British Rail AEB British Railways Board v Lockwood & Anor [1994] UKEAT 566_93_0812

EAT
British Rail AEB British Railways Board v Lockwood & Anor
[1994] UKEAT 566_93_0812 · 1994-12-08

JUDGE HULL QC :

This is a case in which British Rail AEB British Railways Board appeals to us against the Decision of the Industrial Tribunal sitting at Sheffield under the chairmanship of Mr David with two Industrial Members, on the 8th and 9th March, the 20th April and 14th May 1993. They promulgated their Decision on 8th June 1993.That Industrial Tribunal had heard the complaints of two employees, Mr Lockwood and Mr Boddy, that they had been unfairly dismissed. Mr Lockwood was a very long-serving employee of the Railways Board. He was employed by them for 32 years. He is now a man of 49 and at the material time his substantive rank was that of a train crew co-ordinator or supervisor. He was in the acting rank, a promotion apparently of two grades, of assistant area train crew manager.Mr Boddy was a somewhat younger man. He is now 42 years old. He had been employed for 18 years and he was a senior clerk. He supervised a small office with four or five staff in it.The facts that gave rise to the Disciplinary proceedings against these two men, and indeed their dismissal, were really very simple. A colleague, of considerably greater seniority still, was to retire. It had been hoped to hold a small function in the evening for him but there were apparently some domestic difficulties and a bereavement, so it was decided instead to have a small goodbye party at lunch time.So Mr Lockwood and Mr Boddy and two junior clerks went out and had lunch with the man who was retiring. They went to a public house and all of them had some alcohol to drink. Evidently, not very much. There was no suggestion whatever that they were under the influence of alcohol. They were out of their offices for more than one hour and they returned afterwards and admitted that they had had, in one case I think one pint of beer, in another I think some shandy. So small quantities of alcohol had been consumed.The importance of that is that British Rail has a very strong policy, as of course it is entitled to, against alcohol. Alcohol, even in fairly small quantities, can lead to relaxation of concentration, or even sleepiness, and so much of British Rail's work is concerned with safety that they are not merely entitled, but one might think obliged, to have a serious policy about that.There are two limbs to the policy. First of all, nobody must report for duty when under the influence of alcohol. That is not directly material here, because it is not suggested that any of the people in this story were under the influence of alcohol, in the ordinary sense. They had had a drink.The other limb of the policy is this. There is to be no drinking of alcohol whatever while on duty. That is an absolute prohibition and what is more, British Rail, perfectly fairly and properly, made it quite clear that breaches of this policy would be treated severely; most likely by dismissal, and if not by dismissal, then other very severe consequences would follow for the person who was lucky enough to retain his employment.It was also made clear that these rules and this policy applied not merely to those such as drivers, or signalmen, or men working on the line, who were likely directly to be involved with safety, but also, again perfectly reasonably, to those in supervisory positions. How can you expect men who are working to observe a rule if they can see their supervisors breaking the rule?So British Railways Board held an inquiry immediately, and then disciplinary inquiries, and they dismissed both these men. Indeed, they dismissed the other person I referred to, the gentleman who was retiring shortly, and to whom they were saying goodbye, and the two young clerks.There was an appeal. That was unsuccessful. Then there was a review. It was thought possible to impose a less severe penalty in the case of the two young clerks; they were merely suspended for a period without pay.Mr Lockwood and Mr Boddy, these long serving employees, remained dismissed and they made their complaints to the Industrial Tribunal, and the cases were heard together.The Industrial Tribunal heard the cases over no less than four days, so there must have been, quite clearly, a most careful inquiry into all the facts, as indeed is obvious from their Decision. They went through the facts a great deal more thoroughly than I have done. They cited from the British Rail Rule book and they made no adverse comment on the policy of British Rail.They referred, amongst other things, to a film which they were shown, which was intended by British Rail to reinforce their policy. There were other documents, because British Rail had undoubtedly done what they should have done, in the circumstances, to bring to the minds of their employees not merely that these were the rules and that this was the policy, but that it was intended to enforce it with strictness.Then they came to the important part of their Decision with which we have been concerned. They said in paragraph 15:
"15 There is no issue but the respondents have shown that the reason for these dismissals was the applicant's conduct. [Then they refer to the case of Iceland Frozen Foods, in which guidelines were laid down for Industrial Tribunals considering these matters. They say]: We remind ourselves that we must consider the two applicants separately although we have to say that the circumstances of each case are so similar that it is difficult to draw any significant distinction between them. We remind ourselves too that we must avoid the temptation to allow our sympathy for the applicants to influence our decision. It is the reasonableness of the respondents' actions that we have to consider."
They then address themselves, and I will come to this, to a question which would occur, I think, to any intelligent outsider who was thinking about this. Were these men truly on duty at the time? It is true that it was in the middle of the day, their hours were apparently ordinary office hours, and so they would return to duty; but can it truly be said that they were drinking on duty, because that was what was alleged.Or was it to be said, on the other hand, that they were between spells of duty? The Tribunal said that they were not going to decide that as a matter of strict construction, they were not construing the rules like a statute. What they said was this:
"16 We should say first of all that we do not think that there is great significance in the somewhat technical argument as to whether or not the applicants were "on duty" at the relevant time. We do not have to construe the charge as through it were an indictment. Suffice it to say that we think the applicants would have been justified in thinking that they were off duty [just pausing there, that, although Mr Battcock for the British Rail Board has not underlined it for us, we think a very important finding] but we do not accept they gave any thought to that matter until the disciplinary procedures were under way. Equally we think that the respondents [that of course is British Railway Board] were justified in thinking that the applicants were on duty. In our view nobody was misled or prejudiced by the formulation of the charge. However, the matter does draw attention to the fact that the respondents' rules are not as precise as they might be. We think it is significant that nowhere in the rules is there any reference to the "nil alcohol" policy and the use of the phrase "under the influence" does not support the absolute rule that is contended for by the respondents."
It may be convenient to pause there and say that some importance was attached, at any rate so far as the Board was concerned, to a letter of the 16 December 1991 which was referred to by Mr Straw, the Area Manager, in considering the appeals. He referred to that letter which he had signed and sent on 16 December 1991 to all Yorkshire Freight Staff, who included these men. He said as follows:
"It is an appropriate time for me to remind all members of staff, now we are entering the Christmas period, of the British Railway Boards Drink and Drugs policy. You should all now have seen the recently produced video on this subject, and have had the opportunity of attending reading session. However, in the event that this is not the case, I would reaffirm the policy, no member of staff should consume alcohol whilst on duty, neither should anyone present themselves for duty under the influence of alcohol. Office workers are perceived by many of staff, as being in a privileged position in having the opportunity to attend Christmas parties etc. and it is therefore imperative that everyone conforms to the Boards policy.
I will not differentiate between any groups or grades of staff. The policy applies to every employee."He was fully entitled to say that, and that is very clear. Finally,
"If you are attending a lunch time party and consume alcohol, then please ensure you do not attend work immediately following such activities."
There it appears to be at any rate perfectly reasonable to think that Mr Straw is saying, "Drinking at lunch is all right as long as you do not attend work immediately afterwards." He is not saying that you must not return to work that day or anything of that sort. So there he is mentioning the very matter which the Tribunal find something of a imponderable, in paragraph 16 of their Decision. It seems to us that reference to that letter does not in the event strengthen British Rail's case.Then the Tribunal goes on to say:
"17 In defining the band of reasonable responses we have to consider the alternatives to dismissal which might have been available. We note that the three clerks who were reprieved by Mr Straw instead of being dismissed were given a "commuted penalty of 5 days' suspension and a final warning that in the event of a similar discrepancy (sic)" they would be dismissed. It seems to us that the difference between this revised penalty and dismissal is enormous. On the one hand 5 days' loss of pay and a re-affirmation of the pre-existing rules, on the other the catastrophe of losing a job and the accrued benefits that went with it. In our view this stark contrast suggests that the ultimate sanction of dismissal was not within the band of reasonable responses to the applicant's conduct."
Mr Battcock underlines that. He is perfectly entitled to. There were plenty of grounds, he says, for distinguishing between the conduct of the young women clerks and the conduct of two men in supervisory positions, two responsible officers of the Board. And certainly we can accept that that is so. But they were entitled, nonetheless, to look at that matter and to use it as an illustration of the way their minds were moving. It was not a case where the Board had felt so strongly that they had to dismiss them all. They had felt able to extend a measure of leniency to the juniors. That, in the Tribunal's view, was significant.
"18 We remind ourselves of the applicants respective lengths of service and spotless records. [Pausing there, certainly they were very well entitled to do that. We ask ourselves how could any reasonable employer fail to direct its mind to those matters. They go on] We think it is right to consider too the circumstances of the rearranged retirement celebration for their colleague and the fact that they had only a small amount to drink. More important still is the fact that neither of the applicants were involved in a "hands on" safety job and the chances of Mr Lockwood being called out in an emergency were negligible. On the other hand we accept that the respondents have to run and be seen to run a safe transport system and to do this they have to enforce strict rules. Having weighed all these factors we have come to the unanimous conclusion that the dismissal was not within the band of reasonable responses to the applicants' conduct. Accordingly, we find that these dismissals were unfair."

Now we have been reminded by Mr Battcock of what was said by this Tribunal in

Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 where Mr Justice Browne-Wilkinson (as he then was) presiding over this Employment Appeal Tribunal said that the correct approach for the Industrial Tribunal was, first of all, to consider:
"(i) ..the words of s.57(3) themselves;
(ii) In applying the section an Industrial Tribunal must consider the reasonableness of the employer's conduct not simply whether they (the members of the Tribunal) consider the dismissal to be fair;(iii) In judging the reasonableness of the employer's conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;(iv) In many cases (though not all) there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;(v) The function of the Industrial Tribunal as an industrial jury is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band, it is unfair."Mr Battcock has underlined those matters and of course we accept them. He said to us that the Tribunal had attached too much weight to various matters and too little weight to other matters. We say that the weight which the Tribunal attaches to various matters is for them. It is not a matter of law, how much weight to attach to a particular consideration, it is a question of fact. And that is self-evident, with respect.When an Industrial Tribunal hears a case, spending four days over it, it hears the witnesses, it looks at all the documents, and it hears argument and considers the matter with great care. It would be quite idle for us, after that, to say that we would attach more weight to this or we would attach less weight to that.Mr Battcock said to us at first:
"Dismissal was the right decision for the British Rail Board."
We say, "That, as a matter of law, is not a question for us". Then he said "At any rate, it was within the range of reasonable responses of a reasonable employer." We say, "That is not a question for us as a question of law, it is a question for the Industrial Tribunal." The question for us is whether the Decision of the Industrial Tribunal, that this employer's decision fell outside the range of reasonable responses, is perverse. It was put as frankly as that by Battcock. He said it is unreasonable, irrational, in the legal sense. That is what Mr Battcock has to show us.We do not have to say that we would have reached the same decision. We are not competent, in law or in common sense, to say that we would have reached the same decision or a different decision. The question we have to ask ourselves is whether it appears to us that this decision by the Industrial Tribunal is plainly and obviously wrong; irrational in the legal sense. That is to say that it is obvious to us that the Tribunal must have made some error of law which is not clear to us, or else simply have completely misjudged the evidence: made a decision which there is no evidence to support, or failed to act on compelling and obvious evidence which they must have disregarded. A finding of perversity must be a finding that there is an error of law somewhere, even if it is not patent on the face of the decision.I would say before we say what we think about that, that there is no complaint here of the procedural steps taken. It is simply a contention by British Rail Board that this Industrial Tribunal was perverse in reaching the decision which it did.Having considered that as well as we can, we can find no error of law here. We think that the Tribunal was perfectly entitled to consider this question. It is their task to consider it. As Sir Nicholas Browne-Wilkinson said,
"It is their task to consider whether it fell within the band of reasonable responses."
We do not accept that the Tribunal were merely "purporting" to apply what is said in the Iceland Frozen Foods case, it seems to us that they were applying that properly. They cited a number of grounds, in particular the long service and blameless conduct previously of these two officers. They cited the fact that only a very small amount of drink had been taken. They cited the fact that these rules were such that the employees might reasonably have concluded that they were not on duty at the time and therefore not in breach of the rules at all.Those were all matters on which they were well entitled to place great emphasis. They did, clearly, place emphasis on all those matters, as well as the disparity which they found, although they recognised there were grounds for it, between the treatment of the more junior employees and that of these two employees.In the circumstances, we cannot find that this was a perverse or irrational decision, nor do we think there is any substance in the other matters to which Mr Battcock invited our attention. We say that this Appeal falls to be dismissed.We have a great deal of sympathy with British Rail's determination to uphold safety and its rules about alcohol and also its desire, of course, to achieve consistency in enforcing these very important rules. Having considered this as carefully as we can, we are not satisfied that this Appeal can be characterised as unreasonable, still less of course as vexatious or anything of that sort, and so we do not accede to the application of costs.