United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0333/15/LA

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                             At the Tribunal

                                                                                                             On 13 May 2016

 

 

 

Before

HIS HONOUR JUDGE DAVID RICHARDSON

(SITTING ALONE)

 

 

 

 

 

 

LONDON SOVEREIGN LTD                                                                                APPELLANT

 

 

 

 

 

MR S GALLON                                                                                                    RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR EDWARD NUTTMAN (Solicitor) Ward Hadaway Solicitors 1A Tower Square Wellington Street Leeds LS1 4DL
For the Respondent	MR GORDON SANKEY (Representative) Stevenage CAB Swingate House Danestrete Stevenage Hertfordshire SG1 1AF

 

 

SUMMARY

UNFAIR DISMISSAL - Reasonableness of dismissal

CONTRACT OF EMPLOYMENT - Wrongful dismissal

 

(1)        Unfair dismissal.  The Employment Judge’s reasons demonstrated that she fell into error of starting from her own findings rather than reviewing the actions of the Respondent in accordance with section 98(4) of the Employment Rights Act 1996.

 

(2)        The Employment Judge’s very brief reasons on the Polkey question did not demonstrate that she applied the correct test.

 

(3)        The Employment Judge’s findings could not be described as perverse - in particular, her finding that the Claimant did not commit the misconduct alleged was not perverse - and her Judgment in respect of wrongful dismissal would stand.

 

HIS HONOUR JUDGE DAVID RICHARDSON

 

Introduction

1.                  Mr Stephen Gallon (“the Claimant”) was employed by London Sovereign Ltd (“the Respondent”) as a bus driver.  He had 23 years’ service.  He was summarily dismissed on 8 October 2014 for alleged gross misconduct: “use of a mobile phone whilst driving”.  He denied the allegation.  He brought claims of wrongful dismissal and unfair dismissal.  These claims were heard by Employment Judge Manley in the Watford Employment Tribunal on 23 June 2015.  She upheld the claims in full.  She gave her decision and reasons orally at the hearing.  Her Judgment with Written Reasons was sent to the parties on 20 July 2015.  The Respondent appeals against that Judgment.

 

2.                  Following a Preliminary Hearing before Supperstone J on 24 February 2016, three grounds of appeal were allowed through to this Full Hearing.  The Respondent argues that the Employment Judge impermissibly substituted her own view for that of the Respondent when assessing whether the dismissal was unfair, that the Employment Judge reached perverse conclusions in certain respects, and that she failed to apply what is known as the “Polkey principle” (Polkey v A E Dayton Services Ltd [1987] IRLR 503) properly.

 

The Background Facts

3.                  The Respondent’s policy on the use of mobile phones when driving was well known to the Claimant.  A notice displayed in the depot said that a driver caught using a mobile phone would be subject to disciplinary action that might lead to dismissal.  On the other hand, there was no policy which required a driver to keep the mobile phone out of sight.  Although drivers were allowed a bag in the cab in which to put their personal items, there was also a ledge next to the steering wheel on which they might put things.  The Respondent accepted that it had not told drivers they could not put a mobile phone on that ledge.

 

4.                  On Friday 26 September 2014 at about 11.45am the Claimant was driving a H9 bus in Wealdstone.  He was observed by the Respondent’s general manager, Ms Molyneux.  She wrote the following report:

“Having left Harrow garage I was stationary in my car at the filter right lane in High Street, Wealdstone outside McDonalds.  I noticed that the H9 bus was proceeding forward but the driver was not looking ahead, he appeared to be distracted by something to the right of his seating position near the cab window.  He did not have full control of the vehicle as he [sic] hand was also to the right hand side of his cab.

Whilst I was still stationary at the red light, the bus continued to proceed through the lights and passed straight pass [sic] me.  At this time the driver was still distracted.  When the bus was parrell [sic] to my car, I witnessed the driver using a mobile phone.  The mobile phone was laying on the control panel/ledge along the bottom of the cab window.

The driver was touching the mobile phone, as if he was texting.”

 

5.                  The Claimant was not informed of the report until the end of his shift on Tuesday 30 September.  He was called to a fact finding meeting.  The report was read to him.  He said he never used his phone to talk or text while driving.  The discussion went on:

“ “I carry a lot of rubbish in my inside pocket and I sometimes put it on the ledge and sometimes I have to move it as it may slip when you’re driving.  I would never text, I have been here for 20 odd years”.

He was asked “Did you make contact with your phone?” and he answered “I may have pushed it, I do this a few times, I seriously don’t even look down at it.”

He was asked “Do you not believe that it is dangerous to keep it in this position?” and he replied “Normally it’s alright, it’s a comfort thing.  Comfort for me when I’m driving.  When it’s warm enough I take my jacket off.  I do realise how serious an offence it is.  I will not entertain anything like that.”

He was asked “Do you not believe it is better to keep your mobile phone out of sight?” he replied “I do now, I don’t even do it when I’m driving my car, let alone a bus”.”

 

6.                  The Claimant was charged with use of a mobile phone while driving.  He attended a disciplinary meeting on 7 October with his trade union representative.  Mr Bolam took that meeting.  He had looked at the CCTV available, but it did not cover the area of the bus in question.  The Claimant said he cared about his job and would never use his phone while driving.  His union representative prayed in aid his 23 years of service and said that Ms Molyneux must be mistaken.  Mr Bolam decided to dismiss the Claimant.  The letter of dismissal, dated 7 October, contains the following passage:

“It has also not been disputed that you may have touched the mobile phone, however you have stated on numerous occasions that this was to return it to a secure location under the cab window.

A key point was the length of time the mobile phone caused you to be distracted.  You were witnessed being distracted by the phone as you waited, stationary, at the traffic light controlled junction, it is then reported that this distraction continued as you moved off from the junction.  This does not signify a brief moment of you simply moving the phone to a secure position.”

 

7.                  There was a mistake in Mr Bolam’s letter: the bus had moved from the traffic lights before Ms Molyneux actually saw the mobile phone.  But he was right to say that Ms Molyneux gave evidence of the Claimant’s distraction over a significant period of time.  CCTV showed that the time when Ms Molyneux could have observed the bus was about ten seconds, and her evidence was to the effect that her observation lasted this long.  The time when the bus was actually passing her car was maybe two or three seconds, and her evidence was that this was the time when she saw the mobile phone - but he had been distracted over the longer period of observation. 

 

8.                  The Claimant lodged an internal appeal against the decision.  Ms Gayle chaired an appeal panel.  The Claimant’s representative raised the point that he required glasses to read his phone.  The Claimant’s representative said that the Claimant was seeking his telephone records.  The appeal panel decided the case on the material before it without awaiting the telephone records.  It dismissed the appeal.  It said the following:

“The appeal panel having reviewed the CCTV on more than one occasion, also visited the scene of the incident, sat in the cab of a DE and looked at the scenario from multiple points and angles, to get an understanding of what could or could not be seen clearly.  Had you viewed the CCTV you would have noted the position of the witness car, the position of the bus vs the car and the time span the bus was clearly visible to the car.  This supports the general manager’s statement of the longevity, clarity of her line of vision and angle.

We are not disputing [the Claimant’s] service length or record with the company, however this case is also about the law not only company policy if a case is proven.

We the panel having taken the time to fully review all the details of this case and taken the steps to physically attempt to recreate the incident as well as added as many different variances to the scenario, can find no reason to dispute the clear and precise report submitted by the witness. …”

 

9.                  The Claimant was out of work until February 2015.  He then obtained alternative work at a lower rate of pay as a bus driver with another operator.

 

The Employment Judge’s Reasons

10.              The Employment Judge did not separate out her findings concerning unfair and wrongful dismissal.  Under a section headed “Facts” she set out facts relating to Ms Molyneux’s report, the Claimant’s account, the fact finding hearing, the disciplinary hearing and the appeal.  In the midst of her account of the appeal she interposed the following paragraph (paragraph 20):

“20. Having heard evidence from the claimant and his partner and seen the documents available at the time and the O2 records, I now find as a fact that the claimant was not using the mobile phone when Mrs Massingham [as Ms Molyneux is now known] saw him.  She may well have genuinely believed that at the time, but if the respondent had carried out further investigation, there would have been insufficient evidence to sustain her belief that he was using the phone.  A number of things that he said and which were capable of being shown to be accurate - such as his need for glasses to read the phone; the fact that he did not use the phone for anything other than phoning; that he was not holding the phone and the O2 records, would and should have led them to find that he was not using the phone.”

 

11.              There followed a section entitled “The law and submissions”, in which the Employment Judge made appropriate reference to section 98(4) and to the leading cases concerning unfair dismissal.  She stated specifically that she must not substitute her view for that of the Respondent, but much rather ask whether dismissal fell within a range of reasonable responses.

 

12.              The Employment Judge then turned to her conclusions.  She found that there was a potentially fair reason for dismissal, namely conduct.  She continued as follows:

“30. I will start then with the question of genuine and reasonable belief.  I do accept that Mrs Massingham believed that what she saw for a limited period time [sic] was the claimant doing something with his mobile phone, which she believed amounted to “using” the phone.  However, I do not accept that that was a sustainable reasonable belief in the circumstances.  The period of time when she had good sight of the claimant is simply too short and further questions needed to be asked.  That was her belief at the time and the difficulty for the respondent is that it did not carry out a proper investigation following on from that.

31. I accept that the band of reasonable responses test applies to the investigation as well as to whether the sanction of dismissal is fair or unfair.  Applying that test, it does not seem to me that it is within the band of reasonable responses for an employer in these circumstances to rely as heavily as it did on what Mrs Massingham saw in a very brief period of time.  This is particularly so when the claimant made it absolutely clear that he denied the charge from the first moment he had a chance to respond.  I add here that it was unfortunate that the respondent did not speak to him for four days after the incident, making it more difficult for an accurate recollection.  The claimant said clearly that he did not and could not text and that he did not and would not use the phone whilst driving.  If the respondent had followed that through and taken into account his other arguments about his need for glasses when looking at the phone and what was said by his trade union representative about the practice of drivers putting items on that ledge, it seems likely that the respondent would have found as I have found that the claimant did not use the mobile phone.  I do accept that it might be a concern for them if he was distracted but that was not what was put to him or what he was charged with or investigated.  Use of a mobile phone whilst driving is of course against the law and it is quite sensibly a breach of the respondent’s own policy.

…

33. The limited investigation that was carried out, the failure to wait until the claimant had produced his O2 records and the fact that the respondent did not fully investigate other matters that the claimant himself and his union rep raised, makes this investigation fall outside the range of reasonable responses.  It means that the respondent’s belief may have been genuine at the outset but it did not remain so and was not reasonable in the circumstances.  The dismissal cannot be therefore fair on those grounds alone.”

 

13.              The Employment Judge said that the procedure followed was not particularly unfair, and she then turned to some further conclusions:

“35. Turning then lastly to whether the dismissal falls within the range of reasonable responses under issue 2.3.  Of course, I know that I must not substitute my own view and I do not do so.  The respondent has no policy which it had communicated to the claimant about having a mobile phone in the cab.  I have already found that it had insufficient evidence to support a belief that he had been using the phone.

36. This means that it must follow that the dismissal must outside [sic] the range of reasonable responses as there was no clear misconduct.  As I have found that the respondent was mistaken in believing that the claimant was using his mobile phone, to dismiss him for that misconduct without a reasonable investigation, falls outside the range of reasonable responses.  The dismissal was unfair.”

 

14.              The Employment Judge dealt with the Polkey issue in the following way:

“39. I deal shortly with the issue at 2.5 which is a question that arises if the procedure had been found to be flawed.  In this case it is not.  The respondent cannot hope to show that a fair procedure would have led to the claimant’s dismissal.”

 

15.              Consistently with her own finding that the Claimant did not commit the alleged act of gross misconduct, the Employment Judge upheld the Claimant’s wrongful dismissal claim, holding that he was entitled by way of compensation to contractual notice of 12 weeks.  She did not actually award compensation, because the Claimant desired, having succeeded in his unfair dismissal claim, to obtain an order for reinstatement.

 

Submissions

16.              On behalf of the Respondent, Mr Edward Nuttman’s first submission is that, despite her correct statement of the law, the Employment Judge’s Reasons show that she fell into the error of substituting her view for that of the Respondent.  He points out that she did not follow the guidance of the Court of Appeal in London Ambulance Service NHS Trust v Small [2009] IRLR 563 to the effect that she should separate out her findings of fact relating to the different issues so as to avoid such an error.  He criticises in particular paragraphs 20, 30 and 36 as indicative of this error.  He says the error is also demonstrated by her failure to acknowledge and examine key points in the Respondent’s reasoning, in particular relating to the length of time Ms Molyneux had to notice the Claimant’s distraction in addition to the shorter time she had to see the mobile phone itself.

 

17.              In reply on the Claimant’s behalf, Mr Gordon Sankey submits that the Employment Judge did not fall into error in this way.  She expressly reminded herself of the law relating to substitution and said that she must not substitute her own view.  While it might be best practice to separate out findings of fact on different issues, there is no rule of law that an Employment Judge must do so.  It does not follow that because the Employment Judge has intermingled findings of fact relevant to the different questions she has then applied the wrong legal tests.  To the contrary, there is a strong presumption that having recited the correct principles the Employment Judge applied them.  The Employment Judge found that the Respondent did not carry out essential and elementary steps at the point of investigation and therefore did not have a reasonable belief in the allegation.  That is proper reasoning for the purpose of section 98(4).

 

18.              Mr Nuttman’s second submission is that the Employment Judge’s criticisms of the investigation were perverse and that the Employment Judge was perverse not to consider the length of time that Ms Molyneux had to notice the Claimant’s distraction.  As to investigation, he submits that no further investigation was required of the fact that the Claimant wore glasses for reading.  The Respondent knew he had passed the demanding eyesight test for driving a bus and could read the instruments of his vehicle without glasses.  He would have been able to read the screen of a mobile phone on a ledge to his right hand side.  Secondly, the Employment Judge appears to have thought that investigation of the telephone records was required, but these would only show outgoing texts or calls; they would not show if he was carrying out some other task on his phone, a modern smartphone, or whether he was looking at an incoming message.

 

19.              On the question of distraction, he says that it was perverse not to take into account Ms Molyneux’s evidence about holding the bus in sight for some ten seconds during which the driver was distracted.  This is, he accepts, the only point on which he could challenge the Employment Judge’s conclusion about wrongful dismissal.

 

20.              In response, Mr Sankey submits that the Employment Judge took permissible views on each of these questions.  He emphasises the limited scope of an appeal on questions of perversity.  As to procedure, he submits that the Employment Judge was entitled to take the view that the Respondent in the case of a long serving employee with a good driving record should have investigated points that he put forward and waited for his telephone records.

21.              Mr Nuttman also submits that the Employment Judge did not apply Polkey correctly.  He relies on the principles set out in Hill v Governing Body of Great Tey Primary School UKEAT/0237/12 at paragraph 24.  The Employment Judge did not, as she should have done, ask whether if the Respondent had carried out an investigation fairly there was a chance that it would still have dismissed.

 

22.              In reply, Mr Sankey submits that the Employment Judge did not err in law.  She had reached an assessment that it was likely that the Respondent would have reached the same conclusion as she did (see paragraph 31 of the Employment Judge’s Reasons).

 

23.              Counsel took me to recent authorities on the question of substitution (see in particular Bowater v North West London Hospitals NHS Trust [2011] IRLR 331, London Borough of Brent v Fuller [2011] IRLR 414 and Newbound v Thames Water Utilities Ltd [2015] IRLR 734).

 

Discussion and Conclusions

24.              I turn first to the main question in the appeal, which is usually considered under the rubric “substitution”.  It is well established that the task of the Employment Tribunal, applying section 98(4), is to assess the action of the employer in dismissing and ask whether the employer acted reasonably or unreasonably in doing so.  This involves making findings about the employer’s actions and reasons and applying the standard of the reasonable employer to those actions and reasons, recognising that there is a range of reasonable ways in which an employer may act but also recognising that the range of reasonable responses is not infinite.  In a conduct case, it involves making findings about the investigation, the disciplinary process, the employer’s own factual conclusions and the employer’s reasons for imposing the sanction of dismissal and then applying the standard of the reasonable employer to each aspect.  Section 98(4) does not, however, require the Employment Tribunal to make findings of its own as to whether the employee committed the alleged misconduct.  It is an error of law if an Employment Tribunal, rather than examining the employer’s actions and assessing whether they are within the range of reasonable responses, starts from its own view and judges the employer by what it would have decided or done.  The risk is particularly high if the issues in the case require the Employment Tribunal to find facts for itself.  This will quite often be the case.  Contributory conduct, wrongful dismissal and unlawful discrimination are all areas where the Employment Tribunal may have to find facts for itself on the balance of probabilities.

 

25.              In Small the Employment Tribunal was required to make findings of its own to deal with contributory conduct.  Mummery LJ said the following:

“42. The ET used its findings of fact to support its conclusion that, at the time of dismissal, the trust had no reasonable grounds for its belief about Mr Small’s conduct and therefore no genuine belief about it.  By this process of reasoning the ET found that the dismissal was unfair.  In my judgment, this amounted to the ET substituting itself and its findings for the trust’s decision-maker in relation to Mr Small’s dismissal.

43. It is all too easy, even for an experienced ET, to slip into the substitution mindset.  In conduct cases the claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer.  He has lost his job in circumstances that may make it difficult for him to get another job.  He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question - whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal.

C. Separate and sequential fact finding

44. I agree with the EAT that the ET was bound to make findings of fact about Mr Small’s conduct for the purpose of deciding the extent to which Mr Small’s conduct contributed to his dismissal.  That was a different issue from whether the trust unfairly dismissed Mr Small for misconduct.  Contributory fault only arose for decision, if it was established that the dismissal was unfair.  The contributory fault decision was one for the ET to make on the evidence that it had heard.  It was never a decision for the trust to make.  That makes it different from the decision to dismiss, which was for the trust to make.  It was not the role of the ET to conduct a rehearing of the facts which formed the basis of the trust’s decision to dismiss.  The ET’s proper role was objectively to review the fairness of Mr Small’s dismissal by the trust.

45. I am unable to agree with the EAT that the ET kept the issues and the relevant facts separate or that it avoided the error of substituting its own judgment about dismissal.  Although the ET rightly warned itself against substitution and thought that it was not falling into that error, my reading of the reasons is that its findings of fact about Mr Small’s conduct seeped into its reasoning about the unfairness of the dismissal.

46. Mr Marsh spoke of his experience that ETs often structure their reasons by setting out all their findings of fact in one place and then drawing on the findings at the later stages of applying the law to the relevant facts.  It is not the function of appeal courts to tell trial tribunals and courts how to write their judgments.  As a general rule, however, it might be better practice in an unfair dismissal case for the ET to keep its findings on that particular issue separate from its findings on disputed facts that are only relevant to other issues, such as contributory fault, constructive dismissal and, increasingly, discrimination and victimisation claims.  Of course, some facts will be relevant to more than one issue, but the legal elements of the different issues, the role of the ET and the relevant facts are not necessarily all the same.  Separate and sequential findings of fact on discrete issues may help to avoid errors of law, such as substitution, even if it may lead to some duplication.

Result

47. I would allow the appeal.  The ET erred in law in its failure to apply the law correctly.  On the issue of liability, the ET should have focused its fact-finding on the trust’s conduct of Mr Small’s dismissal.  Instead, it concentrated on the conduct of Mr Small and it then used findings of fact in order to substitute its views for the grounds on which the trust actually formed its belief and acted when it took the decision to dismiss.  The ET should only have used its findings about the conduct of Mr Small on the separate issue of whether there was contributory fault on his part.”

 

26.              Separating out findings on different issues in the way Mummery LJ recommended is a good discipline, but it is not always easy to do, especially if reasons are given extempore.  For example, facts and evidence that emerge in the course of a disciplinary investigation and process will often be relevant both to section 98(4) and to the primary fact finding required for other issues such as wrongful dismissal and contributory conduct.  It will not therefore be at all surprising if an Employment Tribunal has in its Reasons a section that deals in common with facts and evidence that emerge in the course of a disciplinary investigation and process. 

 

27.              However, it ought then to be possible to address in separate sections the issues required by section 98(4) and the issues raised by, for example, wrongful dismissal or contributory conduct.  The former section will not contain the Employment Tribunal’s own conclusions as to whether the misconduct was established.  It will concentrate on the section 98(4) questions, which, as I have said, involve finding the employer’s reasons and assessing them according to the standard of a reasonable employer.  The latter section will be the place where the Employment Tribunal should consider the primary evidence called at the Employment Tribunal itself relevant to the question of whether the misconduct was committed.  It will also be the place for the Employment Tribunal to make its own assessment of the evidence on that question, having regard to its own view of the credibility of the witnesses, reach an overall conclusion of its own. 

 

28.              It is not in itself an error of law if the Employment Tribunal fails to follow a pattern such as this; but it is a good discipline, and it will avoid the Employment Tribunal slipping into substitutionary thinking.  It is, in my experience, more and more common to find that the guidance in Small is followed by Employment Tribunals, although, as I have said, it is not possible to be prescriptive, and there will often be findings that are common to a section 98(4) exercise and a separate fact finding exercise.

 

29.              In the context of appeals concerning section 98(4), the Employment Appeal Tribunal must itself be cautious of substituting its own opinion for that of the Employment Tribunal.  The Court of Appeal has emphasised this latter point in a number of cases.  In Fuller Mummery LJ summarised the position as follows:

“29. The appellate body, whether the EAT or this court, must be on its guard against making the very same legal error as the ET stands accused of making.  An error will occur if the appellate body substitutes its own subjective response to the employee’s conduct.  The appellate body will slip into a similar sort of error if it substitutes its own view of the reasonable employer’s response for the view formed by the ET without committing an error of law or reaching a perverse decision on that point.

30. Other danger zones are present in most appeals against ET decisions.  As an appeal lies only on a question of law, the difference between legal questions and findings of fact and inferences is crucial.  Appellate bodies learn more from experience than from precept or instruction how to spot the difference between a real question of law and a challenge to primary findings of fact dressed up as law.

31. Another teaching of experience is that, as with other tribunals and courts, there are occasions when a correct self-direction of law is stated by the ET, but then overlooked or misapplied at the point of decision.  The ET judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable.  The reading of an ET decision must not, however, be so fussy that it produces pernickety critiques.  Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid.”

 

30.              In this case, the Employment Judge stated the law correctly.  She said she knew she must not substitute her own view for that of the Respondent.  I have, however, come to the conclusion that she has fallen into this error.  I have three main reasons for doing so. 

 

31.              First, paragraph 20 of the Employment Judge’s Reasons is problematic.  This passage, found within her findings of fact, intermingles considerations that are relevant to wrongful dismissal, where the Employment Judge had to make her own finding based on the evidence, and unfair dismissal, where the Employment Judge had to review the Respondent’s reasoning when it dismissed - at which point of course it did not have the benefit of the evidence at the Employment Tribunal.  The first two sentences are relevant to wrongful dismissal but not unfair dismissal.  The remainder of the paragraph is couched as a criticism of the Respondent’s investigation, the criticism primarily relevant to unfair dismissal yet stated in this paragraph without any explicit recognition of the “range of reasonable responses” test.  It is difficult to be sure why the Employment Judge has interposed criticism of the Respondent’s investigation at this point in her Reasons given that she was making findings of primary fact.  If she was minded to make her key finding of fact at this point, I would expect her to have stated her own reasons for reaching the finding of fact, for example whether she found the Claimant and Ms Molyneux credible, what evidence she found to support their respective accounts and so forth.  There is, if she were keeping carefully in mind a separation between her task under section 98(4) and her fact finding task, no good reason for structuring paragraph 20 as she has.

 

32.              Secondly, in paragraph 36 the Employment Judge said:

“36. … As I have found that the respondent was mistaken in believing that the claimant was using his mobile phone, to dismiss him for that misconduct without a reasonable investigation, falls outside the range of reasonable responses. …”

 

33.              The first part of this sentence is nothing to the point.  If the Employment Judge had made no finding that the Respondent had been mistaken, the dismissal would still have been outside the range of reasonable responses if there had been no reasonable investigation.  Conversely, it would still have been fair if there had been a reasonable investigation and a reasonable conclusion.  The reference by the Employment Judge to her own finding at this point is problematic.

 

34.              Thirdly, and to my mind crucially in reaching my conclusion, is the absence of any real process of reviewing the Respondent’s actual reasoning for dismissal.  Section 98(4) required the Employment Judge to identify the Respondent’s process of reasoning and to say whether or not it fell within the band of reasonable responses.  At this point, I accept a submission made to me by Mr Nuttman about the length of Ms Molyneux’s observation.  This was plainly an important feature for the Respondent both at the disciplinary and at the appeal level.  Ms Molyneux said that she saw the driver being distracted for a significant length of time before he drew close to her and she could actually see the mobile phone.  The Respondent attached significance to this point; and arguably it would be unlikely that the Claimant would be distracted by two different things in succession, more likely that what Ms Molyneux saw at the end of the period of observation was what had been distracting the Claimant all along.  The Employment Judge was not bound to accept that point of view, but section 98(4) required her to identify it, consider it and decide whether it was within the band of reasonable responses.  The only real reference to this point, at the end of paragraph 31 of the Employment Judge’s Reasons, is not satisfactory.

 

35.              Similar points apply to the question of investigation.  Evidence was given on the Respondent’s behalf at the hearing as to why it did not wait for the telephone records and as to why it did not consider further investigation of the Claimant’s eyesight to be necessary.  The Employment Judge’s task was to identify that reasoning and say why it was unreasonable.

 

36.              For these reasons, therefore, I have concluded that the Employment Judge has fallen into the error of substitution.

 

37.              I turn back, then, to the perversity grounds.  As separate individual grounds, I would not uphold them.  So far as telephone records are concerned, Ms Molyneux’s initial impression had been that the Claimant was “touching the mobile phone as if he was texting”.  If in fact he was texting and assuming he had not seen Ms Molyneux, one would expect his outgoing records to show a text within a few minutes afterwards.  If the outgoing records showed no such text, it would have left the possibility that he was using the telephone in some other way, but it would have closed off what Ms Molyneux herself had regarded as a significant possibility.  It was not perverse for the Employment Judge to say, applying the standard of the reasonable employer, that the telephone records should have been investigated.

 

38.              Likewise, as to the use of reading glasses, this question is relevant to any purpose for which the Claimant might have been using the phone, which involved reading, including reading an incoming text.  It is suggested that the point is irrelevant on the basis that the Claimant could read the instrument dials in the bus so he could read text on a mobile phone screen.  I quite see that this is a point that the Employment Judge should have reviewed, since it was part of the Respondent’s reason for not investigating further, but to say that the Employment Judge’s conclusion was perverse is a different matter.  The Employment Judge was entitled to take the view that it would have been reasonable to check whether, as the Claimant said, he needed glasses for most purposes for which one would use a mobile phone.

39.              Finally, I come to the only question on the appeal that might affect the finding of wrongful dismissal.  This, again, is the length of observation.  Mr Nuttman suggests that it was perverse for the Employment Judge to reach the conclusion she did in the light of this evidence.  I disagree.  The Employment Judge saw and heard the witnesses and, for the purposes of wrongful dismissal as opposed to unfair dismissal, was entitled to reach her own conclusions on the facts.  I see nothing to persuade me that her conclusion was perverse.  It is of course well established that grounds of perversity are difficult to bring home because they are essentially factual grounds (see Yeboah v Crofton [2002] IRLR 634 CA at paragraphs 93 to 95).  So, I do not think any grounds of perversity are made out.

 

40.              This brings me, finally, to the question of Polkey.  There is indeed in Hill a helpful summary of the Polkey principles.  Langstaff J said:

“24. A “Polkey deduction” has these particular features.  First, the assessment of it is predictive: could the employer fairly have dismissed and, if so, what were the chances that the employer would have done so? [Original emphasis] The chances may be at the extreme (certainty that it would have dismissed, or certainty it would not) though more usually will fall somewhere on a spectrum between these two extremes.  This is to recognise the uncertainties.  A Tribunal is not called upon to decide the question on balance.  It is not answering the question what it would have done if it were the employer: it is assessing the chances of what another person (the actual employer) would have done.  Although Ms Darwin at one point in her submissions submitted the question was what a hypothetical fair employer would have done, she accepted on reflection this was not the test: the Tribunal has to consider not a hypothetical fair employer, but has to assess the actions of the employer who is before the Tribunal, on the assumption that the employer would this time have acted fairly though it did not do so beforehand.”

 

41.              It seems to me that the Employment Judge’s paragraph on this question is essentially unexplained.  It is possible that she took the view that Polkey was only relevant to procedure in a narrow sense.  If so, that would plainly be an error of law.  If she considered Polkey in a wider sense, it is far from clear that she approached it in the manner set out in Hill, starting with the position of management and asking whether there was a chance that management, if it had investigated properly, would still have reached the same result.  There is a dissonance between the Employment Judge’s finding in paragraph 31 that it “seems likely” that the Respondent would have reached the same conclusion as her and what amounts to a certainty in paragraph 39 that this would be the position.  I would therefore have remitted the question of Polkey in any event, but, as it is, having decided that the Employment Judge fell into the error of substitution, I shall remit unfair dismissal as a whole to a freshly constituted Employment Tribunal.