Rivett v West Anglia Great Northern Railway [1997] UKEAT 660_97_0310

EAT
Rivett v West Anglia Great Northern Railway
[1997] UKEAT 660_97_0310 · 1997-10-03

JUDGE PETER CLARK :

This is an appeal by the applicant before the Bury St Edmunds Industrial Tribunal, Mr Rivett, against that tribunal's decision to dismiss his complaint of unfair dismissal against his former employer, the respondent, West Anglian Great Northern Railway. That decision, together with extended reasons, was promulgated on 21st February 1997.The background facts, as found by the tribunal are as follows. The appellant was employed by the respondent and its predecessors for just under 21 years until his summary dismissal on 12th June 1996. At that time he was employed as Duty Customer Services Leader at Audley End Station.Part of his duties included the taking in and recording of lost property handed into the station office. The respondents' written procedures laid down that lost property should be recorded in the lost property book, and that lost cash should be recorded as cash received in the daily cash analysis.On 5th June 1996 a British Transport police officer handed in a handbag to the applicant, purportedly as lost property. The bag contained, among other things, £28 in cash.It is common ground that the appellant did not enter the bag in the lost property book, nor record the money as cash received, before ending his shift that evening and leaving his office. He placed the handbag and its contents in the office safe before leaving.As he left the station offices he was stopped by British Transport police officers. They, subsequently carried out an investigation but no criminal prosecution ensued.Thereafter the respondent instituted internal disciplinary proceedings against the appellant. An investigatory meeting was held on 7th June, after which he was formally charged with the following disciplinary offences:
"1. Failing to comply with Book In Procedures for Lost property.
2. Failing to account for lost items handed in for which you were responsible."On 12th June, following a disciplinary hearing, the appellant was summarily dismissed. His appeal against that decision was dismissed on 17th June.Notes were taken at each of these three meetings. They were before the Industrial Tribunal and are before us. Although there was some challenge by the appellant to certain parts of the notes, the tribunal accepted that the notes were an accurate record of what they purported to record.The nature of the case advanced by the appellant before the tribunal is summarised in paragraph 11 of the reasons in this way:
"11. ... The essence of the Applicant's position remains that he did not know about the procedures in any detail, that he admitted that the items had been handed in, the lost property procedures were very lax and that though he should have booked the handbag in, he was under great pressure. Further, he argues that the penalty was too severe. ..."
Having considered the evidence and rival contentions of the parties the tribunal concluded that the reason for dismissal related to the appellant's conduct in failing to comply with the lost property recording procedures. It is apparent, and was accepted by the tribunal, that he was not dismissed for dishonesty. Further, the tribunal held that the respondent was entitled to conclude that the appellant was aware of the procedures to be followed but did not follow them. Pausing there, this much is not challenged in this appeal.The issue in the appeal concerns the tribunal's conclusion that the sanction of dismissal fell within the range of reasonable responses open to the respondent. That is said to be a perverse conclusion on the facts of this case.Mr Wood, who appears today on behalf of the appellant, has made the following points in support of this ground of appeal.First, that the appellant had 20 years service, during which there had been no disciplinary proceedings taken against him prior to this matter, and that that was a matter which the tribunal failed to take into account when considering whether or not dismissal fell within the range of reasonable sanctions.Secondly, he says that the tribunal have misunderstood the evidence. In paragraph 13 of the reasons the tribunal record that the appellant's excuse for not recording the handbag and its contents before the tribunal, was that he was too busy. The tribunal go onto say:
"13. ... However, none of that was argued before the disciplinary meetings and we reject that argument."
Mr Wood has quite rightly pointed to various passages in the notes of the investigatory and disciplinary meetings which show that it was indeed the appellant's case at that stage that he had been too busy to record the handbag at the time when it was handed in and subsequently. However, the tribunal then go on to say:
"13. ... He should not have been too busy to record the delivery of £28 into the respondent's keeping."
We also see from the notes of those meetings that on appellant's own account when he came to the end of his shift some time after 8 p.m. on 5th June, he noticed the handbag near him and placed it in the safe. At that stage there is no suggestion that he was so busy with customer traffic, that he was unable to record the fact in the book in which he had himself made, at any rate, the last entry on a previous occasion.Next, it is said, that the tribunal made a finding that the respondent's approach to procedures was lax. It is also pointed out that the respondent's procedures did not set out a list of offences which might lead to summary dismissal as many employers do. Further, that from the respondent moved from the position where the procedures were not being regularly followed up, to a 'get tough' policy, without giving any warning of this change to the staff and in particular the appellant.It seems to us that these are all matters which were before the Industrial Tribunal and which bore on the critical question was dismissal within the range of reasonable responses. The arguments may have been put with more force had Mr Wood appeared below, but that is not a consideration for us.Our jurisdiction is limited to correcting errors of law. Any appellant who seeks to argue that a finding of this sort is perverse faces a high burden. We have considered carefully the various points made by Mr Wood in support of the appeal to which we have referred. We have looked at the way in which the tribunal have approached the matter, and we are quite unable to say that this appeal has any prospect of success at a full hearing. In these circumstances, at this preliminary stage, we must dismiss the appeal.