Kennington v Regional Railways North East Ltd [1998] UKEAT 501_98_0106

EAT
Kennington v Regional Railways North East Ltd
[1998] UKEAT 501_98_0106 · 1998-06-01
MR JUSTICE KIRKWOOD : We are hearing an appeal by an employee from the decision of an Industrial Tribunal at Hull by a majority dismissing his complaint of unfair dismissal. The Tribunal sat on three days between October and December 1997 and gave Extended Reasons for its decision, sent to the parties on 2 February 1998.The Appellant, Mr Kennington, was one of five duty station managers at Hull, Paragon Station. He was employed by the Respondent and its predecessor since 1974 some 23 years to the date of his dismissal.In May 1997 somebody tipped off Mr Taylor, the customer communications manager, that Mr Kennington was claiming for overtime he did not work. Mr Taylor obtained a print out of all the overtime claimed by Mr Kennington over the past 18 months and he checked that against log books and daily time returns and there were apparent inconsistencies.On 20 May 1997 Mr Taylor without, it is true, previously notifying Mr Kennington of his intention to do so, interviewed Mr Kennington and asked him about these apparent discrepancies. Mr Kennington gave some not necessarily consistent explanations and the names of people who could verify his account. He was suspended.Mr Taylor then sent some questionnaires to all station supervisors and duty station managers, those questions being pertinent to verifying the answers Mr Kennington had given. Mr Taylor also sought and received short letters from managers on the question of authorisation for Mr Kennington to work overtime.A disciplinary hearing was set for 23 May 1997 but suffered a number of postponements and came on for hearing on 1 July 1997. At it, Mr Kennington was represented by an experienced union representative and by the time of the July hearing Mr Kennington had been supplied with details of each day on which an alleged fraudulent claim for overtime had been made. Mr Kennington's union representative acknowledged that he had all the witness statements, which was a reference to the questionnaires and the short letters.At the hearing on 1 July only one witness, as we understand, was called and that was Mr Harrington, a supervisor. Mr Kennington's representative did not want to question any others.Of the total of 67 instances of fraudulent claim alleged, Mr Watts, the production manager who held the hearing, accepted Mr Kennington's explanation as to nine, leaving 58 not accounted for as justified overtime. Mr Watts found Mr Kennington guilty of fraudulent claims and found that he should be dismissed. An appeal to the operations director, Mr Baker, did not succeed.Those facts are a summary of the facts found by the Industrial Tribunal.The Tribunal found the reason for dismissal, namely, conduct. The Tribunal reminded itself of the proper approach as indicated by the decision in British Home Stores v Burchell [1980] ICR 303 , that the employer has a genuine belief based on reasonable grounds after reasonable investigation. The majority of the Industrial Tribunal found as a matter of act that the employer had carried out an investigation which, though not ideal, just provided reasonable grounds for the employers belief in misconduct.The minority found that the investigation raised almost as many questions as it answered. Those questions were not followed up and in the circumstances the minority thought the investigation not reasonable.Having set out the various factors it had in mind in the quite lengthy paragraph 6 of the Extended Reasons the majority then said this:
"7 On that basis, the majority conclude that the Respondent had reasonable grounds for their genuine belief in the Applicant being guilty of fraudulent claims for overtime.
8 In those circumstances, the majority also consider that the procedure adopted by the Respondents to enquire into the matter and the conduct of the disciplinary hearings was fair, although there were question marks over some matters. On each occasion where there was a hearing the Applicant was represented by an experienced trade union representative and the documents were provided to the Applicant or his representative.9 In those circumstances, even taking into account the Applicant's long service and hitherto good record, the seriousness of these offences together with the position of trust which the Applicant held, causes the Respondent's decision to dismiss to be within the band or range of reasonable responses of a reasonable employer. The majority therefore find that the Applicant's dismissal was a fair dismissal."Two points are put forward on appeal. They are presented as two points though in reality I think the second is part and parcel of first. In its majority conclusion, the Tribunal said this:
"6 The majority decision of the Tribunal is that, although the investigation was not perfect or ideal, recognition is taken of the fact that it is not for the Tribunal to substitute the way in which it would have conducted an investigation. The majority find that the employers had, just, established reasonable grounds for their belief in the Applicant's guilt..."
As we understand the way it is put by Mr Morton for the Appellant, it is said that the Tribunal should indeed make an evaluation of how it would have conducted the investigation and if it found areas of disparity between what it would have done and what in fact happened, and if those areas of disparity point to unreasonableness in what the employer in fact did, then the Tribunal should say so and should draw on its own experience to evaluate the reasonableness or otherwise of the investigation in fact held.It does not seem to us, that that is anything different from the Tribunal's approach in looking to see whether the investigation was reasonable by seeing whether there were aspects of what in fact occurred which fell short of what was necessary to amount to reasonableness, so that the investigation was unreasonable. The question of whether this was or was not a reasonable investigation is a matter of fact essentially for the Industrial Tribunal to determine and we are quite unpersuaded by the argument put forward on that aspect; namely that the Tribunal misdirected itself in law.The second line of argument, as we understand it, is that there were matters that made the investigation demonstrably unreasonable, particularly in relation to documents. Mr Morton points to a passage in the conclusion of the minority, that Mr Kennington
"...was never provided with the underlying paperwork to the charges consisting of the DTRs (Daily Time Returns) and the rosters. These were only provided for the Tribunal hearings."
It is said that he should have known the charges against him in detail, which he did, well before the disciplinary hearing in fact took place. He had that on 30 May and he should have had all the documentary materials well before that hearing.The Industrial Tribunal had the point about what seems to or may have been late production of the DTRs and the rosters in its mind. It made references to the documents. That was something it had in its consideration, in considering whether the investigation and overall process was reasonable. Mr Kennington had an experienced union representative to represent him who did not take a point on 1 July about the late production of these documents, to the extent at any rate, of seeking an adjournment. We are quite unpersuaded that this aspect of the case in any way impugns the decision of the majority, that the investigation undertaken was reasonable.No arguable point of law is put before us on this Preliminary Hearing with the result that the appeal will dismissed at this stage. Mr Morton we are very grateful for your assistance.