Appeal No. EAT/339/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 24th October 1994
	Judgment delivered on 4 July 1995

	Before

	HIS HONOUR JUDGE J BULL QC

	MRS M L BOYLE

	MRS R CHAPMAN

THE POST OFFICE	APPELLANTS

MR P COOKSON	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR N HINCHLIFFE
(of Counsel)
Davies Wallis Foyster
37 Peter Street
MANCHESTER
M2 5GB

For the Respondent	MR M O'NEILL
(of Counsel)
Stockton & Hartlepool Law Centre
79 Norton Road
Stockton-on-Tees
Cleveland
TS18 2DE

His Honour Judge Bull QC        This is an appeal by the Post Office against the decision of the Industrial Tribunal sitting at Middlesbrough on 14th January 1993 by which it awarded to Mr Paul Cookson compensation for unfair dismissal in the sum of £4,506.

	Mr Cookson had been employed by the Appellants as a Delivery Driver for "Parcelforce", upon a trial period from 18th December 1989 to 22 February 1992.  On 23rd July 1991 Mr Parker, the Assistant District Manager, held an interview with Mr Cookson to review his employment record during his initial 12 month trial period subsequently extended for a further 12 months.  At the conclusion of that interview the Assistant District Manager stressed to Mr Cookson that unless there was a significant improvement within a short period of time, then his trial period of employment with Parcelforce might be terminated.

	An unfavourable report on the Applicant was prepared by Mr Robinson on 25th October 1991 and sent to Mr Parker.   On 19th November 1991 Mr Cookson was warned about his absences.  Finally a letter dated 5th November 1991 was sent terminating his employment from 4th February 1992.  Mr Cookson then exercised his right of appeal to Mr Jopling, the Personnel Manager for the North of England.  Having discussed the matter with others, Mr Jopling made the decision to reject Mr Cookson's appeal against his dismissal.

	Having summarised the facts, the Industrial Tribunal set out their reasons in paragraph 6:

		"6.  The Tribunal did not hear evidence from Mr Robinson but was told that he was ill and had been absent from work for some time and had been absent during the period leading up to the applicant's dismissal.  Mr Foley told Mr Jopling that he had no difficulties with the applicant in the time in which he had been his manager.  The Tribunal was of the view that almost the whole of the information upon which the decision was made to dismiss the applicant came from Mr Robinson.  The applicant had said in evidence that Mr Robinson had victimised him and having heard the applicant the Tribunal could not be satisfied that that was not the case.  The Tribunal generally found the applicant a satisfactory witness, as were the witnesses for the respondent, but having found the applicant a satisfactory witness, and not having heard from Mr Robinson, the Tribunal considered as a real possibility that there had been victimisation.  Although Mr Parker and Mr Jopling had investigated the question of victimisation, this was only done on the basis of asking Mr Robinson about it and speaking to his Assistant Depot Managers about it.  No evidence was heard from those Depot Managers.  The Tribunal was generally unsatisfied with the evidence called on behalf of the respondent in this area.  The Tribunal therefore concluded that there may well have been a personality clash between the applicant and Mr Robinson which had led to his dismissal and having found that, and having found the applicant generally satisfactory, and bearing in mind that it was common ground that he had always met his targets as set by Parcelforce, the Tribunal was of the view that he had been unfairly dismissed."    

	Mr Hinchliffe, for the Appellants, criticises the Industrial Tribunal upon the basis that they stepped into the shoes of the employer rather than assessing the evidence available for the employer at the time when the Appellant's appeal was dismissed.  As Mr Justice Wood said in giving the judgment of the EAT in Linfood Cash & Carry Ltd v. Thomson [1986] IRLR 235 at paragraphs 22 - 23:

		"... and it should never be forgotten that cross-examination by experienced advocates may produce a picture not made evident during the disciplinary procedure.  For the Tribunal merely to prefer one witness to another might well not be sufficient as this could be to substitute their own view.  The employers have the peculiar advantage over the Tribunal of having an intimate knowledge of the geography, the nature and workings of the business, and the various members of the staff."

Particular criticism is focused upon the sentence in paragraph 6:

		"The Tribunal ... having found the applicant a satisfactory witness, and not having heard from Mr Robinson, the Tribunal considered as a real possibility that there had been victimisation."

The point is made that in applying the three tests laid down under British Homes Stores v. Burchell [1978] IRLR  379 (EAT), the Tribunal substituted its own view for that of the employer.  The second test under British Home Stores v. Burchell adapted to this case would be to ask whether the employers had reasonable grounds upon which to sustain the belief that there had not been victimisation.

	Further criticism is made of the further passage in paragraph 6 when having commented that no evidence was heard from Depot Managers the reasons continue -
		"The Tribunal was generally unsatisfied with the evidence called on behalf of the respondent in this area."

This passage too is criticised upon the basis that the Tribunal substituted their own view for the proper analysis of the view formed by the employers as required by British Home Stores v. Burchell.

	We are driven to the conclusion that these criticisms are well-founded and that we must allow this appeal, which we do with reluctance and find ourselves obliged to remit it for a re-hearing before a differently constituted Industrial Tribunal.