Appeal No.	EAT/1365/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 December 2000

Before
HIS HONOUR JUDGE J ALTMAN
MR P R A JACQUES CBE
MISS D WHITTINGHAM

CONNEX SOUTH CENTRAL LTD	APPELLANTS

MR EDMUND LAMB	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR OLIVER CAMPBELL
(of Counsel)
Instructed By:
Vizard Oldham
42 Bedford Row
London WC1R 4JL	
For the Respondent	MS LYDIA SEYMOUR
(of Counsel)
Instructed By:
Irwin Mitchell
Solicitors
48/50 St John Street
London EC1M 4DP

	JUDGE J ALTMAN:	

1	At the outset of this hearing Mr Campbell, on behalf of the Appellants, asked to put in some extracts from the Rule book and some notes of the disciplinary interview.  This was opposed on a number of grounds.  First, it was said that they were late, which in view of the enormous ability of Counsel in this case does not seem to us to be a valid argument.  Counsel are very experienced in adjusting to late delivery of material.  Secondly, it is said that it is selective.  That is an objection that is clearly fatal to the application in relation to the notes of the interview.  That was simply evidence of one person’s record of a disciplinary interview about which all sorts of other pieces of evidence were before the Employment Tribunal and in that case it would be quite wrong for us to have just one version before us and we refuse that application.

2	We are asked to look at some extracts from the Rule book.  There cannot be any dispute as to what the Rule book says, and if it assists Mr Campbell’s argument to be able to refer to it, we cannot see any objection to his doing so, although we suspect that he is right that it will not take the matter much further forward.  We admit the Rule book extracts. 

3	This is an appeal from the decision of the Employment Tribunal sitting at London (South) over two days on 24 June and 1 September 2000.  The appeal is from the unanimous decision that the Appellant unfairly dismissed the Respondent.  This Appeal proceeds following a preliminary hearing in the Employment Appeal Tribunal and is based on two grounds of appeal.  The first is that the Employment Tribunal failed to give any, or any adequate reasons for its decision that the Respondent had not contributed to his dismissal by his conduct.  It is alleged that that was a serious error, bearing in mind the emphasis placed by the Appellants on the argument that there was contributory fault and, we would add in parenthesis, noting that it was raised in the original Notice of Appearance.

4	The second ground of appeal is that the Employment Tribunal failed to consider whether, if a fair procedure had been followed, the Respondent would on the balance of probabilities have been fairly dismissed as a result of his conduct on or shortly after 7 May 1998.  It is not contended that the “no difference” rule should apply but it is suggested that the compensation awarded should have been reduced by a percentage which has not been specified.  The subsidiary ground of appeal is that there were no reasons given for not making such an order.  

5	The background to the finding of the Tribunal arises from the Respondent’s employment as a train driver with the Appellants.  He had been a moderately long serving employee of something over ten years and, no doubt, it is in the nature of being a train driver that it is something of a career.  Two incidents gave rise to the dismissal and they both have in common the fact that actions by the Respondent appear, on the face of it, to have delayed the departure of the train so that, on the first occasion, there was a 30 minute delay, and on the second, there was the entire cancellation of the train.  

6	In finding the facts the Employment Tribunal explained the two incidents.  The first is that the Applicant (the Respondent here) discovered, before leaving Victoria, that his train had only one instead of two spare shoe fuses.  The Respondent was concerned that this might signal some other fault because the implication was that one of the spare fuses had been used up already.  Furthermore, he having reported the missing shoe fuse, departure appears to have been delayed by the fact that the fitter brought the wrong piece of equipment and had to go to another train to get the right piece of equipment which eventually he gave to the Respondent.

7	So far as we can judge the criticism levelled against the Respondent was not that he had adverted to the absence of one shoe fuse, but that he had acted in such a way as to delay the departure of his train, as a result of what he did.  

8	We would only pause to note that in the context of the findings of the Tribunal all he did was to telephone the control point to report it.  It appears that the delay thereafter was the delay in providing the right replacement.

9	On the following day the Respondent arrived half an hour before his train was due to leave but was unable to reach his train because of a fire alarm which prevented his doing so until two minutes after the time due for departure.  He found that some lights were on which should not have been and that the switch would not operate to extinguish the lights.  Again, what followed afterwards seems to have been the consequence of actions by the fitters.  The first thing that happened was that on their arrival they broke the switch and in trying to repair it a tail lamp became inoperative.  Again, the Respondent took action by asking for a battery tail lamp from the platform staff for the rear of the train.  This did not work because of a flat battery and while the Respondent was waiting for a replacement an announcement was made of cancellation.  There was a third incident which the Appellants in due course did not accept as a criticism of the Respondent and we say no more about it.  The Respondent was then apparently suspended with pay, pending investigation, and there was a disciplinary hearing.  The charge was “causing unnecessary delay and cancellation leading to severe financial loss for the Appellants”.  These charges were found proved and the Respondent was dismissed.

10	The Employment Tribunal heard evidence from the dismissing officer and the person who conducted the appeal.  They then set out the case for each party.  The Respondent asserted that he did not refuse to take the train out and, indeed, the refusal appears essentially to have been an inference by the Appellants from the fact that he raised these matters at a time, they would say, when he knew it would cause delay and, they would say, he did so deliberately.

11	In relation to the second, there is some support it appears from the Rule book for the Respondent’s actions in relation to the tail lamp, although no specific reference is made in the Rule book to the shoe fuse.  The reference to tail lamp provides a permissive entitlement on a driver to continue driving but provides no obligation to do so and, of course not surprisingly, the requirement of safety is one of the responsibilities of the driver in general terms set out in the Rules.

12	One of the Respondent’s complaints was a procedural one, namely that the decision to dismiss was on the ground that his actions were vexatious but this had not been put to him at the hearings, and that unless they were deliberate dismissal was disproportionate.  The Appellants would say that that impliedly acknowledged the possible argument of contributory fault.

13	The case for the company is set out at paragraph 11.  They contended that what happened was misconduct and they said this:

“His misconduct consisted in the fact that he had been rostered, but refused to drive the trains, thus causing delay and financial loss.”

14	The Respondent pointed out that the use of the word “refused” was playing with words.  He did refuse by deciding not to drive and they relied upon his admission in interview that his action was unreasonable.  That alleged admission seems to be based on the fact that in relation to the first incident the Respondent apologised.  Of course, the Respondent may have apologised for not understanding principles which he was being told for the first time in interview.  At any rate there were facts there for the Tribunal to consider.  The Appellants said that it was not reasonable to fix the light at that time and it was for the employer to judge whether it was reasonable or not.  There is reference to the employer taking into account previous events and a failure to take out a train.  The Tribunal expressed the Appellants’ case as being:

“As to whether he had acted deliberately or vexatiously, the employer is entitled to conclude that he had, and was under no obligation to specify that in the charges.  If he had been vexatious, then it was within the bound of reasonable responses to dismiss him.  In the alternative, it was argued that, even if he was unfairly dismissed, there was a high degree of contributory conduct.”

15	Having set out the governing principles of law the Tribunal went on to reach their conclusions.  They found that the reason for dismissal was misconduct; they found that the interpretation of the Rule book was not clear and the interpretation that the Appellants sought was not uncontroversial.  They said this:

“In our view, it was perfectly possible for Mr Lamb genuinely to have had an interpretation which led to his actions on the 14th 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.”

16	The Tribunal then go on to consider the procedure.  They said “There were flaws in the investigation” which they do not spell out, except to support the fact that there were not sufficient grounds to dismiss, and they point out that the extent to which the Respondent’s previous record was being taken into account was not made clear and should have been.  In paragraph 18 of their reasons they go on to deal with procedural matters and come to the conclusion, essentially, that the Appellant’s finding that the Respondent was intentionally disruptive, which was central both to the decision to dismiss, and to the question whether dismissal was proportionate, was not dealt with at the disciplinary hearing.  The Tribunal found that there was confusion about this important point at the time of the decision.  They came to the conclusion that, without giving him the chance to respond to that specific allegation, there was insufficient evidence on which a reasonable employer could have decided that the actions were vexatious.  They then say this, in paragraph 19:

“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.
20	It is therefore our unanimous decision that Mr Lamb was unfairly dismissed.  We considered whether Mr Lamb had contributed to his dismissal by his conduct.  We concluded that he had not. …”

17	With regard to the second ground of appeal, which is the issue as to whether, if a fair procedure had been carried out the result would have been the same, we identified the procedural flaws spelled out by the Employment Tribunal as to refer to not making clear the extent to which the previous record was taken into account and to the failure to give an opportunity to the employee at the time of the disciplinary hearing to address the allegation that his actions were “intentionally disruptive”.  The question of course, to which we will return under what is often called “the Polkey rule”, is whether, had those opportunities been given, the result would undoubtedly have been the same, or whether there is a measurable possibility that the result could reasonably have been the same.

18	Returning to the first ground of appeal, it seems to us that it is important to bear in mind the sequence of events.  In relation to both incidents the immediate response of the employee was not in itself criticised.  The need to get a shoe fuse or to ensure that a light switch was working are not matters that he was criticised for doing.  The second element was that those steps were taken when his train’s departure was imminent and it is that for which he was criticised because the employer drew the inference, from what occurred, no doubt juxtaposing what they saw as the triviality of the defect on the one hand and the enormous inconvenience and expense caused by delay on the other; that the Respondent was acting vexatiously; that this was not a genuine concern for the safety of the train but was a deliberate act to cause trouble.  

19	The Employment Tribunal directly considered that assessment of what was in the mind of the employee and rejected it.  On behalf of the Appellant it was said that there was a middle ground.  It is said that the Employment Tribunal should have gone on to consider the allegation of contributory conduct and asked themselves whether there was some blameworthy conduct on the part of the Respondent, less than deliberate disruption, which was part of the reason for and the consequence of dismissal and which should have led to a reduction in compensation.

20	On behalf of the Respondent it is suggested that that question never arose, that the Appellants’ case was that this was a deliberate act and that once that issue had been found against them there was nothing left in the argument that the Respondent had some other motive or blameworthiness in mind.  Indeed, we look in vain for any of the words of the Tribunal, particularly those describing the case for the Appellants, as providing a substantive argument of fact that there was some blameworthy conduct short of deliberateness on the part of the Respondent.  We have a great deal of sympathy with the argument of the Respondent’s in this particular case and it arises out of the nature of the facts being alleged.

21	What the Appellants were doing was drawing, it seems to us, an inference from the actions of the Respondent as to his motivation and, having done so and having concluded adversely, they dismissed.

22	The Tribunal having then come to the conclusion that the Appellants’ assessment of his motivation was unfairly based or not reasonable within the statutory test, they were driven to conclude that the dismissal was unfair.  The Appellants having failed there, it does seem to us that there was precious little evidence to support the argument that what the Respondent was doing was in some other way blameworthy or negligent.  Was there evidence that to take exception to the absence of a fuse or the failure of a light switch should not have been raised at that time?  If the train was not going to go for an hour would it have been reasonable to raise it?  If the train would not be going for half an hour would it have been reasonable?  At what point did it become blameworthy in relation to the departure of the train to raise these sorts of matter.  So far as we can assess from the evidence, it does not seem to us that there was the factual substratum.

23	However, on behalf of the Appellants, Mr Campbell argues strenuously that this issue was alive before the Tribunal and available for consideration.  We have gone on to consider, if we are wrong about our judgment that the factual basis upon which the alternative argument of contributory fault could be considered was not before the Tribunal, what findings, if any, the Tribunal made in relation to it.  It is perfectly true that in the final paragraph of the decision, where they set out their conclusion of no contribution, they do not attach specifically to their statement the reasons upon which this statement is made.  That is perhaps unfortunate.  The Tribunal had adverted to the fact that contributory conduct was being argued for in this case.  In their findings of fact the Tribunal make a number of clear findings, all of which it seems to us were in favour of the Respondent.  The interpretation of the Rule book they found to be not clear cut.  They found that it was perfectly possible for Mr Lamb genuinely to have had an interpretation which led to his actions on both days and that his training was more likely to have led to the interpretation which justified his actions.  When they made their initial findings of fact, they made a positive finding of fact that the Respondent was concerned about the fact that there was only one spare shoe fuse and in relating to the light switch they make only factual findings as to the sequence of events.  Furthermore in their conclusions, having established the defects in procedure and the question of the Rule book and training to which we have referred, they find that the employer himself was confused as to what was in the employee’s mind at the time they reached their decision.  

24	In paragraph 19 the Tribunal then went on to find, first, that the Respondent must be taken not to have acted vexatiously, from which there is no appeal, and which undermines the primary submission of the Appellants.  The Tribunal go on to say that “the wrongness of his judgment did not follow clearly from the Rules or his training in their interpretation” and they go on to relate that to the reasonableness of the decision to dismiss.  But it seems to us inescapable that based upon those findings there was simply no scope for a Tribunal to conclude that there was any element of contributory conduct.  The Tribunal found everything the Respondent did to be a reasonable interpretation of the Rules, something that was more likely than not to follow from his training and they made a specific finding that in the light of those two factors the wrongness of his judgment could not be sustained.  Whilst in the body of their decision that was related specifically to the unfairness of the dismissal, it must, it seems to us, leave no room whatsoever for a finding of contributory conduct, because if there was to be any contributory conduct they must have found, to some extent, that his judgment was wrong and they have found exactly the opposite on the material that was before the Respondent at the time.

25	In those circumstances, it seems to us, that although in paragraph 20 the Chairman did not specifically repeat those very reasons that he had earlier set out in relation to the fairness of the dismissal in the context of contributory conduct, it must follow, as night the day, that those were the reasons of the Tribunal and there can be no error of law to support the allegation that they failed to consider it, even more so that they failed to make an award.

26	So far as the Polkey case is concerned, Mr Campbell, very fairly if we may say so, conceded that this point was not taken below.  Nonetheless, he has taken every reasonable point in seeking to raise it as an issue before us.  He has first of all reminded us of the case of Polkey v A.E. Dayton Services Ltd [1987] IRLR 503 in the House of Lords.  It is worth often going back to the source and reminding ourselves that the historic position of that case was that beforehand it had been thought in some quarters that to establish that the procedural defects made no real difference, on the basis that, even if a fair procedure had been followed, there would still have been a dismissal, went to the quality of the dismissal and not to the amount of compensation.  The House of Lords in Polkey then decided that, no, where there is a procedural flaw the dismissal is still unfair and the question of what would have happened otherwise is a matter for the assessment of compensation.  Where the result would have been the same, the compensatory award must be nil.  Scope was suggested by Lord Bridge in cases where the Tribunal could not decide, one way or another, that it was either all or nothing, for them nonetheless, to measure the risk that dismissal would have followed in any event, even if a fair procedure had been followed.  It seems to us that there is a danger that if that becomes too compulsory an element of the calculation of compensation, it will be tacked on as if it were a legal requirement in the calculation of compensation for Tribunals to consider that element in all cases.  But we remind ourselves that Polkey simply provided a permissible approach in suitable circumstances.  That approach was followed, it seems to us, in the case of Fisher v California Cake & Cookie Ltd [1997] IRLR 212 where Lord Johnston set out the sort of exercise and steps that a Tribunal had to take “when an industrial tribunal is addressing the question … whether a fair procedure if it had been adopted would have achieved the same result”.  But the Tribunal was not being asked to address that question in this case and, it seems to us, that the law is clear.  The Employment Appeal Tribunal will not take a point of this kind as an error of law on the part of the Tribunal that was not referred to them.  

27	We were referred to Langston v Cranfield University [1998] IRLR 173, when in the context of redundancy Judge Peter Clark set out the sorts of issues which are generally regarded as encapsulated in a claim, even though not specifically set out in that claim and, of course, we look in vain for any suggestion in that decision that the Polkey principle is one such.  Of course there are things that are included, not everything has to be spelled out in advance.  In the industrial world certain ingredients of redundancy or of compensation are well known and go without saying.

28	So we find that we cannot consider the Polkey element at all.  Even if we were wrong in that, we would look at the procedural criticisms of the Employment Tribunal in relation to the flaws in procedure which they found; the failure to indicate the relevance of the previous record and there is no evidence it seems, on the findings of the Tribunal, where they could begin to assess what would have happened if that previous record had been talked about.  The second flaw in the procedure is the question of whether or not the Respondent was being intentionally disruptive and whether he was given a sufficient opportunity to talk about it at the hearing.  But it seems to us, that the Polkey argument rebounds against the Appellant, not in his favour, in that context because the finding of the Tribunal was that there was no intentional disruptive behaviour on the part of the Respondent and that the Appellants were not entitled to come to that conclusion as reasonable employers.  The canvassing of that in the disciplinary procedures therefore could, it seems to us, have only underlined that conclusion, not contradicted it.

29	So we fail to see any material upon which the Tribunal could, in any event, have concluded that the fairness of the procedure could have made any difference.  It seems to us that, if anything, it could only have reinforced the finding of the Tribunal.

30	For those reasons, therefore, this appeal is dismissed.

COSTS APPLICATION

The law is clear.  We have to be satisfied that the bringing of this appeal was unreasonable.  It may be that in some circumstances that gives an unfair opportunity to a wealthy and unsuccessful Appellant to deprive a Respondent of some of the compensation that he would otherwise have received but it seems to us that, however much we have sympathy with the Respondent that this is what has happened, the law is clear and we cannot find, in relation to the contributory negligence argument, that bringing this appeal was unreasonable.  We make no order as to costs.