Appeal No. EAT/9/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 3rd October 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MRS T MARSLAND

	MR T THOMAS CBE

CLEVELAND TRANSIT LIMITED	APPELLANT

MR P R WALTON	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J WINCH
(Of Counsel)
Messrs Punch Robson
Solicitors
35 Albert Road
Middlesbrough
Cleveland
TS1 1NU

For the Respondent	MR J BOWERS
	(Of Counsel)
	Messrs Patterson & Brewer
	30 Great James Street
	London
	WC1N 3HA

	JUDGE HULL QC:  This is an Appeal to us by Cleveland Transit Limited, a Bus Transport Company against the decision of the Industrial Tribunal sitting at Middlesborough on the 8th and 9th November 1993 under the Chairmanship of Mr Hardwick with two Industrial members.

	It is an unhappy thing that this case has had a substantial history.  The events from which Mr Walton's dismissal arose took place on the 1st September 1990.  Thereafter there were Disciplinary Hearings and he was dismissed.  He complained of unfair dismissal and there was a hearing before an Industrial Tribunal in the summer of 1991 followed by an Appeal to the Employment Appeal Tribunal in 1993; and it is as a result of that there has been this further hearing.  I make no further references to those matters because they simply account in part for the unfortunate delay which has taken place.  

	There was, as I say, a re-hearing on this case on the 8th and 9th November 1993. The Industrial Tribunal directed themselves that they should not look at any of the earlier proceedings and they did not.  We have had those proceedings inserted in our bundle.  We have in fact, looked at them, but we have reached the same conclusion as the Industrial Tribunal that we should pay no regard to those matters; the evidence may not have been the same, the arguments may not have been the same, and of course what was laid before the Employment Appeal Tribunal on the last occasion may have been quite different.  Therefore having taken a quick look at those matters, we put them on one side.

	What happened, and I do not propose to go into all the details, is this.  Mr Walton is a gentleman who is now aged 44 years, and he began his employment as a bus driver with Cleveland Transit Limited, or their predecessors, in February 1975.  So that by the time of the events I mentioned, on the 1st September 1990, he had been in post for more than 15 years.  

	There had been no criticism of him that we are aware of, and certainly no reflections on his integrity.  He was a man, apparently, of perfectly good character.  But on that day, at some time in the afternoon, his bus, which was a single decker bus, was seen at Billingham by a young man aged 18 years, sitting, apparently, on top of a double decker bus.  What Mr Laidler, this youth of 18 years, said he saw was this.  Looking down, he saw Mr Walton extracting money from a hopper in the bus, a safe place for money, with the aid of certain pieces of cardboard which were called, apparently, "tripper wallets".  The tripper refers to the person using them, taking a trip, and the wallet is apparently to contain some special sort of ticket, and they had been out of use for the best part of a year, at that time.  But there, said this young man, he was able to see, looking down from his seat on top of the bus, Mr Walton using the wallets to extract money from this hopper. 

	The bus drivers were forbidden to handle money.  What happened was that a passenger would come on to the bus and the bus driver was not (save in exceptional circumstances) allowed even to give him change.  The passenger, knowing, one hopes, the system, would have the right money ready, would put it into the hopper and the driver would then give the passenger a ticket.  The money would remain in the hopper until the bus got back to the Depot in due course.  The hopper would then be removed and kept safely.  

	So that is what this young man said he saw.  It was in due course admitted that in fact Mr Walton had been in the bus at that time; to go forward a long way, what he said about this was that he had not been engaged in extracting money at all.  What had happened was that some coins had stuck in the top of the hopper, and what he had done was not exceptional in any way, he took a comb which he had in his pocket, and was shoving the coins down into the box to free the entrance to the hopper box, so that when more coins arrived they would go down into the box.  That, as I say, going forward considerably, was his story.

	Mr Laidler was sufficiently impressed, or aggravated or upset by what he had seen.  He thought it his duty to report it.  He said there was not an Inspector on duty at the time, although that was contradicted, it was said by others that there was an Inspector on duty at the time.  He did not in fact report it until about six later, 10.30 at night, when he did report it to one of the Inspectors.  

	It was a Mr Livesey, one of the Inspectors, who went round and took a statement from him and that a short statement is to be found at page 6.  It is dated the 1st September.  Mr Livesey reports what was said to him by the Mr Laidler, and it is written out there:

		"At approximately 22.30 hours I was in the bus station when a driver said a young man wanted a word with me.  Mr John Laidler, and he gave me his address, told me he was sat on the top deck of a bus at Billingham Transport Depot.  He saw a 419 bus etc.to Yarwillie flats at approximately 16.35 that is about 6 hours before.  He then said, the driver, a little man going bald and wearing glasses was taking money out of the hopper. 

		On my return to the depot, I checked out the duty and found it was 38 Driver P Walton on 419 bus."

They looked at the vault, the hopper which was on the bus.

	Now it was found, on further enquiries, that there was indeed a sum of £15 odd missing from the hopper.  That could have gone missing whilst Mr Walton was driving the bus.  It could apparently have happened, as a hypothetical matter, whilst two other drivers, that day, were driving the bus.  And there was in those circumstances an enquiry by Mr Liddle, the Traffic Operations Manager, on the 7th September.  Mr Liddle held a Disciplinary Hearing.  Mr Laidler, the informant, was not present and his statement was put before Mr Liddle.  Mr Liddle heard other evidence and of course heard what was said by Mr Walton, who had union representatives there, and various possible grounds for doubt and difficulty were put forward by the union representatives.  Many of them are encapsulated in the most helpful statement by Mr Bowers in which he summarises those matters which might have given rise to doubt and difficulty, at a later stage when the Industrial Tribunal was considering the matter.

	Mr Liddle said that he was satisfied that Mr Walton had been abstracting the coins.  He was satisfied that the charge was made out and in his view, dismissal was a proper answer in view of gross misconduct in stealing as a person in a position of trust.  

	Now the Disciplinary rules provided not merely for one appeal, but for two.  There was an appeal to Mr Jameson who was the Administration Manager.  He appears to have looked into matters with great thoroughness.  Among other things, he went off with one of the union representatives and they interviewed Mr Laidler, the informant who had given the statement to Mr Livesey.  Mr Jameson's record of his conduct of the Appeal is from page 22 onwards.  That took place on the 13th September 1990.  I shall deal a little more fully with that presently, but when you get to page 34, Mr Jameson having summed up the case admirably and having dealt with various matters, having apparently conducted the appeal in a very thorough way, considered that he should dismiss the Appeal.  

	Then there was a further appeal, which was determined on the 26th September when 
Mr Walton appeared before three senior managers, Mr Solomon, Mr Warnock-Smith and Mr Gray.  The matter was gone into again.  The trade union representatives were heard, and that appeal also was dismissed.  That was on the 26th September 1990.

	Then there was the Application to the Industrial Tribunal on the basis that the dismissal was unfair.  Mr Walton continued to maintain his innocence.  So one looks at the way in which the Industrial Tribunal dealt with the matter, and as I say this was a re-hearing, with everything to be re-tried.  It was under the Chairmanship of Mr Hardwick.  They spent two days on the hearing and they finally promulgated their decision on the 25th November 1993.

	They stated the facts much more fully than I have done.  They recorded that Mr Walton had given evidence of his innocence.  They found him, so far as it was material for them, a trustworthy witness.  They thought that he was telling them the truth, and they set out the story of what Mr Laidler said he had seen.  

	Then they directed themselves to the correct approach.  They had cited to them the cases of Whitbread v Mills [1988] IRLR 88, Clarke v Civil Aviation Authority [1991] IRLR 412 and Morgan v Electrolux, 1991 IRLR 89  They also read, most important in this connection, the well-known cases of British Home Stores v Burchell [1980] ICR 303, and W Weddell & Co Ltd v Tepper [1980] IRLR 96 and they referred to all those cases.  They said:

		"Firstly, there has to be established by the employer the fact of a belief of misconduct and that the employer had in his mind reasonable grounds upon which to sustain that belief. Finally, having formed that belief the employer should carry out as much investigation into the matter as was reasonable in all the circumstances of the case."

I think they may have put that the wrong way round: of course the employer must form his belief after carrying out a proper investigation, but nothing turns in this appeal on that.  They went on to say:

		"We have looked at the respondent's disciplinary procedure which was drawn up in conjunction with the trade union and find both that its principles are fair and reasonable.  Indeed an employee is allowed two appeals against dismissal.  We find that the disciplinary procedure was adhered to by the respondent.  It seems to us as a Tribunal that as soon as the respondent concluded that Mr Liddle reasonably believed in the culpability of the applicant then the hearings focused on specific procedural aspects; for instance was he given a full opportunity to put his side of events and did he feel he had a reasonable hearing?  There is no doubt that he was given every opportunity to put his side of events [this of course is Mr Walton] and the trade union accepted that the hearings were fair.  Their only criticism that the applicant was not allowed to give a statement in writing prior to the first hearing with Mr Liddle.  We do not find this to be a defect in the respondent's actions.

Again, nothing turns on that.  The were not obliged to give him an opportunity to give an explanation in advance.  They were entitled to ask him what his explanation was, at the hearing.  

	Then they went on to set out some of the other facts.  The fact that:

		"Two other drivers operated the cash hopper and vault as did the applicant on that day and it would have been impossible to identify which of the three was culpable had theft taken place."

That, of course was a hypothetical remark because the question was still raised, what to make of Mr Laidler's evidence.  

		"The respondent [they record], did not seek to interview the other two drivers. "

And then at paragraph 20 begins the vital part of their decision:

		"Mr Liddle [that is the Manager who held the first Hearing]  did not accept the applicant's explanation and both appeal hearings did not quarrel with his conclusion.  Mr Liddle formed his view on a report from a member of the public who had only just attained his majority.  Being the dismisser [that is Mr Liddle of course], he did not consider it appropriate to interview the informant himself even though in evidence he accepted that it did concern him a little bit regarding the report at 22.30 [that is 10.30 at night] 6 hours after the event.  No formal statement was taken from the Inspector, Mr Lake, regarding the circumstances of the informant's attendance at the bus depot.  Mr Liddle did not pursue the issue that the Transit Tripper ticket which the informant alleged had been used by the applicant had been withdrawn from service 10 months previously and in that time the respondent had moved premises.  He merely said that the applicant could have retained some.  We consider that a reasonable employer dealing with an employee of this length of exemplary service who had denied the allegations should reasonably have carried out a much more detailed investigation.  There was a suggestion at the appeal hearing that the informant was a bus freak but the dismisser having not interviewed the informant was unable to form a view as to his reliability which could well have influenced his perception of the applicant's culpability.

		We do not consider on the facts outlined to us as a Tribunal that the respondent had reasonable grounds for belief in the applicant's misconduct.  In evidence Mr Liddle said that the dismissal was because of his perception of theft.  He had scant evidence on which to form that view.  We were impressed with the demeanour of the applicant and his evidence.  We found him to be a witness of the truth.  It was certainly debatable as to whether the applicant should have attempted to free the machine which he said he did in the course of his explanation, or whether he should have radioed base. However, Mr Liddle in evidence said that senior personnel in circumstances like this did tell drivers to free the blockage by their own resources.

They held, therefore, that there should have been further enquiries.  There was this gap of 6 hours, which was explained on the basis that at 4.30 there was no Inspector available, said 
Mr Laidler, to whom to make a report.  So he reported it much later that night at 10.30 to another Inspector.  That, on the face of it, may show very great conscientiousness by the complainant, Mr Laidler, or possibly it may indicate there is something very curious about this.  Those matters might be decided by reference to the Inspector to whom the report was eventually made.  

	More important than that, and perhaps more important than the other criticisms made by the Industrial Tribunal, there was the fact that Mr Liddle, himself, had not interviewed
Mr Laidler.  He relied on the report of what had been said to Mr Livesey (I have already read from that at page 6 of the documents bundle).  It is of course true that what steps an employer takes to investigate a matter are first and foremost for the employer.  But it is the duty of the Tribunal to say, in accordance with Burchell, whether they think that those steps were fair and proper ones, and sufficient in all the circumstances.  They said "In these circumstances Mr Liddle himself should have interviewed the complainant, the informer Mr Laidler."  We ask ourselves "Why should they not have reached that conclusion.  It was their duty to consider whether what the employer had done was reasonable and fair in all the circumstances."  To a person coming to this in the first instance, it might very well appear that that statement by the Tribunal was a glimpse of the obvious.  If a single informant says that a man of good character has committed a very serious offence; and if the employee (Mr Walton), a man of good character and long service, says, "I most certainly did not" and gives an explanation and appears to be a credible and reliable man; then how can any subsequent decision of the matter be a just one, unless the person who tries it (in this case Mr Liddle) has seen both men?  He might choose to see them together and have a confrontation.  He is certainly not obliged to do that.  He might allow, as in forensic proceedings, cross examination of one by the other.  He certainly is not bound to do that.  But without seeing each of them, how is he to say, and satisfy himself in good conscience, that one is telling the truth and the other unhappily is not?  

	It is something which I do not think any magistrate, any juryman and one might say, any person of common sense, would be happy with.  That was the view which commended itself to this Industrial Tribunal.  We ask ourselves, "Why should they not form that view?"  It may be that a different Tribunal would have been satisfied that the circumstances were really so overwhelming, that they were happy with what had been done and considered that all was fair and proper.  Those are matters for the Tribunal and not for us.

	Parliament has said that the facts, and of course that includes what to make of the facts, are matters exclusively for the Industrial Tribunal.  In many other jurisdictions, perhaps most, an appeal lies on fact.  One thinks of the appeal to the Crown Court from Magistrates, one thinks of the appeal from a judge sitting in the County Court or the High Court, to the Court of Appeal; those are appeals in which question of fact can be raised.  

	Parliament allows us only to consider questions of law, and we can interfere only if the decision of the Industrial Tribunal is perverse, or without evidence to support it, or wholly irrational. 	It is only then that we can interfere on the ground - that it is a decision which no reasonable Tribunal could have arrived at.  We do not think that this was such a decision.

	We turn to the next, very important, part of the case.  What is said on behalf of the employers, is this - that even if Mr Liddle's hearing can be criticised on that basis, the matter was put right by a most conscientious re-hearing.  Indeed, there were two most conscientious re-hearings; one by Mr Jameson, the Administrative Manager, and then later by the three Senior Managers, Mr Solomon, Mr Warnock-Smith and Mr Gray.  It appears us that the one which matters is Mr Jameson's enquiry, because he went off with the trade union representative and they did see Mr Laidler; and there is no doubt whatever that that was a conscientious action by Mr Jameson who may have felt possibly that he should go and check up.  Now if Mr Jameson had said, "I am not happy, I am not entirely content with Mr Liddle's enquiry, I propose to decide this matter myself, I am going to have a re-trial here;" that would have been a very different matter from a mere appeal.

	We ask ourselves, "Can it be said, that that was so?"  The Tribunal found that it was not so.  They say:
	 "We do not accept that the Appeal Hearings were full re-hearings because the informant was not present and able to be questioned on areas of concern. "(that of course was Mr Laidler).  It seemed to us that the die was cast against the Applicant on Mr Liddle's original decision and the Appeal Hearings, albeit admirably conducted ........... in accordance with the Respondents' disciplinary procedures, did not go into any fresh matters or look anew at the substance of the original allegation, but merely bolstered the original decision to dismiss.  We conclude that the decision to dismiss the Applicant was not within the range of reasonable responses a reasonable employer might have adopted in the circumstances."  
That has been criticised but, of course, it is in the context of their finding that there had not been a reasonable enquiry by the employer.  

	Now, was that a just and proper view by the Industrial Tribunal?  In the sense of being one which being one which was supported sufficiently by the evidence?   We look to see what Mr Jameson says. 

		"Regarding the evidence available to me at this hearing, I have come to the conclusion that the Transport Manager, Mr Liddle had a reasonable belief that Mr Walton had taken company money.  Regretfully, therefore, I come to the conclusion that the decision to dismiss Mr Walton on the grounds of gross misconduct and theft was fair."

	It seems to us that there, Mr Jameson was not saying "I decide this matter, I am re-hearing this matter;" but reviewing this matter as an Industrial Tribunal might, or as a court might, to see whether there was any irregularity, whether there was material on which Mr Liddle could reach that decision; "his decision was a fair one, and accordingly, having looked at it like that, I say that I am going to refuse the appeal".  He was not saying, "I re-try this matter and make up my own mind as to whether Mr Laidler is right or Mr Walton is right".  He was reviewing matters, as I say, and affirming Mr Liddle's sovereignty in the matter; "it was Mr Liddle's decision to take, he reached it fairly and he in fact had a reasonable belief".  

	Now that, it seems to us, is far short of saying that this hearing by Mr Jameson was a re-hearing which would correct any errors.  The Industrial Tribunal, who after all are a "jury" well acquainted with the reality of such situations and well understanding the type of enquiry which an employer should make on this occasion, were entitled to reach the view that this was an inadequate enquiry in all the circumstances; and unless it can be said that that is perverse, it is a matter completely within their jurisdiction and completely outside our jurisdiction.   Notwithstanding, that a different Tribunal might have reached a different conclusion (that is beside the point), in our judgment this Appeal does not succeed in showing that there was any error of law by the Industrial Tribunal.  It must therefore be dismissed.