Appeal No. EATS/0056/02 & EATS/0058/02 

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 2 May 2003

Before
THE HONOURABLE LORD JOHNSTON
MISS S B AYRE
DR W M SPEIRS

EATS/0056/03
MRS MARGARET SINCLAIR	APPELLANT

SCOTTISH CHILDREN’S REPORTER ADMINISTRATION	RESPONDENTS

EATS/0058/03
SCOTTISH CHILDREN’S REPORTER ADMINISTRATION	APPELLANTS

MRS ANNE SUTHERLAND	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

EATS/0056/02
For the Appellant	Mr J O’Donnell, Solicitor
Of-
Messrs Bradley Campbell
Solicitors
8 Brougham Street
GREENOCK   PA16 8AA

For the Respondents

EATS/0058/02
For the Appellants

For the Respondent
	
Mr P Brown, Solicitor
Of-
Messrs Biggart Baillie
Solicitors
Dalmore House
310 St Vincent Street
GLASGOW   G2 5QR

Mr P Brown, Solicitor
Of-
Messrs Biggart Baillie
Solicitors
Dalmore House
310 St Vincent Street
GLASGOW   G2 5QR

Mr D B Stevenson, Solicitor
Of-
Messrs Thompsons
Solicitors
16-18 Castle Street
EDINBURGH   EH2 3ET	

LORD JOHNSTON:

1.	These are two appeals arising out of the dismissal of two employees of the Scottish Children’s Reporter Administration (“the respondents”).  The cases were heard separately before us at the request of one of the parties but the issues can be contained in one opinion.  There was only a single hearing before the Employment Tribunal.

2.	At the conclusion of the Tribunal’s hearing, it determined that one of the employees, Margaret Sinclair, had been fairly dismissed but, the other, Anne Sutherland, had not.  Mrs Sinclair now appeals against the finding in her respect and the employer appeals against the finding in respect of Mrs Sutherland.

3.	The background to the matter is that Mrs Sinclair was assaulted in the course of her employment in 1994.  After a police investigation, no action was taken by them.  Thereafter it appeared, that from time to time, telephone calls were anonymously made to the staff at the Greenock office of the respondents and the staff of the nearby Social Work department which indicated a knowledge of the original incidents and containing references which clearly connected it to it.  As a result, a monitoring system was put in place which stopped the calls from coming into the Greenock office but they continued to be received by the Social Work department.  They continued during the summer of 2000 and, again, occurred in January 2001.  It is sufficient to record that these latter calls were traced as having been made from the Greenock office of the respondents at a time when, on the relevant days, the only two members of staff present were the two relevant employees in this case.  Thereafter, an investigation was carried out which resulted in the dismissal of the two employees but again it is important to note that the investigation was solely directed to the calls made in January 2001.

4.	Against that background the decision of the Tribunal was as follows:-

“This was a very difficult case for the Tribunal to determine. There were at least three potential outcomes, and at one point in our deliberations, we were split three ways on one particular issue. As we have indicated, all three representatives at some point referred to the case of Parr and asked us to have regard to the tests set down therein.  Put simply, the tests require that where a group of employees could have committed a particular offence, provided that the employer’s beliefs are based on solid and sensible grounds at the date of dismissal, the employer is entitled to dismiss each member of the group if:

(1)	an act was committed which would justify dismissal if committed by an individual; 

(2)	there was a sufficiently thorough investigation by the employer, with appropriate procedures; 

(3)	 as a result of that investigation the employer reasonably believed that more than one person could have committed the act; 

(4)	the employer acted reasonably in identifying the group of employees who could have committed the act and each member of the group was individually capable of doing so; 

(5)	as between the members of the group, the employer could not reasonably identify the individual perpetrator.

As to the first of these tests, we were satisfied that the act (or series of acts) was committed. As indicated, we did not accept Mr O’Donnell’s argument that the act had not been proved. All that is required is a reasonable belief that the acts had been committed and that was, in our view amply established.

Was there a sufficiently thorough investigation? Whilst we did not accept the criticisms of Mr O’Donnell, there was more force behind the arguments of Mrs Adamson. We do not understand why, with the substantial background, that the inquiry was so limited in scope to the last three telephone calls. It seemed to us that the respondents were applying too high a standard of proof at this point. After the installation of the monitoring, and the complete cessation of calls to the reporter's office, it was reasonable for the respondents to conclude (once the actual connection has been made by the final three calls) that the earlier (but post-1997) calls had also emanated from the Reporters office.

As Mrs Adamson pointed out, the respondents evidence did point away from a conspiracy. Only one person was responsible for the calls. A proper investigation would have revealed that Mrs Sutherland could not have been responsible for a significant proportion of the earlier calls. We therefore find that the third leg of the test is not satisfied insofar as Mrs Sutherland is concerned

These features are however, peculiar to Mrs Sutherland. Was there any similar unfairness to Mrs Sinclair? We could not identify any. Nothing was advanced to us which could reasonably have excluded Mrs Sinclair from the potential group. We considered carefully her evidence regarding the identity of Mrs Craig /Black. Whilst it is certainly puzzling, there could be any number of possible explanations. The mere fact that something is unexplained does not mean that it is inexplicable. To draw any conclusion from that evidence would be purely speculative on our part, and we were not prepared to speculate.

The Tribunal then faced the following difficult question - if in a Monie situation, involving only two employees, the respondents fail the Parr test in respect of one of these employees what is the proper test in relation to the remaining employee?

We could find no guidance on what appears to be a novel point. On one argument, the Tribunal should revert to the Burchell principles. Such a course of action would immediately result in a finding of unfair dismissal, since it could not be said that the respondents had a genuine belief in the misconduct of the remaining individual where their own evidence had indicated that they could not choose between two of them. A second argument would be that the exclusion of one member from a group on the grounds of unfairness peculiar to that individual does not affect the application of the Monie and Parr principles to the remainder of the group, even where that "group" is only one individual. To a certain extent this is reinforced by Frame's Snooker Centre, which indicated that there is no "all or nothing" principle involved in the dismissal of a group.

Bearing in mind that all of this case law going right back to Burchell is authoritative guidance, we reverted to the terms of the section itself which says: -

	“(4)	Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b)	shall be determined in accordance with equity and the substantial merits of the case”.

In the circumstances of this case, we find that the respondents have taken an insufficiently robust view of the evidence available to them in respect of Mrs Sinclair. As a consequence, they limited the extent of the investigation to a series of incidents, which brought Mrs Sutherland into the frame. A wider investigation, or a different view of the evidence, would have excluded Mrs Sutherland. The result was unfairness towards Mrs Sutherland.

Taking an overall view of the situation, as in effect we are required to do by the terms of the section, we do not consider that the unfairness exhibited towards Mrs Sutherland affects the fairness of the decision, overall, as applied to Mrs Sinclair.  We came to the conclusion that we must look at the decision to dismiss at one moment in time; that is, without reference to the outcome in relation to the other applicant.  We accordingly find that decision (to dismiss Mrs Sinclair) to be fair.

The application in respect of Mrs Sinclair is accordingly dismissed; and we find the dismissal of Mrs Sutherland to be unfair. 

5.	We were referred to a number of authorities on behalf of all three parties but since, at the end of the day, we have determined that neither decision can stand, by reason of the contents of the Tribunal’s decision and its approach, we will content ourselves with merely giving our reasons in that respect.

6.	The first conclusion we have reached is that it is wholly illogical to treat these two ladies on a different basis, not least because the distinction drawn in favour of Mrs Sutherland appeared simply to relate to phone calls made in 2000 when she was not at work, as was alleged by the solicitor for Mrs Sutherland.  It was submitted to us that there was no evidence before the Tribunal to that effect or, in any event, no relevant evidence that would justify that conclusion, it merely being a submission made to the Tribunal on behalf of Mrs Sutherland.  We do not see how this can bear upon the issue of the phone calls made in January 2001 which based the fairness or otherwise of the dismissal of Mrs Sinclair.

7.	It therefore seems to us that the Tribunal fell into error by treating the two ladies differently and that in itself is sufficient to vitiate the whole decision.

8.	However, matters do not end there.  We are clearly of the view that in looking at the issue of the nature of the investigation carried out by the employer, we consider that the Tribunal have quite clearly substituted their view for that of the employer and not approached the matter from the point of view of whether or not the employer acted reasonably in relation to the extent of the investigation and, more importantly still, failed to address the issue as to whether the conclusions reached by the employer against the background of the actual investigation carried out could be reasonably justified.  That is the proper test, which has not been applied, in our opinion, by the Tribunal.

9.	On that simple basis we consider that the decision cannot stand in respect of either lady, nor, however, do we consider that we can substitute our own view in that respect as to the question of investigation.  It seems to us to be the inevitable conclusion, having regard to the approach adopted by the Tribunal, that the matter will have to be reheard before a freshly constituted Tribunal.

10.	In this respect, it is not without significance, that the dismissal appeared to have arisen from the consideration of the last set of phone calls, in the context when it might have been better to view the matter against the whole history from 1994.

11.	For these reasons we consider that the appeals must be allowed in both cases which will thereafter be remitted to a freshly constituted Tribunal for a new hearing.  There is no reason why the hearings cannot be conjoined as they were at the first instance.