United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARC JONES Solicitor Messrs Underwoods Solicitors 83/85 Marlowes Hemel Hempstead Herts HP1 1LF
For the Respondent	MR MARK A BISHOP (of Counsel) Instructed by: The Treasury Solicitor (Employment Team) Queen Anne's Chambers 28 Broadway London SW1H 9JS


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This is an appeal from the unanimous Decision of the Employment Tribunal at London Central after a hearing on 5, 6 and 7 February 2002, promulgated on 6 March 2002, rejecting the Applicant's claim that he was unfairly dismissed by the Respondent. This is plainly a sad case. The Applicant was employed for many years, we think thirty years, by the Respondent, and he was, when dismissed, the Senior Librarian. His effective date of termination was 17 December 2000. In his position as Senior Librarian he had control of a budget of more than a million pounds, and thus held a very responsible position, and one in which honesty was plainly of significant importance.
2. The Ministry of Defence Personnel Instructions, which were still in force at the time of the dismissal, record as follows, the heading is "Disciplinary and Criminal Offences which are Gross Misconduct". Paragraph 2 records:

"2 Each year a small number of staff are dismissed from the MOD for behaviour that constitutes gross misconduct. Examples of the most common disciplinary and criminal offences falling within the category are:

( submission of false travel or subsistence claims;" …..

3 All such cases are treated on their merits. It is, however, the policy of the MOD that any member of staff who has committed a gross misconduct offence is likely to face dismissal. This policy applies even for a first offence, and without prior warning, save in the most exceptional circumstances.

4 The reason for this policy is that the MOD has a duty to guard against fraud and theft involving public and private funds and to protect employees from assault. In such cases the guilty employee becomes unemployable because of an irretrievable breakdown in the trust necessary in the employer/employee relationship. This principle of trust is well established in employment law."

3. There is then a paragraph which emphasises the importance of consistency of application of this policy on gross misconduct. It records:

"Line managers and personnel officers should bear this in mind particularly when exercising or advising on delegated disciplinary powers, or when considering the effect of a conviction on an employee's career. The monitoring of fraud cases has shown a pattern of recurrent mitigating factors being put forward, and sometimes accepted by deciding officers as justification for lesser penalties"

4. Then it records:

"The following are not seen by the Department as justification"

Included amongst those are ignorance of the regulations, custom and practice, low value of fraud and previous long and good service. In relation to that the following is stated:

"Departmental policy is that gross misconduct offences including fraud may result in dismissal even for a first offence. This has been publicised frequently in DCIs and other Departmental regulations, and is reflected clearly in claims forms. All employees, and particularly those with long service, should therefore be well aware of the possibility of dismissal. Trustworthiness is wholly undermined by the discovery of proven fraudulent activity. Previous good service should not therefore be accepted as justification for a lesser penalty."

And then in paragraph 6 it states:

"Mitigation

Only very exceptional factors, such as duress or coercion or diminished mental competence, should be entertained as possibly justifying lesser penalties ……"

5. Mr Gibbs had been based in Gosport on long term detached duty until 1 November 1999, when home-working arrangements commenced. He sold a flat that he had used in Gosport in July 1999, and he needed somewhere to stay. He found accommodation with a work colleague, a Mr Babbage, and he had the sole use of a room in Mr Babbage's house, and shared the house and facilities and chores and paid £200 per month.
6. There was a change in the system of claiming for allowances, as a result of which he lost the long-term detached allowance, and he had to claim his actual expenses and needed receipts to prove them. There was a new circular P74/98 which came into force as from 1 August 1998. This recited, among other matters, as follows:

"6. Where staff choose not to use the CHBS"

[which was the Central Hotel Booking Service]

"they will be reimbursed actual [bed and breakfast] costs up to a ceiling of £50 per night"

and in paragraph 7, there was then a reference to "Mess Allowance":

"MOD civil servants have no automatic right to stay in Service mess accommodation."

7. Then in paragraph 9, headed up "Entitlement to Mess Allowance whilst staying with family or friends" it recited:

"The entitlement to claim Mess Allowance whilst staying with family or friends is also withdrawn. Such accommodation represents wholly private arrangements and in future, staff will be limited to claiming IEA"

[which is Incidental Expenses Allowance]

" of £5 per day, and when appropriate, Day Subsistence Allowance (DSA) for any meals necessarily purchased at extra cost."

8. The Applicant decided to continue staying with Mr Babbage. He apparently said that he had not read the circular, but was generally aware of its substance, and knew that he could claim bed and breakfast expenses. The Tribunal records in paragraph 5 of its Decision that :

"As he had to go to Gosport for not less than four days in any fortnight he expected to spend an average of nine days in Gosport a month and his illness meant he usually travelled up the previous evening. He therefore knew he needed receipts for bed and breakfast expenses from a bed and breakfast or guest house or hotel."

The Tribunal then records the following:

"6 Mr Gibbs has told the Tribunal that he asked Mr Babbage to open a bed and breakfast for which he would be the first guest. Mr Gibbs told the Tribunal that this would start from 1 November 1999. The difference between the previous arrangement and the new arrangement was, Mr Gibbs claimed, that he no longer had to do shopping or chores or cook. He claimed he paid £35 a night for this bed, breakfast and dinner.

7 It was clear that Mr Gibbs was also free to leave clothes and books and a cycle at the property. Mr Gibbs did stay with Mr Babbage in November on 11 nights. Mr Babbage supplied receipts which were headed "Alva View Accommodation" and had his address on the receipts and a note before it stating Member of Hampshire Independent Guest House Proprietors. The receipts noted in manuscript ….. Mr Gibbs' name, the dates, the number of nights and the daily rate of £35. The receipts each had a total and were marked "Paid with thanks" and signed or initialled. Thus Mr Gibbs received receipts recording a payment of £140 for the period 1 to 5 November, £105 for the period 16 to 19 November and £140 for the period 22 to 26 November. In fact Mr Gibbs had paid £200 at the beginning of the month to Mr Babbage so that the second receipt and the third were wrongly marked as paid since Mr Babbage had not received that full amount at the time. Mr Gibbs subsequently paid a further £200 to Mr Babbage at the beginning of December."

9. The ultimate decision by Air Commodore Rainford, to which we will make reference, recorded in the Note for File on 11 December 2000 that, when interviewed on 16 December 1999 at Gosport Police Station, Mr Babbage stated that the Applicant had

"asked him for a proper headed receipt as he needed that to claim reimbursement. He then stated that he knocked up a receipt on headed notepaper, making it look as if he was giving him proper accommodation, and he stated to the police that to say he was a member of Hampshire's Independent Guest House Proprietors was also false."

10. The system at the time in the Respondent Ministry was to have a full hearing before a hearing officer. That involved service, in advance, of the case against the Applicant and the full opportunity for an applicant to call witnesses himself and cross-examine witnesses called to prove his misconduct. That occurred. It should be made clear that, prior to that hearing, the Ministry of Defence Police had investigated the matter, which had taken some time, and had decided to take no criminal action; but once that was clear, and notwithstanding it, the Respondent concluded that it was appropriate to take disciplinary steps and there has been no suggestion that that was an inappropriate course. Inevitably, some delay was caused as a result of this, and Mr Jones, who has ably put forward the Appellant's case before us today, pro bono, sought to complain about the passage of time and delay, but he accepted that this was not a matter about which he could complain before us, as it was not raised at all as a criticism before the Employment Tribunal, and we express no opinion about it.
11. At the hearing, as we have indicated, there was a full consideration of the case. Mr Garden, the hearing officer, is recorded in paragraph 11 of the Tribunal Decision to have concluded that:

"the receipts submitted by Mr Gibbs in support of his claims did not truly represent the arrangement at Mayfield Road. He concluded that Mr Babbage's home was not a legitimate bed and breakfast business and that Mr Babbage's reasons for providing receipts from November onwards was quite simply to enable Mr Gibbs to claim expenses and in so doing he provided misleading documents."

The hearing officer was concerned by the wording of PI74/98 because he concluded that it might be said that it was in some way insufficiently clear. That was a matter with which it was apparent the Tribunal itself did not agree, but more significant, when the matter, as we shall indicate in due course, came before the deciding officer, he concluded that in fact, since the Applicant himself had said that he had never read the circular, and accepted that he knew the procedure which underlay it, namely that it was no longer legitimate, or not legitimate, to claim in respect of anything other than a legitimate bed and breakfast business, any lack of clarity in the circular was of no relevance.

12. The report by Mr Garden, it is now clear, as a result of our being shown the documents in the course of this hearing, although they were not previously included in the appeal bundle, consisted of a very full record of the hearing before him, including a full note of all the evidence that was called and, of course, including the full account of the case that was made by the Applicant to the hearing officer. That document was provided to be signed, and was signed, both by the Applicant and his representative, as a true record of what had occurred.
13. The system that was operated at that time by the Ministry of Defence - we are told there has been some change in this since - was for a full hearing to be held, as we have indicated, before a hearing officer, and for the record then to be passed up to a deciding officer, who made the decision on the basis of that full record, without any further input from an applicant. It appears that in this case a letter was sent by the line manager to the deciding officer, making further points, but the Tribunal accepted that the deciding officer took no account of the content of that letter. The result was that what the deciding officer had before him was effectively a verbatim account of what had occurred in front of the hearing officer. This was a system which the Tribunal clearly did not think was ideal, namely that the deciding officer did not hear, personally, from the employee whose employment was at risk; but he had the fullest opportunity of seeing the case that had been put by that employee before the hearing officer, as recorded and signed as accurate.
14. As we have indicated, Commodore Rainford, having considered the report, decided to dismiss the Applicant. The recommendations to him, which had taken into account the alleged lack of clarity of the circular, to which we have referred, he did not follow. The conclusion of Air Commodore Rainford, contained in the Note for File, to which we have referred, in which the Applicant was recorded as having told the police that he understood that he was not entitled to claim anything, if staying with friends or family, unless they were running a legitimate business, and the evidence of what Mr Babbage had said to the Hampshire Police, sets out certain other matters, including the inconsistency in reconciling the funds paid, and the fact that, at the time when Colonel Dickinson was told about potential guest houses at which the Applicant could stay, he was already resident at Mr Babbage's house. Air Commodore Rainford concluded as follows:

"In my opinion the verdict that Mr Gibbs is guilty of the charge and therefore of gross misconduct is entirely consistent with the evidence presented. He has, by his actions, broken the trust necessary for an employer/employee relationship. In accord with Annex H of Volume 5 of the MOD Personnel Manual"

[which we will quote in a moment]

"I have no alternative but to conclude that the correct penalty here is one of dismissal. It is further stated in the manual that ignorance of the regulations custom and practice, a low value of fraud and record of long and good service should not be accepted as mitigating factors to justify a penalty less than dismissal. I do not find the post hoc invocation of the interpretation of the rules, in particular PI 74/98, to be robust mitigation in a senior civil servant of years standing who is also a Union official and who would have been extremely unlikely to be unaware of the regulations. The fact that he was said to be unaware of the regulation and then invoked subsequent interpretation as a defence is not acceptable.

In coming to this judgment, I have done so after full review of all the evidence presented to me and after full consideration of all the prepared advice."

15. Annex H, to which we referred, says in material respect, under the heading "Dismissal"

"Dismissal is an appropriate penalty where the employee has, by his or her actions, broken the trust necessary in an employer/employee relationship. Some offences are so serious that, although each case must be considered on its merits, dismissal will nearly always be the appropriate penalty, even without previous warning for a first offence."

16. The Tribunal was addressed for the Applicant by Mr McCarthy, of Counsel. The Respondent was represented then, as before us, by Mark Bishop, of Counsel. It is plain that the arguments were fully aired before the Tribunal and that the issues fell, as they naturally would, in an unfair dismissal claim, into two parts. First, the question of the procedure, and, secondly, the question of the substance.
17. So far as procedure was concerned, the Tribunal said as follows:

"24 There was a reasonable investigation. Air Commodore Rainford held an honest belief in the guilt of the Applicant. Air Commodore Rainford had reasonable grounds for holding that belief.

25 On the question of a reasonable procedure the Tribunal thought very carefully about this as we had certain concerns.

26 Air Commodore Rainford reached his decision as a deciding officer without seeing the Applicant. That accorded with the procedure which was in a binding document and had been applied over a period of time in conjunction with trade unions. Our second concern was that Air Commodore Rainford was given comments by Commander Baker which had not been seen or commented on by the Applicant or his representative. However we noted that Mrs Cawardine had specifically told Air Commodore Rainford by her letter dated 30 November to disregard the comments of the line manager. We also noted that his own record of his decision clearly set out in this contemporaneous note made no reference to those ancillary matters and focused solely on the charge.

27 The Tribunal therefore concluded that although there were procedural issues, they did not constitute a fundamental flaw. The procedure was neither incorrect nor unreasonable. Nevertheless we did note that the Ministry of Defence has now changed the procedure and we believe that was a very sensible thing to do."

The Tribunal then went on to consider, as they put it:

" The Polkey issue of whether, had Air Commodore Rainford considered holding a further meeting with the Applicant, he would have concluded that it would have been entirely futile, in any event. In other words, we consider whether this was an exceptional circumstance and our conclusion was that it was. It would have been entirely futile for Air Commodore Rainford to have met with Mr Gibbs and his representative."

18. We shall deal first with the question of procedure, in respect of which the Applicant, through Mr Jones, has put forward his first ground of appeal. He submits that, although it is apparent that the Tribunal had concerns about the system, so far as the split between the role of the hearing officer and the deciding officer was concerned, and reached a conclusion that, notwithstanding that, the procedure fell within the reasonable range of responses, of a reasonable employer, nevertheless, the Tribunal erred in law in not finding that procedure flawed, and/or the dismissal consequently unfair, because the Applicant was not given an opportunity in person to address the deciding officer. He accepts the principle, now recently established or re-established in Whitbread plc -v- Hall [2000] IRLR 275 and Sainsbury's Supermarkets Ltd -v- Hitt [2003] IRLR 23, that the method of procedure is, as is the substantive decision, to be tested by a Tribunal against the reasonable band of responses of a reasonable employer. It is not now, if it ever was, appropriate for the Tribunal itself to lay down an appropriate procedure and to say that a procedure which does not contain certain ingredients cannot be reasonable; but he submits that natural justice, involving the necessity for an employee to be heard before he is dismissed, means that the lack of provision of such an opportunity to be heard before the deciding officer would be outside the band of reasonable responses.
19. He accepts that he can produce no authority in this regard. He referred us to the ACAS Code of Practice, and in particular paragraph 9. We read the relevant part of that. It is described of course as "Disciplinary Practice and Procedures in Employment" and at paragraph 9 it reads as follows:

"When drawing up and applying disciplinary procedures employers should have regard to the requirements of natural justice. This means workers should be informed in advance of any disciplinary hearing of the allegations that are being made against them together with the supporting evidence and be given the opportunity of challenging the allegations and evidence before decisions are reached …. Consequently good disciplinary procedures should …

(ix) provide workers with an opportunity to state their case before decisions are reached"

He accepts that the highest it can be put is that the Tribunal, and indeed the employer, are obliged to have in mind the contents of the ACAS Code of Practice and he refers to dicta of Morison P in Lock -v- Cardiff Railway Company Ltd [1998] IRLR 358 in that regard, but that it is not per se an error of law either for the employer not to comply fully with the ACAS Code of Practice, or for the Tribunal not to mention the Code in terms, or to sanction a procedure as within the range of responses even if it were outside the Code of Practice. In fact we are not at all satisfied that this procedure, albeit capable of criticism, was outside the ACAS Code of Practice, at any rate in relation to its terms - its spirit might be a different matter. There was a situation in which the Applicant was given full opportunity to state his case. The criticism by the Applicant, or by Mr Jones, is that opportunity was not given to him before the actual person deciding the case.

20. We turn then to his criticism of the Tribunal's Decision. Plainly the Tribunal, and we, would consider that it would be ideal for there to be an opportunity to state a case before the person who was actually deciding the question of dismissal. The practice that has plainly been hallowed for many years, prior to some recent amendment, within the Ministry of Defence, of splitting the decision making between a hearing officer and a deciding officer, may have some justification, but does have the detraction of the Applicant losing that opportunity.
21. On the other hand, given that there has been that dichotomy, it would seem difficult to see how there could be simply an additional opportunity for the Applicant to put his case before the deciding officer, without having effectively a re-run of what has already happened before the hearing officer. If there is to be a decision by the hearing officer that the Applicant was guilty of misconduct, and the only matter that was left for the deciding officer was one of penalty, then there might be, in those circumstances, an opportunity, perfectly straightforwardly, for mitigation of sentence, rather similar to mitigation via a defendant in a criminal court after a finding of guilt; but that is not the basis of the system, and the giving of an opportunity to someone, in respect of whom guilt has not yet been found of the conduct complained of, would or might only lead to his restating what he has already said, or to his saying something fresh without the opportunity for the witnesses who were called before the hearing officer to have any opportunity of commenting on it.
22. We are not told of the details of the changed system which apparently is now being operated by the Ministry of Defence, which would no doubt have addressed those kinds of problems, but, in dealing with the system that then operated, it appears to us that the Tribunal was entitled to find that this was within the reasonable range of responses of a reasonable employer, provided that, as was the case, the presentation of the case by the Applicant which had been before the hearing officer was fully put before the deciding officer.
23. In this case there was a full record of what had occurred, and one which was signed as accurate by and on behalf of the Applicant. The deciding officer was thus put into possession of the full picture as presented, and in particular the full picture as presented by the Applicant, and was then applying the Rules and Procedures of the Ministry of Defence to a factual situation which had been resolved in detail, in a fair way, with the full involvement of the Applicant. If that system was to be operated, then there was certainly, albeit not in person, the opportunity taken by the Applicant to have before the deciding officer the entirety of his case.
24. It was, therefore in our judgment, open to the Tribunal to find, while expressing reservations about the procedure, that it was a procedure which was, and had been for some years, within the reasonable range of responses of a reasonable employer, and not to condemn the dismissal as unfair by virtue of procedural defect. The Tribunal, as a fall-back, as we have indicated, concluded that it would in any event have found, applying the case of Polkey, that if the deciding officer had heard the Applicant would have made no difference. That may well be the case and, of course, it underlies the decision that the Tribunal had already taken, in relation to considering whether the course that was taken by the employer felt outside the band of reasonable responses; but it was inappropriate for the Tribunal to have expressed a view on Polkey, without having given the parties the opportunity of addressing them on Polkey, if that was in their mind; and Mr Bishop has very fairly confirmed the case that was made on behalf of the Applicant, that no such opportunity was here given by the Tribunal. If we had been, as we are not, in Mr Jones' favour on the main point, and Mr Bishop would have needed to rely on Polkey to save his position, then we would have had no alternative but to send the matter back to the Tribunal, unless we could have been persuaded that it was possible to substitute our own decision, given the absence of argument on the point; and we do urge Tribunals to remember, before they make fall-back findings, to ensure that they have given the parties the opportunity to address them on such a fall-back position, in case it should be necessary.
25. We turn to the other ground of appeal by Mr Jones, on the Applicant's behalf, relating to the substance. The Tribunal recorded its findings as follows:

"28 The Tribunal considered the question of whether dismissal was within the range of reasonable responses open to an employer and took the view that, bearing in mind the disciplinary procedure, the answer was yes. We again took careful account of the fact that other managers had suggested a lesser penalty and particularly the suggestion of down-grading. The Applicant had referred to the question of down-grading and suggested that the advice in relation to that was wrong and that down-grading should have been available as a penalty. We do not accept that. It was clear from the procedure and the guidelines that dismissal would normally be applied in this sort of case except where there were very limited mitigating circumstances.

29 The Tribunal considered whether the employee was aware or should have been aware that his conduct may lead to dismissal and we concluded that this was clear from the Ministry of Defence documentation.

30 We therefore concluded that this dismissal was fair….."

26. The ground of appeal by Mr Jones was here put forward by reference to the decision of the Employment Appeal Tribunal per Lord Johnston in Taylor -v- Parsons Peebles Ltd [1981] IRLR 119. The headnote in that case reads:

"In determining the reasonableness of an employer's decision to dismiss, the proper test is not what the policy of the employer was but what the reaction of a reasonable employer would be in the circumstances. That the employer's code of disciplinary conduct may or may not contain a provision to the effect that anyone striking a blow would be instantly dismissed therefore is not to the point. That provision must always be considered in the light of how it would be applied by a reasonable employer having regard to equity and the substantial merits of the case."

Mr Jones submits that, in this case, whereas on the face of it the Tribunal considered whether the decision to dismiss fell within the reasonable range of responses of a reasonable employer, in accordance with the now well established test, in fact they allowed that discretion to be trammelled by their consideration of the employer's policy, which we cited at the outset of this judgment, and again by reference to Annex H, which we have also cited. He referred to two sentences in paragraph 28, which we have set out. As to the first sentence of paragraph 28, namely:

" The Tribunal considered the question of whether dismissal was within the range of reasonable responses open to an employer and took the view that, bearing in mind the disciplinary procedure, the answer was yes"

he submitted that that showed that the Tribunal had not simply applied the band of reasonable responses test, but had allowed itself to be influenced by the existence of the employer's policy; and then he referred to the last sentence of paragraph 28, in which there is reference made by the Tribunal to the procedure, and the guidelines relating to the fact that dismissal would normally be applied in this sort of case, except where there were very limited mitigating circumstances.

27. Before we can reach a conclusion on the applicability of Taylor, we obviously ought to consider, so far as we can from what was in fact a very short report, the circumstances of Taylor. It appears that in paragraph 2 of Lord McDonald's judgment:

"The Tribunal held that there had been an angry exchange between the appellant and another employee which culminated in an exchange of blows."

Paragraph 3 records that

"The Tribunal after hearing the evidence were obviously of the opinion that this was a most unfortunate case and felt that there was room for compromise or settlement. This did not prove possible and accordingly they proceeded to decide the matter on the evidence before them. They held that it was the respondent's policy in the event of a blow being struck for the person who did this to be instantly dismissed."

And then Lord McDonald continues:

"They held, therefore, that the reason for dismissal was a competent one namely conduct. They then properly applied their minds to the question of whether the substantial merits of the case and considerations of equity made dismissal reasonable in the circumstances. They held that they were satisfied that the respondents had made sufficient investigations into the matter and had reasonable grounds for believing that the appellant had committed the offence. These are findings which we cannot disturb although it is of interest to note that there was before the Industrial Tribunal considerable evidence as to a course of provocative behaviour on the part of [the other gentleman] towards the appellant. This information was not apparently before the respondents when they took the decision to dismiss, and the Tribunal properly did not base their decision upon it."

At paragraph 5 Lord McDonald records:

"The Tribunal have expressly stated that they were satisfied that the policy of the respondents was that in such circumstances the only possible penalty was dismissal and that this penalty was justly enforced when thy dismissed both the appellant and Henderson. So expressed this does not in our view state the proper test. The proper test is not what the policy of the respondents as employers was but what the reaction of a reasonable employer would have been in the circumstances."

28. It appears to us, therefore, having looked in a little more detail at Taylor, that the result of Taylor is not quite as Mr Jones would wish. What appears to have been the action of the Tribunal in that case, which Lord Johnston and the EAT overturned, was effectively to conclude that, as their conduct had been proved and that the policy of the employers was that someone of guilty of such conduct would be dismissed, and the person was consequently dismissed, therefore the dismissal was fair. In our judgment, that is plainly not what the Tribunal concluded had occurred here.
29. The Tribunal concluded in paragraph 28 that the employer, and indeed the Tribunal, bore in mind the disciplinary procedure, but did not regard the question of dismissal as an automatic one. The policy, laying down that dismissal would normally be applied in this sort of case except where there were very limited mitigating circumstances, was a factor which both the employer had in mind and the Tribunal considered, but neither, in our judgment, did the Tribunal conclude that the employer automatically operated a policy of dismissal, nor did the Tribunal ask itself the wrong question, as the equivalent Tribunal did in Taylor, namely whether the employer complied with its own policy, but rather whether this employer acted without the range of range of reasonable responses of a reasonable employer in dismissing, in the light of the existence of the policy.
30. It appears to us clear that there will be many cases in which where there is a business which depends upon cash, or the kind of respondent here, who is, in the interests of the public, determined to ensure that there will be no acceptance of crime or fraud, even from junior people, never mind more senior, dismissal will be, ordinarily, the result of the slightest act of serious fraud, albeit on the part of someone who has thirty years of length of service; and the employer here concluded that this was something which had been deliberately set up by this Applicant, and that there was no question of unconscious breach of the Rules.
31. If the Employment Appeal Tribunal, or Tribunals at large, were to find themselves less able to sanction dismissals where there were rules or procedures which put on notice employees that that would be the likely result of such dishonesty, than if there were no such published rules, but it was held reasonable for an employer to take such a step in such circumstances, there would, in the judgment of this Tribunal, be likely to be greater unfairness rather than lesser unfairness. It is obviously right and just that an employer who does have such a policy should spell it out, and therefore, when it comes to dismissal, it may well be more difficult for an employee, knowing of that policy, to establish a mitigation; but it is in our judgment fairer that that course, provided that it is a fair one, should be known to employees, than that in some way an employer who follows that policy should be found to have a lesser charge of success in establishing a fair dismissal than someone who does not spell out the policy in advance.
32. While not seeking to doubt the decision in Taylor on its own facts, we would deprecate the development of any policy which said that an employer who sets out such a policy in advance cannot then follow it when it comes to the particular facts of a given case; provided of course that both employer and the Tribunal do not shut their minds, and deliver an automatic conclusion, but take into account the facts of the case against the background of that published policy or procedure.
33. In those circumstances, we see no error of law in relation to the approach of the Tribunal in appraising the fairness of the decision of this employer, and we do not conclude that there is the kind of trammel which is suggested upon the well established test operated in Tribunals day after day up and down the land, of a band of reasonable responses of a reasonable employer.
34. Mr Jones did put forward, as a third and discrete ground, the allegation that the Respondent failed to take into account the Appellant's nineteen years exemplary service with this particular Respondent, thirty years with the Civil Service. That is plainly an appeal of fact only. It might of course had had some relevance as part of one or other of the two attacks with which we have dealt, but as a self-standing ground, it would be factual only, and Mr Bishop responds, in any event, by saying that the Respondent did take those matters into account.
35. We conclude that there is no separate merit in the third ground, and having dismissed the first two grounds, we dismiss the entirety of the appeal.