UKEATS/0040/12/BI SOUTH LANARKSHIRE COUNCIL v (1) MR ALEXANDER MILLER BURNS (2) MR EDWARD KENNEDY (3) MR STEPHEN MARTIN [2013] UKEAT 0040_12_1511

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2013] UKEAT 0040_12_1511Case No Appeal No. UKEATS/0040/12/BI UKEATS/0041/12/BI UKEATS/0042/12Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
UKEATS/0040/12/BI SOUTH LANARKSHIRE COUNCILAPPELLANT(1) MR ALEXANDER MILLER BURNS (2) MR EDWARD KENNEDY (3) MR STEPHEN MARTINRESPONDENTSUKEATS/0041/12/BI MR ALEXANDER MILLER BURNSAPPELLANT(1) SOUTH LANARKSHIRE COUNCIL (2) MR EDWARD KENNEDY (3) MR STEPHEN MARTINRESPONDENTSUKEATS/0042/12/BI MR EDWARD KENNEDYAPPELLANT(1) SOUTH LANARKSHIRE COUNCIL (2) MR ALEXANDER MILLER BURNS (3) MR STEPHEN MARTINRESPONDENTS
Before
Lady Stacey Mr P Pagliari Mrs A E HibberdDate 15 November 2013
[1]APPEARANCES For South Lanarkshire Council MR STEPHEN MILLER (Solicitor) Simpson & Marwick 144 West George Street Glasgow G2 2HG For Mr Burns and Mr Kennedy MR DAVID HAY (Advocate) Instructed by: Digby Brown LLP 2 West Regent Street Glasgow G2 1RW For Mr Martin MR A HARDMAN (Advocate) Instructed by: Harper Macleod LLP Solicitors The Ca'd'oro 45 Gordon Street Glasgow G1 3PE SUMMARY UNFAIR DISMISSAL Reasonableness of dismissal Reason for dismissal including substantial other reason Unfair dismissal; apparent bias; improper conduct by Employment Judge. The employer dismissed three Claimants for gross misconduct. The Employment Tribunal found that the first and second Claimants had been fairly dismissed and that the third had been unfairly dismissed. The first and second Claimants appealed arguing that their dismissals had been unfair, and that the ET had substituted its judgment for that of the employer, and had made findings for which there was no factual basis. The Respondent appealed arguing that the third Claimant had been fairly dismissed and the ET had substituted its view for that of the employer. Separately the Respondent argued that the EJ had the appearance of bias. His daughter was and is a partner in the firm which represented the third Claimant, but he had not disclosed that to parties. If he had done so, the Respondent might have asked him to recuse himself. Further and separately, the EJ had interrupted one of the Respondent's witnesses when giving evidence and had thereby prevented her giving all the evidence she wished to give. Held : the appeals are all refused. The ET looked at the investigation carried out by the Respondent, the decision made by it at first instance and the appeal which followed in great detail. It was entitled to decide as it did that the investigation was not of the best quality, and the first instance decision was flawed; but that the appeal cured the defect. It was entitled to find that the Respondent had before it sufficient material to find the first and second Claimants guilty of gross misconduct. The ET was entitled to find the investigation into the third Claimant was inadequate and that his dismissal was unfair. The allegation of apparent bias was not made out. Neither was the allegation of improper conduct. THE HONOURABLE LADY STACEY This was a set of appeals from the decision of an Employment Tribunal in which the Claimants were Mr A Burns, Mr E Kennedy and Mr S Martin and the Respondent was South Lanarkshire Council. The ET decided that Mr Burns and Mr Kennedy had not been unfairly dismissed and they sought to appeal that decision. The ET decided that Mr Martin had been unfairly dismissed and the Respondent sought to appeal that decision. We refer to the parties as, Mr Burns, Mr Kennedy, Mr Martin and the local authority, or "the Claimant" and "the employer" or" "the Respondents" as the context requires. We heard part of the case on the merits of the appeals on 16 and 17 May 2013. On the second day, one of the counsel became ill and the Tribunal had to adjourn. We reconvened on 15 November when the case was completed. We invited counsel to give a summary of the arguments that they had made at the previous sitting, on the merits, and to complete their submissions.[2]There are two broad areas of dispute in this case. The first relates to apparent bias and improper conduct. We deal with it first, as it was argued before us. The second relates to the merits of dismissal and the arguments concern substitution, perversity and lack of reasoning. It was submitted to us that the judgment was "incomprehensible" and while we have not found that to be so, it is very long and convoluted. We did not find it easy to ascertain from the judgment whether there was substitution by the ET and in these reasons we quote parts of the judgment to enable our decision to be seen in context. Our decision is that the appeals fail and we uphold the ET's decisions.[3]The first ground of appeal on behalf of the local authority numbered 7.1 in their grounds of appeal was that of apparent bias. The basis of this ground of appeal was that the Employment Judge who chaired the Tribunal panel is the father of a partner in the firm of Harper Macleod LLP, which represented Mr Martin. The Employment Judge did not tell parties of the connection, which came to be known to the Respondent only when counsel was instructed in connection with the appeal. The matter having been raised in grounds of appeal, directions were given that an affidavit be lodged from the Employment Judge and we have had the benefit of reading that together with notes from the members of the Tribunal. An affidavit was also lodged by the solicitor for Harper Macleod LLP and an affidavit was lodged from Ms Karen Bain who was the local authority HR professional responsible for the conduct of the disciplinary hearings prior to the dismissals and who was involved in instructing the solicitor who carried out the Employment Tribunal hearing.[4]Mr Miller, solicitor for the respondent began by stating that he required to amend his grounds of appeal in that he had stated "had that connection been revealed to the appellant, then the appellant would have asked the employment judge to recuse himself". He sought to insert the words "been likely to have" between "have" and "asked". That amendment accorded with the affidavit of Ms Bain and no objection was taken. We allowed the amendment.[5]Mr Miller began by referring to the well-known case of Porter v McGill [2002] 2 AC 357 and to the test there set out by Lord Hope of Craighead. At paragraph 103 his Lordship expressed his view that the test formulated in earlier cases should be amended by removing the words "or a real danger" from the definition of the test. The test ought to be as follows:
"the question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
Counsel also referred to paragraph 104 for the proposition that the fears of the person complaining of apparent bias are relevant at the initial stage when the court has to decide whether the complaint is one which should be investigated but thereafter they lose their importance and the test is that of the objective fair minded and informed observer. Counsel then referred to the case of Lawal v Northern Spirit Limited [2003] ICR 586 and in particular paragraph 14. He noted that Lord Steyn said this:
"The House unanimously endorsed this proposal. In the result there is now no difference between the common law test of bias and the requirements under Article 6 of the Convention of an independent and impartial tribunal, the latter being the operative requirement in the present context. The small but important shift approved in Porter v McGill [2002] 2 AC 357 has at its core the need for 'the confidence which must be inspired by the courts in a democratic society': Belilos v Switzerland [1988] 10 EHRR 466, 489, paragraph 67; Wettstein v Switzerland [application no.33958/96], paragraph 44; In Re Medicaments and related classes of goods (No.2) [2001] ICR 564, 591, paragraph 83. Public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnston v Johnston [2000] 201 CLR 488, 509, paragraph 53 by Kirby J when he stated that 'a reasonable member of the public is neither complacent nor unduly sensitive or suspicious'"
. Counsel submitted that the informed bystander would adopt a balanced approach. He then considered the case of Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071 in which he addressed us firstly on the facts. The allegation of apparent bias arose in the course of an employment tribunal in which the employment judge at the outset of the case indicated that her husband had a certain degree of involvement with the respondents. There was a dispute about exactly what she did say and the Court of Appeal having reviewed the varying versions came to the view that a note taken at the time which stated that the chairman indicated that there was a possible conflict because her husband, a barrister, occasionally was instructed by the respondents was the likeliest version. In the Court of Appeal the appellant submitted that it must be assumed that husband and wife are members of the same household and therefore there was a closeness of economic interest which should bring into play the rule that if a judge has a personal interest in the outcome of the issue which he is to resolve, he cannot act as a judge. The argument put against that was that presumed bias is established only if the interest is direct and in that case it was argued that the employment judge had no direct interest in the earnings of her barrister husband. Mr Miller referred us to paragraphs 16 to 19 and paragraphs 24 and 27. He noted that the Court of Appeal traced the cases on the matter to the case of Dines v Proprietors of Great Junction Canal (1852) 3 HL CAS 759 in which it was clearly decided that no man should be a judge in his own cause and that that is not confined to a cause in which he is a party but applies to a cause in which he has an interest. In the case of R v Bow Street Magistrates, ex parte Pinochet (No.2) [2000] 1 AC 119 Lord Browne-Wilkinson developed this concept. He noted that the fundamental principle that a man may not be a judge in his own cause has two similar but not identical implications:
"If a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome, then he is indeed sitting as a judge in his own cause. In that case the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example, because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be a judge in his own cause since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial. At paragraph 18 of the case of Jones the court stated the following:- 'what is important in our judgment, is the fact that the judge must have the relevant interest in the party whose cause is before him. In this matter before us, Mr and Mrs Harper had no interest at all in DAS. Mrs Harper herself had nothing whatsoever to do with this insurance company. Her husband may or may not have stood to gain from a favourable decision. But the interest he may have had and the indirect interest Mrs Harper may have had was in their own wellbeing, not in the fortune of the party to the cause before the tribunal. This case in our judgment falls into the second category identified by Lord Browne-Wilkinson, being one where the judge is not normally himself benefiting, but possibly providing a benefit for another by failing to be impartial. On the ground of appeal being advanced to us this appeal fails'"
. The Court of Appeal went on to consider Porter v McGill and Lord Hope's speech in that case and noted in paragraph 25 that any doubt should be resolved in favour of disqualification as set out in the case of Lochabail (UK) Limited v Dayfield Properties Limited [2000] IRLR 96. The court noted the remarks quoted above of Kirby J that the hypothetical observer should be "neither complacent nor unduly sensitive or suspicious" and as was said by Lord Buckmaster in Sellar v Highland Railway Co (1919) SC 19:
"the importance of preserving the administration of justice from anything which can even by remote imagination infer a bias or interest in the judge upon whom falls the following duty of interpreting the law is so grave that any small inconvenience experienced in its preservation may be cheerfully endured."
The Court of Appeal then considered the facts of the case before them and noted at paragraph 28 that the following facts would materially influence the decision: "(i) The fact that it would have been inconceivable for Mr Harper (who we are told is a part time chairman of the Employment Tribunal) to have sat to hear complaints against his client, both direct and lay client, does not of itself determine the issue of his wife's impartiality. (ii) She has no direct financial interest in the work he does for DAS. There is no evidence as to how they organise their financial affairs as between themselves. Some indirect benefit to her may be a permissible inference to draw, but no more than that. (iii) A wife would ordinarily wish to advance and not hinder her husband's career. (iv) Having some knowledge of the way a barrister earns his living, she would know that just as cases are won and lost so solicitors come and go. The volume of work done by Mr Harper could fairly be described as 'occasional'. It was certainly not a case where all his eggs were in one basket. There would be no reason to think that the loss of DAS related work would materially affect his practice or his income to any substantial extent. It simply released him to do other work for other solicitors. (v) If the informed observer is informed enough about modern vernacular, he would conclude that the chairman could fairly think that having DAS as a client was 'no big deal' for her husband. (vi) Without being complacent or unduly sensitive or suspicious, the observer would appreciate that professional judges are trained to judge and to judge objectively and dispassionately. This does not undermine the need for constant vigilance that judges maintain impartiality – it is a matter of balance. In Lochabail , paragraph 21, the court found force in these observations of the Constitutional Court of South Africa in President of the Republic of South Africa and others v South African Rugby Football Union and others 1999 (7) DCLR 725 (CC), 753: 'The reasonableness of the apprehension [for which one must read in our jurisprudence "the real risk"] must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour, and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or pre-dispositions …at the same time it must never be forgotten that an impartial judge is a fundamental pre-requisite for a fair trial…..' (vii) Moreover in this particular case the charge of impartiality has to lie against the tribunal and this tribunal consisted not only of its chairman but also of two independent wing members who were equal judges of the facts as the chairman was. Their impartiality is not in question and their decision was unanimous".[6]At paragraph 29 the Court of Appeal found that the fair minded and informed observer would not conclude that the chairman herself, still less the tribunal, as the decision making body was biased. It therefore found that that ground of appeal must fail.[7]Turning to the facts of the present case Mr Miller stated that the Employment Judge had told no one of his connection. He said that that was out of step with practice as there were two employment judges sitting in Glasgow who are married to partners in law firms and that they do not hear cases connected to those firms. He argued that it was wrong not to disclose the connection as it would give rise to a question in the mind of the informed observer. Counsel stated that the Employment Judge in his affidavit said that he did not know at the start of the case that the firm of Harper Macleod LLP was involved at all as that firm's name was not given on the form given to him and while he accepted that there was an Inventory of Productions which bore that name his attention was not directed to that at the beginning of the case. He very frankly said in his affidavit that even if he had known he still would not have made the connection known to the parties. Counsel argued that if his ground of appeal was accepted then the decision must be quashed altogether. He argued that the Employment Judge's affidavit was of relevance to the appeal only insofar as it related to fact and that his own view as to the question of bias was not relevant to our decision making.[8]It may be useful to consider the arguments made against the respondent's ground of appeal at this stage as it is correct to say that if this ground of appeal is upheld then the whole case will require to be remitted. Mr Hardman appeared for the third Claimant and addressed us before counsel for the first and second Claimants. He agreed that the test is an objective one and that the Employment Judge's own view is not relevant before us. He made reference to paragraph 104 of the case of Porter v McGill and said that the test could be broken down into two parts:(1) what are the relevant facts?(2) what would a fair minded and informed observer conclude, having considered those facts. He argued that the answer to the first question was that the relevant facts are these:- "or if, for any other reason, there were real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him." Mr Hardman argued that the situation in the present case was not in either the first or second set of circumstances mentioned in Lochabail and therefore the question was whether or not it came within the third, catch all, category. He argued that it did not. He argued that the connection was not close enough. Discussion and decision "Gail explained that this was not how the service schedules demonstrated Stephen Martin's knowledge of misuse; she said 'the panel thought it was reasonable that the documents show vehicles going on particular days but Stephen Martin said they went every night'. Judge Murphy at that point interrupted Gail. In my notes I have written 'judge stopped' after I had noted this answer. I have written that the judge then said something about holding numbers in his head with the only conceivable explanation and he said 'I struggled to see how they moved from that'. I have then written in brackets Gail trying to explain numbers didn't add up. My notes are not verbatim at that point but she must have been saying something about the number of vehicles not adding up to Stephen Martin's claim of every day for me to have noted that." "again I accept – broadly speaking – the accuracy of these paragraphs. My only comment relates to the fact that I was endeavouring to clarify the basis upon which it was suggested that the third claimant could see that vehicles were being used for an improper purpose." Mr Miller submitted to us that the affidavit from Karen Bain showed that the witness Gail Robertson had been prevented from giving all the evidence that she wished to give and that the judge accepted that was so. He argued that the judge's comment relating to what he was endeavouring to do was irrelevant. In discussion Mr Miller was constrained to accept that the affidavit from Karen Bain does not say that the witness was prevented from giving evidence. It says that she was interrupted and asked the question by the judge and that she went on to say something in answer to it. Mr Miller stated in terms that he was not in any way linking his first ground of appeal, that of apparent bias, to his second ground, that of improper conduct. He made reference to the case of Docherty v SRC [1994] SC 395 at page 397. He took from that case that the test is an objective test. The question is whether an informed and reasonable observer present at the hearing who was not a party or associated with a party would gain the impression of bias. The question is not whether the parties themselves felt that they gained an impression of bias. Mr Miller referred us to the case of Peter Simper & Co Ltd v Cook [1986] IRLR 19 as authority for that proposition. He then referred to the case of Facey v Midas Retail Security Limited [2001] ICR 287 paragraph 36. From that case he took the proposition that any comments that the judge may make about whether or not he was biased are not relevant. He made brief reference to the case of Jiminez v London Borough of Southwark (2003) IRLR 477 as illustrative of his point. In referring to the case of Peter Simper he pointed out that a litigant cannot be expected to object at the time to improper conduct. He argued that in the present case the Employment Judge interrupted and prevented the witness speaking. He anticipated the argument from others that objection could have been taken to the judge's course of action. He argued that it was not to be expected that counsel would do that. The merits of the appeals "Jim, I had a wee delegation in today namely H McGlinchie and J Reid, they were complaining that 'some men' were still getting transport to come to their work and that their expenses had stopped. I advised them that I was unaware the 4 years were up and that I would look into the situation. I did point out to them that the present arrangement suited me operationally and that I would be recommending it continue. I offered that if the transport were to continue they were welcome to take advantage of it if they would assist in taking vehicles for services, they said that did not suit them and they would rather use their own transport. The undernoted personnel opted for transport rather than expenses when moved from Forrest Street depot to East Kilbride depot. During this time the transport has been used for callouts. Below is a list of number of callouts per man and estimated expenses saved assuming return journey for each callout for 1 year only April 2006 to April 2007. J Druggan 43 244.22 D Gillespie (J) 79 474 D Gillespie (S) 83 431.60 V Fitzgerald 66 122496 (sic) E Kennedy 108 1728 Total unpaid expenses for 1 year £4102.78 The pickups used have also proved invaluable for response to emergency incidents as they usually carry small tools and sand. Setting aside the obvious savings in expenses, all the above personnel drop off and uplift ALL vehicles to and from Forrest Street for service/repair on their way home and to work thus avoiding cost of two men shunting vehicles through normal working day or on overtime. Last night I had three vehicles for service, without the use of the present arrangement I would have had to use four men for the return journey which would take at least 1 hour and I doubt if it would have had a lot of volunteers especially any of the above if the arrangement stops." Mr Darroch acknowledged that email on 1 November saying that he wanted to think about the matter and on 12 November replied in the following terms:- "Stevie The arrangements should continue as long as it suits the service. The arrangements should however be available to any Hawbank operative, provided the vehicles have the capacity and the users are prepared to take and recover vehicles from the workshop when required. Jim." These emails became known in the Employment Tribunal as "the Darroch emails". The Tribunal found as a fact that one of the line managers of Mr Fitzgerald and Mr Kennedy told them that the arrangement whereby they had enjoyed free transport between Hawbank and Lesmahagow would finish at the end of December 2007. Mr Fitzgerald and Mr Kennedy had been using vehicles belonging to the Respondent to travel to their place of work firstly when they were transferred from the depot at Lesmahagow to Forrest Street, Blantyre in 1998 and thereafter from Forrest Street to the Hawbank depot, East Kilbride, in September 2003. Mr Fitzgerald and Mr Kennedy were dissatisfied with the discontinuation of their free transport and on or about 6 December 2007 they wrote to Mr Darroch in terms that included the following:- "Eddie and I have been informed by our line manager that the transport we are currently using from Hawbank Depot to Lesmahagow Depot will cease at the end of December. We would like to make the following points:- 1. Both Eddie and I have, on many occasions, taken vehicles to Forrest Street at the end of our shift for servicing and have then travelled back to Lesmahagow yard in our own time. 2. On our journey to work, we have picked up vehicles from servicing and have returned them to Hawbank yard for starting time. 3. We have never received any travelling expenses for our callouts or any other duties due to having this transport. 4. With the transport being at Lesmahagow yard, we have responded to our callouts well within the recommended time. 5. There are operatives whose work base is Carnwath and Lesmahagow but do work for Hawbank Yard. These operatives leave their depot travelling to and from their workplace in council time. Eddie and myself are travelling to and from Lesmahagow in our own time. We would be grateful if you could reconsider your decision with regard to the transport situation and look forward to hearing from you in the near future." Mr Darroch replied to that letter on 7 January in the following terms:
"It is customary for the Council to provide means of transport or excess travel payment for 4 years after an employee has been asked to transfer to a new reporting point further from their home. The vehicle you refer to was provided after you were asked to transfer to Forrest Street when we lost the lighting maintenance contract in Clydesdale. The use of the vehicle was further extended in 2003, as a gesture of goodwill, when you were asked to transfer to Hawbank along with the rest of the Forrest Street workforce. The use of the vehicle should have ceased 4 years thereafter but continued in oversight. I cannot justify the continuation of this subsidy. There are insufficient operational grounds. Furthermore it could now be considered as favouritism and sets a precedent which cannot be provided for the rest of the workforce. As previously advised provision of this transport will now terminate."
The letter of 6 December and the reply of 7 January became known in the Employment Tribunal as "the Darroch correspondence". The reply was copied to Mr Martin. "As part of the disciplinary case where an employee used a vehicle for personal use whilst taking it to Forrest Street, Blantyre, my recollection is we undertook to stop routinely parking vehicles at Forrest Street and to only take vehicles there that required servicing. If you have sound operational reasons for continuing to park vehicles at Forrest Street could you detail them to me and also how we will control the use of those vehicles in future." Mr Milne spoke to Mr Martin who advised him that vehicles were only sent from Hawbank to Forrest Street for service or repair and in a handwritten note appended to the letter quoted above Mr Milne noted the following:- "Discussed with Steve Martin. I was advised that vehicles only went to Forrest Street for servicing or repair. Therefore there was no requirement to contact George as no control measures were required." After that Mr Milne sent an email to the depot supervisors, on 12 March 2010, reminding them that vehicles should only be taken to Forrest Street if there was a business need, such as servicing or repair. No instruction was ever given to cease the transport of vehicles for maintenance purposes at the beginning and end of each day. "How can a cash strapped Council sanction the use of a Council vehicle for the personal use of two individuals after working hours??? This is the case at Hawbank depot concerning Edward Kennedy and Vincent Fitzgerald and this had been sanctioned by Mr Graham Milne on Friday 19 February. You may like to know these two have been covertly using a vehicle for about the last 12/13 years at tremendous cost to the taxpayer. Last year a man was suspended for a week without pay for using a Council vehicle after work for one night only. I hope you will look into this and get it stopped." The same day, 2 March 2010 the Respondents also received a petition signed by 18 employees in the following terms:- "We are writing in the hope that you could assist us with the problem we have at our roads depot in Hawbank, East Kilbride. There are two employees who are being given what can only be described as preferential treatment, namely Vincent Fitzgerald and Eddie Kennedy. Both men are being given a works vehicle at the end of their shifts which should be taken to Forrest Street depot for maintenance. Thereafter they should pick up their own private vehicles to travel home. Vincent stays in Lanark and Eddie stays in Carluke. Previously they were allowed to take vehicles home but after complaints from the workforce this was changed to the above. We have made our feelings known to our depot supervisors. They in turn brought this to the attention of Graham Milne who overturned the supervisor's decision to stop this practice. There are several other men who stay closer to Forrest Street and could take the vehicles for repair but are not being given the chance. The reason we are bringing this to your attention is that we have no confidence in Graham Milne or those in our own department who should sort this out. We have attached a signed petition in the hope that you can get this situation resolved". "Having thought about the questions further I would like to add with regards to other employees who have taken and collected vehicles to/from Forrest Street and were paid overtime:- Tam McGhee Martin Donnelly Graham McNeill 'Gully men' were also used during working hours before or after going to the coupe. John McGarvey had stopped this practice due to intimidation of certain members of the workforce on more than one occasion. I would like to emphasise I was continuing a practice authorised by management". "The reason for the hearing is, it is alleged that:- You were negligent in your duties as supervisor by failing to adhere to and contravening Council policies in relation to the driver's handbook You were complicit in the fraudulent use of Council vehicles in that you allowed and deliberately deceived management regarding the personal use of Council vehicles by two employees Your actions have brought the reputation of South Lanarkshire Council into disrepute You have contravened the Council's Code of Conduct for employees." Then Mr Kennedy received a letter telling him that disciplinary proceedings were to be instituted for the following reasons:- "You used Council assets for personal gain in that you fraudulently used a Council vehicle to travel to and from your place of work and that this was also in your employer's time. You contravened the Council's policies in relation to the Code of Conduct and driver's handbook. Your actions have brought the reputation of South Lanarkshire Council into disrepute. You failed to follow a direct instruction." A letter was sent to Mr Martin telling him that disciplinary proceedings were to be initiated against him for the following reasons:- "You were negligent in your duties as depot manager by failing to adhere to and contravening Council policies in relation to the driver's handbook. You were complicit in the fraudulent use of Council vehicles in that you allowed and deliberately deceived management regarding the personal use of Council vehicles by two employees Your actions have brought the reputation of South Lanarkshire Council into disrepute You have contravened the Council's Code of Conduct for employees You failed to follow a direct instruction." "An anonymous complaint was received regarding a vehicle being taken from Hawbank Depot on 19 th February. Internal Audit investigated the matter part of which included Richard Brown, Auditor and me viewing CCTV footage from Hawbank and records at Forrest Street. This shows that that 2 vehicles left Hawbank at approximately 3,30 p.m. but neither was booked in to Forrest Street nor returned to Hawbank by the end of the day. It appears to be Edward Kennedy, Vincent Fitzgerald in one of the vehicles and the supervisor Alex Burns said he assumed it would be them. When interviewed on 23 rd March VF/EK said they knew nothing about the vehicles seen leaving Hawbank. 17 employees based in Hawbank Depot signed a petition regarding VF/EK's use of a Council vehicle. Internal Audit and corporate personnel instructed the Resource to carry out investigation into this alleged misuse of Council assets. VF/EK originally had an arrangement to use Council vehicles as an alternative to excess fares when they transferred from Lesmahagow to Forrest Street in August 1998. This was continued when they moved from Forrest Street to Hawbank in September 2003. This arrangement suited the service since these employees also sometimes dropped off vehicles at Forrest Street on their way home. Also leaving a vehicle at Lesmahagow at night saved the service time and money in responding to call outs. The arrangement in terms of excess fears justification should have ceased in August 2007. Due to an oversight it continued and when discovered in October/November 2007 employees asked the then Contracting Manager Jim Darroch (J D) if the arrangement could continue. The Depot Manager Stevie Martin (SM) advised the contracting manager that he could justify this as a means of delivering vehicles to Forrest Street for service and repair. In January 2008 the contracting manager instructed the employees and the depot manager that the arrangement should cease as there was insufficient operational justification to continue this subsidy and it could be seen as favouritism towards these 2 employees. All involved appear to have understood the meaning of this instruction as when questioned about the use of Council vehicles all said that the previous arrangement of subsidised home to work transport had ceased and that they now only took vehicles when they needed to go to Forrest Street for service or repair. The employees, supervisor and depot manager all said that these employees took vehicles to Forrest Street almost every day and witnesses said they had yet to see these employees arrive at work in anything other than a Council vehicle. Forrest Street records were examined to establish how often vehicles were delivered at the end of the day and collected at the beginning of the day. Records were examined for a period of 7 weeks from the 19 th of February. This shows that vehicles are not booked in to Forrest Street for a service or repair every night nor is there one picked up every morning. Indeed more than half the vehicles booked in for service or repair during this period were booked in during the working day. At this point employees were suspended from duty as there appeared to be no plausible explanation for them leaving/arriving at Hawbank every day in a Council vehicle." "He advised the at ( sic ) consequently he had then had to rely upon his assessment of the differing accounts he heard yesterday. Three of those interviewed continued to maintain that vehicles were taken to Forrest Street only for servicing and repair. One said that this was not the case and acknowledged that occasionally Council vehicles were taken on a two-way journey solely for personal transport. This was described as a ' quid pro quo arrangement whereby the operative benefited occasionally from their willingness to assist with servicing vehicles." Mr MacKay said that after consideration he had taken the view that the latter is the more credible version of events. The first Claimant's letter was in the following terms:
" You were negligent in your duties as supervisor by failing to adhere to and contravening Council policies in relation to the driver's handbook. You were complicit in the fraudulent use of Council vehicles in that you allowed and deliberately deceived management regarding the personal use of Council vehicles by two employees. Your actions have brought the reputation of South Lanarkshire Council into disrepute. You have contravened the Council's Code of Conduct for employees."
The second Claimant's letter was in the following terms:
" You used Council assets for personal gain in that you fraudulently used a Council vehicle to travel to and from your place of work and that this was also in your employer's time. You contravened the Council's policies in relation to the Code of Conduct and driver's handbook. Your actions have brought the reputation of South Lanarkshire Council into disrepute. You failed to follow a direct instruction."
The third Claimant, Mr Martin, received a letter in the following terms:
"You were negligent in your duties as depot manager by failing to adhere to and contravening Council policies in relation to the driver's handbook. You were complicit in the fraudulent use of Council vehicles in that you allowed and deliberately deceived management regarding the personal use of Council vehicles by two employees. Your actions have brought the reputation of South Lanarkshire Council into disrepute. You have contravened the Council's Code of Conduct for employees. You failed to follow a direct instruction". "
Whether the claimants were unfairly dismissed; Whether, esto there had been some defect in the decision to dismiss such as to render the initial decision to dismiss unfair, any such defect had been cured as a result of the appeal; Whether, esto any of the claimants were unfairly dismissed, they had contributed to their dismissal; What was the likelihood that, esto any of the claimants were unfairly dismissed, they would have been retained in employment, had the respondents acted fairly; Whether, given that the claimants, or any of them, were unfairly dismissed they should be reinstated." That direction by the ET to itself of the issues in the case is not criticised. "In these circumstances, the majority are satisfied that the dismissals of the first and second claimants were fair despite the many imperfections in the process. An employer must be able to trust his employees and the conduct of the first and second claimants destroyed that trust. The respondents could not reasonably be expected to continue to employ the first and second claimants." 1. Mr Fitzgerald's version fitted the surrounding facts 2. The first and second Claimants gave awkward improbable versions of events. 3. The first Claimant knew about the movement of vehicles. 4. The first Claimant produced a diary at a late stage in rather suspicious circumstances. 5. The second Claimant lacked credibility because he changed his position. 6. The second Claimant produced a diary in even more suspicious circumstances. 7. There was no explanation given for the sending of the text. 8. Mr MacKay knew that Mr Fitzgerald had an axe to grind, and gave that due consideration and weight. "We cannot agree that the Darroch correspondence is to be construed as the respondents would have us construe it. It cannot be disputed that that correspondence was as plain as an instruction as can be that the practice of allowing free travel to said Fitzgerald, and the second claimant… had to stop, but we do not see how it can reasonably be interpreted as recalling any permission contained in the Darroch emails." "The problem arises from the fact that none of the claimants unambiguously adopted the position that they simply continue to operate an arrangement akin to that of the excess travel arrangement in the belief that he had permission to do so. Had they done so, their position (in connection with this issue) might have been impregnable." "We are all satisfied that, even on the basis of the facts said to have been accepted by the respondents, no reasonable employer would have dismissed the first claimant. We accept that a reasonable employer could draw an inference of consciousness of guilt on the part of the first claimant in consequence of his change of position and subsequent actings, and we recognise that the respondents could conclude that the first claimant had fabricated evidence, but the change of position and subsequent actings did not absolve the respondents from considering carefully whether there was truly evidence to suggest that the first claimant must have known that what he was doing was wrong, and, had they considered the Darroch emails and correspondence with reasonable diligence, they could only have concluded that there was a good deal of doubt about the matter." "VF confirmed that the practice was condoned by his line managers." It was pointed out by the representative of Mr Martin at the ET that either the Respondent believed that the expression "line managers" included Mr Martin, or they did not so believe. If they did not believe that, then the dismissal must be unfair. If they did believe that included Mr Martin, then it was hard to see that the position was any better because there was the possibility that the expression equally referred to other managers from whom Mr Fitzgerald took instructions. It was also argued that in the situation of the Respondent, when they were dealing with Mr Martin, who had 31 years service, it would be only reasonable to ask Mr Fitzgerald who he had in mind when he used the expression "line managers". The tribunal looked at the evidence to see if Mr MacKay could reasonably have thought that Mr Martin was implicated. They noted that in evidence before them, when Mr MacKay was asked why he had not asked Mr Fitzgerald whom he meant, Mr MacKay said that he did not think Mr Fitzgerald would tell the truth and that Mr MacKay thought that the third Claimant Mr Martin was involved. The Tribunal came to the view that no reasonable interpretation of what was said by Mr Fitzgerald would include the interpretation that Mr Fitzgerald was referring to Mr Martin. The ET realised that the employer did not purport to rely solely on the word of Mr Fitzgerald. They also relied on assertions that Mr Martin would be able to see Mr Fitzgerald and Mr Kennedy arrive and depart in a Council vehicle every day; that he would be aware of vehicles that were being serviced; and that he had sanctioned overtime for Mr Fitzgerald and Mr Kennedy. Thus he would know what was going on. It was argued that the third Claimant was evasive and lacking in credibility. The Tribunal did not accept the submissions. They found at paragraph 483 that there was no evidence to support them. The Tribunal correctly directed itself at paragraph 495 that their own view of the credibility of Mr Martin was not what was in issue. They understood that they could not go behind the Respondent's conclusion in that connection. However, at paragraph 497 they found that when finding Mr Martin to be lacking in credibility, the Respondents took into account factors that no reasonable employer would have taken into account. They noted that Mr MacKay purported to believe Mr Fitzgerald and to find that he could not therefore believe Mr Martin. The ET thought, however, that there was no conflict between the two versions of evidence. They found at paragraph 520 that no reasonable employer would have failed to question Mr Fitzgerald concerning the identity of those whom he had in mind when he used the expression "line managers". They found that Mr MacKay had not truly applied his mind to the proper question before him, which was whether Mr Martin had received an instruction to discontinue the excess travel arrangement. Submissions before EAT "In misconduct cases length of service will often be relevant, because if the employee has worked for a long time without misconduct that may be a strong indication that either he is unlikely to have done anything seriously wrong or what he has done can be treated as a temporary aberration." That was not in point in the decision his Lordship was making as he was concerned with ill-health. He went on to say the following:- "The critical question in every case is whether the length of the employee's service and the manner in which he worked during that period yields inferences that indicate that the employee is likely to return to work as soon as he can." It was argued that in the present case the tribunal did not address this question; they merely treated length of service as a factor that in itself was automatically relevant. In our opinion that is not the correct approach. Our own opinion is that we respectfully agree with his Lordship that it must be necessary to look at the particular circumstances of each case and that long service is not automatically relevant but that it may be relevant depending in the nature of the case and the arguments.