Appeal No.EAT/964/95

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 November 1996

Before
HIS HONOUR JUDGE D PUGSLEY
MR L D COWAN
MR J D DALY

MRS J M McLEOD	APPELLANT

BRITISH RAILWAYS BOARD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR T A CEDENIO
(Employment Adviser)
Employment Advice & Tribunal Service
32 Castle Road
Epsom
Surrey
KT18  7NZ	

		JUDGE PUGSLEY:   This case comes before us pursuant to the Practice Direction, as to whether there is an arguable point of law to go to the full Tribunal.  By a Notice of Appeal dated 31 August 1995, the grounds of the appeal are that:
6(a) having found the Applicant was unfairly dismissed, [the Tribunal] failed to consider the question of reinstatement, as set out under section 11 of the appellant’s Application to the Industrial Tribunal (IT 1)

(b) the Industrial Tribunal failed to consider and therefore apply the principles as set out in Post Office v Fennel [1981] IRLR 221, that employees who behave in much the same way should have much the same punishment.  In this matter, it is admitted by the respondent that a Mr R F Loughlin, clerical officer (same grade as the appellant) ‘was subject to the disciplinary procedure on identical allegations and was not dismissed’ (section 8 of Notice of Appearance).

	This is a sad case for the Applicant, Mrs McLeod.  It would seem that she has been employed for many, many years by the Respondent and in those circumstances one has considerable sympathy for her.  She was dismissed for gross misconduct and she brought an action for unfair dismissal and also for sex discrimination.  It is to be noted that there is no appeal against the decision as to sex discrimination.  In fact the position is this: a majority of the Tribunal held the Applicant was unfairly dismissed but contributed to her dismissal 100%.  The minority member of the Tribunal held the Applicant was fairly dismissed.  The unanimous decision of the Tribunal was that she was not unlawfully discriminated against on grounds of sex.

	The first issue is that it is said that the Tribunal failed to consider the question of reinstatement as set out in Section 11 of the Appellant’s application to the Industrial Tribunal (IT1).  The Applicant’s representative, Mr Cedenio, openly says he did not ask the Tribunal to consider this since it was late in the day.  Being realistic, even though the Tribunal did not deal with the matter, the reality is that we cannot see that this raises an issue that should go to the full Tribunal.

	It is, in our view, inconceivable, that having found the Applicant contributed 100% to the dismissal, that any Tribunal would go on in those circumstances to reinstate having regard to the requirement under Section 69(5) (now Section 116(2)) for an order for reinstatement.  Before ordering reimbursement a tribunal should take “where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement”.  In these circumstances it would be a somewhat academic exercise for this matter to proceed further.  This is a ground of appeal Mr Cedenio only mentioned when prompted to deal with it.

	We turn to what Mr Cedenio would agree is the main forefront of his submissions, namely the issue of parity.  We consider the Tribunal set out in a careful way its findings.  In a nutshell it was that the Applicant (the Appellant in this case) had been party to altering records in circumstances where she knew that should not occur.  In paragraph 6 the Tribunal set out the tests.  We find no objection in law to that.  In paragraph 7 the Tribunal find that the dismissal was procedurally unfair in the view of a majority of the Tribunal and then in paragraph 9 is a minority view that it was a fair dismissal.  However, it goes on to say this:

“... all three members of the Tribunal are agreed that dismissal was within the range of reasonable responses.  It notes the refusal by the Applicant to accept that she had acted in any way improperly during both the disciplinary hearing and the appeal; rather the contrary, she alleged that the Respondent had acted wrongly and unfairly toward her.  In those circumstances, the Respondent was entitled to conclude that this was an employee, who had responsibility for payroll matters, who did not even recognise that to alter her own pay records on a computer without seeking permission from more senior managers, was wrong.  The Respondent was entitled to treat the Applicant’s attitude to the affair as evidence that they could no longer rely upon her in a position of trust.  They were entitled to take the view that the implied condition of trust and mutual confidence had broken down and despite her long service, to dismiss her.”

	Earlier in paragraph 8 those who found that the dismissal was unfair nevertheless took the view that the Respondents were entitled to believe that the Applicant had misconducted herself and that this was no mere accident and that the majority of the Tribunal found the Applicant contributed to her dismissal a 100%.

	Before us it is argued, as was argued before the Tribunal, that the Applicant received a very different treatment from a Mr R F Loughlin, a fellow employee.  It is true that in dealing with that matter, the Tribunal deal with it in the context of the claim of sex discrimination.  That matter is set out very clearly in their decision and in particular in paragraph 17, where they say this:

“The unanimous decision of the Tribunal is that the Applicant was not dismissed or that her appeal was not confirmed because of her sex.  The Tribunal is satisfied that at an early stage, Mr Loughlin had made it clear that he recognised that to delete entries from his own computer pay records unilaterally and without permission was a serious offence and put this to both the disciplinary and appeal hearings.  The Applicant appears never to have recognised this.  The Tribunal accepts the evidence of the Respondent’s witnesses that their sanction might have been different had the Applicant taken the same line as Mr Loughlin.  The Tribunal noted with some unease, the fact that the Applicant was required to apply for her post whereas Mr Loughlin was not, but having heard the evidence of Mr Shrubsall and Mr Hill-Smith it is satisfied that the real reason why the Applicant was dismissed was her failure to acknowledge that she had committed a serious offence.”

	It is true that that citation appears in paragraph 17 under a sub-heading “The Law” but it seems to us to be idle to suggest that that was not equally a matter that was before the mind of the Tribunal in reaching the decision of unfair dismissal.  Indeed in terms there is a finding that the real reason she was dismissed whereas Mr Loughlin was not, was her failure to acknowledge she had committed a serious offence.  A somewhat belated attempt was made to say there was not evidence before the Tribunal to sustain their finding, but that was not set out in the ground of appeal.  We are bound to say that there is in the documentation we have seen an ultimate acceptance by Mr Loughlin that he should have consulted others.  These were matters that were before the Tribunal.  In our view there is no error of law that has been identified which justifies this case being put before a full Tribunal.