Fields v British Railways Board [1991] UKEAT 552_89_2305

EAT
Fields v British Railways Board
[1991] UKEAT 552_89_2305 · 1991-05-23
MR JUSTICE WOOD (PRESIDENT): On the 15 December 1988 Mr Fields was dismissed by the British Railways Board for gross misconduct. He had been employed by British Railways for some 32½ years and in broad terms there had been no problems with his conduct save that in the summer of 1988 there had been an incident in connection with drinking whilst on duty, or arriving on duty, unfit to carry out those duties. He had received a formal warning which was recorded.The Industrial Tribunal who heard his case at London (North) in August 1989, under the Chairmanship of Mr Williams, rejected his allegation that he had been unfairly dismissed. The Applicant was represented before an Industrial Tribunal by a Mrs Matthews, instructed through the Hackney Law Centre and British Rail was represented by Counsel.The witnesses who gave evidence before the Tribunal were, for British Rail Mr Heath, the Area Operations Manager, who had in fact made the decision to dismiss; Mr Davies, the Area Production Manager at Cambridge, who heard his Appeal; and Mr Ding, who was the Revenue Maintenance Inspector. For the Applicant, the witnesses were Mr Parratt, the National Union of Railwaymen representative at the initial disciplinary hearing and again on the Appeal; a colleague of Mr da Silva; the Applicant's son and the Applicant. The Tribunal were also given two bundles of documents.Before the Appeal was opened to us today, an application was made by Mr Thomas for Mr Fields that we should request the learned Chairman to send us a copy of the Notes of Evidence and that this Appeal should be adjourned. We heard argument from both sides, but perhaps the most important additional factor of which we were informed was the existence of the two bundles of documents. Neither side had put those in before the Court here and we therefore read them and dealt with them during the Appeal itself. It is essential that these documents should be prepared and presented before the Appeal is heard so that the Members of the Court can read and digest them before coming in to listen to submissions.When one looks at the documentation the "bare bones" of the written Judgment become far clearer. Having heard submissions, Mr Thomas ultimately withdrew his application, in our judgment rightly. But he did wish to re-re-amend his Notice of Appeal and we have given him leave so to do and asked him to set out the whole of the Notice of Appeal in its original form; its amended form; its re-amended form and re-re-amended form using appropriate colours, so that the whole history of the argument of this matter can be recorded.This case caused the Industrial Tribunal anxiety, they clearly had immense sympathy for the Applicant, Mr Fields, after his 32½ years and indeed in the last paragraph of the Judgment, after the conclusion that his application must fail, they encouraged some steps to be taken to see whether he could not be found some other employment within the "umbrella" of British Rail. We do not refer further to that matter, it has no relevance to this Appeal, and it was clear from other parts of the Decision that the Tribunal were sympathetic towards the Applicant.It was a case where the credibility of the witnesses was of importance. This is emphasised in a very long second paragraph of the Decision. The initial background of this case was that the Applicant, Mr Fields, was a chargeman on British Rail and he was stationed at Hackney Downs, which is up near White Hart Lane where the Tottenham Football ground is situated. The allegation was contained in a letter of the 12 December alleging:
"That on Saturday 10th December when rostered for 14.00 - 22.00 at Hackney Downs in the capacity of Chargeman you were under the influence of alcohol to the detriment of your own safety and that of the B.R. Operations and its Passengers "
One of his duties was to change a set of points which should have been changed from "automatic" to "manual", and one can only suppose, certain special arrangements were made on this Saturday because of the presence of football trains. From one of the memoranda in the documentation it is clear that there were a substantial number of football supporters around and some special arrangements with the points were being made from time to time. In fact, Mr Fields put the wrong set of points to "manual" and one can see that in fact a great deal of chaos was ultimately caused in the running arrangements of British Rail.The Tribunal remark that behind their investigation of this case they bore in mind that his duties related to the safety of the public; of fellow employees; and the Applicant himself and that those aspects had weighed heavily with them in reaching their conclusion.Turning to the veracity or credibility of witnesses they found that the Applicant was not a reliable witness. As they remark, and I am quoting:
"He changed his story several times during the course of the disciplinary interview, at the appeal and at the hearing before us"
They also comment that a number of allegations were made in cross-examination of British Rail witnesses which were not substantiated or even referred to in evidence called on behalf of the Applicant; and they were somewhat scathing that these allegations had not been withdrawn until a few were, very late in the day. They commented, in somewhat severe terms, and no doubt with justification; they are not criticised, in this. They say:
"All in all, we prefer the evidence of the respondents and accept it as true on the balance of probabilities."
There was one exception to that finding and that was Mr Parratt. As will be remembered, Mr Parratt was the NUR representative both at the Disciplinary Hearing and on the Appeal. He gave evidence and he was found to be an extremely reliable witness whose evidence contrasted markedly with the other witnesses for the Applicant.Having in advance assessed the situation, the facts fell within a very short compass. The Tribunal refer to the Applicant's unblemished record until the incident in August 1988 and then turn to the incident of 10 December 1988. They find that after the incident he was given notice of an investigatory meeting, which he did not attend, they are satisfied that he knew about it. Then there was next the Disciplinary Interview and that took place on 15 December 1988. He appeared without a representative and it was, in fact, a day late when he turned up; however, Mr Heath made arrangements for Mr Parratt to prepare the defence; he was allowed time and the meeting was adjourned at least twice to enable Mr Parratt to confer with the Applicant. After hearing all that the Applicant and Mr Parratt had to say the decision was reached by Mr Heath to dismiss the Applicant. There was an Appeal, and that Appeal was heard on the 9 and 10 January 1989; it was heard by Mr Davies. He accepted Mr Davies's evidence and accepted also that in reaching his decision to dismiss the Appeal he took into account not only the length of service of the Applicant but of his family bereavements and the fact that at his age it would be difficult for him to find other employment.The points raised as indicated from the "Reasons" of the Industrial Tribunal were first that Mr Fields was a diabetic. He had first contracted that disease in 1984 but on the British Rail medical record in a medical examination in 1985 there was no sign of diabetes and they did not know about this. It was suggested that the appearance given by Mr Fields on the 10 December was due to the fact that he had taken a can of beer with his meal on the previous Friday evening and had failed to take his medication on the Saturday morning. Secondly, because diabetics sometimes sweat somewhat, there can be a pungent odour which could be mistaken for the smell of alcohol emanated from the skin and there was also the argument about other employment.On the procedural aspects two criticisms are noted by the Industrial Tribunal. First, that the initial hearing had been brought on with indecent haste and they felt that there was possibly some criticism for this, but they did not take the view that it affected the matter as Mr Fields and Mr Parratt had been given ample time for adjournment to prepare the case and to deal with the matter. The Tribunal rejected that as in any way a criticism which undermined the procedures.Then they refer to another criticism. In order to explain the second criticism it is important to examine, which we can now do from the documentation, how this investigation developed. First of all it is necessary to look at the statements which were available to the investigators from British Rail; first of all Mr Heath, there is initially a report from a signalman who indicated the problems, and indeed one can say without fear of contradiction, the chaos which was created on that Saturday. Secondly, there is a report from a Mr Wilson and also from a Mr Ding. In order to understand the position of Mr Wilson and Mr Ding one needs to bear in mind the contents of a report probably from Mr Clark. There was a memorandum which is on page 11 of the Respondents' bundle of documents sent to an earlier manager indicating that as a result of information passing down the line Mr Clark was sent up to the station; he came back and reported and Inspector Ding also reported that he was going. There were reports that Mr Fields the Chargeman was drunk. Then also Inspector Ding had apparently informed the Author of this document:
"you informed me that P. Fields was drunk on duty and had clipped the wrong points and had fallen off the platform at Hackney Downs."
There is a report from Mr Wilson which indicates that Mr Fields when he saw him, was under the influence of alcohol and he had sent him to the Staff Room and told him not to leave, this being shortly after 2 o'clock when Mr Fields had come on duty. He also noted that there was a slight smell of alcohol and that he reported:
"When Mr Ding arrived I used him as a witness and told Mr Fields that he was booked off duty and was going home by taxi and being accompanied by Mr Ding also to report to A.M.O. Broxbourne on Monday 09.30. Further to this I took 2 cans of beer out of his bag in his office"
Mr Ding in his statement told Mr Fields:
"I was taking him home as he had been drinking on duty and was not capable to be on duty"
That was the picture then painted in the statements and no doubt some oral communications, when the matter first came to be heard by Mr Heath. That was, as we have indicated on the 15 December and Mr Heath, quite rightly as the Tribunal commented, ensured that Mr Parratt came along and represented Mr Fields; Mr Parratt was given every opportunity of taking instructions and dealing with the matters involved.There is a full note of the hearing before Mr Heath and it is quite apparent from the notes that Mr Fields was claiming that he had not had any alcohol and that he had not had any with him. At the same time he did mention the question of diabetes, but it is quite clear that Mr Fields was not making a "clean breast" and Mr Heath had no doubt at all that he was intoxicated on duty.There was an indication from Mr Parratt that he might get a report from the General Practitioner who was looking after Mr Fields, in fact no report was obtained between then and the hearing on 9 January 1989 before Mr Davies, which was the Appeal. The notes from Mr Heath's hearing were before Mr Davies and Mr Parratt said that he thought that the diabetic condition of Mr Fields had been confirmed by his Doctor prior to the hearing on the 9th and that indeed was so. The matter continued and it was clear that Mr Davies from his reading of the documentation and what he was told from the notes, took the view that, and I am quoting:
"Mr Fields appeared quite incapable of undertaking duties and smelled of alcohol"
He again went through the evidence and Mr Parratt was taking the point that perhaps his condition was not due to alcohol and could be explained by the fact that he had taken one beer with his meal on Friday and had failed to take his medication. So that the defence or the explanation was rather different from what it had been in front of Mr Heath.Mr Parratt welcomed a suggestion from Mr Davies that doctors should be consulted. Mr Davies was proposing to consult the Medical Officer at Euston and Mr Parratt suggested that he should also contact Dr Feder, the Diabetic Consultant. Mr Davies agreed to do that and as they could not communicate by 'phone that day the hearing of the Appeal was adjourned until the following morning.In the interim Mr Davies spoke both to the British Rail Doctor and the Diabetic Consultant and the issue as it appeared to Mr Davies at that time was this, as indeed it appears to us from the documentation. There was clear evidence of a serious situation, serious from everyone's point of view; was it possible to explain the condition about which he was satisfied by those two factors which were being put forward by Mr Parratt? The note made by Mr Davies after his conversations with the doctors were before the Industrial Tribunal and are before us. It is a careful note and he spoke to Dr Feder and put the two facts which are now admitted by Mr Fields, namely the consumption of a can of lager on the Friday night and the omission to take his pill on the morning of the Saturday. (I think somewhere in the evidence he takes a pill one in the morning and one at night.) Then Dr Feder was asked for his comments and the comments were put down in writing that the lager would reduce the level of blood sugar and the failure to take the medication would raise the level of blood sugar, so that, and here is the comment in long hand:
"In the short term both factors would negate one another but over an extended period the outcome would be an impaired judgment and a lowering in level of consciousness but in the timescale outlined in the circumstances it is unlikely that the sole cause was due to these two factors alone but would require a third ingredient to expedite a brittle metabolism in the period of time identified.

The comments were corroborated by Dr Westlake."

The paper is cut off at the bottom, but I think this must be the British Rail Doctor.So the position was this that these two factors would really cancel each other out; it was only after a long period that you would get an impellent unconsciousness. Having heard and noted that on the morning of 10 January Mr Davies recapitulated the facts so far, he went back through the whole history and then put those two points, indicated how he had spoken to the doctors and indicated at the end, and I am looking at the bottom of page 13 of the Bundle:
"Both doctors were quite certain that for Mr Fields to be in the state he was, the lack of medication was not considered to be the sole reason."
He then goes on to discuss this matter with Mr Parratt and the argument between the two indicates that Mr Davies clearly was taking the view that Mr Fields was incoherent and then he looks at the history. Mr Parratt was saying he had never refuted that Mr Fields was incapable of performing his duties, but it was due to lack of insulin.So there is the situation as it appears from the documentation and the Tribunal were faced with this criticism about that matter. They put it in paragraph 6:
"Another criticism of management is that they should have obtained a written medical report. With hindsight, and if they were able to provide a streamlined service which might be thought appropriate with an organisation with the resources of the respondents, this appears to be a valid criticism. However, Mr Heath reached his decision to dismiss the applicant on the basis of the evidence before him which consisted of the statements in the bundles before us. He also took into account the changes of story put forward by the applicant. He accepted that the earlier incident in August should have been sufficient warning for the applicant to avoid a recurrence which Mr Heath found, on the facts, had occurred in December. At the hearing of the appeal, after an adjournment, Mr Davies quite properly and with the consent and encouragement or Mr Parratt made further enquiries of the applicant's medical adviser (who had taken the trouble to contact Mr Davies earlier) as well as the respondents' medical officer. It was on the basis of what they told him on the 'phone that he decided to uphold the dismissal decision. With a counsel of perfection, he may be criticised for not obtaining the medical opinions in writing. However, he took a full note of what he was told and, in our view, having regard to the time element and the matters in issue, he is not to be faulted on that score."
They go on to comment that this is a reasonable investigation and not a Crown Court trial.Mr Thomas, for the Appellant, as the main plank, I think one can say, of his submission, takes the point that on those findings of fact and on the documentation this Tribunal was perverse in that it reached a Decision which no reasonable tribunal could reach, on the findings of fact which it made. He puts it in this way, first of all that the precise degree of intoxication was never established. Secondly, that because the enquiry was made of the doctors orally it was not possible to know exactly the way in which it was being put by Mr Davies to the doctors. Thirdly, he submits that there was no opportunity to cross-examine the witnesses and following from the fact there was no written reports to cross-examine the doctors. I hope that summarises the various ways in which criticisms are made. So far as any cross-examination of witnesses is concerned there is not a scintilla of evidence in all the careful documentation that Mr Parratt, of whom the Industrial Tribunal took an exceptionally good view, ever complained that he wanted to ask questions of the witnesses and it seems to us that an experienced man like Mr Parratt would have been quick to say so if he had wished to cross-examine. Indeed it is perhaps a comment that Mr Parratt was shrewd enough to think that possibly cross-examination of the witnesses might not have improved the case he was putting forward.So one is left with the question of the degree of intoxication, the fact that the actual wording of the question put by Mr Davies for the doctors was not known and thirdly, there was no opportunity to cross-examine doctors and the report was not in writing.The seriousness of the matter seems to us abundantly clear from the documentation and the Industrial Tribunal saw and heard the witnesses. The degree of intoxication is perhaps emphasised in many small parts of the documentation, but perhaps not least by the fact that there had been a report that this man had fallen down he had only recently come on duty and that he was to be taken home by taxi.Then one comes to the question that was put by Mr Davies to the doctors. It was only at a late stage that these two factors were conceded and put as the basis of the explanation. We have seen the notes of Mr Davies, as had the Industrial Tribunal, who commented that it was a perfectly fair and full note. Mr Thomas takes the point that the note does not cater for what is contained at the bottom of page 13 of the Applicant's Bundle namely:
"Both doctors were quite certain that for Mr Fields to be in the state he was, the lack of medication was not considered to be the sole reason."
He said there is no evidence of that in the notes.On page 12 of the Respondents' Bundle is the handwritten note of Mr Davies and it seems to us that the criticism made by Mr Thomas although the actual wording is not there, but the spirit of the note is this, and we have already referred to it:
"In the timescale outlined in the circumstances it is unlikely that the sole cause was due to these two factors alone but would require a third ingredient"
So that, "lack of medication is not considered to be the sole reason", is another way of putting what he had noted in his handwritten note. Mr Thomas further comments, that the note taken was not a full note and he also criticises the fact that it was the phrase it was the basis of "what they told him on the 'phone" that he decided to uphold the dismissal decision; that phrase, admittedly taken by itself indicates that it was only on the medical evidence, but that cannot be the true meaning because here there was the whole history, all the evidence; the background; the circumstances; the chaos that had reigned and the other factors that had already become obvious. As to the question of being unable to cross-examine again one notes from the Notes of the Proceedings that Mr Parratt had suggested that contact should be made with Mr Feder and was not taking objection to the fact that the contact was by 'phone and that later on he was continuing the submissions on the 10th and saying that was enough to cast doubt on the situation.It seems to us that this is a case where the Tribunal saw and heard the witnesses, they had all the documentation, which we have now seen and having now seen it, whereas at "first blush" one had some hesitation about the matter, we are now quite satisfied that the Tribunal were entitled to reach the conclusion that it did; when referring to the absence of the written medical report they must have been taking into account also, if the points were made to them, the points about cross-examination and what was said and the other points raised for us by Mr Thomas.It was then submitted (in support of that basic submission) that the reasons given by the Tribunal in paragraph 6, to which we have already referred, namely the time element in the matters at issue, were not sufficient to justify excusing the absence of a written note. Well, that was a matter of balance and the weight to be given to the evidence by the Industrial Tribunal. We are not satisfied that they erred or that the matters were not sufficiently examined.The last point taken is that in two passages in the Decision the Industrial Tribunal referred to matters which were irrelevant. The first criticism is made to a passage in paragraph 4 of the Judgment where they dealt with comment made about the way in which the Applicant had given his evidence. They said:
"from what the applicant said and the parrot-like manner in which he gave his evidence as if over-rehearsed that, in his heart, he realised that he had been guilty of the offence with which he had been charged ie consuming alcohol while on duty."
It is said that really is a wholly irrelevant remark which should not have been made.It seems to us that what British Rail had to do was to make up their minds what they were going to believe and the Tribunal were merely commenting that so far as they were concerned they assessed Mr Fields in this way. They do not err because in the following passage they make it quite clear that the issue is what British Rail could reasonably believe and thereforethis is not an error of law. In our judgment it is a comment which satisfied them that British Rail were perfectly entitled to cast doubt about some of the matters related to them.The second passage which is criticised is that the Tribunal had commented that the Applicant's son had made allegations that the Respondents were endeavouring to dispose of older staff and replace them with younger people. Well, that was part of the allegations that were being made and they were referred to in that earlier paragraph dealing with credibility of witnesses. If, and insofar as the matter of length of service was said to be something wrongly disregarded then it is clear from the later findings in paragraph 3 that the Tribunal were satisfied that every proper weight had been given to the length of excellent service by this man in British Rail.Looked at as a whole, this was a difficult case, as the Industrial Tribunal found; it was a very serious case from both sides. As far as the Applicant was concerned there had been the previous warning and inevitably it is a very serious offence which Mr Thomas recognised would, if proved, almost inevitably, lead to dismissal from British Rail. There was the danger to himself; the danger to the public; and the utter chaos which was brought about on this occasion, which is described in the documentation, whereby there were "footballers" crawling all over the place; football supporters milling around in the circumstances described, involve a very serious situation. That seriousness from both sides was recognised and the Tribunal here dealt with this matter admirably. We are quite unable to find an error of law despite the able submissions of Mr Thomas, to whom we are grateful. This Appeal is dismissed.