Miller v Post Office [1993] UKEAT 310_92_2903

EAT
Miller v Post Office
[1993] UKEAT 310_92_2903 · 1993-03-29
MR JUSTICE WOOD (PRESIDENT): This is an appeal by way of a Preliminary Hearing by Mr Miller from a decision of an Industrial Tribunal sitting at London (North) under the Chairmanship of Mr Robson. That Tribunal had an allegation from Mr Miller that he had been unfairly dismissed by his employers the Post Office. He was represented by Counsel. The hearing took some three days and the Post Office was also represented by Counsel. There were a substantial number of witnesses, all seen and heard by the Tribunal.The Applicant, Mr Miller, had been employed by the Post Office for some seventeen years. The process by which the postmen helped at the sorting office before Christmas was carefully examined and it is quite clear that increased time was required, although spoken of as overtime, prior to Christmas. That must be obvious to anyone who knows the pressure upon the Post Office at that time of the year.By agreement with his employers, the Post Office, Mr Miller also had a second job in a betting office. As a result of the change in the day light hours gradually, as again we all know, the first race of the day comes earlier and earlier and there comes a time when the first race of the day, by which time the betting offices would be busy, approaches the hour of 1 pm or possibly later, if there was a pressure of work, at which Mr Miller was required to be at the sorting office to deal with the post. So there came a clash between the two. The Tribunal set it all out in detail and it is quite evident that that is so.The incident with which the Tribunal were concerned occurred on the 10th December 1990 and what happened immediately thereafter. On the Sunday before that Mr Miller had been suffering from toothache due to a gum complaint, for which he was supplied antibiotic, he went to a dentist on Sunday 9th December with severe toothache and was given a prescription; appointments were made for successive Sundays thereafter. On the morning of Monday 10th December at 5 am, which was the first day for the extended hours for that year's pre-Christmas rush, Mr Miller set off from home in his car. Only a few yards away from his house the car broke down. The Tribunal indicate that he pushed it back to the house, went in to ask his wife to telephone the sorting office to say he would not be in that day as he was suffering from a gum infection, and thereafter to contact the RAC, both of which she did. The Tribunal did not think he was unable to attend his work due to the gum infection, indeed as they subsequently found, he attended at the betting office. However, they looked at the matter and thought it was important that it was to the sorting office that the first call had been made before enquiry had been made as to the actual reason for the break down of a car. They state in paragraph 6 of the judgment, the first time, that they did not believe the version being put forward by the Applicant and his wife. During that morning the Tribunal found that the Applicant went back to bed, he got out of bed later, he went to a garage, the RAC having attended and told him that it was not safe for him to use his car without proper repairs. Having been to the garage at about 11.30 or so he then went, in good time for the first race at 12.45, to the betting shop which was some two miles away from the sorting office. The comment is made by the Tribunal that Mr Miller had not tried to reach the sorting office by public transport, which he could have done in about an hour; that is a matter very much within the knowledge no doubt of the Industrial Tribunal sitting in the North of London, because it was the Highbury Sorting Office that was the relevant place of work. As a result of a certain conversation which had taken place and which had been overheard there was an inquiry. The conversation which had been overheard is referred to in particular in paragraph 4 of the decision. The Tribunal put it in this way, they say:
"How then was he to fulfil his duties to both employers in 1990 if he did not work the night shift? Mr LaRose, his supervisor at the Post Office, told us that he had overheard a conversation between the Applicant and Mr Watts, a colleague of the Applicant's and the trade union Official who represented him at the subsequent Disciplinary and Appeal Hearings, during which the Applicant said that, since he would not now be able to perform his duty at the betting-shop, the only course left open to him would be to go sick at the Post Office. Neither the Applicant nor Mr Watts, who gave evidence on his behalf denied that the conversation had taken place. We therefore accept that Mr LaRose did overhear this conversation."
With that background the Tribunal took a somewhat sceptical view of what occurred on the early morning of Monday 10th December. When Mr Miller did not arrive for work, Mr LaRose remembering that conversation started to make enquiries. Members of the staff from the Post Office went round to the betting-shop and a number of them observed Mr Miller at work there. In fact Mr Dunkley, the Area Delivery Manager, whom the Applicant knew well, visited the shop at about 1.20 pm and the Applicant, seeing him, froze and then affected not to have done so and turned away. The Tribunal felt that that was not the behaviour of an innocent man.When reporting for duty the next day the Applicant asked for a sick claim form; it was self-certified and it stated that he was unable to attend and perform his duties the previous day on account of his gum infection. As the Tribunal found, the Applicant has admitted several times since that this was untrue, both to senior officers of the Post Office, and to the Tribunal. Then they look further and find that he was not telling the truth on a number of other matters.The investigation was a thorough one, it was not being dealt with by the Applicant in a truthful manner, and he was making allegations which are no longer pursued. The Tribunal were able to see and hear all those involved in this matter. They dealt with the evidence; they dealt with the witnesses; they expressed a clear view as to whether or not they believed them and whose evidence they preferred and then they looked at the decision to dismiss. The argument was that this was outside the band of reasonable response. The Tribunal deal with that finally in paragraph 24 they say:
"We are firmly of the opinion that the Applicant had been shown to have lied to his superior officers at the Post Office on a considerable number of occasions in relation to his absence on 10 December 1990 and that his claim for sick pay had been fraudulent. Even in the case of a person of hitherto unblemished record, such conduct would, in our opinion, justify any reasonable employer in losing confidence in the employee concerned and mean that dismissal was within the range of reasonable responses open to that employer. In the light of all the evidence before us we unhesitatingly consider that dismissal was within the range of reasonable responses open to the Post Office in regard to the Applicant's misconduct."
They felt, in the letter of dismissal, that the trust and confidence in this employee had been lost as a result of the conduct over this period.The Industrial Members sitting with me have looked carefully at the whole of this evidence in the light of the submission ably made by Mr Holbrook that this was a perverse decision. It is not for this Tribunal to decide whether or not it would have reached the same decision. The Industrial Tribunal have the advantage, which we do not have, of seeing and hearing the witnesses and forming their view about the way in which the whole matter was handled. They did so in this case, there was no error of law, the only possible argument, as Mr Holbrook appreciates, was that this was a perverse decision. Those sitting with me are not satisfied that there is an arguable point on that basis and although this is a preliminary hearing we look to see whether there is an error of law, a perverse decision is an error of law and it is not seriously arguable further at a full hearing.We are satisfied here that the appeal must be dismissed at this stage and it is.