Appeal No.	EAT/1365/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 March 2000

Before
MR COMMISSIONER HOWELL QC
MR L D COWAN
MR R SANDERSON OBE

CONNEX SOUTH CENTRAL LTD	APPELLANT

EDMUND LAMB	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr Oliver Campbell
(of Counsel)
Instructed by
Messrs Vizard Oldham
Solicitors
42 Bedford Row
London
WC1R 4JL	

MR COMMISSIONER HOWELL QC	In this case Connex South Central Limited, a train operator, seeks to pursue an appeal against the determination of an Employment Tribunal sent to the parties in the form of extended reasons on 11 October 1999, after proceedings on 24 June and 1 September 1999.  Those reasons are set out at pages 4-9 of the appeal file before us.  

1.	The case before the Tribunal was a complaint of unfair dismissal brought by a Mr Lamb, one of the Appellants’ train drivers at the time of the incidents in question, and his originating application at pages 10 –12 alleged that he had been unfairly dismissed in May 1998 after being accused of causing deliberate delays and cancellations to trains, for what he asserted were incidents where he had declined to take trains out until vital pieces of safety equipment were in place or defects of a safety nature had been remedied.  

2.	The letter of dismissal dated 7 May 1998 is at page 12 of the appeal file.  It is signed by Mr Price, the Appellants’ Employee Relations Manager, and it records the confirmation of Mr Price’s decision at the conclusion of an appeal hearing which had taken place on that date to uphold the dismissal of Mr Lamb for causing delays.  That dismissal was to take effect as from 7 May, that it is at the conclusion of the appeal rather than at the date of the original management decision to start the dismissal process.  The proceedings and the decision of the Tribunal arose in particular out of two incidents on 14 and 15 March 1998 which were dealt with in the Tribunal’s recital of the facts in paragraphs 4-6 of their statement of reasons, in fairly short terms as follows: - 
(4) “On 14t March 1998, Mr Lamb was due to drive the 0953 train from Victoria to East Grinstead.  On entering the guard’s van, he saw that there was only one spare shoe fuse, whereas there should be two.  If the shoe fuse blows, the train will not be able to receive power, and he was concerned about the fact that there was only one spare, since he thought that indicated that there had been a problem with the shoe fuse earlier in the day, and that one of the spares my have been used as a replacement. 
(5) “Mr Lamb telephoned Victoria control point about the missing shoe fuse.  Control told the fitter, who arrived with a cartridge fuse.  Since this fuse was inappropriate, the fitter had to obtain a spare shoe fuse from another train, which he gave to Mr Lamb.  The train departed at 1006 hrs, some 13 minutes late.
(6) “On 15 March 1998, Mr Lamb was asked by his supervisor at Norwood Junction to go to Victoria and drive the 1740 hrs train to London Bridge.  He went to Victoria, and at about 1710 hrs, while he was waiting in the train crew accommodation, the fire alarm sounded.  The building was evacuated, and he returned to the platform at 1742 hrs, after the all clear had been given.  As he approached the train, he found that some lights were on which should not have been.  He tried to turn these lights off, but the switch would not operate.  He sent for the fitters, who broke the switch operating the lights in attempting to turn it off.  Their efforts to rectify the problem meant that one of the tail lamps became inoperative.  Mr Lamb therefore requested a battery tail lamp from the platform staff which could be placed at the rear of the train.  This did not work because of a flat battery, and while Mr Lamb was awaiting another one, an announcement was made to all the passengers that the train was now cancelled.”

The Tribunal’s findings of fact also deal with a further incident on 16 March but any claim on the part of the employers relating to that is no longer maintained.  

3	As the Tribunal recorded in paragraphs 8-9 a disciplinary process then ensued, and Mr Lamb was asked on 18 March to attend to the Manager’s office at Victoria for an investigatory interview held by two Driver Standard Managers.  He was told that the delays and cancellations were unacceptable and that he would be suspended with pay pending further investigation.  On 9 April, a disciplinary hearing was held by a Mr Beattie-Swan to consider the charge that Mr Lamb had caused unnecessary delays and cancellations on March 14, 15 and 16 and had thereby caused the company “severe financial losses.” Mr Beattie-Swan found the charges relating to March 15 and 16 proven but that relating to March 16 was withdrawn.  Mr Lamb was dismissed, and Mr Price conducted an appeal hearing on 7 May, which upheld the decision to dismiss.  

4.	Although it is not expressly stated in those paragraphs it is the case, and it is not in dispute, that in fact Mr Price in giving the final confirmatory decision to impose a summary dismissal on the Applicant based himself on his own conclusion, having considered the material put before him, that Mr Lamb had “deliberately caused the company to incur financial penalties.”  See paragraph 18 of the Tribunal’s reasons. 

That finding of fact amounted to a finding that a charge of, in effect, industrial sabotage was proved against the Appellant, and that his offence was not merely dilatory or incompetent behaviour, but had been deliberate and vexatious conduct, justifying summary dismissal; and that was the basis on which the dismissal was imposed on him.  That finding by Mr Price is apparent from paragraph 18 of the Tribunal’s extended reasons, and was not disputed on the appeal hearing before us today when Mr Campbell appeared on behalf of the Appellants.  

5.	The Tribunal concluded, in terms that they set out in paragraphs 15-20 of their statement of reasons, that the company had dismissed Mr Lamb for a reason (namely misconduct) which was capable being a fair reason for imposing dismissal under Section 98 Employment Rights Act 1996.  However, the Tribunal concluded that in the manner of imposing the dismissal the company had acted unreasonably, in that they did not have reasonable grounds for treating his actions as sufficient to justify dismissal.  The tribunal recorded that in paragraph 15 of their statement of reasons, and there stated expressly that in so deciding they had been careful to avoid substituting their own judgment for that of the employer.  They continued by pointing to the provisions of the Rule Book, relating to the equipment which should be carried on trains and to safety and driving procedures, which had been put in evidence before them.  They recorded in paragraph 16 of their reasons that they concluded that: -

“The interpretation of the Rule Book was by no means clear-cut, and the interpretation argued for on behalf of the Company could not be regarded as uncontroversial.  In our view, it was perfectly possible for Mr Lamb genuinely to have had an interpretation, which led to his actions on 14 March, and more particularly those on 15 March.  Such training as he had received on the interpretation of the rules was more likely to have led to their interpretation in a way which justified his actions than otherwise.”

6.	The Tribunal continued by finding that there were flaws in the investigatory process carried out by the company, which had added to the cumulative indications that they did not have sufficient grounds to dismiss.  In particular as they recorded in paragraph 18-19 of their reasons: -
(18) “More seriously, it clearly was crucial whether what Mr Lamb did was deliberately vexatious or not.  Was he being intentionally disruptive?  Did he do what he did to delay the trains, or because he felt a duty to so?  This factor was central to the question of whether dismissal was justified or disproportionate, and should have been clearly dealt with at the disciplinary hearing. Mr Beattie-Swan, however, made no mention of this factor in his report of the disciplinary hearing, and we take the view that there was confusion on this important point at the time of the decision to dismiss.  We concluded that, without putting the matter to him, giving him the chance to respond, and judging that response, there was insufficient evidence on which a reasonable employer could have decided that his actions were vexatious.  Again, at the appeal hearing, the matter was not properly canvassed, but Mr Price in giving his decision indicated that he had decided that Mr Lamb had ‘deliberately caused the Company to incur financial penalties’.  No serious attempt was made to justify this finding of fact, and we conclude that it was unreasonable so to decide.

(19) Given that Mr Lamb must be taken not to have acted vexatiously, and that the wrongness of his judgment did not follow clearly from the Rules or his training in their interpretation, it follows that it was unreasonable to treat his actions as sufficient to justify dismissal.”

Those were the grounds on which the Tribunal rejected the Company’s justification of the dismissal of Mr Lamb and unanimously concluded that he had been unfairly dismissed.  On that basis they issued their decision to that effect and directed that remedies should be determined at a subsequent hearing.

7.	Against that decision, the employer appeals on grounds set out on its behalf in the Notice of Appeal dated 18 November 1999 at pages 1-3 of the appeal file and further developed in oral argument by Mr Campbell before us this morning.  Five grounds are put forward for saying that the Employment Tribunal erred in law.  The first is that the Tribunal erred in law by saying by substituting its own judgment on the facts for that of the Appellant employer in three particular respects: First, in seeking to give their own interpretation to the Rule Book when as asserted in the Notice of Appeal : -

“It is submitted that the proper interpretation of the Rule Book was a matter for the Appellant and its officers.”

Secondly, it is asserted that it was wrong for the Tribunal to substitute its own view for that of the employer on whether the applicant in his actions had genuinely misunderstood the provisions of the Rule Book; and thirdly that it was an error for the Tribunal to substitute its own view on whether the applicant in his actions on 14 and 15 March 1998 had been acting deliberately and vexatiously.  

8.	We have concluded that no arguable ground to warrant letting an appeal go forward to a full hearing of this Tribunal is disclosed by that head of the Notice of Appeal, and we therefore dismiss the appeal as regards the allegations there made.  In our judgment it is plainly a proper function of an Employment Tribunal considering a complaint of this nature to arrive at its own decision on the question of the reasonableness or otherwise of a dismissal, and to do so on the basis of its own interpretation, applying normal legal principles, of any documents that are put before it to justify the dismissal or otherwise.  It does not appear to us to be remotely arguable that, in a case where the judgment of objective reasonableness or otherwise may have to depend on the proper interpretation of a Rule Book, that that should be regarded as a matter only for the employer itself to determine and an area in which the Tribunal is not allowed to form its own judgment for itself. 

9.	Consequently, we reject the suggestion that it was wrong for the Tribunal to form and arrive at its own view, as to whether or not there had been room for a genuine misunderstanding on the part of the Applicant as to what he was required to do under the terms of the Rule Book; and we also consider it was the proper function of the Tribunal and indeed its duty to arrive at its own view, on the balance of probabilities on the evidence presented to it, as to whether as a matter of fact the applicant could be considered to have been acting deliberately and vexatiously in the conduct that was complained of.  That it appears to us is an essential function of any Tribunal considering whether the dismissal imposed on him, acknowledged to have been for that reason, was a reasonable one in the circumstances or not.  

10.	The second main heading under the Notice of Appeal alleges that the Tribunal erred in concluding that the Appellant’s failure to question Mr Lamb or raise the issue of whether his actions were vexatious or deliberate or not in the course of the disciplinary proceedings, either the initial disciplinary investigation or the disciplinary appeal process, amounted to a failure adequately to investigate the circumstances of the misconduct.  Again we are satisfied that this failure, which appears to be undisputed, resulted inevitably in the disciplinary dismissal and appeal process being fatally flawed.  As is not in dispute, what Mr Price eventually dismissed Mr Lamb for was two acts he found to be deliberate conduct causing the company to incur financial penalties.  In other words, deliberate and vexatious conduct not justified on any proper grounds at all, but amounting in effect to (fairly minor) acts of industrial sabotage.  That form of deliberate misconduct is in our judgment of a wholly different order from minor acts of disobedience or delay, which may be for misguided or other reasons.  There was in our judgment a total failure in the dismissal and appeal process to put the issue of whether the conduct had been deliberate (in the sense thus identified)to the employee and to give him the proper opportunity of dealing with that in the course of that process.  

11.	The Tribunal’s reasons as expressed in paragraph 18-19 on that issue also recorded, as a matter of fact, that the evidence was insufficient to establish to the satisfaction of a reasonable employer or for that matter the Tribunal, that there had been deliberate and vexatious conduct of the kind relied on.  We cannot see that that is in anyway erroneous in law and in our judgment on that aspect of the matter there is no ground for saying that the Tribunal erred or reached an improper conclusion.  Accordingly, we reject the appeal so far as relying on the issues in paragraph 6(2) of the Notice of Appeal. 

12.	The third head under paragraph 6(3) alleges that it was erroneous in law for the Tribunal to have failed to give adequate reasons or explanation as to the relevance of what was referred to as the Respondents previous conduct.  Reference is made in particular to a sentence in paragraph 17 of their reasons that :-

17 “The extent to which his previous record was being taken into account was not made clear, and it should have been.”

It is asserted that this passage left it so far unclear as to what the Tribunal was talking about as to render their decision on that aspect defective.  In our judgment that is not a correct way of reading what the Tribunal were saying.  On a fair reading of paragraph 17, in conjunction with the earlier paragraph 11 where the case put forward on behalf of the company was being recorded, it is clear that as the opening part of paragraph 17 says, the comment related to the flawed process of investigation carried out by the company into what were considered to be disciplinary offences by Mr Lamb.  The second sentence in paragraph 17 of which criticism is made has in our judgment to be read in the light of the assertions by the employer as recorded in paragraph 11 of the Tribunal’s statement of reasons on page 7 of our appeal file, that: -
“The employer was entitled to take into account other incidents in which Mr Lamb had been involved, even if they were not an explicit part of the proceedings, and he had been warned the previous day about a failure to take trains out.  As to whether he had acted deliberately or vexatiously, the employer was entitled to conclude that he had, and was under no obligation to specify that in the charges”.  

13	In the context of the way the case for the company was thus  put before the Tribunal as recorded in paragraph 11, we consider there is no reasonable doubt to what the reference to the “previous record” in paragraph 17 was alluding; it was to the fact that in the course of the disciplinary process the employer had admittedly taken into account other incidents, even though it had not referred to them explicitly in the disciplinary proceedings so as to enable Mr Lamb to have an opportunity of responding to them.  That in our judgment, is a failure of the disciplinary and appeal process which is of a similar kind to the failure to put the major charge to the employee against whom it is brought.  For similar reasons it invalidates the appeal process because it is plainly an unfair “disciplinary and appeal” process that draws a conclusion against a person without giving him an opportunity with dealing with the basis on which the charges are being made against him.  Consequently we are not satisfied that paragraph 6(3) of the Notice of Appeal gives rise to any arguable point of law and we dismiss the appeal under that head as well.

14.	Similarly we dismiss the appeal under paragraph 6(5) which alleges that the Tribunal erred in failing to make any clear finding of fact as to whether the Respondent was in fact guilty of misconduct.  This in our judgment contradicts to some extent the complaint earlier made in paragraph 6(1) (c) of the same Notice of Appeal that the Tribunal had “erred in substituting its own view” on whether the Appellant had been acting deliberately and vexatiously in what he had done, which was the sole relevant piece of alleged “misconduct” for which the dismissal had been imposed on him.  The Tribunal’s finding of fact on that, so far as necessary for their decision, is clear from paragraphs 18-19 quoted above.

15.	That leaves paragraph 6(4) of the Notice of Appeal.  On that issue we are satisfied on what Mr Campbell had submitted to us that there is an arguable ground which warrants the case being sent forward to a full hearing before this Appeal Tribunal.  The issue is whether the Tribunal’s conclusion in paragraph 20 of their reasons that Mr Lamb had not contributed to his dismissal in any degree by his own conduct was justifiable in the circumstances, or based on sufficiently recorded findings of fact and sufficiently explained reasons to demonstrate how the Tribunal had reached their conclusion.  Paragraph 20 does no more than simply state the conclusion itself.  We consider that there is an arguable issue which ought to be considered to whether that adequately complied with the standards set down for Tribunals dealing with the issue of contributory fault, in particular in Portsea Island Mutual co-operative Society Ltd V Rees [1980] I.C.R. 260. Especially at pages 264D – 265 C which Mr Campbell cited to us.  On that ground therefore we will direct that this case goes forward to a full hearing of the Employment Appeal Tribunal. Related to that, we will grant leave to make an amendment to the Notice of Appeal to add in a contention raising the issue of whether it was an error of law on the part of the Tribunal, in the circumstances of this case, not to address additionally the question of any reduction in compensation on the basis that Mr Lamb’s dismissal would have taken place (either on the alleged or other grounds), by means of a fair dismissal process at some other date after the actual dismissal held unfair for procedural reasons.  

16.	On that footing therefore, we direct that this case should be set down for a full hearing before the Employment Appeal Tribunal on the issues raised by paragraph 6(4) of the Notice of Appeal, together with the possible issue of reduction of compensation by way of an amendment if the Appellants seek to put one in.  We give them liberty to lodge an amended Notice of Appeal raising that additional issue within 14 days of today’s date.  We direct this appeal be set down for hearing in Listing Category C; Estimated length of the hearing, on the footing that there will be a possible amendment to the Notice of Appeal, 2 hours.