Lewis v The Post Office [1996] UKEAT 360_95_2202

EAT
Lewis v The Post Office
[1996] UKEAT 360_95_2202 · 1996-02-22

JUDGE BUTTER QC:

On 23 June and 13 September 1994 there was a hearing before the Industrial Tribunal at London (South) who gave extended reasons for their decision on 25 October, namely that the Applicant had been unfairly dismissed. The Tribunal decided that it was necessary, because there had been insufficient time previously for the matter to be fully determined, to adjourn, so that the question of remedies would be considered. That question was considered on 28 October. There has been no appeal against the so called liability decision of 25 October, and no cross-appeal in respect of it.On 28 October the Tribunal heard additional evidence and unanimously decided to find a 100% contribution against the Applicant.Those findings are not inconsistent as a matter of law, because in relation to the liability hearing, their decision was based upon the conclusion that the level of investigation by the Post Office was not thorough enough. At a later hearing, the Tribunal was entitled to consider further evidence which was relevant to the question of remedies including compensation. There is undoubtedly power, albeit in exceptional circumstances, for a Tribunal to conclude that the level of contribution should be as much as 100%.It is unnecessary for me to go into the facts in much detail. The Applicant had been accused of wilful delay in relation to the delivery of the mail, which on any view, if established, is a serious matter. The case for the Applicant was set out in the extended reasons given on 25 October in paragraph 17. The case for the Respondent was similarly set out in paragraph 20. The law was correctly set out in the course of the decision.In paragraph 30, the Tribunal concluded:
"30. While it is up to the employer to make its own reasonable conclusions based on reasonable investigation, we find that the level of investigation was not thorough enough in the circumstances. Since the evidence was all circumstantial, we believe that a reasonably high level of investigation was required here. Mr Gordon and Miss Guise [who had given evidence before the Tribunal] could both have done more to try to establish whether Mr Lewis was telling the truth, especially about the pouch and whether he had delivered its contents. As it was, Miss Guise simply decided that there was a conflict of evidence, and left the matter of the pouch out of account in reaching her decision. However, what she was leaving out of account was the main plank in Mr Lewis' defence."
The significance is well-known to the parties here. For the record, I should say that it was Mr Lewis' case that he had delivered all mail which had been handed to him for delivery on the day in question, that is to say 25 September 1993. He had received from his Manager, Mr Kelleher, a `739' pouch, a pouch containing items which had not been delivered on the previous day. His case was that if he had delivered the items in the `739' pouch on 25 September, there would be no reason at all for him not to deliver the other fifty-nine items of mail which were later discovered. The reasons went on to say:
"30. Even though Miss Guise concluded that the key question was what had happened to the 59 items, Mr Lewis' version that he delivered letters to Copeland House on the Saturday, if established, would put the whole question of wilful delay into a very different light from that in which he was dismissed. We believe that no reasonable employer would have dismissed without further investigation in all the circumstances, and that the dismissal was unfair."
The hearing was then adjourned, as I have already indicated, to determine the question of remedies.At the remedies hearing, additional evidence was placed before the Tribunal. We have been told by Counsel on both sides what that consisted of, and indeed have been referred to some specific items in the evidence which was given. In their later decision, the Tribunal dealt quite shortly with that additional evidence and said in paragraph 11 of their decision:"11. Having fully considered the matter, including the fresh evidence adduced by the Respondent, we unanimously find that, on a balance of probabilities, the 59 items were available for delivery on the Saturday concerned rather than the Monday, that the Applicant did wilfully delay the mail and that his conduct was blameworthy."...[There is a very brief reference to some other evidence.] We have unanimously decided that it is just and equitable in all the circumstances to find a level of contribution of 100 per cent. In the light of this, we do not consider that it would be just to order either reinstatement or re-engagement.12. We also unanimously find that, even had the Respondent carried out a more thorough investigation, it would still have dismissed the Applicant and acted fairly in doing so."...It will be observed that there is no finding there with regard to what in their earlier decision they had described as the "main plank" in Mr Lewis' defence.It is urged today on behalf of the Respondents to the appeal that there was nevertheless substantial evidence before the Industrial Tribunal which enabled it and permitted it to reach the decision which it did. We are told that it is not for us to go through the findings with a "tooth-comb", an article incidentally which only seems to be used these days in the course of argument before appellant tribunals, and we bear that in mind. Not to deal specifically however with what was regarded, rightly or wrongly, as the "main plank" of the defence of Mr Lewis, in our judgment is and was a serious omission, which has caused us a great deal of anxiety. We do not think it necessary or desirable to use the word "perverse" but we do consider that the omission was so serious that in our overall judgment the decision on the face of it is seriously flawed. That includes the part of the decision contained in paragraph 12.In the result, it is our unanimous conclusion that the appeal should be allowed. We do not consider that it is appropriate for us to reach a conclusion in relation to the question of the percentage. We cannot accurately assess the calibre of the witnesses or the strength of individual parts of the evidence in the way that a Tribunal hearing the witnesses would be able to do so. We mean no discourtesy to the Tribunal held at London (South) when we say that to remit to them for further consideration, would, we believe, be perceived as being unfair, in the light of the findings which they have made against the Applicant in respect of the question of contribution. In those circumstances, with very considerable regret, we reach the conclusion that there is in truth no option except to remit the question of remedies for consideration by a differently constituted tribunal.Regrettably, if that matter proceeds fully, extensive evidence once more is likely to be required. Evidence, I may add, which will have become increasingly stale by reason of the passage of time. We see however no option unless, and this is the earnest wish which each of the Members of this Tribunal feels it permissible to express, the parties give serious consideration to achieving a compromise of some kind, without prejudice to their respective cases. That is but a wish, we have no power to enforce it. We very much hope the parties will give it serious consideration. [After hearing an application for leave to appeal.] Leave to appeal refused.