United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Strain, Solicitor Advocate Messrs Biggart & Baillie Solicitors 7 Castle Street Edinburgh EH2 3AP
For the Respondent	Mr Upton, Advocate Messrs Drummond Miller Solicitors 32 Moray Place Edinburgh EH3 6BZ


 


SUMMARY

Claimant, a train conductor was dismissed for misconduct where inappropriate behaviour towards a young female passenger travelling alone was alleged. The tribunal held that the dismissal was unfair in respect that the respondents did not have reasonable grounds for their belief as to the claimant's guilt and had not carried out a reasonable investigation. The Employment Appeal Tribunal held that they had erred in both respects and, further, that the circumstances were such that they could conclude that no reasonable tribunal would have failed to hold that the dismissal was not unfair.

THE HONOURABLE LADY SMITH

Preliminaries

[1] This case is about a claim by a conductor employed by First Scotrail Ltd, that he was unfairly dismissed.

[2] This judgment represents the views of all three members. We will refer to the parties as claimant and respondents.

Introduction

[3] This is an appeal by the respondents in those proceedings against a decision of an Employment Tribunal sitting at Glasgow, chairman Ms L Doherty, registered with Extended Reasons on 31 January 2005. The claimant was represented there by Mr A McPherson, solicitor and before us by Mr Upton, advocate. The respondents were represented there and before us by Mr A Strain, solicitor–advocate.

[4] The claimant claimed compensation for unfair dismissal. The respondents' case was that he had been fairly dismissed on conduct grounds.

The Issues

[5] The essential issues identified by the tribunal as requiring determination were firstly what was the reason for the claimant's dismissal and secondly, whether dismissal for that reason was unfair.

The Employment Tribunal Decision

[6] The Employment Tribunal determined that dismissal was for a reason relating to conduct, namely the claimant's behaviour towards a young woman on the Hamilton train on 17 and 18 December 2003. They also determined that the dismissal was unfair. Whilst satisfied that the respondents had a genuine belief in the claimant's guilt, they considered that at the time they formed their belief as to his guilt, they had insufficient grounds on which to do so. Put shortly, the tribunal referred to various avenues of investigation that the respondents should, in their view, have followed, were critical of their initial investigatory meeting and were critical of their assessment of certain of the material before them.

The Appeal

[7] The respondents lodged a notice of appeal in which they seek to challenge the decision of the Employment Tribunal on various grounds, all of which were allowed to proceed to a full hearing. An application for access to the tribunal Chairman's notes of evidence was made after parties had been unable to agree certain aspects of the evidence to which the respondents wished to make reference at the appeal. The application was granted and the notes were made available to parties in advance of the hearing. They were in manuscript form. They were referred to by both parties in the course of the appeal.

The Legislation

[8] The relevant legislative provisions are familiar and are contained in s.98 of the Employment Rights Act 1996:

"(1) In determining for the purposes of the Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a) the reason …..for the dismissal, and

(b) that it is …….a reason falling within subsection (2) ……………

(2) A reason falls within this subsection if it –

……………

(c) relates to the conduct of the employee,

……………

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in the circumstances ( including size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

The Facts

[9] The following summary is drawn from the tribunal's findings in fact, the documents evidently relied on by them and, insofar as it relates to what happened at the investigatory meeting, also from the Chairman's notes of the evidence.

a. Background

[10] Shortly stated, the claimant was working as a conductor on the 6.59am train from Cumbernauld to Motherwell on 15.16 and 17 December 2003. A female customer ("the complainer") was travelling on that train. On 29 December, the complainer wrote to the respondents complaining of the claimant's conduct towards her on those days. The letter was in the following terms:

"29^th December 2003

To Whom It May Concern,

This is with reference to a complaint that my partner, …originally lodged on Thursday 18^th December 2003 by phone. It concerned the treatment that I had been being given by one of your conductors during my journey to work, on three days during that week. I was asked to write to you with my version of events so that you may look into the matter.

Monday 15^th December 2003
6:59am Cumbernauld – Motherwell.

Conductor spoke to me as he was issuing my ticket. Said it was his first day and asked me where I worked in Hamilton, which I told him.

Didn't think anymore of it, as I put the brief conversation down to it being his first day and wanting to give good customer service or being a bit nervous.

Wednesday 17^th December 2003

6:59am Cumbernauld – Motherwell.

Conductor walked straight by me rather than looking at my ticket, which I thought was a bit strange.

On his way back up the carriage he asked me if I wanted a cigarette, which I thought was weird, as he didn't even know whether or not I smoked. I declined his offer, and he said that if ever I did want one then just give him a shout as it wasn't a problem.

He then sat down on the chair behind me and started talking to me. He asked me things like where I had moved here from and why I'd moved here. (I moved here from England, so I guess the accent triggered these questions.)

I gave brief answers and didn't ask him any questions in return.

He then asked me if my boyfriend still lived in England or if he was up here and how old he was and what he did for a living, which I thought was strange, as I hadn't even mentioned that I had a boyfriend. I told him that I lived with him and he went off to sell some tickets.

When he walked back past me he asked me if I thought I was going to marry my boyfriend. By now I had begun to feel quite uncomfortable about the type of questions he was asking me, and the assumptions he was making as he didn't even know me.

When I got the work I called my boyfriend and told him about it and he told me to keep an eye on the situation and tell him if it got further out of hand.

Thursday 18^th December 2003

6:59am Cumbernauld – Motherwell.

I was running late for the train so I had to jump on at the first door once I was on the platform. The conductor was in the end cabin and appeared in front of me once I was on the train, which made me jump.

He offered me his hand and I think he said his name was Patrick, although I'm not 100% certain. I don't think I told him my name, although again, I can't be sure.

He asked me if I wanted to go into the cabin for a cigarette to which I said no. Then he asked me if I just smoked cigarettes or if I smoked drugs as well, because that was ok to smoke in there too. I told him that I didn't remember telling him that I smoked at all.

He asked me if I just wanted to sit in the cabin. I said no and went to move to sit down in the carriage but he started talking to me so I stood in one of the doorways.

He asked me if I found it a problem going out to pubs and having men hit on me when I already had a boyfriend. I told him I don't take any notice.

He said that I had a nice coloured complexion and lifted up his shirt to show me his tan.

He started asking me about my ex-boyfriends and how old they were. He asked me what the oldest age was that I would consider boyfriend material.

Then he touched my hair and said it was a nice colour.

I went to sit down and he went to sell tickets. He had already told me that whenever he's the conductor then I didn't have to pay. I already had a season ticket anyway.

On his way past me he said that I could sit in the cabin and read his newspaper if I wanted to. I declined his offer.

After selling tickets he came back and sat on the chair opposite me and rolled his trouser leg up to show me his football scars. He asked me if I was into football and who my boyfriend supported. He told me that he'd get me 2 Celtic tickets and I could chose whether I took my boyfriend or him.

He then told me that he lived in Hamilton, and that I should start going out there so that he could buy me a drink.

As we neared Motherwell he told to go into the cabin and get his newspaper to take with me. I was a bit wary about going in, so I told him I'd just get one at the station. He went and got it for me.

When I went to get off of the train he went to hug me and kiss me on the cheek, but I backed away so it only amounted to him leaning into me and putting a hand on my shoulder.

I told my boyfriend about it all again when I got to work and he made the initial phone call about the behaviour of this conductor.

Initially I didn't want to go through with the complaint, as I didn't want him to know that I said anything, as he knew where I worked and where I got on the train in the mornings. He had also tried to ask me what time train I got home from Hamilton after work, but I hadn't told him that. After considering it over my week off, I decided that it was best, as even if he had been moved to a different train route by the time I went back to work, there was nothing to say that he wouldn't do the same thing with another passenger. I think that as his employers you should be aware of how he id conducting himself whilst at work so that you can monitor his behaviour and take the appropriate action against him.

Thank you…".

[11] The respondents' Miss Bell, who works in their Customer Relations department, had a meeting with the customer in mid January 2004, to discuss her letter. She repeated her complaints and became noticeably upset when doing so. Although the customer's partner was also present at the meeting, he did not answer questions for her; his input was confined to commenting on his concerns for her.

b. Investigatory Meeting

[12] Miss Bell, thereafter, decided to interview the claimant. This was to be an investigatory meeting. He was asked to attend a fire training session, as cover for the fact that he was infact being asked to attend an investigatory interview. Whilst it was not the respondents' normal practice to arrange such meetings on a pretext, evidence was given that they did so on this occasion so as to preserve confidentiality and avoid "bothy talk". The tribunal state that they were not convinced by that evidence although they do not say why nor do they attribute any improper motive to the respondents in their having done so. The investigatory meeting proceeded. Miss Bell and the respondents' Mr Black were present and the notes of the interview were produced and referred to by the tribunal. Those notes begin:

"Explained purpose of the interview – complaint received from customer. Purely to investigate & get response form PG. Intention was to work through details of complaint and get PG's reaction. Customer states that conversations had taken place on train that she was uncomfortable with. WB explained that when a customer complaint is received we have a responsibility to investigate it. However, those investigating make no pre-judgment. EB asked PG if he can remember working 0659 Cumbernauld to Motherwell week commencing the 15^th December 2003. In particular a young girl travelling on her own. Customer states that conversations took place on the Monday (15 Dec), Wednesday (17 Dec) & Thursday (18 Dec)."

[13] Mr Black was questioned at the tribunal hearing regarding what information was given to the claimant at the investigatory meeting and the Chairman's notes show that he said that Miss Bell explained the nature of the interview and how it would be conducted, that he agreed with the proposition that that was the chance to go through the letter of complaint, that as the interview progressed, the claimant understood the nature of the allegations and that Miss Bell went through the letter line by line and asked the claimant to respond.

[14] The claimant said that he could not remember any passenger in particular on the train. He could not remember having had any conversation with any passenger. He could not remember anything about the matters alleged. He said that whilst he might speak to a woman about football, he would only do so with a woman that he knew. He would not have made motions towards a passenger of the sort alleged. The claimant had a suntan. The claimant's Christian name was Patrick. The claimant was a football enthusiast and, in particular, a Celtic supporter. If the claimant went out socially, he did so in Hamilton. The claimant had broken his ankle three times. At the investigatory interview, he said that he had scars from his injuries; whilst it seems that he also said that he did not have scars, that statement was made in the context of a reference to "would have to take my boots off" and seems indicative of him saying that, to see the evidence of the injuries that he was referring to, it would be necessary to remove his boots. Regarding the question of whether or not he had been involved in any other similar incidents, he said that there had been one incident when a group of girls said he smelled nice and that four years earlier he had made a promise to himself that he would not speak to girls.

c. Post Investigatory Interview

[15] After the investigatory interview, Miss Bell examined the claimant's personnel file. She found that there had been two analogous previous complaints against him. A decision was then made to suspend him. The previous complaints had been made in 1996 and 1997. They both involved female passengers having complained that the claimant had spoken to them about personal matters in a way which made them feel uncomfortable. The customer who complained in 1996 had decided that she did not want matters taken further. In 1997, the Area Train Crew Manager had decided not to progress matters further against the claimant although he did issue an apology to the customer, which was accepted by her. In neither case did disciplinary action follow but the details remained on file, something of which the claimant was specifically advised at the time of their dealing with the 1997 allegation.

[16] After the claimant's personnel file had been examined, there was a discussion with the respondents' area manager, a Mr Dey, and the claimant was suspended.

d. Disciplinary Proceedings

[17] Miss Bell and Mr Black decided that disciplinary proceedings were called for, principally because the customer who had complained was privy to personal information about the claimant which she could only have got as a result of him speaking to her.

[18] Disciplinary charges were prepared and intimated to the claimant in a letter dated 3 February 2004 which also advised him that a disciplinary hearing would take place on 9 February. The charges were a direct reflection of the customer's complaint. The claimant was represented at the hearing by the Divisional Organiser of the RMT, Mr McIntyre, who was given access to the evidence held by the respondents prior to the meeting. The identity of the complainer was not disclosed but all other relevant information was made available. Mr McIntyre does not appear to have asked for the customer to be identified.

[19] At the conclusion of the hearing on 9 February 2004, the respondents' Mr Doran, who had conducted it, intimated that the claimant was dismissed and the notes of the meeting record the following as his reasons:

"Not the first time that you have been accused of this incident. Aware of the severity of the charge and as stated before that the company has an obligation, not only to protect its staff from the threat of verbal or physical assault but to its customers as well. Feel that there is no reason for the woman to make up this incident as there would be no benefit to her and as you have brought nothing else to his hearing, I feel that the original decision should therefore stand and therefore from today's date you will be dismissed from the service. You have seven days to appeal on this decision upon receipt of your letter."

e. Appeal

[20] The claimant appealed, unsuccessfully. The respondents' appeal procedures allow for a re-examination of the evidence to ensure that it supported any decision made by a disciplining officer. The claimant was represented at the appeal by Mr McGarry from the RMT and although he began by indicating that the appeal was in respect of the severity of the sentence only, it is evident from the notes of the appeal hearing that the merits of the decision were discussed in some detail.

The Tribunal's Judgment

[21] The tribunal found that the reason for the claimant's dismissal related to conduct and that that being so, they required to decide whether it was fair or unfair. They approached matters on the basis that for the decision to be dismiss to be fair, the employer must have had a genuine belief in the guilt of the employee, must have had reasonable grounds for that belief and that at the time the belief was formed, they must have carried out a reasonable investigation.

[22] The tribunal were satisfied that the respondents had a genuine belief in the claimant's guilt. They found, however, that at the time the belief was formed, they had insufficient grounds upon which to form that belief and that they had carried out an insufficient investigation (paragraph 67). The tribunal's reasoning as regards that latter finding appears to proceed in the following manner:

[23] They were unconvinced by the respondents' explanation as to why the investigatory meeting was arranged under a pretext. It was unfair and unreasonable of the respondents to do so.

[24] They found that the way in which the investigatory meeting was conducted was not fair because the claimant was questioned without being made aware of the allegations against him.

[25] One of the significant features was, according to the tribunal, that the customer remained anonymous to the claimant which was not sinister but should have prompted the respondents if acting as reasonable employers, to approach the matter of investigation with care. The Tribunal relied on the guidelines set out in the case of Linfood Cash & Carry Ltd v Thomson [1989] ICR 518.

[26] There was a conflict between the customer's account and the claimant's denial and that meant that the respondents were bound to look for corroboration.

[27] Mr Doran, in his assessment that the customer had knowledge of some personal details of the claimant, regarded the football scar evidence as significant. A reasonable employer would have clarified the "scar issue".

[28] Mr Doran attached very significant weight to the record of there having been two previous complaints. They led to the decision to suspend, consideration of the personnel file was the only investigation other than the interview of the customer and the reference to the prior incidents in the course of the disciplinary meeting suggested that they were very much in the mind of Mr Doran when he decided to dismiss the claimant. A reasonable employer would not have placed such significance on the prior complaints because they were old and if the claimant had been disciplined at the time they were made, they would have been "expunged".

[29] Mr Doran did not interview or try to interview the customer whereas a reasonable employer would have considered it was open to him to attempt to do so, so that he could satisfy himself what weight ought to be attached to her version of events before rejecting outright the claimant's denial, particularly since her identity was being kept anonymous.

[30] In considering whether the investigation of the complaint and allegations was adequate a reasonable employer would have taken into account the length of the claimant's service. Further, in considering its assessment of credibility, the respondents should have taken account of the claimant's record of 25 years unblemished service.

[31] Finally, the appeal did not render the decision to dismiss fair because it did not constitute a full rehearing.

The Respondents' Case on Appeal

[32] Mr Strain, on behalf of the respondents, submitted that the tribunal had erred in law in their application of the test in British Home Stores Ltd v Burchell 1980 ICR 303. An employer's investigation required only to be adequate. Notice of allegations did not require to be given prior to an investigatory meeting and it was clear from the evidence that the claimant had been fully informed as to the nature of the allegations at the meeting. The tribunal had erred in concluding that Mr Doran placed heavy weight on the two prior complaints. The evidence did not support that conclusion. Nor did it support the statement made by the tribunal at paragraph 64 that the claimant had been suspended because of the discovery of those complaints on his file; it was clear from Mr Doran's evidence that the suspension was imposed because of the type of disciplinary procedure that was being used. It was an incident of that procedure, which was one which had been agreed with the relevant trade union, that the employee would be suspended pending disposal. It was though not wrong in law for Mr Doran to have had regard to the prior complaints, particularly where it was the claimant himself who had first raised the matter of his prior history. The tribunal had also erred in taking account of what would have happened if the claimant had been disciplined in respect of the those complaints ; the fact was that he had not.

[33] Mr Strain submitted further that the tribunal had erred in determining that Mr Doran should have tried to interview the customer. He was able to reach a clear conclusion on the material before him namely the customer's letter and the report from Ms Bell of her interview of her, the customer's knowledge of a series of unique features that identified the claimant as the conductor who had subjected her to the behaviour described, the claimant's denials, including, initially denying that he had ever been involved in anything of the same sort before, and the existence of the two prior complaints. He had, it was submitted, more than enough before him to entitle him to reach a conclusion. The customer's anonymity was not a reason for trying to interview her. Knowing her name would not have made any difference to the claimant.

[34] Mr Strain submitted that the tribunal had laid undue weight on the matter of the football injury scars. The tribunal gave the impression that they had played a significant part in the investigatory and disciplinary stages of the proceedings but they had not. In any event, at the investigatory interview, the claimant had said that he did have scars. There was no onus on Mr Doran to take this matter any further.

[35] As regards the tribunal's reference to the claimant's 25 year record of employment, his record was not, given the existence of the prior complaints, an unblemished one, his record was not relevant to an assessment of credibility and Mr Doran had not failed to take account of it when it came his decision. It was evident that he was aware of it.

[36] Mr Strain referred to the matter of the appeal. If the tribunal meant to infer that it would not have been open to the claimant to seek a rehearing on appeal, there was no basis for such a finding. There was no evidence that the respondents' appeal procedures were subject to any such restriction. The claimant had an opportunity to seek a rehearing but he did not do so.

[37] Separately, Mr Strain submitted that when it came to fixing compensation, the tribunal had erred in their application of Polkey v A E Dayton Services Ltd (1978) IRLR 503. They should have found that there was a significant prospect of the claimant having been dismissed even if the procedural unfairness identified by them had not occurred. The prospect was so strong that there should have been a 100% reduction in compensation.

[38] Finally, Mr Strain submitted that the tribunal had erred in their decision to fix a further hearing to consider the claimant's claim for pension loss. They agreed with the respondents' submission that the claimant had failed to produce evidence to enable them to make any meaningful assessment of his claim for pension loss and that should have been an end of matters. They were wrong to have left it open to the claimant to seek a further hearing in respect of the matter.

The Claimant's Case on Appeal:

[39] Mr Upton moved us to refuse the appeal. The tribunal had not erred. The investigatory meeting was unfair because the claimant was misled as to its purpose. It was accepted that there was no requirement to give details of allegations prior to an investigatory meeting but the fact that the claimant had been misled as to its purpose meant that there was no level playing field. The tribunal were, he submitted, entitled to conclude that the claimant had not had the allegations explained to him in the course of the meeting; there was no clear evidence that the customer's letter had been read out to him.

[40] Turning to the matter of the prior complaints, Mr Upton submitted that the tribunal had not erred. The respondents' Mr Doran had clearly placed considerable weight on the prior complaints and he should not have done so for the reasons set out by the tribunal at paragraph 65, namely that they were very old and if he had been disciplined for them, they would have been expunged from his personnel record which would have meant that they would have had to be wholly disregarded. They should have been ignored. Mr Upton maintained that submission notwithstanding the terms of the tribunal's finding in fact at paragraph 19:

"Had disciplinary action been taken against the claimant short of dismissal, then a record of that discipline would remained on the personnel record for a period of between two to four years. Thereafter, in accordance with the respondents' policy, it would be expunged. Although expunged, details of previous disciplines are not physically removed from an employee's personnel file."

It was, he submitted, perverse and unreasonable of the respondents to place any reliance on prior unsubstantiated complaints.

[41] Mr Upton submitted further that the tribunal were correct to rely on the Linfood guidelines since the customer remained anonymous although he did not submit that her anonymity put the claimant at any disadvantage. He submitted that the claimant's length of service was relevant to credibility and the tribunal were entitled to be more inclined to believe someone if they had a 25 year clear record of employment. Also, regarding the appeal, the failures surrounding the investigatory meeting and the other failures in investigation could not, he said, have been remedied at that stage although he did not indicate why that was.

[42] Moving to the question of compensation, Mr Upton submitted that the tribunal were entitled to proceed as they did. They could not reach a view as to what would have happened and so no reduction fell to be made. Regarding the question of pension loss, the decision made was within the discretion of the tribunal and was not in error or perverse. The overriding objective was to deal with cases justly and that did not necessarily mean that expedition was required.

Discussion

[43] In a case where an employee is dismissed because the employer believes that he has committed an act of misconduct, the first task for the Employment Tribunal is to decide whether that was a reasonable belief for the employer to hold. That task involves three elements. The first is to ask whether it is satisfied that the belief was genuine. The second is to ask whether it has been shown that that belief was formed on reasonable grounds. The third is to ask whether, at the time the belief was formed, the employer had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. When considering the third question, the tribunal require to bear in mind that there is a range of reasonable responses open to an employer as to the nature and amount of investigation it carries out in any particular case. The foregoing analysis is, of course, drawn from the cases of Burchell, Sainsbury's Supermarket v Hitt [2003] IRLR 23 and Grattan Plc v Kamran Hussain EAT/0802/02/TM. If those three questions are answered in the affirmative then the tribunal has to ask itself whether dismissal was within the range of reasonable responses which a reasonable employer could adopt in the circumstances: Iceland Frozen Foods Ltd v Jones 1983 ICR 17. It is important that an Employment Tribunal bear in mind that the "range of reasonable responses" test is just that and is not an invitation to substitute its own views as to what would have been the way to proceed for that of the employer. Nor does the fact that an Employment Tribunal can identify something that could have been done by an employer that was not done necessarily give rise to the inference that that employer has failed to act reasonably.

[44] Finally, a tribunal's findings in fact must have a basis in the evidence. If there is a conflict in the evidence, it requires to resolve that conflict and explain how and why it has done so in its reasons. If a finding in fact involves the rejection of the evidence of a witness, it should, in its reasons, specify that it has done so and why. That amounts to no more than the requirement to give a sufficient account of the facts and reasons so as to enable an appellate court to see whether any question of law arises: Meek v Birmingham District Council [1987] IRLR 250. It follows that if a witness has given evidence on a matter on which the tribunal make specific findings and the tribunal does not state that it rejected it , it can be taken that that evidence has been accepted.

[45] We are satisfied that, in this case, the tribunal erred and that we should uphold the appeal.

[46] The first problem lies in the tribunal's approach to their assessment of whether the respondents had a reasonable ground for their belief in the claimant's guilt. As we will explain, we consider that it was perverse for them to find that the respondents did not have sufficient grounds for their belief. Further, regarding the matter of investigation, we consider that they have fallen into the error of substituting their own views for that of the respondents rather than from the standpoint of there being a range of reasonable responses open to them. Whilst they say , in a number of places, that a reasonable employer would have acted differently, they do not explain why and what infact they appear to have done is identify ways in which the respondents could have done more and concluded that that meant that their investigatory and disciplinary procedures were not fair. That approach was, in our view, flawed.

[47] Dealing firstly with the investigatory stage, the tribunal's determination that the respondents acted unfairly in using a pretext to fix the meeting is unsatisfactory since, although they have rejected the explanation tendered by the respondents for doing so, they do not explain why. It was an explanation which, in our view, could have been accepted as credible and ought not to have been rejected without explanation. The tribunal refer to the fact that the claimant's suspension was not kept secret but that was a separate matter since by then matters had moved on; the respondents had, after investigation, reached the view that disciplinary proceedings were called for. Moreover, there is no indication that the use of the pretext caused any prejudice to the claimant or put him at any disadvantage. Mr Upton accepted that the respondents were not bound to put him on notice of the allegations prior to the meeting and it is not evident that knowing in advance that the meeting was to discuss a customer's complaint would have made any difference. At the close of paragraph 48, the tribunal appear to approach matters on the basis that an employer is bound to make an employee fully aware of the reason why he is being asked to attend an investigatory meeting. We do not agree. Much will depend on the facts and circumstances of the individual case and, when it comes to assessing fairness, the important issue is not whether such notice was given but what was the effect of its absence. In this case, it had no effect.

[48] The tribunal went on and determined that the investigatory meeting was not fairly conducted because the claimant was not made aware of the nature and extent of the allegations. However, it is plain that there was evidence before the tribunal that that was not so. The note of the meeting shows that Miss Bell questioned the claimant about each of the details of the customer's complaint, as explained in her letter which was produced and in the course of the meeting which Miss Bell had had with her, the note of which was also available to the tribunal. Further, having examined the Chairman's notes of evidence, as relied on by Mr Strain, we can see that Mr Black gave evidence not only that the meeting was the chance to go through the letter of complaint and that as the interview progressed the claimant understood the nature of the allegations being made but that Miss Bell went through the customer's complaint "line by line". Mr Black's evidence was not rejected by the tribunal. Indeed, they seem to have accepted his evidence when it came to the question of whether or not the letter was read out. The tribunal appear to have placed much weight on the respondents' failure to establish that the letter was read out to the claimant. In doing so they have, in our view, missed the point and, it seems, overlooked the evidence about what was explained to the claimant to which we have just referred. We do not see that reading out the letter was the only way of explaining the allegations to the claimant. On Mr Black's evidence, which must have been accepted by the tribunal, the allegations were fully explained.

[49] Turning to the matter of the customer's anonymity, we consider that the tribunal have misdirected themselves. They have relied on it as a significant factor. At paragraph 57, they state:

"While the practice of anonymising customer's complaints is customary within the respondents' organisation, the fact that the identity of the complainer is kept anonymous from the employee would prompt a reasonable employer to approach the matter of investigation with care, taking on board where appropriate some of the considerations which might apply, in circumstances where the informant is a fellow employee and does not wish to be involved."

[50] They then refer to paragraphs 3, 4, 5, and 6 in the Linfood Cash and Carry Ltd case. However, there was no evidence that knowing the name of the customer would have made any difference to the claimant or that the customer was aware that her identity would be protected when making her complaint. The claimant was clearly advised of when and where the incidents that the customer was alleging occurred, of the fact that it was a young woman who was making the allegations and what the precise nature of those allegations was. His representative had access to all the documentary evidence held by the respondents, prior to the disciplinary hearing. There was no indication that he had asked for the customer's identity to be disclosed. The circumstances were, accordingly, quite different from those in which the identity of a fellow employee is protected. In such circumstances, it may be that, if an employee knew who was making an allegation against him, he would be able to point to something in their history which showed why the complainer would lie to get him into trouble. Or it may be that to preserve anonymity, some detail of the allegation which would have potential for identifying the complainer, is withheld from the employee giving rise to a risk of prejudice to the employee. Linfood was a fellow employee case and it is against that background that its guidelines fall to be read. Also, it was recognised at in Linfood, at the point where the guidelines are set out that:

"Every case must depend on its own facts and circumstances may very widely." (at p.522)

[51] Further, like all guidelines, the Linfood guidelines are not rules and failure to follow them does not necessitate the conclusion that an employer has acted unfairly.

[52] We are satisfied that the tribunal have failed to recognise the clear distinction that fell to be recognised in this case. The precautions called for in a fellow employee case were not required and there was no indication that the claimant was in any way at a disadvantage through the non-disclosure of the customer's identity.

[53] The weight that the tribunal attached to the anonymity question appears to have influenced them in reaching the view that the respondents should have looked for corroboration beyond examining the claimant's personnel file. At paragraph 60, they state:

"An employer acting reasonably, in circumstances where he is faced with a customer complaint on the one hand, and a complete denial of the allegations by his employee, would, wherever possible, seek to obtain corroboration of one side of the events from the other. Though, as suggested by Mr Strain, it may have been that further investigations of the witnesses and CCTV cameras would have produced nothing helpful, it is worth noting that Miss Bell, Mr Black and Mr Doran, never at any point considered making any investigation to obtain objective corroboration of the complainer's statement. The only investigation which was carried out other than interviewing the parties concerned was consideration by Miss Bell of the claimant's personnel file."

[54] It seems implicit that the tribunal considered that the respondents should have done more. It is not only their erroneous approach to the anonymity issue that calls that view into question though. It also appears to us to be quite erroneous when the facts of the case are considered. There was no such corroboration available. The events complained of took place on a train. There was never any suggestion that there were any eye witnesses. There was no indication that the other passengers on the train could have been traced. There was, on the evidence, no CCTV on the train. Even if there had been, a significant part of the customer's complaint concerned what was said to her and CCTV would not have been of assistance in that regard. The tribunal could not and should, in these circumstances, have allowed for any possibility of further enquiries of the sort suggested being of assistance.

[55] The anonymity of the customer also appears to have influenced the tribunal in reaching the view that Mr Doran should have tried to interview her himself. At paragraph 66 they state:

"A reasonable employer would have considered the fact that it was open to the disciplining officer to make attempts to arrange an interview with the complainer, so that he could satisfy himself as to what weight should be attached to her version of events before rejecting outright the claimant's denial of the allegations. This is particularly so in circumstances where the complainer's identity is kept anonymous from the employee."

[56] The anonymity question apart, we consider that the tribunal have erred in their approach to this matter by substituting their own opinion as to how the employer should have proceeded instead of considering whether the respondents acted reasonably bearing in mind that there was a range of reasonable responses open to them when deciding how to investigate the complaint. The respondents were recorded by the tribunal, at paragraph 33, as having a practice whereby a customer who complained would be interviewed by the investigating officer; it was not normal for the disciplining officer to interview the customer but he could if he felt it necessary to do so. In short, the disciplining officer has, by the respondents' normal practice, a discretion as regards interviewing the customer and he will only exercise it if he feels it necessary to do so. The tribunal do not criticise that practice. They do not find that it was necessary for Mr Doran to seek to interview the customer himself. Their reason for concluding that he should have done so appears to be that the complaint was first lodged by the customer's partner, that he was present at the interview and interjected on occasion but they have failed to take account of the evidence before them that the customer's partners' comments were confined to expressing his concern for her. Clearly, all the information about what happened in the train came from the customer. Further, there was no suggestion that the customer would have been willing to give a further interview nor any suggestion that Miss Bell's approach to her interview of the customer and subsequent decision to seek to take matters further had been other than entirely professional and thus worthy of respect, something which was commented on by Mr Montgomery, who conducted the appeal proceedings. He was also satisfied that Mr Black's approach to the investigation had been a professional one. We do not see that the circumstances were such as should have made Mr Doran feel that it was necessary to seek to interview the customer or that he fell to be criticised for having failed to do so.

[57] Turning to the matter of the reference to football scars, the tribunal's approach appears again to miss the point. Firstly, the customer's account is not that the claimant actually showed her any scars. She refers only to him having started to show her his scars. She did not say that she saw any scars. Further, the claimant told Miss Bell, at the investigatory interview that he had broken his ankle three times and that he had scars. More importantly, the reference to scars was but one of a series of matters personal to the claimant the accuracy of the others of which was not disputed by the claimant and which were spoken about by the customer. It was not suggested that her knowledge of those other matters could have had any source other than the claimant. Although the claimant refuted the allegations, the basis on which he did so was not that he did not say or do what was alleged but that he did not remember the customer. Whilst it was also asserted on his behalf at the disciplinary hearing and at the appeal that he did not have a scar we do not see that, in the foregoing circumstances, the respondents required to seek to clarify the issue any further. We do not see that, even if it had been established that the claimant had no scars that would have necessarily affected their view of the customer's credibility since she had not indicated that she had seen them and she was able to speak to the other personal features of the claimant to which we have referred.

[58] Turning to the matter of the prior complaints, it is implicit in the approach of the tribunal that they accepted that they were relevant and could be taken into account. They treat the matter as a question of the weight to be attached to a factor that the respondents were entitled to take into account. That was not Mr Upton's approach, as we have noted. We reject Mr Upton's argument. It was plainly open to the respondents to take the prior complaints into account. The nature of this customer's account which implied risk to young female passengers travelling alone on the respondents' trains gave rise to justifiable serious concern. The prior complaints were directly analogous. Further the claimant had initially denied having been involved in any similar trouble before, a denial which, in the circumstances, reflected badly on his credibility.

[59] The tribunal appear to have drawn the inference that the respondents placed more weight on the prior complaints than on the other features of the case and the basis for their doing so is that it was their existence that caused the claimant's suspension. That is not correct. Suspension is, apparently, an invariable procedural step where the respondents determine upon summary disciplinary proceedings and it was decided that such proceedings would be instituted in this case. Certainly, the prior history of complaints was the first matter referred to by Mr Doran when explaining why the claimant was being dismissed but we do not see that it is to be inferred that he afforded it any more weight than the other factors, particularly that the customer could not have known the personal details of the claimant which she spoke of if he had not spoken to her. Nor can we accept the tribunal's reasons for stating that a reasonable employer would not have placed weight on the prior incidents are well founded. The fact that the complaints were six and seven years old did not of itself make them irrelevant. The fact that had they led to disciplinary proceedings, they would have been "expunged from the record" (paragraph 65) is irrelevant. They did not lead to disciplinary proceedings; the question mark that their existence posed as regards the claimant's conduct at the time had been left hanging. In any event , the tribunal's own finding in fact at paragraph 19, to which we have referred, calls into question the idea that the complaints would have "expunged" post discipline since the finding indicates that that is not what would have happened at all. The complaints would not have been eradicated from the relevant records. They would have remained on file.

[60] Turning to the matter of the claimant's length of service, we cannot, contrary to the approach of the tribunal, see that it had any relevance when considering the adequacy of the respondents' investigations. Nor do we agree that it was something that they were bound to take into account when assessing credibility. Clearly it had no relevance to the question of the customer's credibility and whilst, in a particular case, a past unblemished history may be a factor that helps to persuade a fact finder as to a person's credibility, they are not bound to regard it as relevant. We do not see that there was anything in the case that required a departure from that general rule. Further, this was not, of course, a case of an employee with an unblemished record; there were two prior analogous complaints on his file.

[61] Finally, as regards the appeal, whilst it may not infact have constituted a full hearing, it could have done, had the claimant so wished and it appears from the notes of the appeal hearing that the merits of the case were discussed in some detail. Those notes confirm that the respondents' appeals process allowed for a re-examination of the evidence to see that it supported the decision taken. In these circumstances, the tribunal's finding that the appeals process was not capable of rendering the decision to dismiss fair is ill founded.

[62] In these circumstances, we find that the tribunal has erred in its determination that the respondents had insufficient grounds on which to form a belief as to the claimant's guilt and in its determination that they had carried out an insufficient investigation.

[63] There was plainly a sufficiency of grounds for their belief arising from the nature and details of the customer's complaint which bore a strong element of "self corroboration" given the extent to which she had knowledge of the claimant's personal details, the professional investigation carried out by Miss Bell and Mr Black, the lack of any contrary account of events from the claimant, his assertion of the lack of any similar prior problems despite the existence of the two prior complaints and the fact of there having been two prior directly analogous complaints. To suggest that there were no reasonable grounds for the belief is perverse. As regards investigation, for the reasons we have expressed, we consider that the tribunal have fallen into the error of substituting their own view. It is a view which stems from an erroneous assessment of unfairness at the investigatory interview and from identifying some, though few, things that could have been done in addition to the investigation that was carried out but we do not see that they indicate that the respondents' investigation was not a reasonable one. It was clearly adequate in the circumstances.

[64] We recognise that the tribunal have not expressly indicated what their decision would have been as regards the last question that requires to be addressed, namely that of whether, on the basis that the respondents held a genuine belief as to the claimant's guilt based on reasonable grounds after a reasonable investigation, the decision to dismiss fell within the range of reasonable responses open to them. We note, however, that they have not indicated that they would have found the dismissal to be unfair if the various aspects of procedural unfairness which they, albeit erroneously founded on, had not occurred.

[65] We are satisfied that this is one of the rare cases where we are able properly to say that no reasonable tribunal could have concluded other than that the claimant's dismissal was fair in all the circumstances of the case (see e.g.: Wilson v The Post Office [2000] IRLR 834). Those circumstances were that they had justifiably concluded that the claimant had been guilty of behaving towards a young female customer over ensuing days on one of their trains in a way which was wholly inappropriate and had caused her upset and distress. The nature of the customer's complaints were such as to give rise to a justifiable cause for concern regarding the wellbeing of young, female customers travelling alone if the claimant was to remain in their employment. The respondents owed a duty of care towards such persons. We find that a conclusion that the dismissal was within the range of reasonable responses open to the respondents and, therefore, fair, was inevitable.

[66] In the event, we do not require to deal with the arguments advanced under the Polkey and pension loss heads. We would, however, add that we were not satisfied that the tribunal properly applied the Polkey test. They appear to have sought to use a balance of probabilities test yet Polkey made it clear that that is not necessary. If there is merely a doubt as to whether or not dismissal would have occurred in any event, even if there had been no procedural unfairness, that doubt can be reflected in the award of compensation. As regards the matter of pension loss, we would have agreed with Mr Strain's submission. The onus was on the claimant to prove his claim. He failed, on the evidence produced, to do so. It was not open to the tribunal to afford him a "second bite at the cherry" by leaving it open to him to seek to bring the matter of pension loss before the tribunal again at a later stage. We are well aware that it is common, at the Employment Tribunal stage, for aspects of a case to be split and, for instance, quantification of the whole or part of the claim to be postponed beyond the stage of the first hearing. This was not, however, such a case. It is evident from the tribunal's reasons that the claimant sought to present a claim for pension loss and sought to persuade the tribunal to make an award on the basis of such documentation as had been and on the basis of judicial knowledge. His attempt to do so failed. The tribunal found that they could not make any assessment on the evidence before them. That should have been an end of it.

Disposal

[67] We will, in the foregoing circumstances, allow the appeal and substitute for the judgment of the Employment Tribunal a finding that the claimant was not unfairly dismissed.