Appeal No. EAT/628/92

	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9 June 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MR S M SPRINGER MBE

	MRS M E SUNDERLAND JP

THE POST OFFICE	APPELLANT

MISS M ROACH	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR B CARR
(OF COUNSEL)
The Solicitor
Post Office
Impact House
2 Edrige Road
Croydon CR9 1PS

For the Respondents	MR M KAY
(OF COUNSEL)
Messrs Simpson Millar
101 Borough High Street
London Bridge
London SE7 1NL

	JUDGE HULL QC:	Miss Roach was employed as a Post Office Clerk at various offices, Wembley, Edgware, Queensbury and Kenton, where, so far as we know, she carried out her duties satisfactorily until certain very unhappy matters arose.  

	The story starts with her confiscating two pension books, or orders, which were presented to her and which she had reason to believe were stolen.  As a result of this, she was threathened.  We do not know all the circumstances, but it was said that "an eye would be kept on her".  On a later occasion, when she had moved again, pension cheques or orders which she had reason to know, or believe, or suspect, were stolen, were presented to her and under the influence of these threats, which were repeated on this occasion, she cashed them.  She had been followed from branch to branch apparently, attempts were made to follow her, phone calls were made.  

	We do not need to go into the details.  No doubt she could, and should, immediately have gone to those in authority over her.  Her position was all the more difficult because she lived on an estate where crime is only too common, and where very possibly these criminals came from, who were threatening her.  She was at the time, when she handed over the money, pregnant and indeed at a very advanced stage of pregnancy.  Again, we do not need to go into all the details because the finding was that she was terrified by these threats.  She, on several occasions, handed over money in payment of orders which she believed, or suspected, were not come by honestly.  A total of £4,000 passed over the counter by her actions.

	This was a situation of a very grave sort from the point of view of the Post Office.  She did not say anything at the time, being terrified by what had been said to her.  Eventually she did seek assistance from a Counsellor, employed by the Post Office.  She wanted to know what she should do.  Apparently she was told that there were two alternatives.  She could regard it simply as a confidential matter between her and the Counsellor, or she could report the matter, when there would be an investigation, and it would be looked into officially by the Post Office.  She did decide of her own initiative that she wanted to report the matter, and she did so.  There followed an interview with Mr Owen, of a disciplinary sort, we have been shown today the notes of that interview.  The relevant part, is at page 35:

"Mr Owen said that he had every sympathy with Miss Roach's case and believed that she had been threatened and received no personal gain, however the Post Office employ staff for their integrity and that after the first time Miss Roach should have gone to her Branch Manager.

Therefore, Mr Owen informed Miss Roach that she would be dismissed from tomorrow...."

	The fact was that Miss Roach did not feel that she could go to her Branch Manager, she had apparently found that he was remote and unhelpful.  Again, we are not required to consider whether that is a just view of him or not.  The fact is that this young woman, at a vulnerable stage in her life, was acting under very unpleasant threats.  Mr Owen said that she would be dismissed and he was on leave shortly thereafter and Mr Romo, his deputy, actually wrote the letter.  

	There is an unfortunate confusion over whether Mr Romo should in fact be treated as the dismissing officer.  He accepted, or was thought to have accepted, that he was the dismissing officer.  But he was relying very heavily on the investigations of Mr Owen and the view which Mr Owen had formed and although he did address his mind to it, he certainly was not the person who carried out the most important investigations.  On the 4 June 1991, Mr Romo signed the letter of dismissal.  Miss Roach appealed to Mr Scarborough, a more senior officer.  Mr Scarborough was also moved by sympathy for her, his record is at page 42 of the bundle put before us today.

"While the breach of trust committed by Maria Roach was a severe one, costing the Business several thousand pounds, and taking place over a period of weeks, the reason behind it were far from straightforward.  Thus, while the decision to dismiss her summarily was consistent with the view that she had acted dishonestly, I was unhappy that this was an accurate reflection of what had taken place.

In my view Maria Roach acted as she did as a result of the threats made against her, compounded by her inexperience and the lack of a supportive atmosphere in the office in which she worked."

	Now that was Mr Scarborough accepting a measure of criticism of his own organisation and very fairly accepting it.  There should, if young women in a vulnerable position are entrusted with the responsibility for large sums of money, be a supportive atmosphere and there ought to be a proper system for regularly supervising their work and ensuring, so far as can be, that they are not subjected to unfair pressure from wicked people who wish to exploit them.  To that extent responsibility was accepted by Mr Scarborough.  

	He went on:

"I believed her when she said that she had felt inhibited about approaching her Branch Manager, and must comment that such a statement from a young, black, female member of staff is most disturbing."

	So that was what Mr Scarborough said and very fairly said in considering her case.  Nevertheless, he felt that in all the circumstances, in spite of the fact that he  accepted that she had not been dishonest, that it was a case in which dismissal was inevitable and he thought that all he could do was to say that dismissal ought to be on notice.  

	Then Miss Roach complained to the Tribunal that she had been unfairly dismissed.  The Tribunal clearly went into it with considerable care.  They Tribunal sat on the 16 July under the Chairmanship of Mrs Prevezer, with two Industrial Members, at London North.  They said out that the case was unusual and that the facts were not in dispute.  They went through some of the facts which I have mentioned.  They treated Mr Romo as the dismissing officer but it does appear to us that no serious affect was produced by that mistake if it was a mistake.  They went on to consider the facts of the case.  They set out what Mr Scarborough had found and he also considered the fact that she had told the welfare officer the full story and that he had accepted that the more normal response in the circumstances would have been to resign and hope the matter would not come to light.  He concluded that her motives for acting as she did appeared entirely reasonable and indeed the most likely explanation.  Certainly, it was a matter of credit to her that when she was told by the care officer, who had heard what she had to say, that she had the alternative of simply keeping quiet and keeping it confidential, she insisted that it must be reported. 

	They say as follows, with regard to Mr Scarborough:

"He felt the Applicant had acted as a result of threats made to her compounded by the inexperience and lack of supportive atmosphere in the office where she worked.  However, having said that, he came to the conclusion that this was a very serious offence and was sufficient to warrant the penalty of dismissal, but with notice.  He stated that the conduct of the Applicant had destroyed the confidence in her integrity and reliability.

We find that the Applicant was dismissed for misconduct that has destroyed confidence in the integrity and her reliability, but the reason why she so acted had been accepted by the Respondents.  We find therefore that the dismissal with or without notice was not within the reasonable band of responses which could be expected from a reasonable employer bearing in mind the peculiar circumstances of this particular case.  The Respondents had accepted completely the Applicant's explanation and obviously accepted that she had not been dishonest and, although there had been misconduct they were only maintaining that this conduct had destroyed the confidence in her integrity and reliability.  We do not feel that dismissal was a reasonable response to that."

	Of course it was not a question of how they would have acted but whether it was a reasonable response for an employer, any employer, that concerned them; and we feel that they had sufficiently set that out before and dealt with that.  This shorthand way of putting it does not in any way damage their decision.  If they had said "we do not feel the dismissal was a rational response to that", that would have met the objection which Mr Carr today has made to that sentence.  We therefore find, they say, that the Applicant has been unfairly dismissed.

	Now clearly, if this young woman had been convicted of dishonesty or reasonably suspected; if the employers had reasonably believed that she had been dishonest, it would have been impossible to say that a reasonable employer could not dismiss in those circumstances.  The employers might have concluded that although she was acting dishonestly and in collusion with others, nonetheless she was frightened of them and that was some mitigation.  That is often seen of course in criminal circles.  Very often one person does something and another person helps them and these people, it is said, are acting in fear of the person who is truly organising it, the chieftain.  They are still acting dishonestly.  Their will is not overborne, they are not acting under duress, but one of the matters which they are entitled to say in mitigation is "I was afraid of Mr so and so, who told me to do it".  That is a matter of mitigation in a criminal court and indeed to any reasonable person.  

	But here it was accepted that this young woman was not acting dishonestly.  In other words it was accepted by the Post Office, by all who considered the matter, that the degree of terror to which she was subjected was such that her will was overborne.  Not only was she not making any gain from this for herself, but that she was not acting as a free agent, and not acting dishonestly.  If she was acting voluntarily, whether she was making a gain or not in taking public money improperly, she was acting dishonestly.  The Post Office found that was not so, that she was not acting dishonestly.  

	In those circumstances it was for the Industrial Tribunal to decide whether dismissal was within the range of reasonable responses which an employer might show in the circumstances.  They not only had in mind that the fear to which this young woman was subjected was such that she was not acting dishonestly.  As they say, the facts are not in dispute.  But they also no doubt, indeed it is perfectly clear, had in mind the very humane and just remarks made by Mr Scarborough when he said that this was a very disturbing situation.  We are quite sure they also had in mind her own conduct in going to her employers and the very unfortunate fact that she lived on an estate where crime was rife and that had perhaps contributed to the terror which she felt when she was threatened.  

	It may very well be that another Industrial Tribunal would have reached a different conclusion, or that several such Tribunals would have reached different conclusions on these facts.  It really carries it no further to say that.  The fact is that this Industrial Tribunal, directing themselves so far as we can see in every way properly, concluded in the very exceptional circumstances of this case that there being no dishonesty, that this young woman therefore having her will overborne by terror, had gone herself to her employers, having been prevented from doing so earlier, at any rate in part, by the fact that there was so little support and sympathy for her so little supervision and back up which one would look for in such a situation.  

	Taking all that into account, this Tribunal found that in the circumstances, of which they heard far more than we did, it was not a reasonable reaction for these employers in the circumstances to choose the option of dismissal.  It matters not to say that another Tribunal might have reached a different decision, or that it might be said to a strong decision against the employers.  This Tribunal heard the witnesses and was able to assess the weight of what was said on behalf of Miss Roach and on behalf of the Post Office.  We certainly hope that it is quite an exceptional case; that such pressure can be brought to bear on an employee of the Post Office in a vulnerable position without that employee feeling that the right and proper thing, and the easy thing to do, immediately, is to report what has happened.  That was not this case.  This young woman, who was seen by this Industrial Tribunal, felt inhibited, both by what she suffered from the criminals and by the state of affairs in the Post Office where she worked, from going to the Branch Manager.

	In the circumstances the Tribunal found the Post Office should not have made this decision and went outside the range of reasonable responses.  It is not a general criticism of the Post Office at all, it is a decision very much on its own facts.  We think that this Tribunal was well entitled to reach the decision which they did on these very particular facts and we do not find that there was any error of law which would enable us to interfere.  We do not find that there was such irrationality as would enable us to say that this was a perverse decision and indeed we do not find any irrationality at all.  Therefore the appeal will be dismissed.