Codrington v Connex South Eastern Ltd [1997] UKEAT 775_97_1510

EAT

Codrington v Connex South Eastern Ltd

[1997] UKEAT 775_97_1510 · 1997-10-15

MR JUSTICE MAURICE KAY : This is a preliminary hearing of the appeal of Mr Codrington against a decision of the Industrial Tribunal held at Ashford on 17th December 1996. The decision was promulgated and sent to the parties on 24th April 1997.

Mr Codrington claimed to have been unfairly dismissed by his employer. The nature of his employment had been that of a conductor with respondent company.

The issue in the case was as to whether or not Mr Codrington had been recording the correct amount of money tendered for tickets issued on journeys, and in particular, there was a complaint from a passenger regarding a particular journey from Sheerness to Marker Rasen wherein the passenger complained that she had paid £42, but Mr Codrington's record showed the sum received as being £21. That was the trigger for disciplinary action.

A disciplinary procedure was then instigated and followed. Initially there was a disciplinary meeting on 31st October 1995. Mr Codrington did not attend, having told his employers that he would be absent, and having provided a medical certificate which referred to him as suffering from "depression or anxiety". However, his union representative did attend. The union representative did not object to the meeting continuing and was unable to advance any argument against the allegation that Mr Codrington had acted dishonestly. The hearing considered the question of whether the discrepancies may have resulted from mistakes, but felt unable to accept that as a possibility. Accordingly the decision at that stage was that there had been misconduct and that the appropriate sanction was dismissal. Mr Codrington appealed, and at the appeal hearing before Mr Collinson took place on 20th November 1995. Once again, Mr Codrington did not attend, but his union official did. Mr Collinson made similar enquiries to those which had been made by Mr Caller, the previous decision maker, and he reviewed the issues with Mr Moon, the union official. Mr Moon's approach was to concentrate on the sanction of dismissal as opposed to the substance of the decision regarding misconduct. In the event, Mr Collinson upheld the decision to dismiss. However, in view of the absence of Mr Codrington, he decided that Mr Codrington should be offered a further opportunity to present his case at a re-hearing. That led to an interview on 15th April 1996, at a time after the Industrial Tribunal proceedings had been commenced. In the event, the rival contentions of dishonesty and mistake were considered, and once again, the decision was adverse to Mr Codrington.

The Industrial Tribunal considered his case with some care. In particular they said in terms:

"21 We have been considerably exercised, however, as to whether or not the absence of the Applicant from both the disciplinary and appeal hearings meant that the Respondent acted unfairly, and reached the belief it did of the Applicant's misconduct after inadequate investigation and on less than reasonable grounds, and that the procedure adopted had been unfair. We take the view that in many circumstances this would have been the case.

22 However, on the evidence we have before us in this case, we are satisfied that of itself the Applicant's absence did not make the dismissal unfair. ..."

They then considered with care all the evidence and the other circumstances before reaching the conclusion that Mr Codrington had been fairly dismissed.

In his Notice of Appeal he refers to his medical certificate and asserts that the union official should not have accepted that irregularities were not mistakes. He makes a number of points which essentially are comments upon the evidence and the way in which he considers the Industrial Tribunal should have viewed it.

Appeals to the Employment Appeal Tribunal lie only on points of law. We have scrutinised the papers in this case with some care, to see whether the grounds of appeal advanced by Mr Codrington disclose any point of law or whether there is any basis upon which at a full hearing this appeal tribunal might be persuaded that a point of law could be successfully argued. We have to say that we are unanimously of the view that there is no point of law which could be argued before this appeal tribunal which would have any prospect of success, and in all the circumstances, this appeal is dismissed.

We have come to this judgment in the absence of Mr Codrington. He was aware that the matter was listed today. He did not attend and when the tribunal staff contacted him by telephone, they ascertained from him his contentedness that the matter be dealt with on paper and in his absence. Accordingly, we have proceeded on that basis.