United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S CATHERWOOD (Of Counsel) Instructed by: Messrs Eversheds Solicitors Holland Court The Close Norwich Norfolk NR1 4DX
For the Respondent	MR R SAMUEL (Of Counsel) Messrs Ashby Cohen Solicitors 18 Hanover Street London W1S 1YN

SUMMARY

Appeal allowed because ET misconstrued language of disciplinary charge and failed to make findings of fact that were relevant to Polkey deduction.


 


HIS HONOUR JUDGE SEROTA QC

Introduction

1. This is the Full Hearing of an appeal by London Underground Ltd ("LUL") against the decision of the Employment Tribunal at Watford (chaired by Mr R Postle). The decision was promulgated on 3 June 2004.
2. The Employment Tribunal determined that the Applicant, Mr Laher had been unfairly dismissed. The appeal was referred to a Full Hearing by the President, Burton J on 22 July 2004.
3. Mr Laher was dismissed by LUL for gross misconduct. In effect it was said that while he was certificated sick he had led his managers to believe he was far more disabled than he actually was. The Employment Tribunal concluded that the disciplinary offence with which he was charged could not have been made out. Mr Laher suggested it was the wrong charge. We will explain these matters in greater detail later in the decision.

Background

4. Mr Laher was employed by LUL in November 1984 and had been employed by them since, rising to the rank of Station Supervisor at the date of his dismissal, 7 May 2003. He had a clean disciplinary record.
5. The Employment Tribunal recorded that there had been a long running dispute between Mr Laher and a colleague. Mr Laher complained of racial harassment and a colleague made a complaint against Mr Laher. There was, however, no suggestion of any racial motive in his dismissal so, although we note the position as we have stated it, it is not relevant to the issues we have to determine on this appeal.
6. In June 2002 Mr Laher went on holiday with his family to Kenya where he contracted Malaria. On his return to the UK he was unable to return to work on 16 June. He was off work by reason of Malaria until 23 September 2002.
7. On 31 December 2002 Mr Laher was ill and was sent home. He later submitted a medical certificate showing that he had been suffering from gastroenteritis and malaria. In accordance with LUL's absence policy, a home visit was arranged by the deputy station manager, Mr Joy. Mr Laher explained the details of his illness and treatment and Mr Joy recorded him as having told him, in answer to a question as to the type of activities he was able to do, that he did not go to the shops. He had tried to walk to the doctor's on 23 January but felt very weak and dizzy so he returned home by cab. He told Mr Joy that most of the time he spent at home in bed because he felt very weak. He felt he could not attend an appointment with LUL's doctor because it would be too much for him.
8. The station manager, Mr Orange partly by reason of Mr Joy's concerns as reported to him and partly on the basis of certain unspecified rumours decided to request that Mr Laher be placed under surveillance. He was placed under surveillance by an agency of LUL. Mr Laher told LUL's disciplinary hearing and the Employment Tribunal that he was aware of the surveillance.
9. On 31 January 2003 Mr Laher was seen to leave his house at 12.17 pm and walked to High Street North, East Ham where he entered a Mosque and Islamic Cultural Centre at which he was observed praying. At 13.54 he was observed to leave the Mosque and catch a bus to Beckton Triangle Retail Park where he went into Curry's Store and was observed looking at refrigerators. Surveillance was terminated when he was in Curry's. Mr Laher had not returned home by 15.40 pm. At no time throughout the observations did Mr Laher show any sign of disability, discomfort, or impaired mobility, according to the surveillance report.
10. On 5 February 2003 a telephone conversation took place between Mr Laher and Mr Orange who made a contemporaneous note. Mr Orange recorded Mr Laher as having said that he was unable to walk any distance. Mr Orange's evidence was that Mr Laher said this in the present tense. In evidence before the Employment Tribunal Mr Laher denied that he spoke in the present tense and maintained that he spoke in the past tense. The Employment Tribunal accepted his evidence. Mr Orange's record of the telephone conversation is at tab 15 (page 56) of the bundle. Mr Orange had recorded that Mr Laher told him he was totally housebound, did not even go to the shops and had not been out of the house except to see the doctor. He was not able to tell Mr Orange when he might be able to return to work as he was finding it difficult to do anything. Mr Orange told Mr Laher that LUL needed him to see its Medical Occupational Health Adviser, Dr Chapman. Mr Laher is recorded as having replied that he did not think he would be able to make the journey, because if he took public transport he might collapse. Mr Orange told Mr Laher that LUL could arrange for a minicab and Mr Laher agreed that that would be a satisfactory arrangement.
11. An occupational health appointment was fixed for Mr Laher for 25 February 2003. However, the appointment did not take place because Mr Laher telephoned to say he had slipped on some steps and hurt his back. He did not think he could attend, even in a taxi, because he was in considerable pain and could neither sit nor walk. Surveillance continued on Mr Laher. On 28 February at approximately 12.21 pm he was seen to leave his house and walk towards East Ham High Street.
12. On 27 February 2003 Mr Laher had a telephone conversation with Mr Orange. He stated that his back was still not good and he was "hobbling round the place".
13. A further telephone conversation took place on 4 March. Mr Laher said he would not be returning to work on 5 March as his back was still painful and his GP had told him to rest and do nothing, otherwise his back would be made worse. The first sick note for back pain presented by Mr Laher is dated 5 March 2003. We have mentioned that surveillance on Mr Laher continued. On 7 March Mr Laher was seen leaving his house at approximately 12.18 pm and he walked to the Mosque at High Street North, East Ham and arrived at approximately 12.31 pm. At 13.56 pm he left the Mosque and walked to a shop where he purchased a snack which he ate while waiting at a bus stop. At 14.03 pm he boarded a 147 bus travelling towards Ilford and at 14.15 pm alighted from the bus at Ilford Town Centre. He walked through the shopping precinct and went into FADS DIY store and purchased some paint. At 14.30 pm he was seen leaving FADS and walking through the precinct carrying his paint. He then entered LIDL supermarket and made a number of purchases. He left LIDL at approximately 15.05 pm and at 15.25 pm boarded a bus towards East Ham. He alighted from the bus at 15.44 pm and walked home carrying his purchases. He arrived home shortly before 16.00 pm. The surveillance report records that at no time throughout the observation did Mr Laher show any signs of disability, discomfort or impaired mobility.
14. On 11 March a further appointment with the Occupational Health Medical Adviser had been arranged. Mr Orange, however, cancelled this appointment while Mr Laher was en route. He gave no reason. On arrival Mr Laher was called into a fact finding meeting under LUL's disciplinary procedure. The meeting took place even though Mr Orange did not inform Mr Laher at the outset of the meeting what in fact the meeting was. Mr Laher did not have the benefit of Union representation. He was shown video evidence produced by the surveillance team. He maintained he still had bad pain and dizzy spells. He also stated that contrary to the advice of his GP, a masseur had told him that exercise was good for his back. He had had good days and bad days and referred to the 7 March as being one of the days when his back was so bad he was unable to do anything. (This of course was the day he had gone on a long shopping trip to Ilford). Mr Orange considered the evidence was clear and contradicted what Mr Laher had told him while absent from work. Mr Orange considered that Mr Laher's actions as recorded were incompatible with the reason he gave for his non attendance at work, and cast doubt on his honesty. He was put on light duties but was suspended from work the following day.
15. On 7 May Mr Laher was called to a disciplinary meeting and charged in effect with gross misconduct in acting in a way incompatible with the declared reason for his absence, contrary to Paragraph 3.10 of the LUL attendance at work procedure. We will refer to this procedure later in our decision.
16. The disciplinary hearing took place on 7 May and was conducted by the Group Station Manager, Mr Mike Baxter. Mr Laher attended with a representative of his Trade Union. He maintained to Mr Baxter that the notes that were read out about his interviews with Mr Orange were incorrect. He had never been shown the notes nor asked to agree them and had seen them for the first time when evidence relating to them was given at the disciplinary hearing. This was contrary to normal procedure. He also complained that the fact finding hearing was a travesty and was not as recommended by LUL Legal Services because he had never been told the purposes of the meeting.
17. The Employment Tribunal concluded, however, that both parties were able to thoroughly explore the situation (see Paragraph 3(16)). The Employment Tribunal considered it surprising that LUL did not produce any medical records for Mr Laher at the meeting, which Mr Baxter accepted could have been of some assistance.
18. Mr Baxter recommended that Mr Laher be dismissed; Mr Baxter in essence considered that Mr Laher's statements to Mr Orange as to the extent of his disability were contradicted by the evidence of the surveillance.
19. Mr Laher appealed and his appeal was heard by Mr Hickman on 30 May at a meeting attended by Mr Laher and his Union representative. The Appeal Board upheld the dismissal.
20. Mr Laher took proceedings before the Employment Tribunal which found that he had been unfairly dismissed; we shall consider the decision of the Employment Tribunal shortly. However, we mention that on 20 July 2004 a remedies hearing took place and Mr Laher was awarded by way of compensation approximately £60,000.00, including £53,435.21 compensation together with a basic award of £5,980.00. At the remedies hearing no submissions were made in relation to a Polkey deduction or deduction by reason of contribution. LUL maintained that no submissions were made in this regard because the Employment Tribunal had made no findings that would support such deductions.

The Decision of the Employment Tribunal

21. The Employment Tribunal set out the facts largely as we have set them out above. We have given rather more detail than is set out in the decision of the Employment Tribunal as to the effect of the surveillance reports. The Employment Tribunal directed itself by reference to the well-known decision in British Home Stores v Burchell and directed itself to consider:

(a) whether LUL had a reasonable belief in the facts of the alleged gross misconduct

(b) whether there were reasonable grounds for sustaining that belief

(c) whether LUL carried out a reasonable investigation into the allegations

(d) whether LUL acted reasonably or unreasonably in treating the gross misconduct as a sufficient reason for dismissing Mr Laher.

The Employment Tribunal stated that it paid:

"particular attention to the issue of whether such a dismissal was within the band of reasonable responses of a reasonable employer in these circumstances."

LUL's Attendance at Work Procedure and Manager's Guidelines at paragraph 3.10 is in the following terms:

"Situations where employees are found to be acting in a way incompatible with their declared reason for absence will be treated as gross misconduct and normal disciplinary procedures will be followed."

An explanatory notes is in the following terms:

"3.10 refers to where employees are found to be acting in a way incompatible with their declared reason for absence. Where evidence is provided of this, or they are found to be performing another job, then normal disciplinary procedures should be followed i.e. fact finding etc. Do not judge until you have gathered all the facts."

22. The Employment Tribunal found that Mr Laher was not acting in a way that was incompatible with the declared reason for his absence and there was no evidential basis for the finding by LUL that he had so acted. The Employment Tribunal took a limited view of the meaning of the phrase "declared reason for absence" which was "variable or intermittent back pain". The Employment Tribunal considered that the symptoms were not the declared reason for Mr Laher's absence. The Employment Tribunal further considered that further evidence might have been obtained as it was available. The Employment Tribunal continue (see paragraph 12(ii)) that Mr Laher had originally cited the reason for absence as malaria/gastroenteritis, the symptoms being dizziness, sickness and nausea. "Some days he had good days some days bad days."
23. As we have already noted the Employment Tribunal found that when Mr Laher spoke to Mr Orange he was talking in the past tense and there was nothing inconsistent with what Mr Laher was seen to be doing with what he described as his symptoms and more particularly what was the declared reason for absence; (see paragraph 12(iii).
24. The Tribunal went on to hold that although Mr Laher's doctor may have told him that bed rest was appropriate he was nonetheless entitled to accept the advice from his osteopath and it was not:

" … inconsistent with the declared reason for absence". Taking those factors together it is difficult to see how the Respondents had a reasonable belief that the facts of the allegation and had made out the charge under 3.10. Furthermore, given the evidence in the judgment of the Tribunal there was no reasonable grounds to sustain the belief that the Applicant was acting inconsistently with the declared reason for his absence and thus committing an act under the charge of gross misconduct particular 3.10."

The Employment Tribunal then went on to consider the reasonableness of the investigation. The Employment Tribunal accepted that the investigation did not have to be a counsel of perfection but it was in the opinion of the Employment Tribunal defective in a number of respects:

(a) There was a failure to include sufficient documentation in the disciplinary brief; namely the evidence that Mr Laher had contracted malaria. He had signed the consent form to release his medical records or report from his GP which was not followed up neither apparently was a report from LUL's Occupation Health Adviser.

(b) The fact finding interview was flawed because there was no prior warning and further at the start of the meeting Mr Laher was not warned that it was a fact finding meeting.

25. At paragraph 12(vi) the Employment Tribunal found that on the facts of the case they were not satisfied:

"…that the Respondents could have genuinely believed that the Applicant had committed an act of gross misconduct namely acting in a way incompatible with the declared reason for absence."

In coming to this conclusion as to whether the dismissal was fair or unfair the Employment Tribunal stated that:

"… it had regard to all the facts. It had found, the size and administrable (sic) resources of LUL and are not satisfied given their findings that the decision to dismiss was fair and reasonable in all the circumstances or was indeed a reasonable response for a reasonable employer on the facts before us."

26. The Employment Tribunal did not consider whether or not it was appropriate to make a Polkey reduction or any deduction by reason of Mr Laher's contribution to the dismissal. Neither was the issue raised at the remedy hearing. We note that Mr Laher says the point could have been argued at the remedy hearing while LUL say it could not, because no findings of fact had been made that would justify any such deduction.
27. In our opinion, having regard to the nature of the allegations it is surprising, to say the least, that the Employment Tribunal did not consider at the liability hearing issues of Polkey deduction or deduction for contribution to the dismissal pursuant to section 123(6) of the Employment Rights Act 1996.
28. We do find it surprising that the Employment Tribunal made no findings at all that would have been relevant to these issues and as to whether or not Mr Laher did give misleading information to Mr Orange and as to whether the surveillance evidence should have been accepted as correct.

Grounds of Appeal and Submission in Support

29. As a general point Mr Catherwood, who appeared for LUL, submitted that an employee must not deliberately mislead his employer on important issues; if he did so he was likely to be in breach of the implied duty of trust and confidence. He also submitted that an employer is entitled to go behind a medical certificate and referred us to the decision of the EAT in Hutchinson v Enfield Rolling Mills [1981] IRLR 318 in which Browne-Wilkinson J had this to say at paragraph 16:

"…In paragraph 4 the Tribunal seems to have taken the view that since Mr Hutchinson had produced a sick note it was no concern of the employers to challenge whether or not he was in fact sick. They say 'it was not reasonable for the employer to go behind that sick note'. To make clear what they mean, they go on to say that the employers were not concerned with where he was or what he was doing. That, in our view, is a total misapprehension. The employer is concerned to see that his employees are working, when fit to do so; and if they are doing things away from their business which suggests that they are fit to work, then that is a matter that concerns them."

30. We would accept that these two submissions by Mr Catherwood are correct; they are also not controversial.
31. Mr Catherwood naturally concentrated in his first two grounds of appeal ((a) and (b)) on the construction placed by the Employment Tribunal on paragraph 3.10 of the Attendance at Work Procedure. Mr Catherwood firstly submitted that the Employment Tribunal should have considered whether Mr Baxter and Mr Hickman's interpretation of that paragraph was one they could reasonably have reached. We feel bound to say at this point in time that the interpretation of a document is a matter of law for the Employment Tribunal and had nothing to do with reasonable responses. An employer cannot be his own judge as to what is the true meaning of a document.
32. Mr Catherwood is, however, on stronger ground when he submits that the Employment Tribunal's decision as to the interpretation of paragraph 3.10 was wrong in law or perverse. He submits that it is not the fact that Mr Laher has a bad back that is of significance; common sense suggests that it was the fact that his bad back prevented him from working that was relevant to the issue as to whether or not he should be taking time off sick. This is a point that we need to consider more fully. Mr Samuel who appears for Mr Laher recognised that the construction of paragraph 3.10 is fundamental to the decision of the Employment Tribunal.
33. Mr Catherwood's grounds (c) and (d) go to the issue of the conversation between Mr Orange and Mr Laher on 5 February. Mr Catherwood submits the Employment Tribunal was wrong to substitute its own views as to what was said for those of Mr Baxter and Mr Hickman who accepted Mr Orange's account of the conversation. He asked forensically why it was unreasonable for them to accept his contemporaneous note as opposed to Mr Laher's recollection some time later. The Employment Tribunal, he submitted gave no explanation and the Employment Tribunal were substituting their findings of fact for those Mr Baxter and Mr Hickman were reasonably entitled to make. The Employment Tribunal should have considered whether Mr Baxter and Mr Hickman could reasonably have taken a different view on the evidence. He submitted that the reasonableness of the decision of Mr Baxter and Mr Hickman in this regard should be considered in the light of all the evidence before them at the time (and we would add evidence that should reasonably have been before them). Mr Catherwood submitted that if Mr Orange's note was accurate then of necessity Mr Laher was guilty of gross misconduct. If, he submitted a contemporaneous document were to be dismissed as inaccurate it was necessary for appropriate reasons to be given, and he relied upon the well-known principle set out in Meek v City of Birmingham District Council [1987] IRLR 258. He pointed out that the Employment Tribunal had not made adequate findings as to which parts of the note they found to be inaccurate and which they found to be accurate and they made no findings about the accuracy of what Mr Orange had recorded to the effect that he had been told by Mr Laher he was totally housebound and might collapse if he took public transport. We shall consider these points later in the Decision.
34. LUL's next ground of appeal (e) raises a point that the Employment Tribunal's decision that back pain was intermittent was perverse. Mr Catherwood did not refer to this ground of appeal either in his skeleton argument or in his submissions. In the circumstances we do not find it necessary to deal with it.
35. The next ground of appeal (f) relates to the issue as to whether the Employment Tribunal failed to consider or failed to make sufficient findings about Mr Laher's back injury. Although the Employment Tribunal found, submits Mr Catherwood, that Mr Laher's behaviour was not inconsistent with his declared back injury, the Employment Tribunal failed to make any findings or take account of the conversations of 25 and 27 February with Mr Orange and with a colleague on 4 March as to the extent of his disability. Despite these conversations he was able to attend Mosque on foot on 28 February and spent up to six hours on foot and on public transport on 7 March while shopping. On 11 March in his conversation with Mr Orange when complaining about his back on 7 March as being a day when he could do nothing, he had in fact been on a six hour shopping trip. The Employment Tribunal, it is submitted, made no findings in relation to the surveillance evidence that noted no signs of disability discomfort or impaired mobility.
36. We will consider this ground of appeal later in this Decision.
37. Ground (g) of the Notice of Appeal raises the suggestion that there was no evidential basis on which either Mr Baxter or Mr Hickman could have concluded that Mr Laher acted in a way incompatible with the declared reason for his absence. This ground is not referred to in Mr Catherwood's skeleton argument nor was it elaborated upon in the course of his submissions. We do not consider it necessary, therefore, to deal with it further.
38. Ground (h) of the Notice of Appeal relates to the relevance of medical documentation. If LUL succeeds on its first two grounds of appeal in relation to the construction of paragraph 3.10, medical documentation would be irrelevant in any case as LUL would, Mr Catherwood submits, have been entitled to take into account the inconsistency between Mr Laher's description of his physical capacity and the surveillance evidence, without reference to any medical evidence. However, he submits the Employment Tribunal failed to explain how the medical documentation was relevant to the question of fairness and failed to take a number of matters into account including the fact that Mr Laher on his own evidence did not have malaria as at the date of the disciplinary hearing; the note from LUL's medical adviser was not based on any conversation with or examination of Mr Laher and was wrong in its assumption that he had malaria.
39. We are unpersuaded that there is any force in Mr Catherwood's submissions in these respects. The Employment Tribunal, assuming its construction of paragraph 3.10 was correct, was perfectly entitled to find that medical documentation should have been considered. This, as it seems to us, would be the case whatever construction of paragraph 3.10 they came to.
40. Grounds (i) and (j) relate to the Employment Tribunal's findings of procedural unfairness.
41. It will be recalled that the Employment Tribunal had concluded that the procedure adopted by LUL was unfair because Mr Orange had not warned Mr Laher of the fact finding meeting in advance, and indeed had commenced the meeting without informing him of its purpose. Mr Catherwood submits that the Employment Tribunal should have considered whether the decision of Mr Baxter or Mr Hickman to dismiss, notwithstanding Mr Orange's failure to warn Mr Laher, was outside the band of reasonable responses. He goes on to submit that the Employment Tribunal failed to take account of, or make findings in relation to, Mr Laher's evidence to the disciplinary hearing and before the Employment Tribunal, that at all relevant times he was fully aware of the surveillance. It is submitted that in those circumstances the Employment Tribunal could not properly have found Mr Laher might have been taken by surprise by the surveillance evidence. It was submitted that the Employment Tribunal had failed to explain how its findings about the meeting of 11 March rendered the dismissal itself unfair. Mr Catherwood pressed us to accept that there was a difference between an investigatory and disciplinary hearing. The fact that an investigation was unsatisfactory did not mean that Mr Laher could not have been fairly dismissed. Mr Baxter and Mr Hickman were aware of his complaint about the meeting of 11 March and it was for them to decide if those complaints made if inappropriate to dismiss Mr Laher. The Employment Tribunal had to decide if their decision was outside the band of reasonable responses.
42. We are bound to say that we are quite unpersuaded by these submissions. There was ample material to justify the Employment Tribunal in concluding that the procedure adopted by LUL was unfair. It is impossible to say that the finding of the Employment Tribunal in this regard was perverse. My colleagues Mr Edmondson and Mr Shrigley have a great deal of industrial experience. Their experience is that good industrial practice would require the provision of all relevant documents to an employee before a fact finding hearing. Further, where medical matters were in issue, good industrial practice would require the availability of medical reports.
43. Further, even though an employer might be allowed a margin of appreciation in relation to the nature of the investigation, it is not for an employer to decide if its investigation was reasonable. An employer can only justify a dismissal as being within the reasonable range of responses, following Burchell if, objectively viewed, it has carried out a reasonable investigation.
44. We now turn to consider the submissions made by Mr Samuel on behalf of Mr Laher.
45. He firstly submits that the interpretation of paragraph 3.10 was a matter for the Employment Tribunal and it was not open to LUL to say that its interpretation was within a band of reasonable responses.
46. He submitted firstly that the Employment Tribunal's interpretation of paragraph 3.10 was correct. The declared reason for absence was back pain and the symptoms of the back pain were only relevant insofar as they might show that the declared reason for Mr Laher's absence was untrue. Mr Samuel appeared to argue that paragraph 3.10 was irrelevant to the issues as to whether Mr Laher was dishonest in claiming he was unfit to work; we did not fully understand the submission. Mr Samuel did, however, submit that he was charged with the "wrong" charge and that a breach of paragraph 3.10 had not been made out. He suggested that the purpose of paragraph 3.10 was to deal with cases where an employee gave a false reason for absence. For example where an employee took time off to go to the dentist yet stayed at home and watched television. It was a specific offence of dishonesty and a mechanism was set out which had to be satisfied.
47. Mr Samuel's construction of paragraph 3.10 was that is not relevant to the question as to whether an employee is unfit to work. It is only relevant in considering the reason given for absence from work.
48. Mr Samuel also submitted that LUL should have specifically submitted before the Employment Tribunal that if its construction of paragraph 3.10 was wrong it could nevertheless rely upon Mr Laher's dishonest conduct to found a Polkey reduction.
49. In relation to ground (c) Mr Samuel submitted the Employment Tribunal was entitled to conclude there was no evidence upon which Mr Laher could have been dismissed by reason of the Employment Tribunal's construction of Clause 3.10. The evidence was clear. Mr Laher was suffering from intermittent back pain.
50. Mr Samuel then made submissions in relation to grounds (i) and (j) relating to procedural unfairness. He pointed out that the Employment Tribunal at paragraph 3.15 described the fact finding meeting as a "travesty". This clearly showed that it was considerably outwith any reasonable band. We feel bound to say that the reference in paragraph 3.15 of the decision of the Employment Tribunal, in which the meeting with Mr Orange was described as a travesty, does not appear to be the decision of the Employment Tribunal, bar as the précis of the submission made on behalf of Mr Laher.
51. Mr Samuel submitted that LUL ignored the fact that the Burchell test required a proper investigation. If the investigation was not reasonable, then the dismissal would of necessity be unfair because a proper and reasonable investigation is essential if the employer is to show a fair reason for dismissal.
52. We have not set out Mr Samuel's submissions in relation to those grounds of appeal we have already considered and rejected. Mr Samuel conceded that the construction of paragraph 3.10 was fundamental to the decision of the Employment Tribunal. With that we turn to set out our conclusions on the remaining issues.

Conclusion on remaining issues

53. We start by considering grounds (a) and (b) and the proper construction of paragraph 3.10. We are not able to agree with the Employment Tribunal's interpretation of Clause 3.10. It is a short point. In our opinion the construction placed upon Clause 3.10 by the Employment Tribunal is excessively legalistic and fails to have regard to the industrial setting in which it must be construed. The Employment Tribunal's construction of that clause offends common sense. This was a work place document and needs to be understood in an industrial or work place setting. Mr Laher can have had no doubt as to what the charge against him meant and until he came before the Employment Tribunal never sought to argue the rather technical and legalistic meaning his Counsel sought to place upon it at the Employment Tribunal.
54. It is clear to us that paragraph 3.10 is aimed at employees who give false explanations as to why they are unable to attend work. The employer is not interested in the medical reason alone but he is interested in the medical reason and its effects on the employee's ability to carry out his work in combination.
55. In this case it is quite clear that the complaint against Mr Laher was not that he falsely stated he had a bad back but that he stated that his bad back had prevented him from working. If it be the case that Mr Laher was able to go on long shopping expeditions and use public transport at a time he was telling his manager that in effect he was confined to bed and unable to use public transport, it would be a serious disciplinary issue. It is no answer to say he was charged with the wrong charge. He was not and in our opinion the Employment Tribunal has misunderstood the meaning of Clause 3.10 and we accept LUL's submissions in this regard. It is surprising that the Employment Tribunal made no findings at all in the light of the surveillance evidence as to Mr Laher's honesty and ability to work. It is also surprising that the Employment Tribunal made no findings as to the observations by the surveillance team that Mr Laher appeared able to walk, go shopping, travel on public transport and showed no signs of disability, discomfort, or impaired mobility.
56. As we have already said, the construction placed by the Employment Tribunal on paragraph 3.10 is fundamental to, and colours its whole decision. It follows that in the light of our construction of Clause 3.10 the case must be remitted for re-hearing. We consider, having regard to the decision of the EAT in Sinclair Roche and Temperley v Heard [2004] IRLR 763 at paragraph 46.4 that the matter should be remitted for rehearing before a differently constituted Tribunal.
57. The construction of paragraph 3.10 is fundamental to the decision of the Employment Tribunal and, as we have said, we have decided that we must remit it for rehearing on grounds (a) and (b) alone. However, we shall deal briefly with certain other points in order to assist the Employment Tribunal.
58. So far as ground (c) is concerned it is unnecessary to consider this matter further in the light of our findings in relation to the first two grounds of appeal.
59. So far as ground (d) is concerned we will deal with this matter briefly because the principal ground has already been covered. In our opinion the Employment Tribunal is bound to consider following the decision in Burchell whether it was reasonably open to Mr Baxter or Mr Hickman to accept Mr Orange's evidence as to his discussion with Mr Laher, rather than simply form a view by preferring Mr Laher's evidence.
60. However, insofar as it might be necessary to the Employment Tribunal to make any findings as to the accuracy of the account of that conversation, the Employment Tribunal heard the evidence and saw both Mr Laher and Mr Orange. While the conclusion that Mr Laher's evidence should be preferred to that of Mr Orange might be surprising, we would not have interfered with the decision on that basis. The Employment Tribunal is the judge of fact and it is not for the EAT to revisit issues of fact.
61. We have already dealt with ground (e).
62. In relation to ground (f) it is surprising that the Employment Tribunal have made no reference to evidence that showed Mr Laher apparently acting inconsistently with what he told Mr Orange.
63. We have dealt with grounds (g) and (h) above.
64. We now turn to consider the issues as to procedural in propriety in grounds (i) and (j). We have serious doubts as to the propriety of the fact-finding meeting and would not have differed from the Employment Tribunal. Mr Laher was given no prior warning of the meeting, nor was he even told at the outset of the meeting that it was to be regarded as a fact-finding meeting. Further, contrary to good industrial practice he was not shown the relevant documents beforehand and he had no opportunity to be represented by his Union. These factors would have justified the Employment Tribunal in concluding that LUL had failed the Bruchell test. The Employment Tribunal might well find that the dismissal was unfair, regardless as to whether or not Mr Laher had been in breach of paragraph 3.10 because of the failure to carry out a proper investigation. The investigation was flawed. It might possibly have been cured on appeal but was not. Further records should have been available. We would not have interfered with the decision on these grounds. However, it does seem to us that the Employment Tribunal may have conflated two issues. The Employment Tribunal in paragraph 12(vi) does appear to have conflated the issue of dismissal with the issue of proper investigation; for example the reference in the Decision we have set out at paragraph 25 to resources is relevant to investigation rather than the decision to dismiss.
65. In the circumstances the appeal is allowed and the case is remitted for rehearing by a differently constituted Tribunal.