Phillip v British Railways Board [1996] UKEAT 564_95_2907

EAT
Phillip v British Railways Board
[1996] UKEAT 564_95_2907 · 1996-07-29

JUDGE CLARK:

This appeal was first listed for a Preliminary Hearing on 27 November 1995. On that occasion a division of the Appeal Tribunal presided over by Judge Byrt QC granted the Appellant's application for an adjournment to enable him to obtain legal representation in his appeal.On 30 May 1996 a firm of solicitors, Messrs Kenwright & Cox, wrote to the Appeal Tribunal stating that the Appellant had been refused Legal Aid for his appeal; that they would no longer be acting, but that the Appellant wished to pursue his appeal either by representing himself or with the assistance of the Free Representation Unit. They asked that the appeal be listed for hearing as soon as possible.Accordingly the Preliminary Hearing was re-listed for today, 29 July 1996, at not before 11.30 a.m. This was one of a number of Preliminary Hearings listed in this court today, and experienced Counsel, Mr Jonathan Swift, was on hand to appear on behalf of unrepresented appellants, if they so wished, under the ELAAS pro bono scheme.In the morning Mr Phillip telephoned the Tribunal to say that since the Underground system was not running due to industrial action, he did not think that he would have to attend. He was disabused of that notion by a member of the tribunal staff and told to make his way here. The three members of the Tribunal and all other litigants and their representatives have attended today, notwithstanding the travel difficulties. Mr Phillip lives in Chadwell Heath, Ilford.This case was finally called on at 3.00 p.m. Mr Phillip has not appeared. We therefore decided to proceed to consider his appeal on the papers.Mr Phillip was employed by the Board from 7 May 1974 until his dismissal on 30 March 1994. At that time he was employed as a fitter of train parts at the Board's "A" workshop within the Ilford Level 5 depot.On the nightshift of 23/24 February 1994 the Appellant was tested for alcohol. A breath test showed 196mg of alcohol to 100 mls of blood; a urine test revealed the equivalent of 262mgs of alcohol to 100 mls of blood. He was disciplined for reporting for duty whilst under the influence of alcohol, contrary to the Board's rule book, section A, rule 1.1.2.A disciplinary hearing took place on 30 March 1994. He contended that he had only consumed 2 cans of lager at 1.00 p.m. and had not reported for work until after 8.00 p.m. that evening. Mr Burgess, the Appellant's line manager, rejected that account, based on the test results. He found that the charge was made out and dismissed him. An appeal against dismissal was heard on 14 April 1994 and was dismissed.The Appellant complained to an Industrial Tribunal that his dismissal was unfair. That complaint came on for hearing before the Tribunal sitting at Stratford on 3 February 1995. In a decision promulgated with Extended Reasons on 10 April 1995 the Industrial Tribunal dismissed the complaint.Having set out the facts, and having found that the dismissal was by reason of the Appellant's conduct, the Industrial Tribunal expressed its conclusions on the issue of reasonableness under Section 57(3) of the Employment Protection (Consolidation) Act 1978 , in paragraph 12 of their reasons in this way:
"On the evidence before us, it is the Tribunal's finding that the Respondent's decision that the Applicant was guilty of misconduct was not an unreasonable decision. The Applicant had union representation at all stages of the investigation and disciplinary hearings. The Respondent carried out a full and proper investigation. The result of the blood/urine test showed a level of alcohol in the Applicant's blood which was far in excess of the level which would have led to a dismissal. Faced with that evidence, it was not unreasonable of Mr Burgess to form the view that he did not believe that the Applicant's alcohol intake at the material time prior to reporting to work at 8.15pm - 9pm on 23 February 1994 was limited to only two cans of lager imbibed at 1pm on the same day, as claimed by the Applicant. The Tribunal has made all due allowance for the Applicant's illiteracy, but, as employee with 20 years length of service the Applicant must have known that if he reported to work under the influence of alcohol he risked dismissal. Indeed, by strenuously denying that he had been under the influence of alcohol when he reported for work on that night of 23/24 February 1994, the Applicant was by implication admitting that he knew that he was not allowed to report to work while under the influence of alcohol. There was nothing unfair in the procedures adopted by the Respondent. Clearly dismissal was a harsh sanction bearing in mind the Applicant's long (20 years) and faithful service. However, having regard to the overriding safety implications to the Applicant himself, his colleagues, and to members of the public, the Tribunal cannot say that the decision to dismiss the Applicant was outside the band of reasonable responses open to a reasonable employer placed in the Respondent's position."
Against that decision this appeal is brought. The grounds of appeal set out in the Notice of Appeal are these:
"(i) The tribunal's decision that the dismissal was not unfair was perverse having regard to the evidence before it: that the Appellant had served the Respondent faithfully for 20 years; that the Appellant could neither read nor write; that the Respondent was aware of the Appellant's disability; that the Respondent's policy of automatic dismissal (regardless of past conduct) on a positive alcohol test with 80 milligrams or more per 100 millilitres of blood or the equivalent for a urine or breath alcohol test was not instituted until October 1993; that no extra and/or special measures were taken by the Respondent to apprise illiterate employees (including the Appellant) of the Respondent's said new alcohol policy of October 1993; that the Appellant was (automatically) dismissed in compliance with the said new alcohol policy; that prior to the said new alcohol policy of October 1993 (in respect of which no special and/or extra measures were taken to apprise illiterates) dismissal was not automatic in the event of a positive alcohol test with 80 milligrams or more per 100 millilitres of blood or the equivalent for urine or breath.
(ii) In determining the fairness of the Respondent's disciplinary/investigation procedures the tribunal failed to place sufficient weight upon the Respondent's failure to take special account of the Appellant's illiteracy. In particular insufficient weight was placed upon(a) the Respondent's failure to apprise the Appellant of his right to challenge a positive test result and/or(b) (especially in the light of the unsatisfactory result of the Respondent's breath test) the Respondent's failure to supply the Appellant with a sample of urine for the Appellant's own analysis."Thus, the main thrust of the appeal is that the Industrial Tribunal's conclusion that dismissal fell within the range of reasonable responses was perverse in circumstances where the Appellant was a long-standing employee who was illiterate, and where the Board's alcohol policy was changed in October 1993 without steps being taken to draw the change to the Appellant's attention, he being illiterate.We refer to paragraph 12 of the reasons. The Industrial Tribunal expressly made all due allowance for the Appellant's illiteracy, but found as a fact that he must have known that if he reported for work under the influence of alcohol he risked dismissal. Pausing there, we note from the Board's Notice of Appearance that it was alleged that the Appellant had attended a briefing on drugs and alcohol on 21 September 1993. The Industrial Tribunal saw and heard the witnesses before reaching that conclusion. Further, they held that Mr Burgess was entitled to conclude, on the evidence before him, that the Appellant had taken a good deal more alcohol before coming on shift than he was prepared to admit.In our judgement, the Industrial Tribunal's findings and conclusions cannot be described as perverse in the sense that their conclusion was an impermissible option. They were entitled to conclude that dismissal in these circumstances fell within the band of responses open to a reasonable employer. We can detect no error of law in this Tribunal decision. Accordingly the appeal must be dismissed.