MR D EVERITT v BRITISH TELECOMMUNICATIONS PLC [1999] UKEAT 399_98_1609

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 399_98_1609Case No Appeal No. EAT/399/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D EVERITTAPPELLANTBRITISH TELECOMMUNICATIONS PLCRESPONDENT
Before
Mr Justice MorisonDate 16 September 1999
[1]APPEARANCES For the Appellant MR C BROWN (Representative) For the Respondents MR P THORNTON (of Counsel) The Solicitor Group Legal Services British Telecommunications Plc 81 Newgate Street London EC1A 7AJ MR JUSTICE MORISON (PRESIDENT): This is an appeal by Mr Everitt ["the appellant"] from a tribunal sitting at Leicester, which by a unanimous decision promulgated on 17 June 1997, dismissed his complaint that he had been unfairly dismissed. The appellant was a long serving employee of the respondent company, having been employed from 3 March 1965 to the date of dismissal, 9 September 1996. The appellant was an engineer for the respondents and was also the Mayor of Hinckley and Bosworth. Unfortunately, due to his position as mayor, this matter has led to much unwarranted media attention. The appellant's function as an engineer was to respond to calls and rectify complaints made by the public about their telephone service. All engineers were equipped with a field terminal, commonly called a 'brick' into which the engineer records the jobs which they attend and the time spent on each job.[2]The appellant's line manager, Mr Bygrave, started to monitor the appellant's work and found a number of discrepancies between the appellant's recorded whereabouts and the times recorded on his timesheets. On 4 April 1996, Mr Bygrave conducted a fact-finding interview with the appellant to discuss his findings. The appellant conceded that any discrepancies were due to mistakes he made using the 'brick' and that on two occasions he had returned home to pick up medicine and his mobile telephone. In relation to his late signing in on 21 occasions, the appellant admitted that he was late arriving but explained that he also worked late into the night to make up the difference. At the end of the interview the appellant was asked to submit a written explanation of his actions. Having considered the appellant's written explanation Mr Bygrave recommended that the case be considered under the employer's disciplinary procedure as a possible 'serious offence'. The specific offences cited were unauthorised use of a BT vehicle, unauthorised absence from duty and falsification of time sheets. The appellant had a warning on his record dating from 16 October 1992 in relation to previous offences involving absence from duty without permission, misuse of BT time, misuse of a BT vehicle and driving a BT vehicle off route. The warning stated that if a further serious offence was committed within the following 12 months it was likely to lead to dismissal, and in any event the warning would remain on file for 5 years.[3]The disciplinary 'serious offence' interview took place on 31 May 1996 before Mr Crowe, the field operations manager for the Coventry area and the appellant's line two manager. The appellant again asserted that any discrepancies were due to mistakes made entering information onto the brick. He accepted that he should have been more vigilant about driving off route and should have informed his field manager of his actions, particularly in the light of his previous warnings. The appellant complained that in reporting him for a serious offence, Mr Bygrave had victimised him and Mr Bygrave's hostility meant he had been unfairly treated. The respondents' response was that observing and noting the routine of engineers was part of the first line manager's normal management role. The appellant also raised a grievance that engineers were asked by managers to "fiddle figures" and "book wrong times" and this had caused ambiguity in his mind.[4]By a letter dated "June 1996" the appellant was dismissed on the grounds that the offences with which he had been charged were not questioned or denied and he had not raised any factual evidence to counter the allegations made. Furthermore, the appellant had on his disciplinary record a warning relating to an almost identical incident, in the light of which, dismissal with notice was appropriate.[5]The appellant exercised his right of appeal and at the hearing on 19 August 1996 before his third line manager Mr Tidd, he brought evidence that he had been suffering from stress and that his work as a local councillor affected his attendance patterns. He also stated that he had experienced problems with Mr Bygrave in booking special leave for his councillor duties and that he felt he was being victimised. He also claimed that as work life often impinged on his home life it was custom and practice to go home, or go off route, if work required it.[6]The dismissal was subsequently upheld on the basis that the appellant had not shown remorse and had insisted that unauthorised travel home was an acceptable practice. In its decision the respondents stated that the appellant should have been aware that going home was unacceptable and his actions showed that he had failed to heed the previous formal warnings involving similar offences.[7]On 16 October 1996 the appellant submitted an originating application to the Industrial Tribunal. He alleged that the respondents' disciplinary procedures had not been followed as he had been dismissed without being given an opportunity to improve his work practices. He also complained that he had been victimised as he alone had been secretly monitored and a report prepared on his movements.[8]The tribunal hearing took place over two days in May 1997. The tribunal heard evidence on behalf of the respondents from Mr Crowe and Mr Tidd. Mr Bygrave did not give evidence before the tribunal. The respondents maintained that the appellant had failed to justify his movements during working hours and had produced false records from which it could be inferred that he had acted dishonestly, justifying dismissal. The appellant's position was that any errors were not as a result of dishonesty and he should therefore not have been dismissed.[9]The tribunal set out the legal principals in relation to misconduct dismissals. They referred to British Home Stores v Burchell [1978] IRLR 379 and asked themselves the following questions:
"Did the employers genuinely believe that conduct or misconduct had occurred? Were there reasonable grounds to sustain that belief and at or before the time of dismissal had they carried out sufficient investigation as was reasonable in all the circumstances."
[10]The tribunal found that the respondents genuinely held the view that the appellant had been guilty of misconduct by not recording his movements accurately and by falsifying his written record sheets. The fact that throughout the internal hearings and at the tribunal the appellant did not dispute the accuracy of the evidence against him, but contested whether it indicated dishonesty, was further evidence that there were reasonable grounds for the respondents to consider that the appellant had committed the offences. As for the appellant's claim that the respondents had not investigated the matter sufficiently, the tribunal found the following:
"We consider that in the absence of times, dates and other information it would have been a herculean task for the respondents to have carried out a proper investigation; it would have been nothing short of a logistic nightmare…the basic facts upon which the inference of dishonesty was drawn were not in dispute."
[11]In relation to the decision to dismiss, the tribunal went on to state that they could not substitute their decision for that of the employer but instead had to examine "whether the decision reached fell within the band of reasonable responses open to a reasonable employer in the circumstances known."[12]The tribunal found that the decision to dismiss was within the band of reasonable responses open to the respondents as there were strict requirements to comply with the time keeping rules and although the present offences occurred in 1996 the respondents were also entitled to take into account the appellant's previous warning in 1992 as it was in relation to virtually identical matters. They went on to say that had a like offence been committed within the 12 month period after the first warning, it was likely to have led to dismissal, thereafter and until the expiry of the five year period, a further offence could have led to dismissal.[13]In relation to the appellant's complaints that he was being unfairly victimised by Mr Bygrave the tribunal found that that although his relationship with the appellant was abrasive that was not unique to their relationship. There was no evidence that the appellant was singled out or subjected to victimisation in their opinion. The tribunal dismissed the appellant's submissions that Mr Bygrave could not or may not have observed all of the appellant's movements by stating that "the identity of the person who observed the applicant's movements did not really matter; the important fact is that the movements were observed, they were reconciled against recorded movement and discrepancies were found."[14]In its conclusion the tribunal dealt with the situation raised by the appellant that he made false entries on the brick because he considered that to be appropriate for the purposes of his employers. The tribunal found that in that situation it would have been "unreal" for the respondents not to dismiss, given the appellant's previous warnings and the fact that the alterations would not have been a genuine mistake but deliberate falsifications.[15]The appellant appeals from that decision. His notice of appeal and arguments before us, which were submitted on his behalf with commendable ability, can be usefully summarised as two issues: 1. Were the respondents entitled reasonably to conclude that the appellant should be dismissed without allowing either the appellant or his union representative to question Mr Bygrave, whose evidence provided the foundation of the misconduct charges, and against whom an allegation of harassment and unfairness was made? 2. Was the tribunal entitled to come to a finding that the respondents were entitled reasonably to dismiss without hearing direct evidence from Mr Bygrave?[16]It is clear from the appellant's argument both before the tribunal and before us that he did not dispute the data collected by Mr Bygrave. His complaint was that he had not been dishonest in relation to his time keeping and accordingly he should not have been subjected to summary dismissal. The appellant also claimed that Mr Bygrave was motivated by ill-will in his investigation into the appellant's time keeping and had the respondents investigated properly his claims of victimisation, he may not have been dismissed, regardless of the fact that he had accepted the charges.[17]For a dismissal to be fair the employer must establish that they reasonably believed that the employee committed the act of misconduct in question. For an employer to have in his mind a reasonable suspicion of misconduct they must have carried out an investigation which is reasonable in all the circumstances of the case. Where, as in this case, the employee concedes that he has committed the misconduct, the need for carrying out an investigation is reduced. However, there is still a requirement that the employee be given an opportunity to make representations on the allegations made against him and those representations must be reasonably investigated. The central issue in this case is whether the appellant should have been granted the opportunity of questioning his line manager as to his investigations.[18]It seems to us that there is no hard and fast rule which can be made about the right of an employee to question persons making allegations. All the circumstances must be looked at, including the size of the employer and the resources available to him. The respondents are a large employer with the capacity to provide their employees with a sophisticated and fair disciplinary procedure. Their employees are entitled to expect full and proper investigations where misconduct is being alleged. The feature of this case which causes difficulty is that the appellant could not deny the underlying facts. He could and did allege that he was being picked on as a suspect by his immediate superior. Does the reason why his conduct was investigated have a bearing on his employers' decision to dismiss? Again, it is not possible to make a hard and fast rule. Common sense suggests that if an employee has been found to have committed acts of misconduct, the penalty for it is neither more nor less dependent upon the motivation of the instigator of the investigation which uncovered the misconduct. If the appellant had been able to advance, what might be called, a 'disparity' argument, namely that all employees in a similar position to himself were guilty of the same misconduct, then the respondents would be duty bound to investigate that issue, as it could be said to be unfair to single one employee out for dismissal. On the other hand, whilst there might have been some other employees who, if investigated, would have been found to have done nothing different from the appellant, that fact of itself would not necessarily assist him.[19]At the end of the day, we are not persuaded that the appellant was unfairly dealt with by his employers. The only purpose of him questioning Mr Bygrave would have been to establish his motivation rather than to dispute the adequacy of the investigation or the truth of the allegations. Similarly, once the basic facts were admitted the tribunal were entitled to reject the appellant's complaint, even though they had not heard from Mr Bygrave. By not calling him to give evidence, the respondents took the risk that the appellant would be able to show, from his own uncontradicted evidence, that despite the admitted wrongdoing the dismissal was unfair.[20]It is a misconception for employers to believe that in a misconduct case all they have to do is satisfy the range of reasonable responses test. That of itself is not sufficient, because the statute requires the tribunal to take into account concepts of equity and justice. That means that even if many employers would have decided to dismiss, the dismissal of this employee might still be unfair having regard to his own personal circumstances. The danger of tribunals simply applying the 'range of reasonable responses test' is that they may, thereby, fail to have regard to the other requirements of section 98(4), namely that the fairness of the decision must be judged by what is equitable "and the substantial merits of the case." A dismissal is not necessarily fair just because a reasonable employer, given the same circumstances, might have dismissed. There may be cases where the particular circumstances of the employee render the dismissal unfair.[21]As for the respondents' reliance on the previous warnings to justify dismissal, we do not consider that this was unreasonable in the circumstances. The appellant had on his file a warning for very similar offences to those alleged against him and the warning was to remain on his file for five years. The reason the warning remained on his file was so that if the appellant repeated the misconduct within the five year period, the respondents could take it into account when considering his future employment.[22]The tribunal made clear findings of fact that dismissal was a reasonable sanction, and we do not feel we can interfere with those findings. We would add that although it is not for this appeal court to substitute its own view of the appropriate penalty, we do consider that the appellant has been treated rather harshly in this case given his very long period of service. We would also add that it is bad employment relations practice for an employer not to thoroughly investigate an employee's allegations of bad faith when dismissal is being considered, even where the employee has admitted culpability for his misconduct.[23]One final point is to be made in relation to the tribunal's findings that having heard and observed the witnesses they preferred the evidence of the employer's witnesses to that of the appellant and his witness. We do not find that formulation satisfactory. It would be most unusual for a tribunal to find that all the evidence from one of the parties before them is accepted in its entirety whilst the other party's is rejected.[24]For the reasons given in this judgment this appeal is dismissed.