Rochdale Metropolitan Borough Council v Lismore [1996] UKEAT 667_96_2511

EAT
Rochdale Metropolitan Borough Council v Lismore
[1996] UKEAT 667_96_2511 · 1996-11-25

JUDGE PUGSLEY :

This is a case in which Rochdale Metropolitan Borough Council seek to appeal a decision of an Industrial Tribunal that the applicant was unfairly dismissed. The case was heard at the Manchester Industrial Tribunal on 9th and 23rd April, and in the event, the unanimous decision of the tribunal was that the applicant succeeded in his application and was found to be unfairly dismissed by the respondents.We set out in this judgment the brief factual background. The applicant had been employed at the Bowlee Golf Driving Range, Rochdale. A driving range at a golf course is probably not an undertaking so alien from the experience of the general public that it is necessary to sketch in the details. He, together with other supervisors, was responsible for taking the payment, the sum of £2.35, whereupon the customer was given a bucket of golf balls, apparently approximately 60. The customer then goes into a booth and, hopefully, the 60th ball is hit with rather greater accuracy than the first.As a result of information received, and it is clear from the decision of the tribunal that that information concerned Mrs Blackburn, one of the employees, not the applicant, the local authority, perfectly properly, decided to carry out a secret audit. This consisted of their team paying for 60 balls and then making a note of how many customers there were against the amount of money received at the till.One of those involved in the audit survey was a Mrs Van Vleck. It is important to note that obviously, as an appellate tribunal, that we have not ourselves heard Mrs Van Vleck. She was a witness before the Industrial Tribunal. It would be wrong to say anything about her role other than on the facts found by the tribunal. Mrs Van Vleck produced a report which was a summary of the raw material of the audit sheets. That report is set out at page 14 of the bundle of documents. On the basis of that report, Mrs Blackburn was interviewed and was dismissed. Thereafter this applicant was dismissed. It suffices to say that he did not attend the dismissal hearing because of ill health and that is a matter which is dealt with in the tribunal's decision.After Mrs Blackburn had been dismissed, trade union representatives acting on her behalf, discovered that there were discrepancies between the observation guides and the report of Mrs Van Vleck. As we understand it, it is not suggested that there was any documentary crossings out or fraudulent matters put down on the observations sheets of the internal audit which are set out from page 16 onwards. What is said is that there was a discrepancy between the figures found there and those in Mrs Van Vleck's report which is summarised at page 14. When this came to light, Mrs Blackburn appealed against the decision.Before the appeal committee was the report which listed the discrepancies. Her appeal was dismissed. Then Mr Lismore appealed. His appeal was held before three councillors from the personnel and performance committee and again the discrepancies were before that appeal committee.The tribunal, unlike the appeal body heard Mrs Van Vleck. It was acknowledged by the Council that the audit reports were inaccurate, and Mrs Van Vleck who gave evidence accepted before the tribunal that she made the numbers of the till roll correspond with the customers observed where these differed in that more customers had paid than had been observed. She could not explain how the discrepancies had arisen, but it was clear that the till roll showed that a number of customers had paid for buckets of balls but had not been observed by the audit team. The discrepancies are highlighted by comparing the original report (R14) and the subsequent report (R69).

(f) that:

"The applicant did put forward a number of suggestions as to how the auditors could have arrived at their conclusions without dishonesty on his part. There was some doubt how well they could see from their position people entering the driving range or their buckets of balls, also customers sometimes split buckets of balls in which case the observers might see two buckets when only one had been paid for. Also people might return to their car for equipment, having paid, and when re-entering would be logged as a further customer while it was not unknown for customers to take a bucket of balls without paying for them if the applicant was attending to his duties elsewhere."
Those were the findings of fact made by the tribunal as to what the applicant had said before the appeal hearing.Having decided that the reason for the dismissal with the employer's belief in the applicants misconduct, in paragraphs 5, 6, 7 and 8 the tribunal set out at the very heart of their decision:
"5. The Tribunal's duty was then to decide whether the respondents acted reasonably in all the circumstances in treating that reason as a sufficient reason to dismiss the applicant. The Tribunal's decision was that the respondents had not acted reasonably in treating the reason given as a reason for dismissing the applicant.
6. The principal reason for this was that the Tribunal considered that, in the light of the admitted flaws in the audit evidence presented to the disciplinary hearing and the appeal by the respondents, no reasonable employer would have regarded that report as a safe or reliable ground for dismissing an employee for gross misconduct when that was the only evidence against him, he being an employee of previous good character and of very long service with the respondents. It was clear, and the respondents admitted, that the audit report was flawed in that the audit failed to record all the money taken in the till by the applicant and his colleagues during the period when the audit report was being carried out, a failure for which they could not account but which, in the Tribunal's view, rendered their conclusions in the eyes of any reasonable employer as unsafe and unreliable they were unable to give any explanation for them.7. There was evidence that the respondents were taking a particularly high-handed attitude towards this matter and towards Mr Lismore in particular. Firstly, they insisted on proceeding with the first disciplinary hearing in his absence despite the fact that both his own doctor and their own doctor had indicated clearly to the Corporation that he was not fit to attend such a lengthy and difficult hearing. The result was that he was dismissed in his absence, and had matters rested there the Tribunal would had no difficulty in determining that on that ground alone the applicant's dismissal was unfair. However, it did not rest there. There was an appeal at which the applicant was represented and the Tribunal took the view that the defects in the original hearing were cured by the properly constituted and properly conducted appeal. Nonetheless, the decision to proceed in his absence to a disciplinary hearing on such a serious charge, in all the circumstances, indicated to the Tribunal that they were taking a somewhat hard line with the applicant.8. The Tribunal also thought that the applicant's position was prejudiced by the close association between his case, in particular his appeal, and that of Mrs Blackburn. The fact that it was heard by members from the same committee of the Council who must have been aware of the decision in Mrs Blackburn's case, and who were advised by the same personnel officer and even had the same evidence including details of Mrs Blackburn's misconduct before them as had been given at her appeal, in the Tribunal's view had prejudiced the applicant's position and raised grave doubts as to whether it had been approached objectively by the respondent Council. There are two substantial differences between the position of the applicant and of Mrs Blackburn. Firstly, she had been reported by other employees as being guilty of this misconduct and that was why the audit had taken place. No such complaint had been made in the case of Mr Lismore. Secondly, she had already been found guilty of this offence on a previous occasion for which, surprisingly, she received the penalty of only a written warning. In these two respects the applicant's case differed from hers and even though on an earlier occasion when she had been, in similar circumstances, charged with a similar offence and on flawed evidence from the respondents' audit team, she had received only a written warning while he had been dismissed forthwith. These matters indicated to the Tribunal that the applicant's case was not viewed as objectively as it should have been in all the circumstances.9. For these reasons the Tribunal considered that the applicant had been unfairly dismissed by the respondents and proceeded to deal with the question of remedy."The position is this, that having identified in paragraph 4 that the reason for the dismissal was a belief that the respondents had that he had been guilty of gross misconduct, the tribunal then went on to set out the test as to whether the respondents acted reasonably in all the circumstances in treating that as a sufficient reason, and came to the conclusion for the reasons that they set out in paragraphs 6, 7 and 8, that in their view this was an unfair dismissal.Central to the contention made by appellant employer is this proposition. That the tribunal acted outside the proper area of their enquiry and decision making process in coming to the conclusion that the enquiry of which Mrs Van Vleck had been in charge and in which she was actively involved was flawed in such a way that it meant that no reasonable employer could have accepted the integrity of the report in the light of those discrepancies.We have considered very carefully the submissions made as to that. In our view, the tribunal were able properly to form the view in the light of the matters that were before them, that no reasonable employer would as they set out in paragraphs 5, 6 and 7 would have dismissed in the circumstances in which this employer dismissed.At the very forefront of the employment protection legislation is the requirement, now set out in section 98(4) of the Employment Rights Act 1996 , to consider the equity and substantial merits of the case. A tribunal is entitled to form a view as to fairness of the approach of the employer. In this case the tribunal formed the view that the applicant's case was not, for the reasons they gave, viewed as objectively as it should have been in all the circumstances. (See paragraph 8).The tribunal heard Mrs Van Vleck and her explanation for altering the numbers so that the number on the till roll corresponded with the customers observed. The tribunal's finding was not that they would not have dismissed the applicant and therefore the dismissal was unfair. That would have been a clear misdirection in that they would have been substituting their own discretion for that of the employer. Their finding, set out in paragraph 6 was that "no reasonable employer would have regarded that report as a safe or reliable ground for dismissing an employee of previous good character and of very long service with the Respondents."It is not our task to subject the decision to microscopic examination but to look at the whole of the decision and to consider whether there was any fundamental misdirection of law. The tribunal heard the evidence. We consider that there was material upon which they could reach the conclusions set out in paragraph 6 and 8 and to reach the decision that the applicant was unfairly dismissed.We do not consider that this is an appropriate case to make as award of costs against the appellants. There was an arguable point and we do not consider that their conduct of the appeal is such that it could be stigmatised as coming within the ambit of Rule 34.