Appeal No. EAT/922/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 7 December 1995

	Before

	HIS HONOUR JUDGE H J BYRT QC

	MR D G DAVIES

	MR K M HACK JP

DONCASTER METROPOLITAN BOROUGH COUNCIL	APPELLANTS

MR S SHINN	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR S JACK
(Of Counsel)
Sharpe Pritchard
Elizabeth House
Fulwood Place
London
WC1V  6HG

For the Respondent	MR P EPSTEIN
(Of Counsel)
Legal Department
UNISON
1 Mabledon Place
London
WC1H  9AJ  

			MR JUSTICE BYRT QC:   This is an appeal from a decision promulgated on 29 July 1994 by the Sheffield Industrial Tribunal when they unanimously held that the Applicant, who is now the Respondent, had been unfairly dismissed.

	The facts as found by the Tribunal are as follows: that the Respondent, Mr Shinn, began working for the Appellants in October 1980, some 13 years before the events with which we are immediately concerned.  Latterly he was employed by them as an Enforcement Officer in the Trading Standards and Public Safety division of the Environmental Services Department of the Appellants.  He was responsible to a Mr Parton, who is the Chief Trading Standard Officer.  His duties involved helping the public with any enquiries they may have concerning the fibre content of woollen material.  In addition to that, from time to time, he was expected to act as a witness in both civil and criminal proceedings.  Otherwise, essentially, his job was a desk job.

	On 12 July 1993 he stayed at home suffering from pharyngitis and he was prescribed a 5-day course of penicillin for it.  On 20 July he obtained a general practitioner's certificate stating that he would be fit for work on Monday 26 July.  For the period of time he was absent, he was in receipt of full pay from the Council.  However the story became more complicated when two members of the central audit department of the Council, acting on information, kept observation on Mr Shinn.  On 23 July at about 3.15 a.m., they saw him drive up to the depot of John Menzies, the newsagents and distributors, alone in a van.  He loaded it with large packets of newspapers using a trolley for the purposes of conveyance.  This loading process took something like 1/2 hour and was described as strenuous manual work.  He then had to deliver the newspapers.  In all he was away from home for 21/2 hours.

	The explanation for this happening was that he was helping his wife.  She had arranged for another to do this job of collecting the newspapers, but that person had let her down.  She had attempted to get somebody else by phoning around, but had been unsuccessful and so Mr Shinn stood in.  Later on 23 July for completeness sake, as the Industrial Tribunal put it, they related how his wife, Mrs Shinn, telephoned Mr Parton in the afternoon and gave him a message to the effect that her husband, Mr Shinn, was still quite ill but might be back at work on Monday 26 July.  On 26 July Mr Shinn reported for work.  He was met by Mr Parton and one of the two audit department officers who had been keeping observation.  They put to him what they had seen.  Mr Shinn declined to answer until he had talked to his Trade Union representative; whereupon he was suspended. 

	In due course he was informed that there would be a disciplinary hearing on Friday 30 July.  On 30 July the disciplinary hearing was held.  It was conducted by Mr Sprenger, the Director of Environmental Services for the Council.  He heard evidence from Mr Parton and the two audit department officers who had kept observation.  He also heard from Mr Shinn who admitted all that had been said in evidence about what had happened on 23 July.  Mr Sprenger was satisfied that Mr Shinn had worked in the early hours of 23 July and held that he was guilty of an act knowingly defrauding the Council.  He found that this was an act of gross misconduct, and accordingly dismissed him.  The same day, Mr Sprenger wrote a letter to Mr Shinn, in which he confirmed the dismissal and in doing so, relied entirely upon the evidence he had heard relating to the event of 23 July.  Mr Shinn appealed.  That appeal came on for hearing on 30 November, but mid way through it Mr Shinn, on advice from his trade union representative, withdrew his appeal.

	In due course, there was a hearing before the Industrial Tribunal in which Mr Shinn claimed that he had been unfairly dismissed.  The Tribunal found that the Appellant's disciplinary procedures had been applied fairly throughout.  They accepted that Mr Shinn's work required his honesty and integrity to be beyond question.  They accepted as reasonable the Appellants' belief as to Mr Shinn's conduct.  In applying the appropriate Burchell tests for the purposes of Section 57(3) of the Employment Protection (Consolidation) Act, they found that the Appellants' case failed at the last hurdle in that they came to the view that on the facts proved there was insufficient reason to justify the Council's decision to dismiss the Respondent.  They said that it fell "just outside the band of reasonableness".   In so deciding, they found a number of factors in mitigation.  The first was that the incident in question happened before 9.00 a.m. of the last working day before that on which he was due to return to work.  They found that it was the only occasion Mr Sprenger had heard evidence of such an offence being committed by him.  Thirdly, that he had acted in an emergency, namely his wife being let down.  

	When it came to compensation, the Tribunal found that Mr Shinn was guilty of conduct which substantially contributed to his own dismissal.  They said that if he was fit to do the work he was doing that morning, he was fit to return to work.  They recorded the fact that he was on full pay, that the department he worked for was short of staff, and concluded by saying that, in his position as an Enforcement Officer, one would have expected him to return to work, if fit enough to work for his wife.  Accordingly they assessed the appropriate deduction at 80%. 

	The Appellants have argued that, having directed itself correctly on the law relating to Section 57(3), and having found that the Appellants had acted reasonably, both in their procedures and in their beliefs about the Respondent's conduct which they said imported an element of dishonesty, the Tribunal acted perversely in finding that the employers had acted unreasonably in dismissing Mr Shinn.  They say quite bluntly that, having directed themselves appropriately on the law, to the effect that they were not to substitute their decision for that of the employers, in effect that is what they did.

	In support of that argument, Mr Jack, who has appeared for the Appellants, first relied upon the events in the early morning of 23 July.  He pointed to the strong suspicion which the employers entertained to the effect that Mr Shinn had committed this offence on earlier occasions and it was as a result of that that the officers from the audit department had been directed to observe Mr Shinn.  Their Skeleton Argument of appeal included a third item, namely the aggravating factor that his wife had rung up Mr Parton in the afternoon of 23 July.   In arguing the case before us, Mr Jack has conceded it would not be appropriate to rely upon the wife's conduct in that respect. 

	Further, having seen the letter of 30 July, in which Mr Sprenger confirmed the dismissal of the Respondent, we are of the view, urged upon us by Mr Epstein, for the Respondent, that it would not be right for us to take into account any possible suspicion which might attach to the Respondent's conduct on a date earlier than 23 July.  In consequence, one is considering this appeal on the basis of what happened in the early hours of the morning of 23 July only.

	Mr Epstein, arguing for Mr Shinn, reminded us of the stringency of the test which has to be applied before we could make a finding that the Industrial Tribunal had acted perversely.  He referred us to the cases of Stewart & Cleveland Guest Engineering Ltd; Iceland Frozen Foods Ltd v Jones and Piggott Brothers Co Ltd v Jackson and said that before we could disturb the finding of the Industrial Tribunal, we had to be satisfied that their decision was not a permissible option.  The case of Stewart refers to the fact that the decision has to be one which flies in the face of properly informed logic.  He further argues that if the Appellants were to argue on the basis of perversity, it would be necessary to have the Chairman's Notes and that, without those, the matter could not properly proceed.  Thirdly he argued that there was no specific finding by the Tribunal to the effect that his client was guilty of dishonesty in any respect.   He says that the Tribunal came to a perfectly reasonable conclusion, bearing in mind the mitigating factors that they set out in paragraph 8 of their reasons.

	We are of a view, as I have already indicated, that we must confine our consideration, as we believe the Industrial Tribunal itself did, to the events of the early hours of 23 July.  We set aside any consideration of what might have happened earlier in the week and of any possible significance of the wife telephoning.  Having directed ourselves in that way, we seek to place our findings into a context.  An essential element of the Appellants' belief was that Mr Shinn had acted dishonestly.  Nowhere does the Industrial Tribunal expressly comment on that but we find that it was implicit in certain of their observations that the Industrial Tribunal accepted the employers' assessment of the Respondent's conduct.  They stressed in their findings that there was a need for the Respondent's honesty and integrity to be above question.  They made a heavy discount when considering the contributory conduct, and thirdly, when considering the Burchell case as obviously they did, they dispensed with the Appellants, only in respect of the last hurdle, namely the sufficiency of reason for the dismissal. 

	We think the above necessarily involves a finding by the Tribunal that indeed the Respondent was guilty of an act knowingly calculated to defraud the Council.  We think that, having regard to the facts of the case itself, admitted as they are by Mr Shinn it would be contrary to argue that he was not.  We consider that it is an unavoidable conclusion that Mr Shinn's conduct did contain an element of dishonesty.   We take into account the other elements which were before the Tribunal.   Mr Shinn was a departmental Enforcement Officer whose job required him to be a witness sometimes in both civil and criminal courts where his evidence had to be relied upon.   Furthermore, the Appellants set the standards to be applied throughout their organisation by the way they handle each case, and in applying those standards to be applied throughout their organisation by the way they handle each case, and in applying those standards and maintaining them, they are accountable to the public.  Acknowledging these factors entails recognition that the Appellants, from time to time, have to take tough decisions which have to be respected.

	The test the Tribunal had to apply was to ask whether the employers' decision to dismiss was one which was within the broad band of reasonableness.  They concluded that it was just outside it.  Another way of putting the same test is to ask whether the decision they made was one which no reasonable employer could make.  The test we ourselves have to apply is to ask whether the Tribunal's finding that the Appellants had acted unreasonably in this respect, was one which in turn flew in the face of logic, was one which was not a permissible option.  We are of the view that the Industrial Tribunal came to a decision which in effect did substitute its own decision for that of the employer.  Having directed itself correctly on the law, they in our view then failed to apply it.  In substituting their decision, we find that they then supplied a decision of their own, which defied logic.

	In all the circumstances we feel that we must allow this appeal.  The question then is what do we do about it?  Should this case be remitted for a re-hearing before a differently constituted Tribunal?   We see no sense in doing that.  We are seized of all the facts, as well as any new Tribunal could be.  In the circumstances, we think it proper and appropriate for us to substitute a finding of our own and accordingly declare that the dismissal was fair.