R C Michael v. London Underground Ltd [1993] UKEAT 427_89_0807

EAT
R C Michael v. London Underground Ltd
[1993] UKEAT 427_89_0807 · 1993-07-08

JUDGE HULL:

This is an appeal by Mr Michael against the Decision of the Industrial Tribunal for London South, to whom he complained that he had been unfairly dismissed. The Tribunal was chaired by Mr Bassingthwaighte. It heard the case on 8 March and 3 May 1989 and then delivered its Summary Reasons on 9 May 1989 and its Full Reason on 9 June 1989.We do not propose to set out everything that happened but in summary, the facts are as follows. Mr Michael became a booking clerk for London Underground Ltd in August 1981. This is a position of trust and also a position which requires great care, training is required and Mr Michael was trained. In due course he was promoted and continued in a more senior grade as booking clerk with London Underground. There are no complaints prior to May 1988, nearly seven years later, about his behaviour.In May 1988, there were visits by testers and these testers are, so to speak, "plain clothes" testers, almost like detectives. Under a system which is well tried and much used by London Transport, they go around making random tests, at least they are frequently random although sometimes, I think. they may be deliberately targeted tests. They simply, like any member of the public, buy a ticket or tickets and they carefully note whether they are given the correct change. They may note many other matters, I do not know.There were visits by these testers on 16, 19 and 20 May to the underground station where Mr Michael was the booking clerk at the time. On five of the sixteen occasions they received short change and on one there was too much change. They did not know Mr Michael but it became evident that it was Mr Michael who must be responsible because he was the only booking clerk at the station. Therefore, it was alleged by these anonymous testers that of the six occasions with the wrong change, one of them was in favour of the customer and five of them were against.Mr Watson, a traffic manager, decided to hold an enquiry because it appeared to him that this was a serious matter. It was a matter which could be explained in various ways but the obvious explanations were possibly, although this certainly was not charged, dishonesty but much more likely perhaps, incompetence or inattention to duty. Those were matters for Mr Watson and in due course he did hold a hearing on 25 May, which was five days after the last of the testers' visits.Various matters were put to Mr Watson and he decided that this was a serious breach of discipline. Money is very important; it is very important that the correct change should be given to customers, otherwise the possibilities for trouble are almost unlimited. One can imagine the effect on the morale of the staff, one can imagine the effect on the good name of London Underground if such errors were allowed to carry on without action. Mr Watson referred the matter to a disciplinary board composed of a Mr Green and a Mr Williamson and they concluded that the breaches of discipline in making these mistakes could not be overlooked and they directed that Mr Michael be dismissed. I should say that the managers who dealt with this were ex-booking clerks themselves and almost certainly knew more about it than any Tribunal could know about it.Dismissal was the decision of that disciplinary board after hearing Mr Michael, who was supported by a friend, and Mr Michael then appealed to Mr Butcher. Mr Butcher heard the appeal, heard what was said and reached the same conclusion that dismissal was the appropriate order to make.Mr Michael then applied to the Industrial Tribunal alleging that he had been unfairly dismissed. It appears to have been an exceptionally thorough enquiry by the Industrial Tribunal, no doubt partly because London Underground, as well as Mr Michael, wished to be fully heard. Mr Watson gave evidence as he was the first officer who had heard the matter, Mr Williamson who had acted on the disciplinary board gave evidence as did Mr Butcher who had heard the appeal and Mr Glasscock, an ex booking clerk who is now the Revenue Protection Manager for London Underground.The notes of evidence are before us. Mr Michael gave evidence and he made, through his advocate - his friend - who was there, unpleasant suggestions. He suggested that perhaps his dismissal was due to racial bias; perhaps these anonymous testers had a grudge against him for some other reason; and he assured the Industrial Tribunal that there was no question of his deliberately short-changing anybody. He felt that the reports must be wrong and he could not think why they should want to pin something on him.The Industrial Tribunal of its own motion and without Mr Michael or his advocate making this suggestion, thought it right to ask some of the witnesses whether there was dishonesty in mind and Mr Williamson did say:

"We did conclude that it was dishonest."

and he agreed that there was:

"No reference to conclusion of dishonesty"

Certainly Mr Michael confirmed, when he gave evidence, that at the disciplinary board no question of dishonesty was put to him.I mention that particularly because there was no question of this dismissal being for dishonesty; that was not the ground at all, it was besause of the errors that had been made by Mr Michael. It is suggested that the attitude of the employers was unsatisfactory and unfair in this. One of the employers' representatives, and perhaps more, thought that it was probably dishonest behaviour or that it was in fact dishonest. If the employers acted on that ground but did not want him to know, that would be bad faith by the employers. They should explain it to the employee and give him a chance to deal with it.However, that is a hundred miles away from saying that if the employers are asked to think about something which was not the ground for their decision, they must not tell the truth about that. He was asked about it by the Tribunal itself and Mr Williamson said that it was in his mind that this was dishonest.There must be, in everyday life, a thousand and one situations when somebody thinks that something is dishonest or suspects, or even believes, that it is dishonest but could not possibly prove it. The evidence is completely insufficient. Every lawyer is certainly familiar with that state of affairs. There may be plenty of grounds for suspicion, but no grounds whatever for making a charge. Therefore, Mr Williamson, being asked that, gave that answer, but we do not think that it amounts to any more than that. It was one of the matters which the Tribunal had to consider.The appeal to this Tribunal from the Decision of the Industrial Tribunal which held that the dismissal was fair can only be supported on a point of law, there can be no question of us re-trying the matter. What the Industrial Tribunal had to decide was whether the dismissal was unfair, that they did and they set out their reasons at considerable length. They did not think that every aspect of what had passed was entirely satisfactory, in particular, they criticised the fact that:
"5 (c) (i) After the first stage of the disciplinary process, although notes were kept of the proceedings copies were not produced for the employee or for his representative in order to prepare for the next stage in the procedure. We were informed that that was an invariable procedure. We recommend that the respondent should cease to adopt that procedure. There is no apparent reason why copies of relevant documents including notes of a previous hearing should not be produced to an employee and his representative and to do so would make for a fairer procedure."
That was one matter of criticism which the Tribunal upheld. They also said, and this was very important because it was a cause of concern to this Tribunal:
"5 (c) (ii) Dismissal was based upon evidence received from testers who remained anonymous. We understand and accept why the respondent seeks to preserve the anonymity of its testers but we have to consider whether it would be fair to dismiss on the basis of that evidence. In principle we can see no reason why not; what matters is whether the employer can reasonably rely upon such evidence. If one tester were involved, if there were one incident the respondent might well be in difficulty if he dismissed in those circumstances but this employer prudently used more than one tester and had evidence of more than one occasion. We noted during the course of evidence that testers could be made available to, and be seen by, investigating managers and that is a procedure which we are pleased to see and which we commend to investigating managers, [particularly] where challenges to the veracity of testers reports are noted. But although there was a challenge to the veracity of testers in this case that challenge was rebutted by the managers who heard the applicant's case on the basis that the number of testers and the frequency of the incidents persuaded them that the reports were accurate. That in our view is a reasonable conclusion to have reached in all the circumstances of this case and we cannot say therefore that dismissal based upon anonymous testers' evidence in this particular case was unfair."
They then go on to deal with the question of dishonesty. They say:
"5 (d) ....... It was made clear to the applicant at all stages of the disciplinary process that he was not being accused of being dishonest, although that issue did surface more forcefully in evidence before us. The applicant was therefore dealt with on the basis of misconduct; identified occurrences of short changing. The issue of dealing with money, upon which the respondent depends for its finance, is obviously regarded seriously. Staff are routinely advised that ticket irregularities will be dealt with severely and it must surely be known to staff whether formally advised or not that if they persistently mishandle cash the respondent will react severely. Even therefore where the respondent does not reach conclusions of dishonesty, where that issue is left to one side as in this case, where the employer concluded without assigning a reason for it that short changing occurred on five separate occasions on three separate days then it is our conclusion that dismissal must be within the band of responses which the reasonable employer would consider available to him."
Mr Welsh, on behalf of the Appellant Mr Michael, says that that is wrong. He said that no reasonable Industrial Tribunal could have found that the employers acted reasonably without their having checked the change machine. But in fact that is exactly what Mr Watson did. He sent a senior chief booking clerk to check the change machine and now, for the first time, Mr Welsh said that that was quite unsatisfactory because it should have been an expert of some sort. That seems to us to be a point made for the first time before us and therefore quite inadmissible.He next complains that the Industrial Tribunal acted under a mistake of law in holding that the Respondents acted properly in failing to interview the testers or to identify them so that they could be cross-examined by Mr Michael. On the contrary, as was said in the extract which I have just read, the Industrial Tribunal expressly addressed their minds to that. In the nature of things it was most unlikely that they could refer to Linfood Cash & Carry Ltd -v- Thomson [1989] IRLR 235, which was only decided in that year. However, they addressed their minds to it very much in the way in which the learned President of this Appeal Tribunal, with his colleagues, suggested in that case they should do. They asked themselves whether in all the circumstances of the case the employers had acted fairly and the matters, which Mr Welsh has underlined to us, they underlined for themselves and held that in all the circumstances the employers had acted reasonably and fairly. That was a matter for the Tribunal and it was for them to say whether the employers' behaviour fell within the reasonable band in which a reasonable employer might deal with these matters.It is then pointed out by Mr Welsh that the employers did not acquaint Mr Michael with this situation for five days after the last of these incidents. It was not until 25 May that he heard about them and Mr Welsh makes the point very fairly that in those circumstances Mr Michael could not be expected to deal with any of these occasions.That is almost another aspect of the fact that the testers were not identified. Those are the matters that were very much in the minds of various managers and in the minds of the Tribunal, it seems to us. There was a potential unfairness here and that was exactly what the Tribunal had to address its mind to and we are very pleased to see that they unfailingly did address their minds to that.Mr Welsh then takes the point that throughout the internal appeals Mr Michael was not accused of dishonesty, nor is he now. The employers acted on a different basis. Finally, Mr Welsh says that the Industrial Tribunal was bound to hold that the dismissal was outside the range of reasonable responses.This Industrial Tribunal had the privilege, that is completely denied to us because we are a Tribunal of law and not of fact, of seeing three of these managers give evidence, hearing their evidence and testing it. In those circumstances it would be quite idle for us to say that we have a better view of that than the Industrial Tribunal. We can detect no error of law at this Industrial Tribunal and most certainly we cannot say that in any of the respects which are put forward, or indeed, any other respect that occurs to us, this Industrial Tribunal acted in a way and reached a conclusion that no reasonable Tribunal could have done.It follows, therefore, that there is no point of law here and the appeal must be dismissed.