Appeal No. EAT/381/93
	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 14 December 1994

	Before

	THE HONOURABLE MR JUSTICE HOLLAND

	MRS R CHAPMAN

	MR J D DALY

MR P HUDSON and MR A LEWIS	APPELLANT

LANCASHIRE DAIRIES LIMITED	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR THOMAS LINDEN
(OF COUNSEL)
Messrs Pattinson & Brewer
Solicitors
30 Great James Street
London    WC1N 3HA

For the Respondents	MR A T PARKINSON
(Solicitor)
Messrs Gorna & Co.
Solicitors
Virginia House
Cheapside
King Street
Manchester   M2 4NB

	MR JUSTICE HOLLAND:  This is an Appeal from an Industrial Tribunal sitting at Leeds on 9th March 1993.  On that day that Tribunal had before it two Applicants, Mr Hudson and Mr Lewis, each Applicant alleged unfair dismissal by the employer Respondents.  In the event, the Industrial Tribunal found that neither Applicant had been unfairly dismissed.  Both appealed against their decision.

	Turning to the circumstances they are as follows.  Both Applicants had worked for the Respondents prior to dismissal as boiler men, each working on a separate shift.  Mr Hudson had worked for them since May 1980, Mr Lewis since August of 1972.  The Respondents as employers have been for some time, concerned to stamp out a practice that was described as "cross-clocking".  By that practice, we understanding the punching of a clock card by one employee for another.  It is plainly a practice that is open to abuse and that certainly was the view taken by the employers with the result that on 28 November 1991, they put in each pay packet in the following terms:

"NOTICE TO ALL STAFF

	CROSS CLOCKING OF TIME CARDS

	ANY PERSONS FOUND TO BE INVOLVED IN THE CROSS CLOCKING OF TIME CARDS I.E. CLOCKING ON OR OFF FOR SOMEBODY ELSE WILL BE DISMISSED.
	CROSS CLOCKING IS AN ACT OF GROSS INDUSTRIAL MISCONDUCT!!
	THIS WILL APPLY TO THE PERSONS CLOCKING THE TIME CARD & THE PERSONS FOR WHOM THE CARD WAS CLOCKED.
	NO EXCEPTIONS WILL BE MADE.

				N. FEE
				DIARY MANAGER"

	Both the Applicants received a copy of that notice.

	On Sunday, 27 September 1992, Mr Hudson started work at 3.30 a.m. and almost immediately had an accident.  The effect of that accident was that he regarded himself as unable physically to undertake his duties.  In the result, he rang up Mr Lewis at his home and asked him to cover for him, that is, to come in to do his work while he, Mr Hudson went to hospital.  It is common ground that it was important for the Respondents that the boilers should be attended at this time, so that production could start appropriately at the appointed hour.  Mr Lewis agreed to come in, if Mr Hudson would clock him in.  Thus it was that over the 'phone Mr Lewis invited Mr Hudson to "cross-clock".  Mr Hudson agreed and at 3.42 did just that.  Mr Lewis arrived at work just after 4.00a.m. and in the event, continued working in the absence of Mr Hudson until 12.30p.m., so as to put in an appropriate shift.  It seems that in the course of this shift, the cross-clocking was discovered by the charge-hand fitter.

	On Monday, 28 September Mr Hudson did not report for work being presumably still injured.  Mr Lewis did report in at 4.00 a.m. and completed his normal shift.  On the Tuesday, 29 September, Mr Lewis was suspended and on Wednesday, 30 September there was a disciplinary hearing concerning both men in the course of which this cross-clocking was the subject of investigation.  The Respondents caused a careful note to be made of proceedings at this hearing and it is readily apparent that they were thorough.  In the result at a resumed hearing on 1 October, both men were told that they were dismissed.  That dismissal was subsequently confirmed in a letter of the same date, which reads as follows:

	"...Confirmation of Dismissal

		This is to confirm that because of your involvement in the cross clocking incident on the morning of September 27, 1992 you were dismissed from the company at 9.00 AM today.

		This dismissal follows the general warning you received in November 1991, regarding cross clocking.

		The offence, which you admitted, amounts to Gross Industrial Misconduct and as such you are not entitled to notice, you will be paid up to and including Wednesday September 30, 1992.

								T.P. SWEENEY
							GROUP PRODUCTION MANAGER..."

	It is against this dismissal that both Applicants complain.  The complaints fell to be resolved by the Industrial Tribunal in the light of the provisions of Section 57 Employment Protection (Consolidation) Act [1978].  In the event, the Industrial Tribunal dealt with the matter succinctly, having directed themselves in paragraph 3 of the Full Reasons that:

	"...3.	The facts of the incident were simple and not in dispute..."

	They then set out the facts very shortly and then at paragraph 5 went on as follows:

	"...5.	The applicants were both long serving employees with no disciplinary matters recorded against them.  Mr Lewis had assisted the respondents by agreeing to take over from Mr Hudson who had been hurt on Sunday 27 September.

	The respondents were aware of these matters but took the view that, in absence of any plausible/acceptable explanation from the applicants about their actions and bearing in mind the November 1991 notice, they were justified in dismissing the applicants in view of the act of gross misconduct.

	6.	It was accepted on behalf of the applicants that clocking offences were acts of gross misconduct.  It was however contended that the respondents had other courses of action which could have been adopted bearing in mind the particular circumstances of the 2 applicants and of the day in question.

	7.	The tribunal considered the provisions of section 57(3) of the Employment Protection (Consolidation) Act 1978 and find that the respondents decision to dismiss even though it could be viewed as somewhat harsh in the circumstances, was a decision which did fall within the reasonable range of responses which could have been expected from an employer.

	The applications are therefore dismissed."

	In presenting the appeal on behalf of the Applicants, Mr Linden understandably does not challenge such directions as to law as emerged from those reasons and in particular, and understandably, he does not challenge the formulation of the test posed by Section 57(3) as set out in paragraph 7.  What he does submit, however, falls broadly on two bases.  First, he submits, that the Industrial Tribunal appear only to have considered the position on a limited basis, that is the basis of joint participation in a one-off cross-clocking exercise.  He draws attention to the full facts as they appear, first from the notes at the proceedings at the disciplinary hearing and second from the notes of the proceedings before the Industrial Tribunal and he submits obviously correctly, that the Industrial Tribunal has not made findings of fact relating to certain of the issues that were raised before it.  Thus, for example, it has not made a finding as to fact as to whether Mr Lewis sought to cover his tracks after the cross-clocking exercise, yet further, it had not made any findings as to fact, which seek to bear upon the respective roles of each of the Applicants.  Thus it is, he submits, that the Industrial Tribunal misdirected itself as to the factual issues for its resolution, so that the decision is open to challenge in this Court.  This Tribunal has carefully considered those submissions, but has to say that there is nothing in them, however attractively they have been put to us.  What we note is that this Industrial Tribunal heard the full evidence and itself posed plainly pertinent questions.  When, however, it came to give its reasons, it effectively postulated the facts that were most favourable to the Applicants and certainly more favourable to them than such that were being contended for on the part of the Respondents.  We read the reasons as being based upon this simple premise that there was this single cross-clocking offence committed after and in the face of the written warning of 28 November.  On that premise, the Industrial Tribunal asked itself whether dismissal was within the range of reasonable responses of the employers and decided that it was.  Thus it was that they came to the conclusion that the dismissals were not unfair.  We cannot fault that approach.  It seems to this Tribunal to be an approach that is correct in law and as to fact, it is, as we have pointed out, favourable to the Applicants.  It was thus for the Tribunal having properly directed itself as to fact and law to make a decision as to that range of responses; we have their decision; it is not for this Tribunal to substitute some other and different decision.

	The final submission made in the alternative by Mr Linden is that the decision of the Industrial Tribunal was perverse, that is, that it was a decision that no reasonable Industrial Tribunal properly directed could arrive at.  To advance that submission, he put to us arguments which we are sure precisely match those that had been put to this Industrial Tribunal and which resulted in that categorisation of the decision to dismiss as "harsh".  We are, however, entirely satisfied that this decision of this Industrial Tribunal could not be dismissed in any way as perverse; it was a decision that was entirely within its ambit, given the evidence that was before it and given the range of responses that that evidence gave rise to.  Thus it is that we find nothing in the second basis upon which Mr Linden puts the matter to us; thus it is overall, we have to dismiss this Appeal.