Transworld Airlines Inc v Kelman [1991] UKEAT 493_90_2504

EAT
Transworld Airlines Inc v Kelman
[1991] UKEAT 493_90_2504 · 1991-04-25
MR JUSTICE WOOD (PRESIDENT): This is an appeal from a Decision of an Industrial Tribunal sitting in London (North) under the Chairmanship of Mr Williams who decided that the Applicant, Mr Kelman had been unfairly dismissed; they reduced his compensation by the figure of 25% for his contribution towards that dismissal.As we will be bound to investigate the security provisions of this airline, which we understand is probably applicable to many others, we like the Industrial Tribunal have heard this case in closed Court, and we direct that this Judgment should be disclosed by only one copy to each of the parties and that the Court copy be stored and not released for publication without further order.Mr Kelman was a Lead Customer Service Agent and as such he was a fairly senior member of the staff at Heathrow Airport; and he had the task of supervising the checking in desks; dealing with difficult customers; standing at the top of the gangway leading down to the planes and taking the boarding passes; and then of course, meeting incoming passengers and ensuring that security provisions, where he spotted them to be departed from, should be maintained. He had been with the airline for some 20 years and he was a uniformed member of the staff.The problems with which we are concerned involve the procedures at Terminal 3 at Heathrow Airport, and it will be, we feel most helpful, to describe the security process which had been put in place. It may have been in place before the Lockerbie disaster, which took place in the December of 1988 and as a result great stress is laid upon security.As anyone well knows, the essence of a secure system is not only the rigidity with which the system must be observed and enforced but also any system is devised so as to eliminate insofar as it is possible to do so, any scheming terrorist who may wish to seek to place a device on board a plane, which may explode; and one of the main defences to that scheming is to seek to ensure that the person who is responsible for baggage being on a plane, baggage including any bundle, should also himself or herself be upon that plane. That does not of course obviate the possibility of a fanatic who is prepared to be blown up with the plane, but it is one of the main planks of security, which it is aimed to establish in the present circumstances.When a passenger books in at the front booking desk, his ticket will be shown, it will appear on the computer as a reservation and he, if he has not been allotted one already, will be allotted a seat. He will be provided with a boarding pass on which will be shown the flight number and the seat number. Within the computer there is a list, not only of the passengers and the reservation reference, so that the passengers identify back to the computer on the reference, but there is a further list of the precise seats which are or are not occupied. Thus by looking to the reference on the computer, to the boarding card number, then to the list of seats one can marry a passenger up to a seat on the plane. If need be, that investigation can be carried out at any time and of course there are computer terminals in parts of the building other than on the front desks so that security checks can be made at another computer terminal.So far as the baggage is concerned, it passes through the checking-in desk; it will be weighed presumably, the normal allowances is two baggages but if there are more either there can be excess baggage paid or not, in the discretion of the airline, but each package or baggage will have a tag on it and the individual number of each baggage is as we know, pinned on to the ticket, which is handed back to the traveller, so that at the other end, if necessary, a check can be made after the baggage reception and the piece of baggage married up with the individual who holds the tag on his ticket.In order to ensure that the passenger travels with his baggage, there should be a record on the computer of how many pieces of baggage are travelling with each traveller, and it follows therefore that if for any reason there is a gap and the traveller fails to board the plane, enquiry can be made; investigation takes place and the baggage belonging to that passenger can be unloaded.One way in which a terrorist could try to avoid travelling on the plane would be to book in his baggage and take his boarding pass but, feigning illness for instance, not to travel on the plane, in which case his baggage could be searched for and abstracted. One can easily see that if not every piece of baggage is recorded then the terrorist, for instance, could have three large suitcases which are very obviously his, there could be one or more other packages and if he disappeared or feigned illness then his obvious three pieces of baggage would be abstracted but the other pieces of baggage would remain on board and depending on the form of advice, it might be for instance that when the plane achieved a particular height the, device would be discharged.Now that is one of the ways and if one thinks about it, a very obvious way, in which security might be breached, hence the importance of recording the precise number of pieces of baggage going on to a plane.What happened in this case, against that background of security, was this; that on the 15th September 1989, a Mr Sternberg telephoned Mr Kelman, the Applicant. He said that he was coming to Heathrow and he had a ticket, which is shown on page 4 of the exhibits, but wanted to fly home on the 15th September although the ticket was for the 16th, because he had a medical certificate saying he should go home as soon as reasonably possible.Mr Sternberg travelled with the airline regularly; he had a Gold Card and he was a man, who when he arrived was not in the best of health; he had a wheelchair. His ticket indicates that it can only be used on 16th September, not before or after, only on that day. It was an economy ticket and the fare base was a particularly cheap fare base because of the fact that he could not change. He came over to this country on the 2nd September, he was due to go back on the 16th. He is an art dealer, or antique dealer and he travelled quite frequently. On this occasion on the front desk at Terminal 3 was a Miss Pam Saunders and Mr Kelman, the Applicant, who himself dealt with Mr Sternberg. He would not have dealt with, and did not deal with the people before, nor the people after, he dealt specially with Mr Sternberg.The ticket was taken and because Mr Sternberg was in this condition Mr Kelman, very thoughtfully, called for security and asked them to check all his baggage before it was put through the checking in desk. This was done by security, who presumably examined it, and it was then placed on the usual weighing machine, pushed through and went off to the roller at the back and away. There were in fact, ten pieces of baggage; each had a tag so that all ten tags were punched on to the ticket, but on to the computer was only put three bags. This occurred at some time between 9 and 10 am on the 15th September.His boarding pass in the economy class was Row 26, Seat 3; that was upon it. On that day we are told, that none of the classes were full, in fact it was described as "medium full" Mr Sternberg went through into the departure lounges and because of his Gold Card he would have been able to use one of the lounges rather than just waiting in the ordinary thoroughfare.At about 10.06 am on that morning, probably also using the front desk, Mr Kelman punched in to the computer a fresh reservation. A 'PRN' or a Passenger Reservation Note, indicates that there is a reservation in the name of that passenger, usually with a reference number, letters and numbers at the same time. It is perfectly possible, as one can imagine to alter the original PRN, but Mr Kelman did not do that, he inserted a fresh PRN indicating first class instead of economy class; indicating seat 01/9 and in the name of "Stern", this was for the 12.45 flight TA771 to Chicago. That of course produced for him a boarding pass in that name with that seat number.At 11.25 am Mr Kelman deleted the PRN in the name of "Stern". The result is that on the records of any print out from that computer, Mr Sternberg would have been shown as travelling economy class, Seat 26/3 and that would have been the situation; no one would have been any the wiser as to the other incidents that had occurred and also there was only the record of the three bags. Mr Kelman was rostered to "board", by that they mean to see the passengers on board that particular flight and he duly did so. When that happened he gave Mr Sternberg the first class boarding pass and Seat 01/9.Mr Saunders, who is the Manager, Passenger Services was in the vicinity of the checking in desk when Mr Sternberg arrived there. He must have passed behind Mr Kelman and noted the name of Sternberg on the ticket being dealt with. For whatever reason he later went back behind the scenes and checked that against the computer. He went on board the plane before it left and with the information, as he thought, that Mr Sternberg would be in economy class, in Seat 26/3. That seat was empty; he then searched the Ambassador class, which is the same as the British Airways Club Class, the intermediary class, he was not to be found there. He went then forward to the First Class compartment; in the back of that compartment there was a large party of TWA regional staff and their wives, they took up most of the rear. He went forward and approached the passenger who was sitting in 01/9. I do not know whether this is accurate but from the list of passengers it seemed there was only one other ordinary first class passenger. In that seat he found Mr Sternberg. He approached Mr Sternberg and asked for his ticket, Mr Sternberg was unable to deal with that, to find it and explained that he was very ill; he did produce some medical certificate, but he had his boarding pass and that showed 01/9. Mr Saunders therefore was satisfied that something was amiss; he left the plane, went back to his office and looked into the matter.One of the facts that it is important to realise is that at that time there was no information on the computer that more than three bags of Mr Sternberg's were on board. Mr Saunders communicated with Chicago and asked them to watch out for Mr Sternberg on his arrival and to ask to see his ticket, but at no time prior to Mr Sternberg's arrival in Chicago, when it was discovered that he had seven other baggages, was Mr Saunders aware that there were ten packages on board rather than three.At the end of the shift and before information came from Chicago, Mr Saunders carried out an investigation and interviewed Mr Kelman. There is a copy of the notes made at the time. There are also copies of three sets of disciplinary proceedings. At no time as far as we can see from the Decision, nor from the Notes of Evidence, is the accuracy of those notes challenged.The note of the interview with Mr Kelman on that 15th December is contained at pages 9 and 10 of the exhibits and in particular what happened at the interview itself is on page 10. The note as material is as follows:
"I interviewed John Kelman with supervisor Keith Morgan as a witness and asked him if he knew Mr Sternberg. He said he did. I then asked him if he knew a Mr Stern. He did not. I then asked which seat Mr Sternberg was seated in and John stated 'seat 26-3'. I then asked him who was sitting in seat 01-9 and he said 'no one'. I then put it to him that had found seat 26-3 unoccupied and Mr Sternberg seated in seat 01-9 with a boarding pass in the name of Mr Stern and this created on a fictitious PNR on his sine code. John's whole demeanour changed and his complexion became a deathly shade of white. He then admitted that he had not told me the truth and that he did upgrade Mr Sternberg to seat 01-9 and without any authority. When I asked why he had lied to me and why he had upgraded Mr Sternberg without authority he stated 'Because I knew you would not authorise it'"
He was asked to go away and make a statement. Keith Morgan went to see if the ticket was in the waste but could not find it. Be that as it may a statement was then made by Mr Kelman and at the suggestion of Mr Saunders it was added at the end that Mr Kelman had not had any personal gain. Mr Saunders obviously asked him about that and was anxious that he should make it quite clear in the statement that he made that that was so. The statement made was this:Mr Sternberg is a very elderly gentleman who travels frequently on TWA771.He is a Gold Card holder, and a life member of TWA's Ambassador Club.For at least the past 15 years I have looked after Mr Sternberg in my capacity as a PR he travels approximately 8 to 10 times a year on this route.On most occasions in the past he has held an Ambassador Class ticket or an FFICO F/C as he travels extensively on our domestic routes.As he is now suffering a chronic illness on this occasion as he held an economy ticket I felt justified in seating him in F/L for his comfort as he has great difficulty in walking and moving around.

I did not do this for any personal gain."

Obviously other investigations took place, Mr Kelman was suspended from duty and the first of the disciplinary proceedings was heard on the 20th September, that is noted at page 16. This hearing was with Mr Saunders and a representative of the applicant's trade union. The important part of that document is that contained in the 4th and 5th paragraph, it says this:
"J Saunders questioned J Kelman on the method used to upgrade the passenger from ECONOMY to FIRST CLASS and why he did not seek an authority from a Supervisor to upgrade the passenger.
J Kelman replied that if he had sought permission for the upgrade from his Manager, J Saunders, this would have been refused. J Kelman admitted that he created a new PNR for the passenger Mr Sternberg in carrying out the upgrade for Mr Sternberg. However, Mr Kelman admitted that he changed the name of the passenger slightly from STERNBERG to STERN.J Saunders informed J Kelman this was misleading and done deliberately to deceive the Company.J Saunders asked J Kelman why he had created a new PNR for the passenger Mr Sternberg since no details had been written on the flight coupon which would have shown an upgrade had been carried out.J Kelman's reply was that this was the only way he knew, in using the computer to carry out such a transaction. With regard to the flight coupon, he had not got around to making a note on the coupon for the upgrade."The important part about it is the fact that Mr Kelman had admitted from the start that if he had sought permission for upgrading it would have been refused. He appealed and the appeal hearing was on the 27th October. That is noted on pages 17 and 18 of exhibits, Mr Kelman who was again attended by his trade union official, told Mr Whetlor, who was Chairman of that appeal, that:
"He had no intention of prolonging todays hearing and 'Yes' he admitted that he had carried out the unauthorised upgrade for passenger Mr Sternberg. He was aware that he had broken TWA rules in this matter."
Then his earlier admission was noted; the matter was further discussed and the situation was not carried forward further. He did emphasise that he was not aware how to make an entry into the computer, which would have accepted more than three bags and he was obviously making that point.The appeal went further and on the 30th November 1989, his final appeal was heard by the London Manager of TWA, the Sales Manager and the Reservations Manager. They considered all the facts again and all the documents before them and they noted in the third paragraph as follows:
"By his own admission he took a conscious decision not to seek management approval for his intended action as he knew such approval would not be forthcoming. His behaviour was therefore clearly an abuse of his position of trust and resulted in the Company being defrauded of its proper revenues and more importantly seriously compromised the security arrangements in place to protect passengers, crew and aircraft of the flight concerned."
It was noted a little later that he failed to be aware of the grave security implications.The application was made to the Industrial Tribunal as indeed Mr Kelman had indicated he would early on in those interviews.The evidence covered a number of pages and was carefully taken down by the learned Chairman. The hearing was, as we have said, on the 27th March 1990, but the Decision was not given until the 26th June. This Judgment has already been guilty of excessive length in order to explain and understand the matter, but I fear that it will need to continue somewhat longer.It is to be noted that the Decision was given on three sheets, in other words two and a quarter sheets of typing. The suggestion was made by solicitors for TWA that perhaps the matter was quite so short because of the length of time between the hearing and the drafting of the Reasons or the Judgment and they wrote asking for a Review. This was refused, on the 19th July. They then wrote a further letter of the 20th August which is before us in which they set out a number of points, some eleven in all, which on issues of fact are substantially the issues placed before this Court by Mr Falconer today.The Decision can be read in this way. The allegations which were made against Mr Kelman, and for which he was dismissed, are set out in paragraph 1:
"(i)The applicant knowingly accepted a passenger for carriage against a non valid coupon.
(ii)He made an unauthorised upgrade from economy class to first class, resulting in the Respondents being defrauded of the correct fare for the service provided.(iii)He created false records and manipulated them in a manner calculated to deceive.(iv)He failed to collect the excess baggage charges.(v)He falsely recorded checked baggage so that a serious violation of security procedure was occasioned.(vi)Other technical and procedural discrepancies but not enumerated in the letter."The way in which the matter was argued on behalf of the applicant both before us and before the Industrial Tribunal by Lord Meston was that the Airline in deciding to dismiss, first of all had not really investigated the matter sufficiently clearly and an example of that is that Mr Saunders was not able to tell the Tribunal whether or not Mr Sternberg held an Ambassador Gold Card. Secondly, that it had not considered any alternative other than the dismissal. Thirdly, it had not taken sufficient account of the fact that there was no evidence whatsoever that the Applicant had not benefitted financially, and fourthly that they had not taken into account that he was acting in the best interests of the Airline. When looked at in that way the Decision to dismiss was really far too serious because this was thoughtlessness and no more. It did not merit the attitude being taken by the Airline more especially because Mr Kelman only knew this way of altering the booking and that there were many occasions on which upgradings took place and this was nothing exceptional. I hope I have summarised fairly the way in which the matter is being put.The Industrial Tribunal dealt with the case so far as liability was concerned in three paragraphs. Paragraph 2 deals with the upgrading. Paragraph 3 deals with security and paragraph 4 with what they call 'procedure' or the dealing on the disciplinary side and that may be dealing with the question of whether the Decision fell within the band of reasonable response of this employer in these circumstances. May we deal with each of those in turn.Paragraph 2 reads as follows:
"We have to consider what the Applicant did and what the Respondents' practice is with regard to what he did. There was evidence before us that certain 'adjustments' with regard to tickets, ie upgrading, and with regard to baggage, take place with a degree of regularity and with a blind eye or a deaf ear turned by management, who themselves are on occasions party to such "adjustments". The view we take is that there is a practice of accepting a flight coupon for a different date in circumstances similar to those in which the Applicant found himself ie a man who had been a regular passenger for some time, a holder of a Gold Card. Upgrading takes place on various grounds, eg doing favours for boyfriends or girlfriends, to members of staff and to good customers. Similar adjustments are extended to excess baggage. This seems to us from the evidence (and confirmed by our own personal experience) takes place as a matter of course on various airlines and we accept that the Respondents are no exception."
Reading the Judgment as a whole, one is always conscious of the guidance given by the Court of Appeal approaching these matters, it seems that what is being decided in this paragraph is that really the complaints about the unauthorised upgrading are not valid.It seems to us having looked at all the evidence that what happened here was that there was an upgrading which was not that which was permitted, for instance, you have a list with VIPS on it [Very Important People]; you may have authorisation given by a supervisor; you may have a senior member of the Airline, who if there is room is upgraded. There are occasions when there may be a very full plane in the economy class and the airline is quite happy to upgrade in order to take on all passengers in the economy class. There are lots of situations which have been either put before us or one knows from ones own experience. But the point being made here is firstly that the Applicant knew he would not get leave, or he would not be authorised to take this upgrading; secondly, it was made in a particular way and it was made in a way which would leave no trace of the fact that the passenger had been upgraded and without looking too much at the details of the matter it was a deletion and the deletion had been of the "Stern PNR" not the "Sternberg PNR". Thus the tracks were being covered here in this situation and on any showing it was admitted by Mr Kelman that this was a breach of the rules and was unauthorised. It seems difficult on the evidence to find clearly established that that unauthorised and deceptive upgrading was taking place as a regular matter, in any event if it was, it seems a little difficult to believe, although it is open to an Industrial Tribunal so to believe, that it had been happening and had been happening regularly over the years without TWA ever discovering it. However that is the view taken by the Industrial Tribunal but it is not clear to us, reading that paragraph that they were dealing with the unauthorised and deceptive upgrading rather than the upgrading which they say is confirmed by their own personal experience. It seems, we feel, therefore that there is some grounds for the criticism of that paragraph by Mr Falconer. That of itself perhaps might not be enough for him to succeed on the appeal.We turn next to the question of security. That is dealt with in paragraph 3. The paragraph reads:
"We were naturally troubled by the security aspect. There are two possible views here. One is that the Applicant's involvement ceased when the baggage was handed over to the security personnel and checked by them. The other is that the way the Applicant dealt with the baggage was such that there was a potential danger to security involving the plane its passengers and its crew. We bear in mind that this is a particularly sensitive area having regard to recent disasters where bombs were placed in planes before take off. It is important to distinguish between an actual security threat and a potential security threat. The tenor of the Respondent's letter seems to suggest that they were relying on the fact that they had been deprived of extra revenue by what the Applicant did. We discount that. The practice seems to be such, from the evidence, that they are constantly 'deprived' of such revenue if deprivation is the appropriate term. Although we accept on the facts that what the Applicant did was a potential security threat, we have to put that in context of the basis that the facts giving rise to such a security threat were known by Mr Saunders and by the members of security. The Applicant, if guilty of a breach, had, as it were, transferred responsibility to others in charge, some at levels higher than himself."
Now in that way the Tribunal excused the breach of security and they do it on the basis of the last six lines that we have read. That paragraph is criticised a number of ways, first of all when the Tribunal is looking at the first view, that is the first three lines they are wrong in fact on that, but that is not the view they rely on. They come to the second view and they make the findings that first of all the security threat was known by Mr Saunders and by members of the security staff. There is no evidence that they knew about this, the only knowledge they could have had was after knowing that seven bags had been taken off at Chicago. There is no evidence that it was known by other members of the security staff, whoever those staff were and we can find no evidence to identify them, therefore that finding is totally without evidence to support it. Secondly, they go on to say:
"The Applicant, if guilty of a breach, it had, as it were, transferred responsibility to others in charge, some at levels higher than himself."
We can find no evidence that there was any transfer of responsibility at others at all; the responsibility is to make careful note on the computer at the check in of the number of bags that accompany the passenger, that is the breach of security for the reasons we have given. The reasoning in that paragraph therefore, we are bound to regard as flawed.In paragraph 4 the Tribunal deal with the decision to dismiss and they criticise Mr Saunders as a witness and prefer the evidence of Mr Kelman and his witness, they then go on thus:
"The way in which the matter was dealt with on the disciplinary side leaves a lot to be desired, to put it at its lowest. The distinct impression we have is that management jumped at the opportunity of dismissing the Applicant on the grounds alleged by them in the light of rather earlier disciplinary steps which were taken against him and after which he was reinstated on one occasion."
Two points there, first if they are saying the way in which this was "dealt on the disciplinary side", they are referring to procedure, there are no particulars given in any way of the grounds upon which they are criticising the disciplinary proceedings. Looking at the documentation it seems to us that the disciplinary hearing and the two appeals were conducted entirely fairly and there is no criticism of it; the trade union member was present on the first two occasions as we have noted and if there is no note that he took much part then the comment is made by Mr Kelman in his evidence at page 30 that "he did not say anything in my defence, they were convinced it would be a waste of time." That may or may not be so but there is no criticism of the procedures of the Airline at the moment. Then "the distinct impression we have is that management jumped the opportunity to dismiss." This is the point that Lord Meston has taken that they did not look at the alternatives and the possibility of dealing with it in some other way.This is the question of reasonable response. The well known decision is that of Iceland Frozen Food Ltd v. Jones (1983) ICR p.17 a case in this Court, the Judgment given by Mr Justice Browne Wilkinson, as he then was, after carefully reviewing all the earlier cases and it was approved by the Court of Appeal in the case of Neale v. Hereford and Worcester County Councils . The approach is put in various ways but in the end it comes down to the question - was this or did this employer in these circumstances, believing what he did, give a decision which was within the band of the reasonable response of that employer in those circumstances.The question of assessing the risk, of assessing the importance of strict maintenance of the procedures for security are essentially for management. They know what is important and we ask ourselves can it really be said that this was not a view which could be taken by this management on all the facts and in all the circumstances believing what they did? It seems extremely difficult and if it was, then there ought to have been a very clear exposition of the reasons because without a clear exposition Mr Falconer is perfectly entitled to say, what were they really deciding against us on this occasion?It is suggested that this Decision overall should be described as perverse. We do not think it necessary to take quite such a sweeping view. We have identified certain vital findings which are not supported by the evidence; we have identified instances where we believe the reasoning to be flawed; therefore this Appeal must be allowed. But then Mr Falconer asks us to say, on the findings of fact this clearly must be a case where the dismissal was fair. To reverse the coin we have already criticised the reasoning for lack of particularity in the findings of fact and therefore this is not a case where we feel that sufficient facts have been found by the Industrial Tribunal to allow us to form any view of our own and it would be wrong to do so. We therefore reach the decision that the appropriate course here is to remit this case to be re-heard by a different tribunal as ordered by the learned Regional Chairman.This Appeal therefore will be allowed and that Order will be made.