Appeal No. EAT/146/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 7 December 1992

	Before

	HIS HONOUR JUDGE J HICKS QC

	MR D O GLADWIN CBE

	MR K HACK

BRITISH RAILWAYS BOARD	APPELLANTS

MR B V JACKSON	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR G TREVERTON-JONES
(Of Counsel)
The Solicitors Department
British Railways Board
MacMillan House
PO Box 1016
Paddington Station
London W12 1YG

For the Respondent	MR M WESTGATE
(Of Counsel)
Coffin Mew & Clover
87 London Road
Cowplain
Waterlooville
Hants PO8 8XB

	JUDGE HICKS QC:  This is an Appeal by the employers, British Railways Board, against the decision of the London South Industrial Tribunal sitting on 18 December 1991 that the Respondent had been unfairly dismissed, the Respondent being Mr Bernard Vincent Jackson the employee and original Applicant.  There is also an appeal against the remedy of reinstatement but that has not been separately pursued and we need say nothing about it.  The relevant facts are in a short compass and are set out in paras 1, 2 and 3 of the Tribunal's Reasons as follows:

"The applicant was employed by the respondents as a steward based in Portsmouth and had been so employed since July 1977.  On the morning of 21 May 1991 he was rostered to Portsmouth harbour station at 5.59 am to enable him to take his train to Waterloo at about 6.30 am.  This train has a buffet car on which the applicant was the unsupervised steward.

As the applicant came into the yard towards his locker room he was seen by a Mr Goodenough carrying a plastic bag in which there was a loaf of bread and 3 packets of bacon.  Mr Goodenough called the manager of the catering department, a Mr Wylie, and together they interviewed the applicant about the contents of the plastic bag.  The applicant, in explanation, informed them that he had purchased the items from a shop nearby as he would not have time to do his shopping at the end of his shift which was at approximately 1.30.  When asked why he needed these items he said, flippantly "for a party".  We accept the applicant's evidence on this point.

British Railways have had a constant problem with stewards taking their own goods on to the trains and selling them directly to the passengers and thereby depriving British Railways of the revenue from the sale of its own items.  The situation was difficult to control because they had no tills in the buffet carriages and they relied solely on the honesty of the stewards for stock taking and for their revenue."

	There is one further matter by way of facts that we should mention because of its relevance to one particular point in the Appeal, and that is that in Mr Goodenough's report he says, having dealt with seeing Mr Jackson and what appeared to be in his bag:

"I noticed that Mr Jackson appeared to be trying to put into his locker the carrier bag which he was previously carrying under his arm."

	The Appellants' rules relevant to on-board catering staff include as Rule G(43) the following:
"STAFF MUST NOT:
Engage in trade or business for themselves or others whilst on duty.  Only items purchased by, or on behalf of InterCity On Board Services are to be served on Refreshment Cars.  Personal food or drink items must not be carried on Refreshment Car."[This is in the singular but clearly meant to be plural].

	Another relevant matter in relation to the regime operated by the employers was that in their Disciplinary Procedure, paragraph 11 lists the normal types of recordable punishment as:
"Reprimand
		Severe reprimand
		Disciplinary Suspension (without pay)
		Reduction in grade
Transfer to another post or station which may or may not involve a reduction in grade
Suspension/curtailment of travel facilities
Dismissal"

	There is also provision, as is usual in disciplinary procedures, for the normal process of warnings and so on not to apply to exceptionally grave misconduct, which may warrant summary action.

	The disciplinary charge against Mr Jackson, under which he was in the event dismissed, was expressed as follows:

"That on Tuesday 21st May 1991, when rostered to work as Senior Steward on circuit 186, the 06.24 ex Portsmouth Harbour to Waterloo, you were found to be in possession of a quantity of bacon and a loaf of bread which were not the property of InterCity On Board Services, but were in your possession for the purpose of engaging in trade or business for yourself during your rostered turn of  duty.

This is contrary to paragraph G43 of the InterCity On Board Services manual of standing instructions."

	It is plain that since Mr Jackson had not boarded, nor was he in the process of boarding the train, he was not in breach of the express prohibition in G43 of carrying personal food or drink items on the refreshment car.  The gravamen of the charge is quite clearly that the goods were in his possession for the purpose of engaging in trade or business, that is to say that he had the intention, not yet realised, of committing a substantive breach of G43. It seems to us that if there were clear evidence of such an intention, as for instance if he had made an admission of having that intention, that would have been grave misconduct which a reasonable employer could have considered to justify summary dismissal.

	Against that background one turns to look at the Tribunal's reasons for finding that the Applicant was unfairly dismissed, and they are to be found in para 7 of their Full Reasons:

"The conflict in the evidence was only regarding the purpose for which the offending items had been purchased, the respondents concluding that they were going to be used for re-sale on the trains contrary to their rules and the applicant stating that they were purchased for his own use for his supper that evening.  We, on these facts do not need to make any finding as to who to believe on these particular points of conflict.  However we conclude from the evidence that the reason for the dismissal within Section 57(2) was because of the applicant's conduct.  However we find that it was not reasonable of the respondents to conclude from the facts that they had before them that there had been "gross misconduct".  The only fact they had before them was that the applicant had approached the station to go into his locker carrying in a plastic bag a loaf of bread and 3 packets of bacon plus 2 cans of cold drink.  He gave a reasonable explanation to the investigating staff as to why he purchased these items but they did not believe him.  The Rule G43 under which the respondents purported to act states: [and that rule is quoted]
This was, it was admitted, to stop employees bringing goods onto the train.  The applicant had not bought any of his personal belongings on to the train he had only approached the station precinct and gone into the locker room.  The respondents in our opinion had "jumped the gun" and therefore had not got reasonable grounds for dismissing the applicant.  Further on the facts that they had before them summary dismissal was not a reasonable response to the conduct of the applicant."

	The grounds of Appeal are four.  The fourth is that:

"...the decision of the Tribunal was perverse: no Tribunal, directing itself correctly, could have concluded that no reasonable employer could have formed the view that the Respondent had been caught in the course of attempting to commit a serious criminal offence."

That ground was not argued by Mr Treverton-Jones for the Appellants and we do not have the Notes of Evidence in the Industrial Tribunal; that ground therefore did not feature in the argument before us and does not feature in our conclusion or reasons.

	Paragraph 3 of the grounds reads:
"The Tribunal further erred in law in concluding that the Appellant was not entitled to dismiss the Respondent under Rule G43 or otherwise, in the circumstances in which the Appellant reasonably believed that the Respondent had been caught in the course of attempting to commit a serious criminal offence."

However "in the circumstances in which the Appellant reasonably believed" begs the question, which in our judgment is whether the Tribunal was entitled to find that the Appellant, whatever its belief, had no reasonable grounds for that belief.  We are left therefore with grounds 1 and 2 which read: 
"1.The Tribunal failed to approach its task in the light of the guidance provided by the Employment Appeal Tribunal in British Home Stores Ltd -v- Burchell [1978] IRLR 379

 2.The Tribunal substituted its own view for that of the employer in implicitly criticising the Appellant's rejection of the Respondent's "reasonable" explanation."

As to the case of Burchell, it is true that that is not explicitly mentioned in the Tribunal's reasons, but in our judgment that is not the question.  Particular cases do not need to be expressly cited by Industrial Tribunals and the case of Burchell itself, however valuable and it is indeed a valuable guide is itself secondary to the statute.

	S.57 of the Employment Protection (Consolidation) Act 1978 reads in subsection (3):

"Where the employer has fulfilled the requirements of subsection (1), [and it is not in dispute that that was the case here because the employer had shown what the reason was, namely conduct, and it was a reason falling within subsection (2)] then, subject to sections 58 to 62, [and nothing turns on those in this case] the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case."

	The case of Burchell was not as a matter of fact cited to us either, but the substance of it is effectively set out in the Appellant's Skeleton Argument, paragraph 3, namely that three questions fall to be considered:

" (a) Did the board have a genuine belief that the Respondent was guilty of misconduct?"

It has not been in dispute that they did and that does not feature in the argument before the Tribunal or before us.  I shall come back to (b) and deal first with (c):

"(c) Had the Board carried out as much investigation as was reasonably required?"

As to that it might perhaps be thought that the reference in paragraph 7 of the Tribunal's Reasons to "jumping the gun" - the sentence in which they say:

"The respondents in our opinion had "jumped the gun" and therefore had not got reasonable grounds for dismissing the applicant."

- it might be thought that that was an expression of opinion as to whether there was as much investigation as was reasonably required, if by that the Tribunal were implying that the employers should have waited until after Mr Jackson had at least left the locker room before acting, but that way of looking at that expression seems to us to be excluded by the fact that it was quite plain from Mr Goodenough's report, which was before the Tribunal, that Mr Goodenough believed that Mr Jackson was in the process of putting the contents of the bag into the locker.  If that was what he was doing then it is understandable that Mr Goodenough felt that he had to act then, if at all, and there is support for that in the case put on Mr Jackson's behalf to the Disciplinary Hearing and the Disciplinary Appeal, namely that Mr Jackson had spotted Mr Goodenough before Mr Goodenough had spotted the bag.  Therefore in our understanding the reference by the Tribunal to "jumping the gun" cannot properly be understood as a suggestion that on that particular occasion the employers should have waited longer.  It is however germane to the question whether, having to act at that juncture, they were justified in taking the course they did of suspending and then summarily dismissing Mr Jackson, and therefore I come back to (b), the second limb of the test as put in Burchell:

"(b) Was that belief founded upon reasonable grounds?"

which itself is plainly a paraphrase of the statutory words, ie the question:
"whether the dismissal was fair or unfair ...shall depend on whether ...the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee"

and that is in our view the nub of this Appeal.

	Paragraph 7 of the Tribunal's Reasons which I have already read contains, in our judgment, five crucial passages.  The first is, having set out the conflict of evidence, the sentence:
"We, on these facts do not need to make any finding as to who to believe on these particular points of conflict"

which indicates that the Tribunal had clearly in mind that it was not for them to substitute their judgment for that of the employer.  Then the sentence:
"However, we find that it was not reasonable of the respondents to conclude from the facts that they had before them that there had been "gross misconduct"."

which has not been criticised and is not we think open to criticism as a fair summary of the question which it was for them to consider.  Then there is the sentence:
"He gave a reasonable explanation to the investigating staff as to why he purchased these items but they did not believe him"

I shall come back to that.  And then the last two sentences of para 7:
"The respondents in our opinion had "jumped the gun" [I have dealt with that] and therefore had not got reasonable grounds for dismissing the applicant"
That last phrase again is in our view a proper way of posing the question before the Tribunal. And finally:
"Further on the facts that they had before them summary dismissal was not a reasonable response to the conduct of the applicant."
That in our judgment is plainly a reference to the point that it is a matter for the Industrial Tribunal whether, quite apart from the question of whether there was any fault on the part of the employee, the action taken by the employer, in this case a summary dismissal as opposed to any of the other penalties available, was within the range of reasonable response of a reasonable employer.

	The sentence:
"He gave a reasonable explanation to the investigating staff as to why he purchased these items but they did not believe him"

seems to us to be the high point of the Appellants' criticism and indeed Mr Westgate for Mr Jackson was disposed to concede that if that sentence stood alone as the Tribunal's reasons for their decision it would not be defensible, although for ourselves we very much doubt that "reasonable" can mean the same here as in the other passages.  But he points out that it does not stand alone, and submits that it should be considered in context.  We agree.  The other crucial sentences and findings in para 7, as I have indicated, are in our view unexceptionable and show the Tribunal to have been asking itself the correct question and directing itself correctly as to the law.

	In those circumstances we have come to the conclusion that to allow the Appeal on the basis of that one sentence, the one containing the words "He gave a reasonable explanation", would amount to what Lord Russell of Killowen in the case of Retarded Children's Aid Society Ltd v Day [1978] ICR 437, was criticising at page 444:

"...care must also be taken to avoid, in a case where the Employment Appeal Tribunal members would on the basis of the merits and the oral evidence have taken a different view from that of the industrial tribunal, searching around with a fine tooth comb for some point of law"

and it would in general, in our judgment, be contrary to the guidance afforded by that case, not just in that one sentence of Lord Russell's but also in the judgment of Lord Denning.  

	The only other passage in para 7 which it might be suggested, in our view, shows the Tribunal applying a wrong test, is their citation of Rule G43 and their sentence 
"The applicant had not bought any of his personal belongings on to the train he had only approached the station precinct"
and it might be argued that that, if it stood alone, might suggest that the Tribunal was paying undue regard to the last sentence of Rule G43 and not to the gravamen of the employers' case and the disciplinary charge brought against the employee, namely that they were concerned with his intention in having the food with him.  We do not consider ourselves entitled to conclude that the Tribunal dealt with the matter on that mistaken basis, again having regard to the repeated statements by them of the test which they properly had before them of asking whether the employers acted reasonably and had reasonable grounds for their belief and for their dismissal of the employee.

	Just as the Industrial Tribunal must not substitute its decision for the employers', in matters within the employers' responsibility, so we must not substitute ours for the Tribunal's in matters within their competence.  It is within their responsibility to find whether in the terms of S.57(3) of the Act the employer acted reasonably or unreasonably in treating the employee's conduct as a sufficient reason for dismissing the employee; and we conclude that that was what the Tribunal was addressing itself to in finding that the employer had not got reasonable grounds for dismissing the Applicant.

	A fortiori, they were entitled to find, as they did, that on the facts before the employers summary dismissal was not a reasonable response to the conduct of the Applicant in circumstances where the employers had a range of lesser penalties available, and for those reasons we are unanimously of the view that this Appeal should be dismissed.