Appeal No. EAT/535/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 10 September 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR J D DALY

	DR D GRIEVES

THE CITY OF OXFORD MOTOR SERVICES LTD	APPELLANTS

R K NAZAR	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR M SUPPERSTONE QC
Messrs Thomas Mallam
Solicitors
126 High Street
Oxford
OX1 4DG

For the Respondent	MR T CORRIE
(Of Counsel)
Messrs Brown & Pajak
Solicitors
Wesley House
7 High Street
Kidlington
Oxon
OX5 2ES

	MR JUSTICE WOOD (PRESIDENT):  By an Originating Application which was dated 27th September 1990, Mr Ravi Nazar complained that he had been unfairly dismissed by his employers, the City of Oxford Motor Services Limited.  He was employed by them as a Driver/Conductor and had been employed, prior to his dismissal, for some 20 years without complaint about his conduct.  He started with them on the 2nd February 1970 and was dismissed on the 26th July 1990.

	The case concerned the question of the money bags which were utilised by the Driver/Conductors.  The Tribunal do not describe the system which operated but it seems to us, as it did do during submissions, important to understand it and we have been assisted from the Bar with information which is agreed.

	A Driver on a bus issues tickets and receives money.  In so doing there is an electronic machine, rather like a till in a store, which marks up the amounts, and presumably each individual fare, so that when he finishes his duty he can tear off a slip and there it is giving evidence of what should be, in money, in his bag.  There is also, as part of the fare system, a special arrangement for pensioners, and presumably for disabled or others, who receive blue plastic tokens which they can hand in, and therefore which may find their way into the bag of a Driver/Conductor.  At the end of his duty the Driver will go to a room where he will prepare a slip;  a wayleaf;  on that he will put the amount of the money which he has counted up and which is in his bag and he will also either attach it or photostat on to it a copy of the slip from the electronic machine; thus at the foot of each column, right and left on the wayleaf there should be the identical total.  There will also sometimes be in the bag some blue plastic tokens.  The Driver then takes his bag which is capable of being opened and closed, I suppose, by drawing a piece of string at the top, and he will attach to it a metal tag which he takes with him when he goes on duty and has his own personal number upon it.  Thus he will put that tag on to the outside of the bag, he can pull the mouth shut, he will then go across to what has been called the "hopper" and into the hopper he will place his bag.  The hopper is the equivalent of a form of night safe, and it has, we are told, at its mouth a level portion for a short distance before the drop and then on the mouth of the hopper you have a flap door, of some kind, presumably suspended from the top.  So that when the bag drops into the hopper it goes down, the cashiers down below can check the money against the wayleaf, record it and the money banked.  It is clear that that system is an important system as there must be so much money passing through, and indeed the matter is described in a note made by the Managing Director of the Company which indicates what he said to Mr Nazar at the final Appeal Hearing.  It says this:
"In conclusion he pointed out Mr Nazar that this Company functioned on one basis only and that was of trust, in other words, the Company trusted the driver when he was engaged to collect the correct money from the passengers, to see that people had tickets and to pay that money in at the end of the day, that trust was also to be expected from one employee to another in that they were all responsible for money and if money was found or cash bags were found those cash bags were not to be opened, but should have been either, a) put into the safe or b) handed to an Inspector so that the matter could have been properly recorded."

So there was the system, and the importance of the system.  There was no evidence before the Industrial Tribunal that that system was reduced into writing, nor was there any evidence that any breach of that system would be regarded as gross misconduct and would therefore render the employee liable for immediate summary dismissal.  If those factors are not in writing it may be something which the Company may wish to consider for the future.

	The hearing took place before an Industrial Tribunal sitting at Reading on the 5th August 1991.  The witnesses appearing before them were, the Applicant on his own behalf, and for the Company, a Mr Clarke, Mr Beaman, his superior, Mr Townsend, the Managing Director, Mr Barton, another Driver/Conductor, Mr Tyson and Mr Gregory, who were members of the Trade Union to which Mr Nazar belonged, and Mr Gillingham, who was also a convener but was nevertheless, an important witness in the chain of occurrences.

	The Tribunal decided in favour of the Applicant and the Decision recited:
"The unanimous of the Tribunal is that the applicant was unfairly dismissed and that within seven days of promulgation of this decision the respondents shall reinstate him as a bus driver."

that was the oral Decision of the Tribunal, the seven days being added to the remainder of that Decision at a slightly later juncture during the day.

	Again, it is common ground, and it is important to understand, that the procedure here was as follows.  The Tribunal sat at 10.30 am, they heard through the day, until the middle of the afternoon, the issue on what is commonly called liability; they then returned gave its decision on liability and announced that reinstatement would be ordered, thereafter the issue was how soon that Order should be given effect and the seven days was then added to the Order.  It is probable that Mr Townsend was asked about that after the announcement on liability and the decision to reinstate as to the period of time, but otherwise it was merely argument after that announcement and the case finished at about 3.30 or 4 pm.

	The outline of the Decision is succinctly set out in paragraph 1 of the Judgment, and it is, we feel, useful to set it out because it gives the background to the issues before the Tribunal.  It reads as follows:
"Between 2nd February 1970 and 26 July 1990 the applicant was employed by the respondents as a bus driver.  On the latter date he was dismissed because the respondents believed that he had been dishonest.  He denies that that was so and the only point which falls to be determined by the Tribunal is whether the respondents carried out a sufficiently thorough investigation and if so whether they were justified in believing that the applicant had been dishonest.  As part of their investigation they held a disciplinary meeting on 26 July 1990 when the applicant was told by Mr Clarke, the respondents' Assistant Operations Manager, that he was summarily dismissed followed on 27 July 1991 by an unsuccessful appeal by the applicant to Mr Beaman, the respondents' Operations Director.  Had the matter rested there the respondents would have been fully justified in their decision to dismiss because that decision was based on what the respondents saw to be convincing evidence that the applicant had been dishonest and that opinion was fortified by the fact that the applicant admitted the allegation of theft.  How then does it come about that we find that the dismissal was unfair.  The reason is because of what transpired at a second appeal hearing conducted by Mr A W Townsend, the respondents' Managing Director on 30 July 1990 when the applicant retracted his earlier confessions and told Mr Townsend of how he came to be in possession of the sum of £130.00 being part of the money he was suspected of stealing.  Had Mr Townsend adjourned his appeal hearing and made further investigations it is conceivable that he would not have endorsed the decisions of Messrs Clarke and Beaman."

Pausing there, each of the Advocates draw some strength from that paragraph.

	Mr Supperstone points out that the Tribunal there, quite apart from the admission of dishonesty, which was subsequently withdrawn, find that the remainder of the evidence was convincing, and he submits therefore, if the remainder of the evidence was convincing that was sufficient upon which a reasonable employer could honestly believe that there was dishonesty.

	Mr Corrie, on the other hand, points to the last passage in that paragraph and submits, not only that the retraction of the confession should have been further investigated but also that the explanation given on that occasion, and one must say for the first time on that occasion, about the £130, should have been further investigated.

	The Tribunal make a number of findings and set out their findings of fact in paragraphs 3 to 7 of their Decision.  They preface those findings with this phrase in paragraph 2 they say:
"In addition to the confession the evidence available was . . . to the following effect."

The story was as follows.  Driver Barton had been on duty on 19th July, a Friday, and he had put his bag into the hopper but it had been put into the mouth of the hopper and was apparently caught and had not been fully dropped.  He himself thought it had been dropped but it clearly had not as we shall explain.  It was found to be empty when examined on the 25th July but it should have had in it, according to his wayleaf, about £191.20.  A video camera is working constantly in the hopper room and one can see, not the whole of the room, but certainly the area immediately around the mouth of the hoppers, and presumably because the times are exact, where you have a surveillance camera of that nature, the time is recorded also on the camera.  At 04.23 on the 20th July, that is after coming off duty on the 19th, a bag had been put by Mr Barton, and had been lodged therefore, in the mouth of the hopper.  No one else came to the mouth of the hoppers according to the evidence of the video camera until 5.31 of that same early morning, when the Applicant approached and placed his bag in the hopper.  Then the Tribunal find this:
"The applicant was then seen to take Barton's bag from the right hand hopper and take it to an area out of range of the video camera."

That was seen.  It was found that Barton's bag was empty, and so on the 25th July Mr Clarke started his investigation.  At 3.30 pm on that day he saw the Applicant in the presence of Mr Tyson, the Trade Union representative.  A note has been made by Mr Clarke, it was before the Tribunal, and it has not been challenged.  It is perhaps convenient to set out the facts according to that note.  The note reads:
"I saw the bag in the safe drawer I did remove it, and checked it on the centre table.  But their were only Blue Tokens in it, so I put the ring back on and put the bag back in the safe.  If you are saying I took £199 then I will see my friend and get this amount for you."

Mr Clarke then suspended him.  Later that day the Applicant came back and offered to repay the money missing, "even though he had not taken it".  This was not accepted.

	The following day, 26th July, Mr Clarke convened another meeting and at this meeting the Applicant was represented by Mr Gregory not Mr Tyson.  Mr Clarke told the Applicant that Mr Barton's bag had been checked and one will remember that there were said to be blue tokens in it;  Mr Clarke said there were no tokens in it and asked the Applicant what he had done with the ones he had said were in the bag.  At this point under pressure from Mr Clarke the Applicant eventually, suddenly said, "I took it".  When asked what he was referring to he said "the money from the bag".  At that point Mr Clarke decided to dismiss him summarily.

	There was an appeal as there was entitled to be an appeal.  At that appeal Mr Nazar appeared before Mr Beaman.  The note of the appeal was also before the Industrial Tribunal and is before us.  The grounds of appeal were signed by Mr Gregory and it is right that the ground being put forward as one of mitigation rather than a retraction of the admission made to Mr Clarke.  Indeed the admission of theft was maintained.  Mr Beaman heard the whole matter, he reviewed the evidence, he asked the Applicant what he wanted to say and having considered the whole matter he rejected the appeal.

	Then on the 30th July the matter came before Mr Townsend.  Again there is a long note of what occurred and it was right that it was on this occasion that the first explanation was put forward about the £130, to which I will return.  The admission of theft was withdrawn and it was said that Mr Gregory was wrong and had given bad advice in suggesting that Mr Nazar should admit the dishonesty even though he had not been dishonest.  Having considered those matters, including all the other matters, Mr Townsend reached the conclusion that the decision to dismiss was a valid one and therefore confirmed the other decisions previously taken.

	The Tribunal deal with that final appeal and their criticism of it in two paragraphs.  Paragraph 11 and 12 of the Decision.  Paragraph 11 reads:
"We now come to the all important evidence of Mr Townsend who disallowed the second appeal.  He said that he had not discussed the matter with Messrs Clarke and Beaman before the second appeal but had read the notes [I have already referred to them] . . Mr Townsend's note of the second appeal are before us.  In paragraphs 1 and 2 he recorded that the applicant expressed dissatisfaction a the advice he had received from Mr Gregory before the hearing on 26 July 1990 and that he wanted to make clear that `statements he had made in respect of taking the money (ie admissions) were in fact not true and that he had done so on the advice of Mr Gregory.  When asked how that had affected his decision Mr Townsend  replied `I believed that the applicant had made that statement to further advance his case and find it strange that he wanted to get to my desk before saying that.'"

It has now been agreed with the learned Chairman that that was not an accurate account of his comment, his comment had been "I found it strange that someone would admit to taking money if they had not done so".  

	The Tribunal go on to criticise the situation in this way at paragraph 12:
"That is the totality of the relevant evidence.  Unquestionably the advice the applicant received from Mr Gregory was thoroughly bad.  If the applicant was saying that he had not stolen the money he should have been advised to `plead not guilty' and be prepared openly and frankly to deal with any questions put to him by Mr Clarke.  Any opinion formed by the respondents as to his innocence or guilty was pre-ordained by the guilty plea.  When Mr Townsend was alerted to the fact that the applicant wished to retract his `guilty plea' he should have arranged to interview Mr Gregory and having done so formed an opinion as to what credence could be attached to that plea.  It may well be that without the `guilty plea' Mr Clarke would have arrived at the same conclusion but that is mere surmise but what is certain is that with the guilty plea in place no reasonable employer could come to any other conclusion.'

Two points are taken there by Mr Supperstone, the first is that it is perhaps a little hard on his clients to say that the plea preordained what followed in the light of what is said in paragraph 1 of the Decision, namely that the remaining evidence was convincing and was merely fortified by the admission.  We find that submission a forceful one.  Secondly, he submits that the whole basis of the criticism that Mr Townsend should have enquired further, was that the advice given by Mr Gregory was thoroughly bad.  That means that the advice given must be accurately set out before that criticism can be deemed to be well founded.  

	Mr Gregory, and indeed, Mr Tyson, both of them trade union representatives, gave evidence on behalf of the employer.  Mr Gregory said that what he had told Mr Nazar was that "if you took this money you ought to get it off your chest, we can then work on your good record".  Now that advice no one could possibly criticise because any other advice would have been wholly irresponsible and indeed, undesirable, in any industrial relations concept. It would encourage falsehood. Mr Tyson said that he had been told by the Applicant that "Gregory had said, if you took the money admit it".  That was the evidence by the two trade union officials.  Mr Nazar gave a very different version and had really indicated that whether or not he was guilty, and even if innocent, he had been advised to plead guilty, which is a very different concept. 

	It therefore behove the Industrial Tribunal to make a clear finding.  We were told that Mr Gregory was properly cross examined by the Solicitor for the Applicant indicating that Mr Nazar's version was the correct version of the advice that had been given.  Despite that, the Tribunal find in paragraph 5 that the version given by Mr Gregory was the evidence, which as they were setting out the facts at that stage in their Decision, was the evidence which they accepted.  If that was not the situation then it was clear that both sides of the argument should have been put in the Decision and the Tribunal should have found, which they believed.  It seems to us, reading this Decision as a whole, and bearing in mind the position where that paragraph 5 stands, that that was a finding which the Tribunal made, one can then say their comment and criticism is rather bizarre.  We respectfully, do not understand it, but can only read the Decision in that way.

	However, Mr Supperstone goes much further than that, he submits, that when one looks at the remainder of the evidence excluding the admission, then as the Tribunal themselves described it, it is not just convincing it is overwhelming.  He makes ten points.  He submits that when one looks at the letters of Mr Clarke, Mr Beaman and Mr Townsend they refer throughout to all the circumstances of the case and therefore it is the whole evidence in the round that the Company and the Management were looking at when reaching the Decision that there had been dishonesty.  Then there is the evidence itself and he makes ten points.  The video shows quite clearly, one that Mr Barton's bag was in the mouth of the hopper, two, that it was taken by the Applicant and taken out of range of the camera and returned to the same place and that no one else had been into that hopper room or near the hoppers between Mr Barton's visit and Mr Nazar's visit.  Then there is the acceptance that there should have been £191.20 in the bag.  The Applicant took the bag out of the hopper at 05.31 hours and he gave many different versions of what occurred in the interviews to Mr Clarke, we do not think it necessary to look at each of those inconsistencies, but it is also true to say that it is unusual to offer to pay back money if he is wholly innocent.  The grounds of appeal to Mr Beaman were drafted by Mr Gregory and therefore there may not be much in that point but the opportunity to retract the admission of guilt was available before Mr Beaman and the object, namely to keep his employment, had not been achieved in front on Mr Clarke.  It was therefore very unlikely that it would be achieved on appeal unless the opportunity was taken to indicate that the admission of guilt was wholly erroneous.  Therefore, Mr Supperstone submits, that the evidence was overwhelming.

	However, there is a further aspect of the matter which seems to us to be material.  At the appeal before Mr Townsend a new explanation was given of what had occurred on that particular early morning, and to put it shortly, it was this.  That Mr Nazar had come off duty on the 19th and taken his money bag home with him.  He had needed to take from it £130, in fact his wayleaf did indicate, that there should have been £190 in it, so that if he had taken out the £130 that would have left some £60.  In the early morning of the 19th he in fact, as his Bank statement indicates, withdrew from a cash point at 05.22 hours a £130.  It indicates, we need not give the figure, a very considerable overdraft balance at that time in his private account, but he took that £130 with the intention of replacing it in his bag.  He therefore has his bag with him, he has £130 with him and when he arrives at the hopper room on his way to take up his duty, if his intention was to replace the £130 into his bag, one asks, why had he not done it at the Bank at the cash point?  Why couldn't he have done it on the way?  He says he dropped the £130, that presumably would have spread the notes over the floor, would not the camera have seen this?  In any event if this was the whole of the story, why ever bother to go near Mr Barton's bag?  In fact, he went to the other hopper but if he had gone to the same one as the bag in which Mr Barton had put his, why not just push Mr Nazar's bag after Mr Barton's bag and let them both go down the chute.  So that even on the explanation given to Mr Townsend at the second appeal it seems to us that the evidence, if anything, emphasises the weight of the overall convincing evidence as described by the Industrial Tribunal.  

	It seems to us therefore, that first of all, if criticism was going to be made about the advice given by Mr Gregory, and if in fact that merited further enquiry, then the advice given should have been found specifically.  We believe it was found, but if we are wrong about that, it was a fundamental point and the fact should have been found before the criticism was levelled.  Secondly, in the view of the Industrial Members, and I agree with them entirely, the situation as set out in paragraph 1 of the Judgment was absolutely right.  Quite apart from the admission there was convincing evidence upon which an employer, Management, could have reached the conclusion that he did and the opinion was fortified by the admission.  There is also the unusual circumstances in which the admission was withdrawn.  Although the direction in law was correct on the Burchell test, we feel that this reasoning, of this Industrial Tribunal was flawed and we would therefore find that on the facts that this dismissal was fair.

	However, it might be said that we were substituting our own view for that of the Tribunal and it must be apparent to anyone listening so far that the view of the three members of this Court is wholly different from that of the Industrial Tribunal.  If it be held subsequently, that we were wrong in taking that view then the situation must be examined from the aspect of remedy.  First, the procedure before the Tribunal was that the decision on remedy was given before the employers knew the reasoning behind a finding of liability and in this case, as in many others, but par excellence in this case, how could one possibly argue the issues on remedy without knowing the basis and the understanding of the reasoning of the finding of liability. 

	It would follow therefore, that the remedy issue would need to be remitted to another Tribunal.  However, that might not be the only course, have we got sufficient facts found here, quite apart from the inferences or conclusions we draw from those facts ourselves to say, look even if it went back to a tribunal on remedy the result is so obvious that no reasonable tribunal could possibly reach any other. 

	 Again, I am greatly assisted by the Industrial Members and it seems to us here that on the findings of fact that have been made, there is no question but that when considering reinstatement or re-engagement, when considering contribution, when considering the just and equitable provisions on their own, it seems to us that the only answer that could be given by a reasonable tribunal is that there would be no award of compensation.

	It follows therefore that this appeal is allowed and we substitute a finding that this dismissal was fair.