Appeal No. EAT/685/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 1st December 1993
	Judgment delivered on 21st January 1994

	Before

	HIS HONOUR JUDGE B HARGROVE OBE QC

	MR T S BATHO

	MR E HAMMOND OBE

THE POST OFFICE 	APPELLANTS

N P RUSSELL	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR PAUL T ROSE
(of Counsel)
The Solicitor
The Post Office
Impact House
2 Edridge Road
CROYDON CR9 1PJ

For the Respondent	MISS J MAY
(of Counsel)
Simpson Millar
101 Borough High Street
London Bridge
LONDON SE1 1NL

	HIS HONOUR JUDGE HARGROVE QC       After a two day hearing the Industrial Tribunal held that the Respondent had been unfairly dismissed.  The Respondent was a postman and he was dismissed because the employers were satisfied that he had interfered with the mail and had made an indecent telephone call to a lady from the Post Office premises thereby bringing the Post Office into disrepute.

	The Tribunal found that on 11th October, a lady (hereinafter called the complainant) posted a letter to the Evening Post `Heart-to-Heart' column.  That letter contained some personal details.  At about 11.15  to 11.20  on 11th October she received an offensive telephone call which made it obvious that the caller had read her letter.  She realised that the letter could not, in the time, have been delivered to the addressee and after contacting the police on 12th October, she made a complaint to the Post Office.  The letter when delivered, had been resealed and it was plain that it had been opened.  Investigations took place and the telephone call was traced to extension 7172 of the Post Office and that extension was sited in the Caller's Office (a section within the letter office and the section which dealt with mail being sorted for the Evening Post).

	At the relevant time there were only three persons who were employed, in whole or in part, in that office.  The Respondent (who was standing in for a Mr Grover), Mr Grierson who had a pronounced Scottish accent, and Mr Dinnage a driver who from time to time gave some assistance.

	The complainant believed that she would recognise the voice she heard on the telephone.  Mr Svensen carried out an investigation and made a report which deals not only with the facts but also gives certain views upon the type of character  which Mr Russell appears to be.  The investigation then passed into the hands of a Mr Loo.  He interviewed both Mr Grierson (whose accent he noted) and Mr Dinnage.  He considered the denials of both of them and found them to be credible.  On the following day, 18th December, Mr Loo interviewed the Respondent.  He did not find him credible and he added a number of comments to his report about the Respondent's personality and, more surprisingly, about the fact that he had been awarded £25,000 against the Post Office being compensation for personal injuries in an industrial accident.  That surprising observation was made in a critical spirit.

	The complainant had a tape of the Respondent's voice played to her.  That tape was a recording of an interview with the Respondent and, as one would expect, it was accusatorial in tone.   The complainant said that she recognised the voice as being that of the man who had telephoned her on 11th October.  Mr Blair was appointed to adjudicate upon the disciplinary proceedings and he was concerned because the complainant had been asked to listen only to the Respondent's voice.  Arrangements were made for her to hear all three possible voices although they were described to her as a suspect and two colleagues.  Again she picked out the voice of the Respondent.

	There was a formal disciplinary hearing on 15th July conducted by Mr Blair who concluded that the Respondent should be dismissed.  There was an appeal to Mr Elliott on 28th February.  The point being made on behalf of the Respondent was that there had not been a genuine hearing before Mr Blair because guilt had been pre-determined by the way in which the investigation had taken place.  Mr Elliott was concerned and caused further inquiries to be made upon receipt of that further evidence he upheld the dismissal.

	The Industrial Tribunal decided that the investigation was not a reasonable one -
	"14   With those various criticisms we asked ourselves whether we were satisfied that the investigation was a reasonable one in all the circumstances.  We do not think any one of our criticisms could be said to make the investigation an unreasonable one, but taken all together we really do not feel we can say that the investigation was reasonable.  We think Mr Collins' criticism is right, that once Mr Svensen and Mr Loo had put their gratuitous comments in the reports, the whole matter carried on as a criminal investigation had done on the basis that the applicant had done it "let's see if we can prove it", rather than an objective investigation.  My lay members feel more strongly on this issue than I do.  I can see an argument that it was proper to start the investigation on a criminal basis and that whilst that inevitably had a certain implication to it, that should not invalidate what follows.  I can see an argument that our criticisms are minor and that overall the investigation was a reasonable one. ..."
The Tribunal proceeded to consider at paragraph 15 what would have been the position had a reasonable investigation taken place -
	"...We have to admit, as Mr Rose pointed out, that all the evidence to begin with immediately pointed at the applicant.  However, we are faced with the difficulty of knowing whether the complainant would have recognised his voice if she had heard all three together.  Would Mr Blair and Mr Elliott have reached the same conclusion if there had been doubts on the voice, and if they had realised (as we feel would have come to light on further enquiries at the appropriate time) that Mr Dinnage did not always stick to a schedule and might possibly have been on the premises? ..."
The Tribunal proceeded to estimate the chances of the investigation reaching the same conclusion as 50-50.

	The Appellants maintained that the Tribunal has misdirected itself in finding defect in the investigation which, when examined carefully, are unfounded.

Investigation focused only on Respondent
	The Appellants maintain that even if it would have been preferable had the complainant heard all three voices at the same time it was not incorrect to focus upon the Respondent since there was very considerable evidence even without the tape to implicate him.
(a)  Only three postmen had access to that office.
(b)  The call came from the telephone in that office.
(c)  The Respondent was the person who would have handled the letter.
(d)  The complainant had said that the caller had no distinct accent thereby ruling out Mr Grierson.
(e)  Dinnage's access to the post differed from that of the Respondent.  Mr Dinnage was merely collecting; the Respondent was sorting mail.
We find some difficulty in following the Tribunal's conclusion on this aspect of the case, but upon balance we accept that it was an approach the Tribunal was entitled to take.

Gratuitous comments by the investigation officers
	It is said that the criticism of the investigation officers gratuitous comments as a ground for making the investigation unreasonable is misconceived.  In approaching the question of the reasonableness of the investigation the Tribunal did not make the distinction between what evidence was assembled by the investigation officers and whether such evidence was accorded any credibility by the individuals making the adjudication.  Mr Blair said that the gratuitous remarks were not used by him in reaching his conclusions. (see P.26).  He was even more specific at p.27 -
	"No previous disciplinary record at all.  That's why I discounted what investigating officers said.
I accepted facts from reports, not their opinions.

R1/12 - 4th para.  I did NOT take this into account."

	In the case of Mr Elliott who heard the appeal, he was equally emphatic.
	"I did NOT ask Svensen how he got information for remarks.  I just ignored them.  They didn't seem relevant to my reasoning."

	The Tribunal appears to have concluded that because those adverse comments were made the investigation became unfair.  There is no finding that Mr Blair or Mr Elliott were not being believed in their denials that they had taken the adverse comments into consideration.  We find it impossible to draw the inference from the Reasons of the Industrial Tribunal that the denials of Mr Elliott and Mr Blair were by implication being rejected.  It seems to us that this matter has simply been overlooked.

Criticism of a lack of corroboration of the whereabouts of Mr Dinnage
	The second area of difficulty arises
	"... The delay had some effect on this because, whilst it is clear that Mr Dinnage had a normal practice, it is also obvious from one of the statements that he did not always stick to those times.  Asking him so long after the event is both unfair on him, and indeed the questioner, to try and find out what happened a long time before.  The delay on this aspect was a positive hindrance.  There was no independent corroboration of Mr Dinnage's absence at the crucial time, which Mr Elliott felt was needed."

	We have been invited by the Respondent to read that passage as meaning that there was no evidence from anyone who could speak as to the precise hours on the day in question when Mr Dinnage was away from the caller's office.  We consider that the expression "corroboration" has its normal meaning of evidence coming from an independent source     confirm some of the evidence.  Unfortunately, the Tribunal overlooked the evidence of Mr Bungay which said explicitly that every night Mr Dinnage and Mr Bungay played snooker at Caversham from 22.30 to 23.00 hours.  He was able to be precise because their "time slot" at the snooker table was that half hour.  Thereafter two other employees took over the table.  He estimated that Mr Dinnage collected mail and drove to the caller's office and would get there about 11.30 p.m.  The Respondent contends that this is not precise enough for corroboration.  What is worrying is that not only did the Industrial Tribunal overlooked Mr Bungay's evidence but there is a further passage which seems to indicate how the error occurs. 
	
	The findings of fact are set out at paragraph 5(s) to 5(v):
	"5(s)  The applicant lodged an appeal.  That appeal was heard by Mr Elliott on 28th February.  Mr Elliott's notes appear at pages 66 to 69.  Mr Collins on this occasion represented the applicant.  Mr Collins' main argument then was very much what it is here before the Tribunal, namely that there was a predetermined assumption of the applicant's guilt rather than approaching the matter as a reasonable open-minded investigation, that there had been an unreasonable delay in dealing with the disciplinary side due to the laxity of the investigation department.  He also expressed some concern about Mr Svensen's involvement.

	  (t)  Mr Elliott clearly took Mr Collins' criticism seriously for he wrote to Mr Loo of the investigation department in London on 1 March (page 70) asking 5 specific questions to which Mr Loo replied on 6 March (page 71).  Mr Blair added further information (document 72) and Mr Elliott pursued 3 other questions with Mr Blair by letter dated 18 March (page 73) including the need for independent corroboration of Mr Dinnage's absence.

	  (u)  The latter letter refers to the working pattern of Mr Dinnage and asks 3 specific questions.  The third is whether there are any occasions when Mr Dinnage arrives back at the sorting office earlier than the stated times.  Mr Blair's reply is on page 74.  He had interviewed both Mr Grierson and Mr Grover concerning this.   Mr Grierson's version was that Mr Dinnage departs from Caversham at 11 p.m., takes his break and usually gets back at 11.30, often later.  It can be as late as 23.45 "on a very rare occasion he is back in before 23.30".  Mr Grover's version differs slightly saying that Mr Dinnage leaves the Caller's Office between 11 and 11.30 and goes to Caversham where he takes his break.

	  (v)  Having completed all these further enquiries Mr Elliott dismissed the applicant's appeal.  His reasoning is set out on page 69."
But p.69 does not contain Mr Elliott's reasoning.  The reasons occur at pages 80-81.  It cannot be a typing error because if the Industrial Tribunal had meant pages 80-81 then they would have been aware at this point Mr Elliott specifically mentions Mr Bungay's corroborative account.  We are of the view that the Tribunal again overlooked this part of the evidence and that the Appellants are correct in saying that there is no support for the finding that there was no independent corroboration.

Substituting Industrial Tribunal's own views for those of employer
	Further criticism is levelled at the reasons where it is claimed that the use of expressions such as "We are not happy" (paragraph 12), "We really do not feel that we can say that the investigation was reasonable" indicate that the Tribunal was substituting its own views for that of a reasonable employer.  We do not consider that this point has merit.  We regard that approach of considering individual phrases without looking at the context of the expressions to be an unreliable guide and it is close to the "fine tooth combing" against which the Court of Appeal has warned in the past.

Failing to appreciate that the employers reacted within the band of reasonable responses
	This criticism derives from paragraph 9 of the Reasons -
	"9   This matter has given the Tribunal a good deal of trouble.  It took us a lengthy time to reach any conclusion.  We apprehend that it may be one of those cases where one could describe the decision as marginal in that one can see a very strong argument in favour of fair dismissal and one in favour of an unfair dismissal.  As recorded above the facts are not really in dispute.  Perhaps that is a good indication why the decision was so difficult."
We do not think it is a valid criticism of this passage that it demonstrates that the employers' decision must have been within the band of reasonable responses.  All that the paragraph was showing was the very proper concern that the Tribunal was displaying over a difficult decision.  The Tribunal was demonstrating the process of weighing the arguments prior to reaching their decision.

Conclusion
	We appreciate the considerable time and concern which has been expended upon this case by the Tribunal bearing in mind the issues involved, their gravity and the complexity of the evidence, we have every sympathy with the Tribunal members in their approach.  However, it follows from the above that there are two vital matters upon which the Tribunal plainly misdirected itself and reached unsupportable conclusions of fact.  With great reluctance we are obliged to allow this appeal and remit the matter to be heard before a different Tribunal.

	This is a unanimous decision.