Appeal No. EAT/621/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 13 February 1995

	Before

	HIS HONOUR JUDGE D M LEVY QC

	MISS A MADDOCKS OBE

	MR J C RAMSAY

CUMBERLAND MOTOR SERVICES	APPELLANTS

MR S BURNS	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR A LYON
(Of Counsel)
Weightman Rutherfords
Richmond House
1 Rumford Place
Liverpool
L3 9QW

For the Respondent	MR J MCMULLEN QC
(Of Counsel)
Pattinson and Brewer
30 Great James Street
London
WC1B 3HA

	JUDGE LEVY QC:   Mr Burns was in the employ of Cumberland Motor Services Ltd ("the Company") as a bus driver.  On 3 February 1993, a passenger, who had been on his bus earlier in the day, complained to the Company that she had been given a 28p ticket having, after a conversation with Mr Burns, been told that the right fare was 55p which she had paid.

	The Company investigated the passenger's complaint and thought there was something in it.  When he came to work on 9 February, Mr Burns was subject to a hearing before a disciplinary committee, which found his actions wanting.  There was an appeal hearing on 13 February and that confirmed the position of the disciplinary tribunal that he was to be dismissed.  He commenced proceedings in the Industrial Tribunal at Carlisle on 15 March 1993, complaining of unfair dismissal.  

	There was a hearing at Carlisle on 28 June 1993, which held that the disciplinary procedures within the Company had been completely and properly carried out.  But the majority held that Mr Burns had been unfairly dismissed, albeit that he was 60% contributory because of his conduct.  From that decision, the Company appealed by Notice of Appeal dated 21 July 1993.    

	The findings of fact as set out by the Tribunal in paragraphs 2 to 10 of the Reasons, which we understand were given by the learned Chairman extempore at the conclusion of the hearing, albeit that they were sent out to the parties a little later in revised form.  In paragraph 5 there are some important findings, after the particulars of the complaint had been set out.  Paragraph 5 reads as follows:

		"5  There was an agreement with the union relating to discipline.  It set out examples of gross misconduct being certain offences which were considered so serious as to warrant summary dismissal for the first offence.  One of these was `issuing of a ticket lower in value than the fare paid'.  It was the respondent's practice to dismiss for this offence unless it believed that such a ticket had been issued by inadvertence.  The applicant was aware of this".

	The Tribunal found in paragraph 12 of their findings that it was potentially fair for Mr Burns to be dismissed and in paragraph 13, that his dismissal had been fairly carried out.  However, paragraph 13 continues as follows:

		"13  .....  The claim by Mrs Eland that she had been given the wrong ticket was not challenged and the applicant admitted that he had in fact given her a ticket for less than the fare paid.  The members (that means as we know from the rest of the decision the lay members of the Industrial Tribunal) consider this could possibly have been due to a mistake on his part.  They accept his theory that the ticket might have been issued in error because a passenger behind had asked for a concessionary ticket and he subsequently failed to adjust the setting when issuing a ticket to the applicant ....". 

	It is common ground that "applicant" there should refer to the complainant to the Company.  The text continues:

		"They feel that the respondent (Company) did not give sufficient weight to this at any of the hearings and that no reasonable employer would have found that the issuing of the ticket was deliberate.  (Then there is a sentence which is immaterial to this decision).  No reasonable employer could have come to the decision that the issue of the ticket was deliberate rather than accidental and therefore the penalty of dismissal was unfair".

	Paragraph 14 reads:

		"14  The Chairman was unable to agree with this.  (There then follows a sentence which is immaterial).  The respondents genuinely believed that the ticket had been issued deliberately.  It had grounds for this belief as Mr Lyon and the persons hearing the appeals were entitled to take the view that it was most unlikely a ticket was issued to the person behind and then a ticket to Mrs Eland (the complainant) and that the applicant forgot to alter the setting, did not observe the amount of the ticket and did not observe that the applicant had given in 55p instead of 28p.  The applicant did not claim that this actually happened.  It was only a possibility.  It is not for the Tribunal to decide what view it would have taken had it been the applicants employers.  The question is whether a reasonable employer could have rejected this explanation.  The Chairman considered that a reasonable employer could well have rejected it.  It was agreed with the union that in such circumstances an issue of the ticket would amount to gross misconduct justifying dismissal even for a first offence.  The Chairman would have found that the applicant was fairly dismissed". 

	And for completeness, I will read paragraph 15:

		"15  Having found that the dismissal was unfair we next considered the question of contribution.  The applicant was under a duty to set the machine correctly, to observe the display which would confirm the setting, to check the ticket and to hand it to the passenger.  Had he checked the ticket he would have noticed that it was for 28p whereas he had received 55p.  We regard this as considerable carelessness and would assess his contribution at 60%".

	For the Company, Mr Lyon submitted that this is a case where the majority of the Tribunal substituted their views for that of the employer.  In the course of his submissions, Mr Lyon referred us to the decision of the EAT, headed by Browne-Wilkinson J., in Iceland Frozen Foods Ltd  [1982] IRLR 439.  In the course of giving judgment Browne-Wilkinson J., reviewed earlier decisions of the EAT.  At paragraph 21 he referred to the decision in British Leyland UK Ltd  v  Swift [1981] IRLR 91.  Brown-Wilkinson J., quotes from Lord Denning at paragraph 11:

		"The first question that arises is whether the Industrial Tribunal applied the wrong test.  We have had considerable argument about it.  They said:  `... a reasonable employer would, in our opinion, have considered that a lesser penalty was appropriate'.  I do not think that that is the right test.  The correct test is:  Was it reasonable for the employers to dismiss him?  If no reasonable employer would have dismissed him, then the dismissal was unfair.  But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair.  It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view:  another quite reasonably take a different view.  One would quite reasonably dismiss the man.  The other would quite reasonably keep him on.  Both views may be quite reasonable.  If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair even though some other employers may not have dismissed him".

	Then Browne-Wilkinson J., continues by saying:

		"Lord Justice Ackner at paragraph 17 said this:

		`As has been frequently said in these cases, there may well be circumstances in which reasonable employers might react differently.  An employer might reasonably take the view, if the circumstances so justified, that his attitude must be a firm and definite one and must involve dismissal in order to deter other employees from like conduct.  Another employer might quite reasonably on compassionate grounds treat the case as a special case'".

	It is right to say that Mr McMullen has submitted that there is no misdirection on the face of the record here, as there was in the British Leyland case, but Mr Lyon submitted, we think with some force, that the majority of the members below, gave no reason for concluding that no reasonable employer would have found that the issuing of a ticket was deliberate.  They set out no findings on which this averment was based and he reminds us there was evidence before the Industrial Tribunal of the number of steps through which Mr Burns would have had to go before he issued the complaining passenger with an underpriced ticket.  Faced with that evidence, the range of options open to a reasonable employer is wide.   

	We can well understand Mr McMullen's submission that there has been no misdirection here on the face of the record, but what we clearly have is a finding by the majority, which in our view is perverse.  We do think, in the circumstances of this case, the spectrum which faces the reasonable employer is one which could justify a dismissal of Mr Burns.  It may not be one to which the majority, or indeed all of the Tribunal below, or all or any of us here, might have come, but we can understand that it is a decision which it was open to the employer to reach.   

	In those circumstances, it seems to us that the decision of the majority below, cannot be supported and this is a case, as in Iceland Frozen Foods Ltd and other cases to which we have been referred, where a perverse decision has been found to have been made in the Industrial Tribunal, which cannot be allowed to stand.

	In the circumstances, we must allow the appeal.  Having heard argument on the point, it seems to us appropriate to substitute our view for that of the Tribunal below, that the dismissal of Mr Burns was not unfair.