Rogers & Anor v Redland Roof Tiles Ltd [1995] UKEAT 815_93_1303

EAT

Rogers & Anor v Redland Roof Tiles Ltd

[1995] UKEAT 815_93_1303 · 1995-03-13

HIS HONOUR JUDGE LEVY QC Brian Rogers commenced his employment with Redland Roof Tiles Limited ("the Company") on 1 January 1976. On 26 April 1992 he was a chargehand and a maintenance fitter. Andrew Russell commenced his employment with the Company on 20 February 1978. He was a maintenance fitter on the same day in 1992. On that day both men were working on a site of the Company at Westhaven. Mr Piper, the maintenance manager, came to the site unexpectedly; he arrived at about 6.55 a.m.

Mr Rogers arrived about the same time. Later, Mr Piper found that Mr Rogers had clocked in at about 6.34 a.m. The Company considers it an offence of gross misconduct for one employee to clock-in for another or for clocking-in to be done in any way which was significantly irregular. Next day Mr Piper reported the discrepancy to Mr Murray, the works manager. On the afternoon of that day, following an enquiry, both Mr Russell and Mr Rogers were suspended. On 19 May 1992 a disciplinary hearing took place before Mr Murray; Dismissal letters were sent out on 21 May 1992, on which date the two long serving employees were dismissed.

No complaint has been made about the way Mr Murray conducted the disciplinary hearings but from them, not unnaturally, Mr Rogers and Mr Russell appealed. Their appeals were heard by Mr Hornsby. Additional evidence was sent by the two employees to

Mr Hornsby. Among that evidence was a statement from a Mrs Russell (who is no relation of the employee Mr Russell). Her statement dated 23 May 1992 reads:

"To whom it may concern,

On Sunday 26th April 92, I left my home at 6.30 am to drive to London. On approaching the drive leading to Redlands I noticed Mr B.Rogers waiting to pull out onto the main road, As I drove past he pulled out behind me and followed me into Westerham, where he stopped in Market Square I carried onto London."

On 4 June Mr Hornsby, having heard the appeal (the evidence of Mrs Russell's letter being included as part of the evidence which he heard) deferred his decision and, in accordance with procedure agreed with Mr Page (a Union representative who represented both men at the hearing), before giving his decision, he spoke twice to Mrs Russell. He made notes of his conversations. On 5 June (that is the day after the appeal hearing), he asked if it was possible to call in for five minutes to follow up her statement. She replied it was inconvenient, because her daughter had gone into hospital. Mr Hornsby invited her to answer some questions and these are the questions and answers as recorded:

Q. How do you know Brian (i.e. Mr Rogers)

A. Known him a long time, years - my husband worked at Redland until the strike.

Q. How did you know about it. (Which is thought to refer to the dismissal.)

A. Small community Hurst Green - most people here have worked or work at Redland - talk about it in the pubs.

Q. Are you sure it was Brian.

A. Yes, I always look up Redlands Drive - recognise his ugly mug anywhere.

Q. What car was in

A. Black Ford

and there the conversation terminated. On 8 June Mr Hornsby rang her again, at 10.15 a.m. and made this note of the conversation made at 10.30 a.m.

K.H. Please can you be more specific about how you heard this.

J.R. Well, a lad called Kevin knew him since he was 12 - he heard it somewhere in the pub or club (I.R.) close community - I know a lot of the people who worked at Redland (listed a number).

K.H. Are you in contact with him.

J.R. Last saw him one or two weeks ago - he pops in - he might come and see me in hospital.

K.H. Did you have anyone in the car.

J.R. Yes - my husband - I don't drive.

K.H. Does he recall seeing Brian.

J.R. Well - I pointed him out to him.

K.H. Last one. Can you remember where you were going.

J.R. Yes - London - the Angel,Islington.

On 11 June 1992 Mr Hornsby wrote to both men dismissing their appeal; he also wrote a long letter on that day to Mr Page in part of which he dealt with factual arguments presented by Mr Page at the Appeal Hearing. Of Mrs Russell's evidence he said this to Mr Page:

"3. The opening hours of the papershop I accept as being perhaps more problematical but I am inclined to accept Richard Murray's evidence as being the most reliable. I interviewed Mr.Isted at Moorhouse and I do have considerable reservations about his evidence. I have spoken to Mrs Russell twice on the telephone and have similar reservations."

Pausing there it is necessary to say that part of Mr Murray's evidence was that it took

9 minutes to drive from the Company's site at Westerham to a specified shop which sold milk. Mr Rogers case was that he had clocked in at the site at 6.34 a.m. and then left the site for the shop. His evidence was that he returned to the site at 6.55 a.m. The discrepancy between 21 minutes which on this case it took Mr Rogers to go to and from the site and the 9 minutes which Mr Murray found was the time it took him to make the round trip was an Achilles heel in the path of the Appellants. They could give no sensible explanation for it at any time.

The complaint which is made on this appeal is that neither Mr Hornsby nor in the decision of the Industrial Tribunal is there any explanation given as to why Mr Hornsby had reservations about Mrs Russell, and as to why, as he did, he rejected her evidence. However to go back to the history, both men made complaints to an Industrial Tribunal on

26 September 1992; there was a hearing on 21 May and on 20 July of 1993; the decision was sent to the parties on 2 September 1993; the application of both men was dismissed. A lengthy Notice of Appeal was lodged to this Tribunal on 12 October 1993. Only in one aspect is the appeal fought today and that is on the lack of attention paid to Mrs Russell's evidence before Mr Hornsby and in the Industrial Tribunal.

Mr McMullen QC who has made, as one would expect, a fluent address for both Appellants, has submitted that this is a very serious case indeed for both Appellants, whose jobs have been lost. He submitted that they are entitled to know why the employer and the Industrial Tribunal decided what it did. Now it is quite clear to all of us that Mrs Russell's evidence played a tiny part in any of the hearings. So far as the disciplinary hearings are concerned, they played no part at all. So far as the appeal hearing before Mr Hornsby was concerned, they played a very peripheral part. What was concerning Mr Hornsby, as it had indeed concerned Mr Piper and Mr Murray, was there appeared to be a fairly clear case of fraudulent clocking-on. They found it difficult to accept that Mr Rogers explanation, namely he drove passed the milk shop en route to the site. Having found that there was no milk at the site, he immediately drove back to the closed shop. Further they could find no reason why a journey which Mr Murray said took 9 minutes should have taken Mr Rogers

21 minutes. They were forced to the conclusion, unpalatable as it was, that two men who had had long service with the Company, had been guilty of an attempt to defraud the Company by false clocking-on.

Mrs Russell's explanation was, we think, on the face of it implausible, whether or not an earlier tribunal set out reasons why this was so. Let us look at it again. First of all one has to look at it in the context of a map which was before the Industrial Tribunal. That map (at page 105 of our bundle) shows where the site is in square D2. Mrs Russell's statement said she left home at 6.30 and she noticed Mr Rogers waiting to pull out on the main road as she drove past. It was not until she had her second conversation with Mr Hornsby that it appeared that not she but her husband was driving their car. Once it is appreciated you know that it is her husband who is driving the car, the rest of that sentence makes little sense:

"As I drove past he pulled out behind me and followed me into Westerham where he stopped in Market Square I carried on to London"

. Even if Mrs Russell was the driver of the car, it is very odd for her to be able to see that Mr Rogers stopped in Market Square but if she was a passenger it becomes wholly surprising. We observe that she had point blank refused to allow Mr Hornsby to interview her face to face; she was only prepared to answer questions on the phone. In the second of telephone conversations she said they were going en route to Islington in London. Mr Murray, who has local knowledge of the area, thought it was an odd way to go to London through Westerham rather than through Oxley and that was evidence Mr Hornsby might well have accepted. Given all this, we can well understand why Mr Hornsby would have rejected Mrs Russell's evidence, notwithstanding he failed to spell out the reasons to Mr Page. Furthermore there is the "egging on the pill" in some of what she said to Mr Hornsby in the first conversation, namely "Yes, I always look up Redlands Drive". It is very odd that as a passenger in a car she should always look up this small road as she was driven past it. Further doubt may be given to her account if it was, as

Mrs Russell said, that she saw Mr Rogers was following them to Market Square. Mr Rogers had said nothing about this as soon as he was asked about it by the Company. If she saw him in the car behind from the front passenger seat so early on an April morning, he may have been expected to have seen her and to have mentioned this to his employers at the first opportunity.

Although, therefore, no details were given by the Company or the Industrial Tribunal about why Mrs Russell's explanation was inadequate as a support for the employees' case, we can well understand why any employer would not have accepted her evidence.

We turn to see what the Industrial Tribunal heard about her evidence as such it was. We have been shown the Chairman's Notes of Evidence. The passage about Mrs Russell's evidence is found at page 50. There is the reference to her statement which was introduced by Mr Hornsby in his evidence in chief. (We should add that, in a way which is common in Industrial Tribunals now, Mr Hornsby's, Mr Piper's and Mr Murray's complete statements were admitted as part of the evidence in chief at the hearing.) Supplementing his statement Mr Hornsby is noted as saying:

"was highly suspicious of Isted and Russell letters - No doubts about West" (That refers to a third witness.) Mr McMullen says that he can find in core documents reasons why there was suspicion about Mr Isted's evidence but not about Mr Russell's letter. Well that is as may be, but there was a possibility of Mr Hornsby being cross-examined on it, as he was. This is the passage in his cross-examination. First of all he is asked if has met Mrs Russell and he replied he had a telephone conversation with her. Then he is asked why he did not go into the opening times of the shop and he answers that the issue was whether she saw him or not. She had said that in a letter. Later there is this passage in the Chairman's notes:

"Q. R1/102 - refer to reservations - on what grounds?

A. Inconsistencies

- always looked up drive - but letter said that car was waiting"

and then a little further down

"- as a passenger difficult to see what was happening behind

- pointed Rogers out to her husband - thought Rogers would have said he had seen her."

We have articulated at great length earlier what suspicions Mr Hornsby may well have had about Mrs Russell's evidence but they are sufficiently spelt out in the cross-examination for anyone at the Industrial Tribunal to have understood what those suspicions were and why the evidence of Mrs Russell might well have been rejected.

Mr McMullen goes on to complain that nowhere does the Tribunal's Decision set out reasons why Mrs Russell's evidence was rejected by the Tribunal as it had been following his enquiries by Mr Hornsby.

In answer to that Mr Jeans, who appears for the Company, refers us to the decision in UCATT v Brain [ 1981] ICR 542 and the well-known passage of Donaldson L.J.

(d) :

"The real complaint here is not a complaint that they made a finding fact without any evidence but that, if they were relying on this fact, as they plainly were, they should have made an express finding of the fact-- and by "the fact" I mean that the employers knew that the employee had been so advised. That is a criticism not really of substance but of the way in which the tribunal formulated its reasons and that I think it is wholly misplaced."

and then comes the passage which matters:

"Industrial tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law. This was a reserved decision, but in practice they are more usually given off the cuff, and by that I do not mean to say without thought but I do mean extempore, to the parties present in court by people who, though lawyers, are not professional judges. The reasons are then recorded and no doubt tidied up for differences between spoken English and written English. But their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which reasons are given."

With every respect to Mr McMullen's careful submission, this is what he has done today. He points to two passages in the Tribunal's Decision. They are these:

"13.18 There was also a letter from a Mrs Russell (R1/89) who said that she had left home at 6.30 am on 26 April, and Mr Rogers had followed her into Westerham from the Redland site, and stopped in Market Square. Mrs Russell is no relation to the Applicant Mr Russell.

Mr Hornsby spoke to Mrs Russell twice on the telephone and made notes - R1/93-94."

"13.20 Mr Hornsby considered the information supplied by Mrs Russell and Mr Isted. He decided that there were inconsistencies, and he thought that the Applicants were guilty of the alleged offences. He considered a lesser penalty, particularly in view of their long service, but decided that Mr Murray had made the right decision."

At paragraph 27 of the Decision where reference is made to Section 57(3) of the 1978 Act, Mr McMullen draws attention to the views of the minority lay member of the Tribunal. He thought that the Appellants should have been given the benefit of the doubt by the Respondent and he would therefore have found the Applicants to have been unfairly dismissed. Later in that paragraph, the minority member agreed that dismissal would have been appropriate where there were reasonable grounds for believing the guilt of the employees.

From reading and re-reading the decision of the Industrial Tribunal as a whole, we have concluded that the Industrial Tribunal carefully looked into the law, gave a full, clear and detailed decision in which they showed that the reasons why the two Appellants had been dismissed was for false logging in. There had been the most careful investigation into the case against the Appellants by the Company before such drastic action was taken. We are satisfied that anyone reading that decision would well have known why it was the conclusion to which Mr Hornsby was forced and that it was a decision to which a reasonable employer was entitled to come. In those circumstances the minority lay member was wrong to attempt to try to substitute his own decision for that of the Company, and the majority of the Tribunal were, in our judgment, entirely right to reach the conclusion which they did, both on the evidence and on the submissions which had been made to them.

It is quite clear to us that Mr McMullen has seized on a small point in the whole of the evidence and blown it up out of all proportion. This is an appeal which, with great respect to Mr McMullen, had no hopes of success and we have no hesitation in dismissing it.