Appeal No. EAT/187/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 6 July 1993

	Before

	THE HONOURABLE MR JUSTICE TUCKEY

	MRS M L BOYLE

	MRS M E SUNDERLAND JP

MERSEYSIDE TRANSPORT LTD	APPELLANTS

MR D JONES	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MISS J BEALE
	(OF COUNSEL)
Messrs Mace & Jones
Drury House
19 Water Street
Liverpool
L2 ORP

For the Respondent	MR A ROBERTSON
	(UNION OFFICIAL TGWU)
TGWU
Transport House
Islington
Liverpool
L3 8EQ

	MR JUSTICE TUCKEY:  Following a hearing on 18 January 1993 an Industrial Tribunal in Liverpool decided by a majority that the Respondent to this appeal, Mr Jones, had been unfairly dismissed by his employers Merseyside Transport.  They appeal to this Tribunal against that decision on a number of grounds.  The facts giving rise to the hearing before the Tribunal are as follows:

	Mr Jones was employed by the Appellants as a bus driver from 1981 to March 1989 and then again from August 1989 until the date of his dismissal in 1992.  On 30 March 1992 an inspector employed by the Appellants was approached by a passenger who produced to him a ticket which had been issued by Mr Jones.  The ticket was blank.  The passenger stated that he had paid 70p for it.  If it had been a proper ticket it would have recorded that amount of money on its face.  The machine which issues the ticket is electrically controlled from the battery of the bus and is linked to a computer which is able to print out details of all the tickets issued by the bus.

	The Inspector reported what he had been told to his superior and was instructed to inspect the bus which Mr Jones was driving the following day.  He did and found a passenger on the bus who also had a similar blank ticket for which the passenger said she had paid 80p.  The Appellants believed that the only way in which such blank tickets could be issued was by pressing two buttons on the side of the machine which it is necessary to do when putting a new roll of ticket paper in or if the roll jams, but obviously quite wrong to do when issuing a ticket to a passenger who has paid a fare.  Their belief was that this amounted to gross misconduct by the Applicant who could not have done it accidentally.  They had checked the machines on both the buses (different machines on different buses were involved) and concluded that the blank tickets must have been issued deliberately and dishonestly.

	Mr Jones was seen by Mr Lawrenceson, the Inspector's superior, on 1 April.  He was unable to give any explanation for what had happened apart from saying that it must have been a mistake and that he had not done anything dishonest.  Mr Lawrenceson did not accept that and dismissed him.  The following day there was an appeal and that appeal was dismissed as indeed was a further appeal, the day after that.  At each of these stages no-one could produce any explanation other than the one to which we have referred as to how the blank tickets came to be issued.

	On 23 April the decision to dismiss was reviewed by a director and at this review Mr Jones was represented by Mr Robertson, a senior trade union official, who appeared for him at the Industrial Tribunal and appears for him today before us.  It was conceded at that stage that it was possible to make the machine produce blank tickets but that such tickets were different in form to those which had been found issued to the two passengers on Mr Jones' buses, because they were only half the size of such tickets.  The director refused to recommend a variation of the decision to dismiss.  Hence the application to the Tribunal with the result to which we have referred.

	The Tribunal having referred to the evidence concluded by saying that they had to consider whether or not the Appellants were satisfied on reasonable grounds that the Respondent had been guilty of deliberately issuing blank tickets and thereby obtaining money intended for the Appellants and if there had been a reasonable investigation.  That is an adequate summary of the Burchell principles which require the Tribunal to ask itself the questions - (1) has the employer got reasonable grounds for its belief at the time of dismissal (2) has that belief been formed after such investigation as was reasonable in all the circumstances of the case and (3) was dismissal a disciplinary sanction within the range of reasonable responses to the facts as found.

	The Tribunal however go on to say:

		"The two members considered that, in view of the excellent record of the applicant, and that great reliance had been placed on the accurate working of the electronic machines, the investigation had not been adequate to convince a reasonable employer of the applicant's guilt.  They felt that a reasonable employer would have carried out further checks on the applicant's activities after that held on 1 April. and that in view of the lack of an adequate investigation the dismissal was unfair.  The Chairman did not agree with this, and considered that the respondent was entitled to decide on the balance of probabilities that the applicant was guilty, since the blank tickets had been issued from two different machines on two different buses, and accordingly that the investigation had been adequate.  He therefore considered that the dismissal was fair."

	The Appellant has a number of grounds of appeal but the first of those grounds is that:

		"the majority of the Tribunal misdirected themselves in law as to the standard to which the appellant was required to be satisfied that the respondent had committed the gross misconduct for which he was dismissed.  They held that the quality of the material before the appellants was inadequate "to convince a reasonable employer of the [respondent's] guilt".  They ought to have held (as did the learned Chairman) that the appellant "was entitled to decide on the balance of probabilities" that the respondent had committed the said misconduct."

That ground of appeal seems to us to be well founded.  We bear in mind that it is not appropriate for this Tribunal to construe and analyse in minute detail the words used by the Industrial Tribunal in expressing its decision.  We do not know precisely what the members meant when they said
		"had not been adequate to convince a reasonable employer"

but there is a notable distinction between what they say and what the Chairman says ("entitled to decide on the balance of probabilities"), a notable distinction in the language used.  We believe that it may be that the two members were applying too high a standard of proof to the situation since they reached one conclusion and the Chairman (who correctly directed himself) reached another.  Balance of probabilities means what it says but the Courts have made it clear that the more serious the allegation the greater the proof required.  This was an allegation of dishonesty and accordingly it was for the employers to satisfy themselves to a high standard of Mr Jones' guilt but that said, it does seem to us that there may have been an error of approach by the two members whose majority decision is the subject of this Appeal - the employers did not need to be "convinced".  We think the Appeal should be allowed on this ground.
 
	We are also unhappy about the reason which the majority give for their conclusion that the investigation was inadequate, namely that further checks should have been carried out on the Respondent's activities after 1 April.  Since the Appellants relied on two instances of issuing the blank tickets and it was not and could not have been contended that, if there was dishonesty on those two occasions, the dismissal was unfair,  we have difficulty in understanding how it could be regarded as reasonable for the employers to carry out further checks on dates or times subsequent to those which formed the basis of the allegations against Mr Jones.

	Be that as it may, the next question is whether in these circumstances, it is appropriate for this Tribunal to substitute its own view as we were urged to do by the Appellants, or to remit the matter for a further hearing by an Industrial Tribunal.

	The circumstances in which this Court substitutes its own view for those of the Industrial Jury, as they are called, are rare.  This Tribunal must be satisfied that there is no other possible conclusion on the facts found.  That is not the position here.  We believe that it would be possible for another Tribunal to take the view that the employers did not carry out such investigation as was reasonable in all the circumstances having regard to the possibility that these tickets could have been produced as a result of some defect in the machines or the buses.  That being so it is not appropriate to substitute our own view.  We do not say any more than that.  The matter will be heard afresh by another Tribunal and it will be for them to decide whether or not there is any substance in this point having heard the evidence and the arguments advanced on behalf of both sides.

	Accordingly this Appeal will be allowed and the matter will be remitted for rehearing before a different Tribunal.  It is of course unfortunate that that is the result and we are conscious of the fact that it involves both parties in additional expense and time but we think that that is the just solution here.