Post Office v Clarke [1998] UKEAT 860_97_1712

EAT

Post Office v Clarke

[1998] UKEAT 860_97_1712 · 1998-12-17

JUDGE D PUGSLEY :

This is an appeal against the decision of the Liverpool Industrial Tribunal finally promulgated on 28 April 1997. It would seem that it was a two day hearing and it may well be the date on the hearing of 27 August was supplemented by a further hearing on 21 October 1996. But there was nevertheless a substantial delay between the hearing and the promulgation of the extended reasons. This is unfortunate. We are not making any criticism because we do not know what the reason was - maybe ill health played a part. We know that one of the members in fact died before the remedy hearing. It is a matter of concern when there is delay is that there is always a danger that matters which were canvassed at the hearing and may have had a part in the decision did not surface in the full decision.

We say, not out of any self-protectiveness, where one has an appeal one has skeleton arguments and one is dealing with arguments and issues that are normally clearly formulated in written documentation. It is a very different position where one is dealing with the evaluation of evidence and the nuances thereof. Mr Carr, who appears for the Post Office, takes issue with this Tribunal's decision. He notes that the Tribunal adopted at one stage the correct approach to be followed then 'singularly failed to follow it'.

The factual background is simply this: the Respondent was employed as a postman based at the Birkenhead sorting office. Following an interview with his delivery office manager on 23 January he was suspended, it having been discovered that he had failed to deliver a quantity of mail which had been on his walk and which he had taken out with him on 22 January. The mail had been discovered in a blue post pouch found in the floor of the mail yard at Birkenhead. He was charged with the disciplinary offence of wilful delay. There was an interview on 31 January. At that interview the Applicant, (the Respondent to this Appeal), Mr Clarke, contended the reason why he had not delivered the items in question was because he had made an error of judgment, taken too much mail to deliver in the time available and it was his case that he was guilty of a mismanagement of his time.

Mr Clarke's case perhaps can be summarised in this way, in his own words or, at any rate, words which he was prepared to authenticate, in his Originating Application Mr Clarke says this:

"...the decision to dismiss me was on the grounds that I had wilfully delayed the mail which was due for delivery. The position I had found myself in was that I had insufficient time to deliver all the mail in my possession as I had to be back at my office to accompany a driver on security duty.

On the day in question I had the following work to perform

1. My own delivery 05:45 13:25

2. Part of a delivery on overtime 13:25 - 15:25

3. Security escort on collection commencing at 15:55

At 13:20 I realised that I had insufficient time to deliver all of my own delivery, the overtime delivery and be back at the office to meet the driver at 15:55.

I believe that in dismissing me Royal Mail have not given sufficient weight in their considerations to the predicament I found myself in ie. Running out of time and therefore the dismissal was unfair."

The Tribunal in their decision set out, in perfectly proper form, the statutory tests, which read as follows:

"5. In relation to unfair dismissal the basic provisions of the Act are now to be found in Section 98 of the Employment Rights Act, 1996. Subsections (1) and (2) of that Section are concerned with the identification of the reason for dismissal, and among the prima facie or potentially fair reasons for dismissal therein referred to is conduct. Section 98(2)(b). Once such a reason has been duly identified, in accordance with the provisions of subsections (1) and (2), then subsection (4) contains the test for determining whether dismissal for that particular reason was fair or unfair.

6. In the event of the employer failing, for whatever reason, to show the reason for dismissal, or if the reason shown does not fall within Section 98(2) or Section 98(1)(b), then it follows that he has not fulfilled the requirements of Section 98(1) and, if that is so, then the dismissal can be determined as unfair at that stage and without any further deliberation. If, on the other hand, the employer succeeds in fulfilling the requirements of Section 98(1) by establishing a potentially fair reason for dismissal, then the question as to whether the dismissal was fair or unfair remains open and, in the normal way, will be resolved by referring to Section 98(4)..."

The Tribunal then set out the terms of Section 98(4). It then goes on at para 7. of the decision to say this:

"As to the general approach to be adopted by a Tribunal in applying the provisions of Section ['57' entered in error] 98, the Tribunal has borne in mind the guidance afforded by the Employment Appeal Tribunal in the case of Iceland Frozen Foods Ltd v Jones (1982) IRLR 439 . In that case the Employment Appeal Tribunal stated that the authorities established in law the correct approach for an Industrial Tribunal to adopt in answering the questions posed by Section 98(4) is as follows:-

1. The starting point should always be the words of Section 98(4) themselves;

2. In applying the Section an Industrial Tribunal must consider the reasonableness of the employers conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be unfair;

3. In judging the reasonableness of the employers conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

4. In many, though not all the cases, there is a band of reasonable responses to the employees conduct within which one employer might reasonably take one view, another quite reasonably take another;

5. The function of the Industrial tribunal as an industrial jury, is to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band it is fair; if the dismissal falls outside the band it is unfair."

The Tribunal then notes this approach was approved by the Court of Appeal in Campion v Hamworthy Engineering Ltd

(1987) ICR 966

at 972.

No possible criticism could be made as to these directions and indeed, as Mr Carr in his skeleton argument says, that is the correct approach. The criticism made by Mr Carr on behalf of the Appellants is that the Tribunal, in para 9 of its decision, then proceeds to disregard all the guidelines it had set itself. Para 9 reads as follows:

"Applying the relevant law to the above facts our findings are as follows. We say, straight away, that we do not in any way underestimate the importance attached by the Post Office to the prompt delivery of the mail, nor that the standard sought is not adequately made known, for example, by the Quality Code, a copy of which the applicant had signed for. It follows that causing wilful delay is a serious offence and indeed, as we know, it may, in the worst cases, also lead to a criminal prosecution. In the ordinary sense the word 'wilful' might be seen as meaning no more than intentional or deliberate. However, in the circumstances under consideration, the word is used in conjunction with the word delay. We remind ourselves that that combination of words can also form the basis of a criminal offence. Therefore, we consider that a different approach is required. For example, used in connection with misconduct the words 'wilful misconduct' mean wrong conduct, wilful in the sense of being intended, but the offence does not extend to an act which is induced, for example, by honest forgetfulness or genuine mistake. So, there is implicit in the act something known to be wrong but nevertheless still done, either recklessly or without regard for the consequences. The applicant himself described what he had done as an error of judgement. He had not, for example, said, part way through his round, "I am fed up. I am tired. I am not finishing this round. Instead I will go to the pub for a drink". That was far from being the case here. The applicant, it seems to us, was trying to cover far too much work. At the end of the deliveries he had a very important duty to go back to, and needed to be on time. On the spur of the moment, not really knowing what to do for the best, he decided to leave part of his letters undelivered, so as to get back in time. On reflection we feel sure that he would have to agree that it was not the best, or indeed the proper, way to go about things. There was, however, considerable pressure upon him and faced with that, he took the wrong decision but certainly without any malicious intent being present. Against that background we find that the penalty of the dismissal fell outside the range of reasonable responses available to a reasonable employer. The applicant cannot, however, be seen as entirely blameless, in our view. He was not a newcomer to the job. Quite the opposite. He was a very experienced Postman of long service which, of course, makes the termination of his employment all the worse. In other words, in simple terms, he should have known better and displayed a higher degree of responsibility. In these circumstances, we find a degree of contributory fault..."

The Tribunal then posited their provisional assessment of 30% contributory fault, though at the later remedies hearing it is right to say that, the Tribunal having specifically heard evidence on the matter, they reduced the contribution at 40% in para. 8, having made a finding in that hearing that Mr Clarke had given them a misleading account of actions to his employer.

Employment Appeal Tribunals see many grounds of appeal based on the fact that the Tribunal have substituted their own view instead of asking themselves the correct question, which is not whether they believed an employee, but whether there were reasonable grounds for the belief that the employer formed after making such inquiries as were appropriate in normal circumstances. One has to say, and I do so with the concurrence of the lay members, that in this case, unlike many that appear before the Tribunal, this is not a matter of inference or a matter of implicit assumption; quite expressly and explicitly, in para 9, the Tribunal use the words 'the Applicant, it seems to us, was trying to cover far too much work'.

We consider that the only way of reading para 9 is on the basis that the Tribunal had really formed the view that it was their task to see and determine the evidence of the Applicant, to decide whether they believed it or rejected it and to decide the case on that basis. With great respect that was not their task. Their task was, as they have correctly set out earlier in their decision, to ask the question, were there reasonable grounds for the Respondents' belief, having made such inquiry as was appropriate, and was the decision to dismiss within the range of reasonable responses available to a reasonable employer?

It is quite right that in dealing with the penalty of dismissal they did say it fell outside the range of reasonable responses to a reasonable employer but they only said that after making express and explicit findings of their view of the credibility of the Applicant. We see no alternative in this case but to remit this case to another, differently constituted Tribunal to re-determine the matter.

Mr Carr, with beguiling enthusiasm, has sought to suggest that the appropriate course for us is to reach a dismissal that this was fair. We say that that is not a course that appeals to us. We are well aware that that is a course that can be adopted, but that should only be adopted when a Tribunal is clearly of the view that there is no alternative to finding a fair dismissal. We do not think that can possibly be said here because the whole essence of the Appellant's case is that the Tribunal disregarded the issues - which it had quite properly set out at para 5 to 7 - and whilst it is true there are certain findings of fact made in the decision as to what was believed, we are not satisfied that any stage in the thought process of the Tribunal did they ever get to the point of asking themselves the proper questions that they set out in para 5 to 7.

We are concerned that Mr Naylor, who was present, unlike Mr Carr, says there were a number of other issues canvassed. In particular he says that there was considerable amount of time spent in evidence on the issue of parity; namely whether others who had offended in comparable, though it is not suggested in identical ways, had not been subject to the same disciplinary acts or indeed other disciplinary acts. Those matters have not surfaced in the decision. For reasons that we have already indicated there was a considerable time lapse between the hearing of the matter and the promulgation of the decision.

Having regard to the terms on which this Tribunal directed itself and then proceeded to act, we think that the only fair and proper course is the whole matter be remitted to a freshly constituted Industrial Tribunal for them to decide the issue afresh in the light of the guidelines we have set.