the rules in connection with personal calls, although it was not clear to her that the appellant regarded the making of personal calls as a form of dishonesty under the disciplinary code.
8. In or about early June 1998, Mrs Coyne's direct line manager, who did not give evidence, told the department manager, Mr Bye, that she had overheard Mrs Coyne on the telephone to Mrs McMorrow in circumstances that suggested that Mrs Coyne was aware that she should not be on the telephone. The line manager did not raise the matter with Mrs Coyne at the time or afterwards, and nor did Mr Bye.
9. At some point after 28th May and before 16th June 1998 Mr Hunt, the General Manager, was told by Mr Bye that there were suspicions that Mrs Coyne was making personal telephone calls and that staff in the section were discontented about it. Mr Bye did not tell Mr Hunt that Mrs Coyne was having personal problems nor did he tell him on what basis he had concluded that "staff" in the department were discontented. As we have already said no staff members were called to give evidence nor did Mr Bye give evidence.
10. Mr Hunt obtained telephone print outs in respect of call usage from Mrs Coyne's telephone. He investigated three telephone numbers: Mrs McMorrow's, that of the letting agency and Mrs Coyne's own mobile telephone. He found that over a one year period a total of 111 calls had been made to those three numbers, totalling 13.5 hours in time spent on the telephone at a cost of £37.76 to the appellant. The great majority of the calls were to Mrs McMorrow. We interpose to say that Peter Jones' telephone was an 0171 number. Mrs McMorrow's number and the letting agency numbers were 0181, so the calls to them from Peter Jones would be local calls. We calculate that if Mrs Coyne worked 48 weeks in the year in question, the 111 calls would work out at about 2.3 calls per weeks on average and would have lasted an average of about seven minutes each at an average cost of about 34 pence each.
11. On 17th July 1998 Mrs Coyne was told to go downstairs to the General Manager's office. She had no idea why. She was met by Mr Hunt and the appellant's Registrar. Mr Hunt conducted "an investigatory interview" lasting eleven minutes. Mrs Coyne told him that she admitted making a number of personal telephone calls but denied that all the 111 calls listed by him were personal. She explained the reason for calls to Mrs McMorrow and she said that she had told Mr Bye about the problems that she was having with her letting agency and she only spoke to the agency in an emergency. So far as her own mobile telephone was concerned, she did not feel able to tell Mr Hunt about her miscarriage and subsequent distress. She did say that her telephone in the store was sometimes used to telephone her on her mobile.
12. Mrs Coyne was invited to have a friend with her both at that interview and at the disciplinary hearing which followed a few minutes afterwards. She was given a pen and paper. She declined both offers. The tribunal found that that was partly because she was in a state of shock. The Registrar was present and according to the disciplinary procedure was there to offer Mrs Coyne assistance, but assistance was not offered, nor was it asked for.
13. The tribunal found that Mrs Coyne was so shocked to be thrown into an investigatory and then a disciplinary hearing without any warning whatsoever, that she obviously could not prepare for, and that she did not acquit herself well. She did not say much to Mr Hunt. At the end of the hearing Mr Hunt told her that she was suspended.
14. Witnesses were not interviewed until after the disciplinary interview. That, the tribunal found, was contrary to the disciplinary code which said that no disciplinary action would be taken until the case had been fully investigated.
15. At paragraph 23 of its extended reasons, the tribunal found as follows:

"Mr Hunt did not interview Mrs McMorrow at all even though the majority of the alleged personal calls were to her number. He did not analyse the recorded calls in terms of when in the year they were made or look for any pattern because his understanding of the "rules and regulations of the partnership" was that even to make one unauthorised call was enough to warrant summary dismissal and Mrs Coyne had readily admitted making at least one such call. His understanding was that personal use of the telephone amounted to dishonesty of the kind that led to such summary dismissal."

16. Following the disciplinary interview and Mrs Coyne's suspension, Mr Hunt wrote to the personnel director on 21st July 1998 recommending that she be dismissed summarily for making telephone calls on the partnership telephone network without obtaining permission of making any payment.
17. On 28th July 1998 Mr Hunt wrote to Mrs Coyne informing her that an arrangement had been made for her to come to see him on 30th July to talk further. He informed her that the Registrar would be present and she might bring a friend.
18. Mrs Coyne did attend a meeting with Mr Hunt on 30th July. There was a short further discussion, which was not recorded. Mr Hunt did not discuss with Mrs Coyne the results of his investigation such as they may have been. She offered to pay for any personal use of the telephone, but as far Mr Hunt was concerned that offer came too late. He did not even mention the offer in his evidence-in-chief to the tribunal. The decision to dismiss, the tribunal found, had already been made.
19. Mrs Coyne was informed that she had been dismissed. She was informed of a right to appeal to the Partners' Counsellor. She duly did so and met the Counsellor, Mr Cloake on 12th August, accompanied by her husband.
20. Mr Cloake concluded that there were no grounds for overturning the dismissal. In a letter of 14th August 1998 to Mrs Coyne he said:

"I can accept that it is perfectly possible that some of the 111 calls logged to the three telephone numbers in question may have been for legitimate reasons. I can also appreciate that there will have been occasions on which it was necessary as a result of your personal problems to receive and make private calls in your office. On the other hand there is no getting away from the fact that you did make a number of private calls. I can appreciate that you felt your management should have done more to establish the extent to which the 111 calls were for business reasons but I have to say that I cannot believe that this likely to have altered the final outcome since it is not the number of private calls that is the issue here but rather the fact that by making any such calls without permission or payment you were in breach of an important Partnership Regulation."

The letter dated 20th August terminating employment on 22nd August 1998 followed.

The Employment Tribunal's conclusions

21. Having set out the facts, the tribunal went on at paragraph 32 of its extended reasons to remind itself of the provisions of section 98(4) of the Employment Rights Act 1996, setting out the method by which a tribunal must approach the question of whether a dismissal is fair or unfair, namely:

"… whether a dismissal is fair or unfair (having regard to the reasons shown by the employer) – (a) depends on whether in the circumstances … the employer acted reasonably or unreasonably in treating the reason as a sufficient reason for dismissing the employee …"

such matters to be determined in accordance with equity and the substantial merits of the case. The tribunal reminded itself that it must ensure that the tribunal had followed a fair procedure. It continued:

"It is the task of the Tribunal, in line with the guidance set out by the EAT in Iceland Frozen Food v Jones 1982 IRLR 91, to assess whether "the decision to dismiss fell within the bands of reasonable responses which a reasonable employer might have adopted" rather than to substitute its own decision as to what the right course of action was."

Having done that the tribunal went straight to its conclusions which we set out in full in the light of one Mr Wicks' grounds of attack on the tribunal's decision:

"33. The Tribunal is unanimous in deciding that the reason for the dismissal was the Applicant's conduct which was a potentially fair reason for dismissal. In this case, however, the Applicant's dismissal was unfair. The Respondent's disciplinary procedure entitled them to dismiss the Applicant in circumstances such as these but in order for the dismissal to be fair, the duty to act reasonably required that they should investigate the seriousness of the offence in this particular case. It is clear from the Respondent's disciplinary procedure that they were not bound to dismiss the Applicant and a decision to do so would depend not only on the number of calls made by Mrs Coyne but also on the purpose of the calls, whether there was any element of personal crisis and whether or not the conduct was persistent. The Respondent's failure to investigate those matters adequately meant that the decision to dismiss was unfair.

The following are the principal factors taken into consideration by the Tribunal in reaching this conclusion:

(i) The Applicant was a partner of more than thirteen years' service who had not disciplinary matters on her file whatsoever.

(ii) The Respondent's disciplinary code lists "dishonesty" as an example of gross misconduct that "is particularly likely to lead to dismissal and possibly prosecution" (our emphasis). Clearly the code leaves room for discretion even in the most serious cases of dishonesty.

(iii)The Respondent's disciplinary code says that partners must have had "the chance to put things rights". The Respondent did not take into account and give credit for an admission to making call(s) made at the investigatory interview and an offer to pay made at the second meeting. Mrs Coyne did not receive any warnings from the managers in her department, formal or informal, before the hearing on 17th July and so had not been given "the chance to put things right" before.

(iv) Mrs Coyne had had two very serious problems in early 1998 which her department knew about although her managers did not see fit to inform Mr Hunt of them before the disciplinary hearing. It was especially hard for her to avoid making personal calls at all given that she was at work all week and neither her problem with her letting agency nor her distress over her miscarriage could wait until the weekend. The public telephone was of course in a public place from which it would have been hard to make very personal calls.

(v) No attempt was made to evaluate just how many personal calls had been made. For example no attempt was made to talk to Mrs McMorrow to whom the majority of the allegedly personal calls had been made even though Mrs Coyne had told Mr Hunt that the majority of the calls to Mrs McMorrow had been work-related.

(vi) No attempt to assess Mrs Coyne's alleged behaviour in the context of her department was made. Was she using the telephone more than others? Were allegations being made by just one colleague and did he have the motivation to make false allegations? Was her contact with Mrs McMorrow helping the department run more smoothly? Had Mrs Coyne's use of telephone calls to Mrs McMorrow and possibly otherwise built up over a long period and had they been condoned over a long period?

(vii) A fair hearing did not take place. The ACAS code says that disciplinary procedures should (Code: 10(f)) "Provide for individuals to be informed of the complaints against them and to be given an opportunity to state their case before decision are reached." The investigatory interview and subsequent disciplinary hearing on 17 July were sprung on Mrs Coyne without any warning at all. The first lasted for eleven minutes only and when it concluded there was only a break of twelve minutes before the disciplinary hearing began and that was the only opportunity Mrs Coyne, an employee of thirteen years, had to put her case. Mrs Coyne was formally offered a pad and pencil and an opportunity to be accompanied by a friend but she was in such a state of shock on that day that she did not take up these offers. The Registrar offered no help although according to the disciplinary code he/she was available to advise and support the Applicant. Their most active part in the process was to escort Mrs Coyne off the premises following her suspension on 17th July. In Tesco Ltd v Hill [1977] IRLR 63 EAT the dismissal was found to be unfair because the only opportunity the employee was given to explain was at a time when she was too upset by the accusations to state her case.

(viii) The speed with which the disciplinary process took place meant that it was difficult for Mrs Coyne to put forward mitigation particularly since she hardly knew Mr Hunt who was a very senior manager with whom she had had little contact. Her mitigation was in some respects difficult for her to express but a fair disciplinary procedure could have made it possible for mitigation to be discussed.

(ix) Investigation took place before the investigatory interview and disciplinary hearing on 17 July 1998 but then continued afterwards. Mrs Coyne was not informed of the results of the full investigation, she was not given a copy of notes taken nor the opportunity to respond to Mr Hunt's findings.

(x) It was contrary to the Respondent's disciplinary code to discipline a partner until the investigation was complete but Mrs Coyne's disciplinary hearing took place before witnesses were interviewed.

(xi) Mr Hunt had decided on 21 July 1998 that he wished to dismiss Mrs Coyne. Therefore the meeting on 30 July was not a second disciplinary interview at which Mrs Coyne had the opportunity to put her case after a period of preparation. Her offer at that meeting to pay for calls made was disregarded.

(xii) Although procedural defects can be cured by an appeal which was a rehearing, the appeal body also did not carry out any investigation although Mr Cloake did listen to some of what Mrs Coyne had to say in mitigation. The Appeal hearing therefore was not effective to cure the procedural defects leading to the decision to dismiss."

The tribunal then went on to consider the question of remedy.

The appeal

22. The basis upon which this appeal has been brought and argued was originally set out in six grounds of appeal, with detailed particulars. In our view most of the points made in the Notice of Appeal in support of the grounds do little more than seek to reargue the case, which is not a legitimate basis of appeal to this tribunal, or raise factual inaccuracies which even if soundly based could not sensibly impugn the tribunal's decision. But Mr Wicks has carefully distilled what he contends matters into his skeleton argument and oral argument before us today.
23. Mr Wicks' skeleton argument divides the appellant's contentions into two interdependent submissions: firstly, that the Employment Tribunal's conclusion that the dismissal of Mrs Coyne was unfair was wholly inconsistent with their findings of fact and was plainly wrong; and secondly, that in coming to its conclusion the Employment Tribunal substituted its own view for that of the employer.
24. The first of those contentions depends upon a number of matters, principally as follows. Firstly, Mrs Coyne had admitted the substance of the charge against her. In those circumstances it is said that no further investigation was necessary. Mr Wicks referred to Royal Society for the Protection of Birds v Croucher [1984] IRLR 425, a case of admitted, serious dishonesty concerning expenses by one of the directors of the Society, who held a position of considerable responsibility. We accept that that is authority for the proposition that there may be cases of admitted dishonesty in which it is not incumbent upon the employer to give the employee a warning or carry out a detailed investigation before deciding that the employee should be dismissed.
25. In this case we are reminded by Mr Wicks that the appellant's disciplinary rules stipulated that dishonesty would normally be regarded as serious misconduct leading to dismissal; that any breach of the appellant's disciplinary rule forbidding the use of departmental telephones would be viewed very seriously and might lead to dismissal; that Mrs Coyne was aware of these rules and admitted that she had made telephone calls on the departmental telephone, some of which were to Mrs McMorrow, some of which were personal, and that even during work-related calls she and Mrs McMorrow would chat; that in her interview with Mr Hunt on 17th July 1998 she admitted making a number of personal calls when she did not have permission to make them and kept no record of them. Mr Wicks stresses that Mrs Coyne knew the rules. Whatever may have been her own view of her actions he contends, they were on any objective view dishonest. She was making personal telephone calls on her employer's telephone without permission and without making any offer to pay until, as he put it, she was found out. In those circumstances Mr Wicks contends that Mrs Coyne's conduct was clearly dishonest and that there was no need for any warning or investigation. The appellant was entitled to dismiss Mrs Coyne on the basis of the conduct which she admitted.
26. That, in our view, is what the tribunal found to be Mr Hunt's view recorded at paragraph 23 of the extended reasons at the time when he made the decision to dismiss Mrs Coyne. In our view, however, that contention highlights what we see as the error made by the appellant in its original consideration of Mrs Coyne's case and in pressing its defence to her Originating Application and, indeed, in pursuing this appeal.
27. Mr Wicks, in his submissions, equated use of Peter Jones telephone for any personal reason with dishonesty. But the test of dishonesty is not simply objective. What one person believes to be dishonest may in some circumstances not be dishonest to others. Where there may be a difference of view of what is dishonest the best working test is in our view that propounded by Lord Lane CJ in the Regina v Ghosh [1982] QB 1053 75 Criminal Appeal Reports at 1054. In summary, there are two aspects to dishonesty, the objective and the subjective, and judging whether there has been dishonesty involves going through a two-stage process. Firstly, one must first of all decide whether according to the ordinary standards of reasonable and honest people what was done dishonest? Secondly, if so, then one must consider whether the person concerned must have realised that what he or she was doing was by those standards dishonest. In many, but not all, cases where actions are obviously dishonest by ordinary standards, there will be no doubt about it. In the present case, in our view, it was not necessarily obvious that using the appellant's telephone for personal calls was "dishonest". Much might depend upon the circumstances of the particular case. The appellant however did not investigate the question of dishonesty. It assumed it from the making of any personal calls, putting it into the same category, in effect, as stealing money. Mr Wicks is entitled to argue that a reasonable employer would be entitled to regard what Mrs Coyne admittedly did as dishonest. But even so, her dishonesty, such as it was and if it was, did not in our view mean that the appellant necessarily had to dismiss her. Yet Mr Hunt clearly, on our interpretation of the tribunal's finding at paragraph 23, took the view that dismissal was an inevitable consequence. The disciplinary code highlighted that dishonesty was normally regarded as serious misconduct, normally leading to dismissal, and indeed gave it as an example of gross misconduct that is particularly likely to lead to dismissal. But that terminology must, in our view mean that it did not inevitably lead to dismissal or at least that the information given to the employee by the employer was that it did not inevitably lead to dismissal. In all those circumstances, in our view, as the tribunal concluded, the duty on the appellant to act fairly and reasonably required that it should investigate the seriousness of the offence in the particular case.
28. It is said that if Mr Hunt's attitude as set out in paragraph 23 of the extended reasons was wrong then it was cured by the appeal process. Although Mr Cloake may not have taken just the same attitude as Mr Hunt in considering the appeal, the appeal did not cure the lack of investigation.
29. Secondly, so far as the contention that the tribunal's decision was perverse is concerned, the Employment Tribunal's criticisms of the investigatory process and the tribunal's finding that Mrs Coyne was not allowed a reasonable opportunity to put her case are challenged. The Employment Tribunal's finding that the appellant had not attached due weight to Mrs Coyne's mitigation is contested in circumstances where it is said the appellant had in fact considered the mitigation advanced by Mrs Coyne, yet that mitigation explained only a small number of telephone calls. In any event, it is said, the issue was not the number of telephone calls, but the fact the calls had been made without permission and in clear breach of the rules. The Employment Tribunal's finding that the appellant did not give credit for Mrs Coyne's offer to pay is challenged, in circumstances where the offer was made only after what Mrs Coyne had done had been discovered. Those criticisms, in our view, fade into insignificance against the appellant's failure to investigate how serious Mrs Coyne's misconduct was.
30. In the same vein it is said that Mrs Coyne knew the charge against her and was able to advance her mitigation and that it was no part of her case before the Employment Tribunal that at the time of the interview on 17th July 1998 she was too upset to respond properly to the accusations. If there was a flaw in the original interview, it is said that it could only be that Mrs Coyne felt unable in the circumstances to mention her miscarriage and that flaw was remedied at the appeal hearing. But in our view the tribunal was entitled to find, in effect, that Mrs Coyne was in a state of shock, no doubt emotional rather than clinical, at the first two meetings and that the appellant's enquiry and disciplinary proceedings never recovered from that disadvantage brought about by the appellant's peremptory accosting of her and pursuance of its questioning of her without warning.
31. Finally, so far as alleged perversity of the tribunal's decision is concerned, it is submitted that the fact that the appellant had made "no attempt to assess Mrs Coyne's alleged behaviour in the context of her department" was wholly irrelevant in circumstances where she had admitted making personal telephone calls. In those circumstances it was unnecessary for the appellant, it is said, to consider whether false allegations had been against her. Mrs Coyne did not herself suggest that personal calls had been condoned by the appellant and no such finding was made by the Employment Tribunal. But in our view the tribunal was entitled to come to the view that a proper investigation of the seriousness of Mrs Coyne's alleged misconduct did involve some assessment of it in the context of her department and in the context of whether she had been warned about telephone calls in the past or might have gained the impression, whether she put it forward or not, that they were condoned or not to be taken as seriously as the appellant's publications might have suggested.
32. The allegation that a tribunal's decision is perverse is a difficult allegation to press home. In our view, the arguments put forward on behalf of the appellant in this case fail to demonstrate that the tribunal reached a conclusion on its own findings of fact which it was not entitled to reach.
33. The arguments further fail to establish that the Employment Tribunal reached any findings of significant fact, which it was not entitled to reach upon the evidence.
34. The second limb of the challenge to the tribunal's decision is that it substituted its own view for that of the employer. It is said that its findings, particularly as expressed in the twelve numbered subparagraphs in paragraph 33 of the extended reasons, strongly suggest that the tribunal was assessing the reasonableness of the appellant's decision by what the members of the tribunal would have done had they been in the appellant's position of employer. Thus, it is said, although the tribunal reminded itself of the correct test in Iceland Frozen Foods, it fell thereafter into the trap of substituting its own view for that of the employer judged by a reasonable band of employer responses.
35. Mr Wicks says correctly in our view, that judging this argument is a matter of general impression of the way the tribunal expressed itself. He did refer us to subparagraph (vi) as a particular illustration of what he was arguing and one of our number wondered whether the way the tribunal expressed itself in subparagraph (iv) might be an indication of the point for which Mr Wicks was contending. But it is a matter of general impression and in our view this ground of appeal is not supported by the material upon which Mr Wicks relied. On the contrary, the tribunal reminded itself of its task in line with the guidance of Iceland Frozen Foods and went straight on to its conclusions, which are therefore to be read in the light of that guidance. There was no need, in our view, for the tribunal to say expressly that the appellant's decision to treat Mrs Coyne's conduct as entitling it to dismiss her fell outside the band of reasonable responses which a reasonable employer might have adopted. That followed by necessary inference from the tribunal's statement of its conclusions immediately after stating the true test. Of course when, having stated the true test, a Tribunal goes on with its conclusions as to the employer's performance in a case like this, if one looks at the conclusions on their own without looking at the immediately preceding paragraph setting out the true test, one can easily read them as declarations of the personal views of members of the tribunal. But the whole of the reasons must be read together. Everything must be put in its context, and having considered and discussed this matter, we have all three come to the conclusion that the tribunal's decision cannot be successfully challenged on this ground.
36. For all those reasons, this appeal must be dismissed.
37. We do add this however. It may well be that the appellant has a problem with some of its employees using company telephone lines to make personal calls, firstly, because of significant cost to the appellant, bearing in mind the number of people its employs, and, secondly, because of the cost of dissatisfaction of customers who find lines into the appellant's outlets unnecessarily engaged. Nothing we have said is meant to indicate that an employee who uses the appellant's lines for personal calls is immune from properly conducted disciplinary action which may result in dismissal. But the necessary investigation into the seriousness of any such conduct must be fairly carried out so that any decision to dismiss for misconduct can be seen to be fair and reasonable in the case of allegedly illegitimate telephone calls, in our view, whatever may be said about cases where there has been some plain and outright fraud. In this case the Employment Tribunal was perfectly entitled to find that the appellant's procedures leading to dismissal were not fair, hence its decision and hence our decision upon this appeal.