Appeal No.	 EAT/692/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 July 1997

Before
HIS HONOUR JUDGE J HULL QC
MR R SANDERSON OBE
MR K M YOUNG CBE

MR M F McALLEN	APPELLANT

TORLANE TRANSPORT LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR T PULLEN
(Of Counsel)
Messrs Twigg Farnell
Solicitors
12 Lidgett Lane
Dinnington
Sheffield
S31  7QD	
For the Respondent	MR R PRENTIS
(Representative)
5 Grange Farm Court
Woodsetts
Nr Worksop
S.Yorkshire
S81  8SN	

		JUDGE HULL QC:   This is an appeal to us by Mr Michael Frederick McAllen.  He is a gentleman who is an experienced driver of heavy goods vehicles.  The appeal is against a decision in favour of his former employers, Torlane Transport Ltd of Sheffield.  He was first employed by them on 16 November 1990.  Apparently, although it is said that he was sometimes rather rough in his manner, that was about the worst thing that could be said about him.  His work was very satisfactory.  He was a hardworking man.  

	The first event which we should mention is that in June or July 1994 a new heavy goods vehicle (in fact it was one of substantial age, but it was new to the firm) was purchased by the employers.  They were a small transport firm with only five or six vehicles and five or six drivers.  Shortly afterwards another driver was taken on, a Mr Dafter, and also a spare time driver.  I think there was one other heavy goods vehicle, but most of them were vehicles which did not require a HGV licence.  Mr McAllen himself did not normally drive one of the heavy goods vehicles.  He drove a lighter vehicle.  It was said, and there was a good deal of evidence, indeed conflict of evidence about this, that Mr McAllen preferred driving the lighter vehicle and that he could earn more money by driving that.

	There came an occasion when there was a dispute between Mr Smith, the Proprietor of the firm and Managing Director, and Mr McAllen.  That all came to a head on 21 February 1995. On that occasion Mr McAllen, who would rather not drive the heavy goods vehicle (this particular lorry) was in fact driving it.  According to him, and this is of some importance in considering the case, he had found the brakes unsatisfactory and had on two occasions that day rung up Mr Smith to tell him so.  That evening when he had returned to base in Sheffield there was a telephone conversation between the two men.  The entire point of the case when it came before the Industrial Tribunal was this: according to Mr McAllen he was insisting, as he had earlier, that he would not drive the vehicle again.  Mr Smith, he said, must have known perfectly well why he was saying that.  He had complained twice that day already.  It was because of the unsafe condition of the lorry.  Not only was it unsafe that day, but it had been found to be unsafe on a number of previous occasions.  He had reported it.  Others had reported it.  Mr Dafter had said that it was unsafe on a number of occasions and attempts had been made to put it right, evidently without success.  

	Mr Smith, for his part, said Mr McAllen, was insisting that he should drive it and would drive such vehicles as he was told to drive, in other words he discounted this very just objection by Mr McAllen to driving the lorry.  That was what was said by Mr McAllen.  He said that as a result he was in fact constructively dismissed.  He was told in the most emphatic terms that he must do this and he was not prepared to do it and left the employment of the firm.  

	So far as Mr Smith was concerned he told a very different story.  He said the entire discontent of Mr McAllen was with the pay which he was able to earn driving this heavy vehicle.  It was a small firm and the opportunity for driving these various vehicles of course differed according to the work which was given to the firm.  It was, said Mr Smith, Mr McAllen’s grouse, which he repeatedly raised, that he did not like driving the heavy vehicle because he could not put in so many hours, and earn so much money.  That was the subject of the altercation on the telephone which took place on that afternoon.  Mr McAllen was saying, said Mr Smith, that he did not wish to drive the heavy goods vehicle because of the pay situation.  When he, Mr Smith, said that he must drive such lorries as he was told to, then, said Mr Smith, Mr McAllen resigned, using rather coarse language to say that he would have no more to do with the job.

	That having been the situation, Mr McAllen complained to the Industrial Tribunal by an IT1, his application dated 10 March 1995, that he had been unfairly dismissed and claimed compensation.  The Respondents, in the person of Mr Smith, at first put in their answer saying that he had not been dismissed.  It was therefore, of course, for the Applicant to begin in front of the Industrial Tribunal, because the burden was on him to establish that he had been dismissed.  He did give evidence and called evidence before the Industrial Tribunal.

	The Industrial Tribunal sat at Sheffield.  They devoted two full hearing days to the case on 5 September 1995 and 11 March 1996; the gap being of course an unfortunate one.  The Chairman was Mr Williams with two Industrial Members, and they published their decision on 15 May 1996 and they said that Mr McAllen had, in their view, not been dismissed.  His case failed on that basis.

	We look first at their decision and then look at the criticisms which are made of the decision by Mr McAllen.  The Industrial Tribunal set out the story of the Applicant’s employment; the contentions which were made to them.  They set out in paragraph 6 what Mr McAllen had told them:
“The applicant told us that after the respondent had bought a Ford Cargo vehicle he had difficulty with it and in particular was concerned about its brakes.  He said that that was not just his view but was also a view shared by Mr Dafter a former employee and colleague who, unfortunately, he was unable to call as a witness because despite his best efforts, he had been unable to locate him.  Mr McAllen told us that he and Mr Dafter had more than once complained not only to Mr Smith but also to Mr Collingtree the respondent’s sole mechanic who, claimed Mr McAllen, concurred with him in his view as to the inadequacy of the Ford Cargo’s braking system.
7.	The applicant told us he had expressed his concern about driving this particular vehicle.  On the day of his dismissal he had a conversation with Mr Smith which, he said, should have left Mr Smith in no doubt as to his unwillingness to risk his health and safety by taking the wheel of that particular vehicle.  He acknowledged that on the day of his dismissal whilst he had not specifically made a further, final complaint directly about the lorry it was more than evident that that is what the conversation was about as he had referred to the same thing on previous occasions.
8.	Mr McAllen told us he had made one complaint in writing.  When evidence relating to that was produced to the tribunal by the respondent the applicant in effect suggested that it was a forgery and had been “doctored”.  Mr Gould whom Mr McAllen did call as a witness had made a statement and this was produced by the respondent.  That statement suggested that the applicant had not complained about the state of the brakes on the Ford Cargo.  Mr Gould told us that whilst his signature may have appeared on the document the document had been altered so as to present a false picture.  These of course were serious allegations.”

We respectfully agree with the Industrial Tribunal.  Of course they were serious allegations.  If they were true, it meant that serious offences were being committed by Mr Smith and others perhaps on his behalf, with the motive of avoiding liability for unfairly dismissing Mr McAllen.

	They go on to the Respondent’s case:
“The respondent called a number of witnesses.  They said the applicant was one who was prone to complain about money.  According to one of the witnesses, Mrs Doreen Brook, herself a lorry driver, hardly a conversation went by with the applicant without the matter of his pay being brought up.  Mr Smith told us that Mr McAllen had, on one occasion, raised the question of the brakes but they had then been attended to.  Thereafter, said Mr Smith, he had been happy to drive the vehicle without further complaint.  The argument on the telephone he had with Mr McAllen at the very end related only to money, Mr McAllen stating that he was unwilling to drive the Ford Cargo because he ought, instead, to be driving his own regular vehicle, a lighter one, which would have enabled him to earn more money.  Mr Smith told us that, on the contrary, Mr McAllen would be better off driving the Ford Cargo rather than his regular lighter vehicle and had tried to persuade Mr McAllen that this was so.  This failed to impress the applicant who was then told, by Mr Smith, that he was obliged under the terms of his contract of employment, to drive whichever vehicle was available and he was further told he was expected to turn up for work and drive the lorry.  This was after the applicant had refused an alternative suggestion.  At this juncture, claimed Mr Smith, the applicant said “fuck you and fuck your job” and put down the telephone.  He thereafter refused to come to work.”

That was the other version.  How did the Tribunal deal with it?  

	We have heard two different versions as to what is alleged to have taken place on that last day.  The Applicant claims he was directly dismissed and so he left.  He was dismissed, he said, because he refused to drive a vehicle which he considered to be dangerous and a risk to his own health and safety and to the health and safety of others.  Mr Smith says in the first place that the conversation was not about a dangerous vehicle or about health and safety at all, but simply about money.  In any event he did not sack the Applicant at all.  What happened said Mr Smith is that the Applicant walked out in a fit of pique because he was not allowed to drive a particular vehicle and because he felt he would lose financially as a result.

	The Industrial Tribunal in paragraph 11 of their reasons say this:
“One of the very few things not in dispute in this case is the fact that on the last day of the applicant’s employment no specific mention was made of the Ford Cargo’s brakes being dangerous.  The applicant accepts that he did not raise the subject specifically on that day but maintains he did not need to do so because he had on many previous occasions complained about the condition of the vehicle.  He is equally adamant that no more needed, specifically, to be said on the subject when he finally spoke to Mr Smith on the telephone.  This was because both he and Mr Smith knew exactly what he was getting at by refusing to drive the larger Ford Cargo lorry.
12	As we have stated earlier Mr McAllen gave his evidence in a very clear and positive way and there was nothing to suggest from any of the evidence given by any of those who testified that he had in the past acted in any underhand or devious way.”

That of course was an important consideration for them.  They said after referring again to Mr Gould’s evidence:
“.... there was nothing to suggest that he had come here just to stand up for a mate.  We have had to think long and hard about the conflict of evidence relating to the written complaint accepted as having been made by the applicant.  There were also the contradictions between Mr Gould’s oral evidence and the written statement upon which his signature appears.  All these factors have left us with much to consider.”

Pausing there, it would be beyond belief that a Tribunal in front of whom such serious allegations were made - that Mr Smith was quite prepared to operate regularly a vehicle which he had been repeatedly told was unsafe and unfit to be on the road, and which had been involved in an accident for just that reason: allegations that documents had been forged -  it would be quite incredible that the Tribunal did not take those matters seriously and consider them carefully and they say they did.

	The Tribunal go on in paragraph 13:
“We heard four witnesses giving evidence on behalf of the respondent.  Its mechanic, Mr Cotterill, was rather vague.  It seemed to us as if he tended evade issues.  We have to say we were impressed by the forthright nature of Mrs Brook’s evidence and also by the evidence of Mr Tyree [he was a customer who heard this final conversation from one side only, he heard what Mr Smith had said].  Both these witnesses struck us as being straightforward and honest.  Again, we were not unimpressed with Mr Smith himself.  His story had remained consistent in correspondence and in evidence before the Tribunal.  These complaints have left us with a task which we have not found at all easy i.e. to decide where the truth lies.
14.	After much consideration of all the evidence we have come to the conclusion that the applicant did not, as he claims, constantly complain about the state of the lorry.  We are convinced that most of his complaints related to his pay and the fact that he considered himself to be somewhat hard done by through not being allowed to drive his regular lorry at all times.  We have concluded that the real reason why the applicant confronted Mr Smith on 21 February was over the question of his pay.  That was why he refused to drive the Ford Cargo lorry.  We do not believe he was dismissed by Mr Smith.  We are of the view that Mr Smith told him he was obliged to drive such vehicle as was available and his response to that was that Mr Smith could keep his lorry and his job.  Mr McAllen decided to leave.
15.	We do not therefore believe there was any direct dismissal in this case.  We think the real reason why the applicant walked out was because of a dispute about pay and not because he considered a vehicle unsafe to drive.”

They say it is unfortunate the parties parted company as they did, because the Applicant was described by Mr Smith as being a very good worker and the Tribunal finish off by saying:
“18. However, we are, as we have stated, quite sure that Mr McAllen was not dismissed as he claims.  He decided he had had enough and he did so over money and not on any health and safety grounds.  He felt he was not getting a fair crack of the whip money-wise.  He may or may not have been right about that but it does mean that he has not succeeded, on any grounds, in his claim for unfair dismissal.  That is our unanimous decision.”

	The Industrial Tribunal is the sole judge of fact.  We are not permitted to interfere in any way with their decisions of fact.  Parliament has said that we are a Tribunal of law alone and the Court of Appeal has repeatedly reminded us of our duties in that respect.  We can only intervene if we find an error of law by the Industrial Tribunal, so we have to look and see whether there is any error of law made by this Industrial Tribunal.  An error of law includes perversity.  I am not going to attempt to define “perversity”, but quite clearly if a Tribunal reaches conclusions without any evidence to support them; if it reaches a decision which is manifestly irrational, then it may be said to be a perverse decision.  If it says that two and two makes five; if it refuses to hear a witness or says that it will not even consider material evidence, such matters as that come under the rubric of law.
	What is said by the Appellant, conveniently set out in the Skeleton Argument by Mr Pullen, for which we are very grateful, is this: first of all, he said that the Tribunal was under a duty to consider all relevant matters and evidence.  We broadly accept that submission.  They certainly are.  He cites authority for that.  A Tribunal will err in law if it makes a finding of fact which is not supported by evidence.  That is correct.  He goes on to say “the Tribunal must set out their findings on the questions of fact which are laid before them.”  We say, on authority, that is wrong.  What they are obliged to do is first of all to set out their finding on any essential fact; any fact which they must decide.  They are most emphatically not required to go through every issue of fact which is laid before them, or to decide the truth or otherwise of every suggestion which is made to them.  If they prefer the evidence of witness A to witness B, they are not obliged to say why they have done so.  Indeed it would be frequently an invidious and offensive task if they had to say exactly why they believe witness A and were not able to accept the evidence of witness B, and they are most certainly not obliged to do so.  The Tribunal hear the evidence and at the end it is their duty to say which evidence they accept and which they do not.

	After setting out certain other matters, Mr Pullen puts it like this: one of the primary issues before the Tribunal was the credibility of the respective parties.  We accept that.  He says the Tribunal failed to consider or make any findings on evidence put forward by the Appellant that the Respondent had manufactured documents for the Industrial Tribunal hearing, to show that the lorry driven by the Appellant had been adequately maintained.  On the contrary, it seems to us, simply as a matter of fact they had considered that matter.  It is true that they had not set out the various matters which follow in the Skeleton Argument, many of which certainly were laid before them.  They were all, in our judgement, tangential matters; matters which went to credit; matters which might or might not be considered important by them, in considering the issue in the case, and I will go through them shortly out of courtesy to Mr Pullen.  The first was that a Crypton brake test could not have been carried out on the date claimed by the Respondents on 27 January 1995 because the employee of the company [that was another company] who carried out the test, did not enter into the testing company’s employment until 13 February 1995.  The Crypton brake test record was produced on the morning of the first day of the Tribunal hearing, by the Respondents.  Of course, if the Tribunal concluded that that was the case and that Mr Smith was responsible for that, it was or might be a matter which would destroy Mr Smith’s credit.  But with this and the other matters, this Tribunal had to consider such matters as: was this put to Mr Smith when he gave evidence?  Was he cross-examined about it?  “Are you responsible for this forgery ?  Did you obtain a document from the firm which was responsible for carrying out these Crypton brake tests?  Did you complete it?  Did you make this mistake?  Did you forge the signature?  What is the truth of the matter?”  

	The second point is this: a number of safety inspection checklists were produced by the Respondent which covered the period July 1994- mid 1995.  The checklists were all signed by the Respondent’s mechanic, a Mr Cotterill.  The documents’ authenticity was challenged by the Appellant, who stated in evidence that he had never seen such checklists whilst in the Respondent’s employment.  The Appellant’s representative, during cross-examination of Mr Cotterill, further highlighted the fact that all the safety inspection sheets were in pristine condition, despite having allegedly been prepared in a mechanic’s workshop.  

	The suggestion must be, one supposes, and this is a suggestion again which Mr Smith should have been taxed with and taken through in great detail, that what he had caused to be done was to subvert his mechanic, Mr Cotterill, and caused him to manufacture, in pristine condition, as the Appellant puts it, various sheets of this sort and to put his name to them to make all sorts of bogus entries in them and produce them as genuine documents.  Again, this was not put to Mr Smith, that he had engaged in this campaign of forgery, not just one document but a number of documents.

	Then we come to the next point.  An employee of the Respondents, Mr Gould, who gave evidence to the Appellant, alleged that a statement he had made to the Respondents had been altered to reflect badly on the Appellant.  It is pointed out in the Respondents’ Skeleton Argument (we have not called upon the Respondents to this appeal) that the statement, if that were true, makes no sense at all.  But there it is, that is what is suggested.  Again, it is a matter which, so far as we can see, was not put to Mr Smith.  Clearly it was central to the case to discredit Mr Smith, that all this was a campaign of forgery; a large number of documents which were produced to try to bolster up a bogus case against his luckless employee, Mr McAllen, whom the Tribunal found to be, on the face of it, a straightforward and decent chap and who indeed was said by Mr Smith himself to be a decent though rather rough chap and a hardworking man, in many ways an exemplary employee.

	A letter was produced and this is another matter which is put to us.  A letter, it was suggested, dated 12 October 1993, had been forged, showing that complaints had been made about the Applicant.  Then it was suggested, a really lamentable suggestion, and if true, thoroughly disgraceful, that an insurance form relating to the accident in which the lorry had been involved, had a number of facts entered by Mr Smith and that in putting in the name of the other driver involved in the accident, his address had been deliberately obscured by Mr Smith so as to stop the Appellant from getting in touch with that witness -  piece of skulduggery which, if true, would not be a particularly intelligent thing to do, because no doubt there would be many other ways in which the address of the witness might be obtained.  But surely it would show a very high level of unscrupulous and dishonest behaviour by Mr Smith.

	Those were not the only allegations of forgery.  So what was being put?  What should have been put to Mr Smith was that he was a liar and a forger of a high order; that he was a man who should not be trusted by any Tribunal to tell the truth about anything in which his interests were involved.  Unless this Tribunal were simply asleep throughout the hearing, they must have realised very well that that was the issue which they had to decide when considering whether they could accept Mr Smith’s evidence.  Those were the matters which were put to us on that part of the case.  

	It is true that the Tribunal merely says that they had to consider these grave allegations.  They did so and did not find them easy, bearing in mind what they had heard from all the witnesses, but finally concluded that they should accept Mr Smith’s evidence and reject the evidence of Mr McAllen on the vital matters.

	This part of the Skeleton Argument concludes by saying that all these matters should have been considered by the Tribunal.  It seems to us that it is quite plain from what the Tribunal said that they were considered by the Tribunal and even if Mr O’Neill did not put them properly to Mr Smith as he most certainly should have put them, nonetheless the Tribunal can hardly have failed to have them in mind (and a very heavy weight in anybody’s mind they would be) in deciding the issue.

	Then other allegations followed and this is the other substantial allegation: Mr Pullen refers to paragraph 11 of the finding to which we have already referred.  He says that so far from it being the case that no complaints were made on the day of the alleged dismissal concerning the brakes, it was the evidence of Mr McAllen that he had made such complaints.  That is perfectly true.  When we look at the evidence given by Mr McAllen, as noted by the Chairman himself at  considerable length, the important part starts at page 7 in the Chairman’s Notes of Evidence: 
“The last day of my employment was 21 February.  I was driving the Ford Cargo.  Once again Mark [Mr Smith] assured me that the brakes were alright.  I was going to Bradley fully loaded with castings and steel rings.  The weather was dull but dry.  I drove through Bamford village, down Bamford Hill towards the ‘T’ junction.  As I applied the foot brake it would hardly stop me again.  I had to change down the gear box otherwise I’d have gone across the centre of the road once more.  I then phoned Mark Smith.  I explained what had happened coming to the ‘T’ junction.  Mark said “Oh what again?”  It was the way he said it as though he was fed up with hearing me complain about this lorry.  I said “yes again Mark and I’m getting a bit sick of it as well”.  I said “one of these days it’s going to cause a serious accident”.  Mark said he’d get a mechanic to look at it again when he got back to the yard.  I then set off back to the depot.  On my way back Mark phoned me again.  He said “There’s 3 tons to pick up at the bottom of Rutland Road to go back to the yard”.  I said “Mark I’ve just told you about the brakes”.  He said “I’ve nobody else available so you pick it up and take it back to the yard.”

We would observe that almost every word of that was in issue.  It is said that he was not where he said he was.  It is said that he did not make the phone calls he said he made.  Documents were put in.  All that was canvassed.  But it is perfectly true, as Mr Pullen points out to us, that that is the evidence given by Mr McAllen to the Industrial Tribunal.  

	Mr McAllen’s evidence about the final telephone conversation at which he said he was sacked, is that on the ‘phone (with Mr Smith at his house, and Mr McAllen back at the depot) he said:
“.... Mark I’m not being funny but I’m not driving the HGV any more.  I want to go back on my regular lorry”.  .... I complained again about the brakes twice that day.  I didn’t mention the brakes again when I was sacked.”

He explained elsewhere in his evidence that there was absolutely no need for him to go into it yet again, that was what the conversation was about, that was what he had explained already to Mr Smith and Mr Smith knew that perfectly well when he phoned him up.  That was the conflict between the parties.

	We turn now to paragraph 11, because as Mr Pullen quite rightly told us, if it is clear that the Industrial Tribunal has quite simply misunderstood and misapprehended the evidence which was given to them, that is capable of being a mistake of law.  It does not matter how careful they are if they simply mistake the evidence, one can image all sorts of examples.  If they state quite clearly in their decision something which is completely wrong, unsupported by evidence, whatever it may be, then that is or may be an error of law, which would lead us to upset their decision and we should not hesitate to do so.

	In looking at paragraph 11 again, we note that the Tribunal was in no doubt that there had been a complaint about this lorry’s brakes and had been told (whether they accepted it or not is another matter) that there had been a number of complaints about the brakes.  What they say in paragraph 11 is:
“One of the very few things not in dispute in this case is the fact that on the last day of the applicant’s employment no specific mention was made of the Ford Cargo’s brakes being dangerous.  The applicant accepts that he did not raise the subject specifically on that day but maintains he did not need to do so because he had on many previous occasions complained about the condition of the vehicle.  He is equally adamant that no more needed, specifically, to be said on the subject when he finally spoke to Mr Smith on the telephone.”

That of course is echoing what is said in paragraph 7 and substantially repeating it.  Are they there simply forgetting, ignoring, overlooking the evidence that Mr McAllen had given to them?  They of course were rejecting his evidence.  Or is the true view of what is said in paragraphs 7 and 11 that the Tribunal were quite clearly speaking of this last telephone call, directing their minds, as they had to, to the dismissal itself.

	We think that that is the just view of what the Tribunal are saying here.  They had not approached their task in any casual or lighthearted mood, so to speak, nor had they tried to cut matters short.  They looked into the matter very thoroughly.  We think it is no more than a slip of the tongue; a slip of the pen.  It is quite clear to us that they were directing their minds to the question of what was said during this last (third) telephone conversation, if that is what it was, on that day.  So far as Mr Smith was concerned it was by no means the third conversation, it was the first conversation which he said he had had with Mr McAllen on that day.  That was one of the many issues which they had to decide.

	We think that is the just view of it and that they were not overlooking anything that had been said to them.  They were rejecting much of what had been said to them but that was a very different matter.  When they said there was “no dispute about it”, it seems quite clear to us that they were referring to that last conversation.  Why was there no dispute about it?  Mr McAllen had told them he did not need to make that plain.  He had already made it plain.  They had that, it seems to us, well in mind; that that was what Mr McAllen was saying.  In those circumstances we think that on this narrow ground also the appeal is not made out.  

	We have to ask ourselves in conclusion - do we find here any error of law?  Any mistakes of any substantial sort by the Industrial Tribunal?  Any wrong approach?  Any failure to give reasons?  Any illogicality or inconsequentiality in their decision?  On the contrary.  We think, having read it, indeed more than once, having looked at all the evidence, having looked at the submissions which are made to us by both Applicant and Respondent, and having heard Mr Pullen, we are entirely satisfied that no error of law is shown here.  In those circumstances it is entirely beside the point to say whether we would have reached the same conclusion, whether another Tribunal would have reached the same conclusion.  Nobody can say that and it is not relevant for us to go into it at all.  All we do say is that we find no error of law and therefore we cannot allow the appeal and it falls to be dismissed.