GREAT NORTH EASTERN RAILWAY LTD v MR D STOCK [2002] UKEAT 0211_01_2407

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0211_01_2407Case No Appeal No. EAT/0211/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
GREAT NORTH EASTERN RAILWAY LTDAPPELLANTMR D STOCKRESPONDENT
Before
Mr Recorder LangstaffDate 24 July 2002
[1]APPEARANCES For the Appellant MR GARY MORTON (of Counsel) Instructed by: Messrs Pattinson & Brewer Solicitors 1 Bridge Street York YO1 6WD For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT MR RECORDER LANGSTAFF QC This appeal, from a decision of the Employment Tribunal at Newcastle-upon-Tyne, the Extended Reasons for which were promulgated on 22 December 2000, raises questions whether the Tribunal wrongly substituted its own view for that of the employer and whether or not its decision may have been perverse.[2]The Appellant has not appeared, by any advocate, before us to pursue its appeal. In a letter dated 23 July (yesterday) solicitors for the Appellant indicated that the Notice of Appeal, together with the Skeleton Argument, sufficiently represented the issues which the Appellant wished us to take into account.[3]We have accordingly proceeded in the absence of the Appellant but taking into account the representations which have been made. We hope we do no discourtesy to some of the matters raised in the Notice of Appeal by not specifically dealing with them because we have determined, having heard the submissions made by the Respondent in answer to the matters which we have put on the basis of the Appellant's Skeleton Argument and grounds, that the decision of the Employment Tribunal cannot stand. The Facts[4]The background facts are these. Mr Stock was employed as a Customer Operations Leader on the East Coast mainline. On 12 January 2000 he became involved in an incident with a passenger on board the train. This was investigated by his employers following a complaint by the passenger that he had been assaulted and abused by Mr Stock.[5]A disciplinary hearing followed on 21 January. At the disciplinary hearing the charge which Mr Stock had to answer was that he committed a serious act of misconduct by manhandling and using abusive language to a GNER customer.[6]Although the notes of that hearing are inconclusive, as to whether every aspect of that charge was regarded as made out, the consequence was nonetheless dismissal.[7]When the matter came for appeal it began upon the footing that Mr Stock had committed what is described as "a serious act of misconduct by manhandling and using abusive language towards a GNER customer". It appears that the only aspect to the appeal was an appeal against the severity of the penalty of dismissal for that misconduct.[8]The Tribunal came to its conclusion in two important paragraphs toward the end of its extended reasoning. At paragraph 13 it said this: 13 "Put in its simplest form, assaulting passengers and abusing passengers would be clear examples of gross misconduct. Did the Applicant's actions amount to that? Mr Webb [who appeared on behalf of the Company] referred us to the Company's Personal Standards Document, which states:
"Professionalism We expect the highest standards of honesty and integrity from you so you must follow these rules: You must not bring the Company into disrepute by anything you say or do when on or off duty… You must always be helpful and courteous to customers… We do not consider that, and nor should Mrs Taylor have found that, except in the most purely technical sense, the Applicant 'assaulted' Mr Marks. It appears that the Crown Prosecution Service and Police did not regard it as a sufficiently serious matter to bring proceedings, or even caution the Applicant. The Applicant was the first to admit that he had handled the matter badly. With the benefit of hindsight he would have "walked away"
. Equally if the Applicant used language he regretted, he had clearly been provoked, and again this hardly merits the description "using abusing language" in the context of what had occurred."[9]In paragraph 14 the Tribunal then set out the 7 types of awardable punishment which range in severity from 'reprimand', through 'transfer to another post or place of employment' and 'suspension', to 'dismissal', the sanction which was in fact imposed.[10]It then added this: 14 "Given that this was a first offence by a man who had otherwise an unblemished work record, we are satisfied that dismissal was a disproportionate sanction, and therefore that the decision to dismiss was not a reasonable response."[11]We are only entitled, in this Tribunal, to interfere with a decision of an Employment Tribunal if it has reached it in error of law. There must be either some misapplication or misunderstanding of law, or a clear misunderstanding or misapplication of the facts or evidence before it if a decision is not to stand, unless it is such that can be categorised as 'perverse'.[12]To reach the standard of perversity the decision to which the Employment Tribunal came must be, to quote one of the well-recognised expressions used to describe the test, "wholly impermissible".[13]Here, the argument for the Appellant is that the Tribunal substituted its own view for that of the employer. If one looks closely and grammatically at the last sentence of paragraph 14, there is force in that submission. The logic in that sentence proceeds from the satisfaction of the Tribunal that "dismissal was a disproportionate sanction", to a decision, described as being consequent upon the Tribunal's satisfaction as to that, that dismissal was not a reasonable response.[14]In other words, looked at grammatically it may appear to indicate that the Tribunal first decided what they thought was the appropriate and proportionate sanction and then, in the light of their own view, determined whether the decision to dismiss was or was not reasonable. There is no evident consideration there of whether or not the employer's decision, fell inside or outside the range of reasonable responses open to it.[15]Mr Morton, for whose frank submissions we are grateful, appeared for the Respondent. He accepted that that sentence was, at best, infelicitously expressed and did not dispute the way in which, at least grammatically, it might be understood.[16]Some further support for the view that the Tribunal may well here have substituted its own view comes from paragraphs 10 and 13 of the decision. First these must be put into context. The last sentence of paragraph 14 suggests that the Tribunal would have been satisfied that dismissal was within the bounds of proportion if there had not been the personal mitigating factors which Mr Stock relied upon. He had committed no other offence. He had an otherwise blemished work record.[17]Those two points, which appear as two points, are of course one and the same. The Tribunal is thus indicating that dismissed for a first offence of this nature was outside the bounds of reasonable response.[18]Since any act of assault by an employee upon a customer has necessarily to be evaluated within the circumstances in which it occurs, we need to look and see what the relevant circumstances were. The scope of this enquiry is, of course, into what circumstances were regarded as relevant by the employer.[19]A Tribunal cannot, nor can we, take other matters into account unless they are matters which no reasonable employer would have left out of account, or are such as might appear if, for instance, a reasonable investigation had been carried out but was not.[20]The Tribunal, taking the decision broadly, did not regard the misconduct here as being very serious. That is indicated by paragraph 13. The Tribunal regarded the assault as being one which would only be an assault in the most purely technical sense. That is a view about which we have considerable doubt, given that, first, it was common ground between the employer and the employee that it was an offence of manhandling a customer. Secondly, it was common ground that in consequence of the actions taken by Mr Stock towards the passenger, the rugby shirt which the latter was wearing was ripped. Thirdly, there was evidence from another passenger that Mr Stock had physically restrained the passenger he was alleged to have assaulted.[21]However, it is the sentence which follows which gives us greater concern. The Tribunal took into account (there could be no other reason for mentioning it) that "the Crown Prosecution Service and police did not regard it as a sufficiently serious matter to bring proceedings, or even caution the Applicant". This view is expressed in relation to an evaluation by the Tribunal of the severity of the assault.[22]What the Tribunal needed to address was whether or not the employer was acting reasonably or unreasonably in categorising the assault as being of the severity it did. Yet before us Mr Morton accepted that there was no material to show that, when the disciplinary hearing occurred or the appeal hearing followed, the employer had any knowledge of the fact that the Crown Prosecution Service and the Police had taken the attitude there indicated.[23]There is no documentary suggestion that any argument was put to the employer that because the Crown Prosecution Service and the Police thought the matter trivial therefore so should the employer. Indeed, upon reviewing the documentary record of the first disciplinary hearing, at page 26 of the Employment Tribunal bundle, Mrs Taylor, who took the initial decision to dismiss, recorded that she had checked with police records and the information she had was that he was being 'put through' the Crown Prosecution Service.[24]Accordingly, so far as the employer's decision to dismiss was concerned, it could not possibly have been influenced by any supposedly dismissive approach on the part of the Crown Prosecution Service and the Police. We leave aside whether their attitude could, in any event, have any relevance.[25]The force of this sentence is therefore that it appears to us to demonstrate that the Tribunal itself was taking the matter into account. It could be relevant only to its own determination of severity; it could not be relevant on the material before us to any determination of the severity, or lack of it, of the assault as it appeared to the employer.[26]The question whether the Tribunal may have been further in error in assessing the degree of severity of the assault and, therefore, what sanction was merited, is emphasised further by paragraph 10.[27]The paragraph notes that: 10 "…if Mr Marks [he was the passenger] did make a formal complaint to the British Transport Police, or if he made a statement, neither Mr Gilroy or Mrs Taylor were aware of this, and there had been no further contact with Mr Marks". The difficulty that we had was in understanding quite what the Tribunal were here finding as fact and quite what the relevance of the finding of fact was to the ultimate decision.[28]There is ample material to show that Mr Marks did indeed make a complaint. It is not disputed that he did so on the train. It is not disputed that he asked for the involvement of the Police whilst on the train. Nor is it disputed that it appears that the Police spoke to him at Kings Cross when he arrived. Material which demonstrated that was before Mr Gilroy and Mrs Taylor.[29]It may be, perhaps that the Tribunal were distinguishing a complaint by a passenger from a formal complaint, with the accent being on the word 'formal'. If so, we find it difficult to understand the force of the word 'formal' in a context in which a passenger had done all that might be expected of him.[30]Indeed, it must be the formal aspect to which the Tribunal were there paying regard because, again, if one looks at the notes of the disciplinary interview, in the fifth from last paragraph there is a documentary record that says that Mrs Taylor had checked with Customer Service department as to whether they had received any written complaint from the passenger involved. It appears that she was shown a report that was given verbally by telephone by the passenger, and that he had also made a claim on the company for the replacement of his torn rugby shirt. In the light of that it is very difficult to see any possible relevance of the degree of formality that the complaint might have had.[31]Paragraph 10 is again problematic. It refers to a witness who had been contacted, a Mr Law-Smith, as being 'unable to help'. We have seen the statement he made; it is one in which he describes Mr Stock as having physically restrained the passenger. We find it difficult to understand why this translates into an 'inability' to 'help'.[32]Accordingly, it seems to us that, taking the internal evidence from the decision of the Tribunal, there is more than just the last sentence of paragraph 14 to suggest that this Tribunal may and probably did substitute its own view of the rights and wrongs of the dismissal for that of the employer, or, if they did not do so, that in any event they were persuaded as to the scope of the range of reasonable responses by taking a view of the severity of the incident which was simply not justified by the evidence and material before it, and took into account irrelevant considerations, such as the attitude of the Police and the Crown Prosecution Service.[33]That clear impression is further accentuated by considering the Tribunal decision as a whole. The opening paragraphs evaluate not the employer's action but the facts of the underlying incident. Conclusions are reached as to that underlying incident. For instance, in paragraph 3 (c) the incident is described in terms of Mr Stock taking hold of the elbow of the passenger and then going on to say: 3 (c) "The Applicant heard a rip, and the passenger claimed that he Applicant had ripped his shirt". Nothing is said as to the rip being a consequence of the assault, rather than an unfortunate co-incidence contemporaneous in time. Yet, before the employer, it was accepted by and on behalf of Mr Stock that the rip was indeed a consequence of the assault and not mere co-incidence.[34]However, in the central part of the decision the Tribunal did remind itself, in appropriate terms, of the tests in British Homestores v Birchell , in Iceland Frozen Foods v Jones and in Foley v The Post Office , to all of which it had been quite properly and appropriately referred by Mr Morton, on behalf of Mr Stock.[35]The question is not, however, whether the law there was set out accurately as it was, but whether, taken as a whole, we can be satisfied that this was not mere lip service but was actually carried through in the decision-making process. For the reasons that we have given we are unable to come to that conclusion.[36]The appeal in respect of perversity is therefore beside the point, save only that it may determine whether we, for our part, choose to substitute the view of this Tribunal for that of the Employment Tribunal.[37]We are invited, on behalf of the Appellant, to say that any case of assaulting a passenger and abusing him would not only be gross misconduct but obviously dismissible. Although put like that we see the force of that submission, we do not accept the appeal put generally to perversity. It appears to us that, although in most cases in which an employee assaults a member of the public, who is in the position of passenger or customer, it will be difficult, if not impossible, for an Employment Tribunal to say that dismissal does not fall within the range of reasonable responses. Nonetheless, everything must depend on the exact nature of what took place and must be influenced further by the character of the employee concerned, his record, his length of service and any other mitigating factor, such as, for instance, illness or particular difficulty at the time.[38]We see, for instance, a very great distinction between a case in which an employee commits unprovoked assault on a member of the public, causing injury, on the one hand and, for instance, a case in which the employee, believing on reasonable grounds that he is assisting another customer against being assaulted by a third party, himself assaults the third party in the sense of attempting to restrain him from the act he reasonably thinks that man to be intending.[39]These are only two simple examples to indicate that the width of the range that there must necessarily be. We do not suggest, therefore, that it is necessarily within the range of reasonable responses for an offence described in the terms that this offence was, to be met by dismissal. It may be. It is not a judgment for us. It seems to us it is something which is and ought to be left to the Employment Tribunal fulfilling its function as industrial jury not, we hasten to add, not evaluating the merits of the offence for itself but evaluating the conduct of the employer, pursuant to section 98 of the Employment Rights Act 1996.[41]Accordingly, we allow the appeal and remit the matter to a fresh Tribunal for that Tribunal to consider the case anew.