Appeal No. EAT/966/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 12th July 1995

	Before

	HIS HONOUR JUDGE BUTTER Q.C.

	MR L D COWAN

	MR R SANDERSON OBE

THE POST OFFICE	APPELLANTS

MR K R BHATTI	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR PETER CLARK
(of Counsel)
The Solicitor
The Post Office
Impact House
2 Edridge Road
Croydon
CR9 1PJ

For the Respondent	MR MICHAEL KAY
(of Counsel)
Messrs Simpson Miccail
101 Borough High Street
London Bridge
London SE1 1NL

	JUDGE BUTTER Q.C.:   In July of last year, the Industrial Tribunal at Leicester unanimously decided that the applicant had been unfairly dismissed. The employers were dissatisfied with that decision and now appeal to this Tribunal.

	The background of the case is as follows: Mr Bhatti had been employed by the Post Office since June 1989 and for 2½ years was employed in Leicester in the Cashco business which involved delivering cash and securities to post offices and other outlets. The cash or securities would according to the security procedures be placed in a locked smoke and dye case and only one item should be carried so as to ensure that if the case were to be opened illegally the smoke device would operate and the dye would penetrate the item. This might not happen if there were two or more such items.

	Mr Bhatti normally worked at Leicester, but on 1st December 1993, he agreed to work at Birmingham. There were different methods of work there, but the security procedure was basically the same.

	On 3rd December 1993 he was working with a Mr Afzal, Mr Bhatti had put two items in the case. According to him, but denied by Mr Afzal, the latter had told him to do so, He, Mr Bhatti, perhaps thought that this was the way in which the system operated in Birmingham. There was an armed robbery, the security case and the contents were stolen.

	A disciplinary hearing was conducted by Mr Wainwright, the operations manager. Mr Bhatti was summarily dismissed and so was Mr Afzal. Both men appealed to Mrs Spray, the appeals manager for that division. After further enquiries and consideration, she dismissed Mr Bhatti's appeal, but allowed Mr Afzal's and substituted for him a twelve month suspended dismissal. As Mr Bhatti was driver and loader of the case, she considered that his was the primary responsibility.

	The Industrial Tribunal dealt with its views of the investigation in paragraphs 10 to 15, and considered the question of comparable cases in paragraph 16. In paragraph 17 they stated quite simply:

		"In all these circumstances we decide unanimously that the applicant was unfairly dismissed."

	As I have already said there was an investigation by Mr Wainwright, and the investigation carried out by Mrs Spray was detailed and extensive, infinitely more extensive than that carried out by many employers. There were numerous documents.

	It may be convenient if I refer to an important paragraph at page 74 of the larger bundle, there Mrs Spray says:

		"In precedent terms I conclude that Cashco's view is that dismissal is appropriate in principle for an employee who commits a breach of security, but that it can be commuted to suspended dismissal if the manager dealing is satisfied that it is an isolated incident and there will be no repetition. In Mr Bhatti's case I believe he instigated the breach on this occasion and having done so once there is in theory no reason why he should opt to do so again. Rather than admit the offence, confirm Mr Afzal's explanation of the events and give assurances that it will not be repeated, Mr Bhatti has chosen to defend himself against the charge by putting the blame squarely onto Mr Afzal and arguing that he did not breach security but followed Mr Afzal's example. In the circumstances I cannot have confidence that he will not repeat the offence in the future - his explanation clearly suggests that he is prepared to ignore security procedures in an abnormal situation (without questioning it or seeking advice) despite his knowledge and understanding of what the security requirements are. He appears to be unwilling to accept that he has a responsibility to act correctly even when it might cause conflict or offence. In the light of that conclusion the relevant precedent suggests that dismissal is the appropriate response in Mr Bhatti's case. There is no suggestion of lack of training or understanding to be taken into account."

	I turn to consider the Tribunal's decision, and to refer an extract from paragraph 7 of their decision in which the Tribunal says:

		"... Having obtained all the necessary information in relation to the appeal, and considered it all in a careful determination of the facts, Mrs Spray concluded in the applicants appeal that although this was an isolated incident in the sense that it had never happened before, she thought that it could happen again in his case, because she did not believe him and preferred the evidence of Mr Afzal. She did not share Mr Wainwright's view that both were equally to blame."

	At the beginning of paragraph 11 the Tribunal says:

		"It is clear from the investigations and the disciplinary appeal proceedings that the respondents concentrated solely upon the one security procedure issue namely the carrying of two packets or items in one case. Whilst it is an important security procedure there were others."

	At the beginning of paragraph 12 they say:

		"Furthermore we believe that the respondents should have spoken to Mr Harper about what happened on the first day."

	In paragraph 13 they say:

		"In our view the respondents' investigations were not wide enough and concentrated solely on the breach occurring on the 3 December. On any evidence we accept, and we believe that the respondents should have accepted, that both men were aware that there were two items in one case and that both were therefore equally responsible. ... in our view both are equally responsible. ... We believe that a reasonable employer on the evidence would have found that both were equally responsible and both should have been equally treated."

	I can read the first sentence of paragraph 15:

		"We cannot accept on the evidence that we have heard that it was reasonable for Mrs Spray to believe Afzal and not the applicant."

	Then in paragraph 16 in dealing with comparable cases they say:

		"The respondents did not investigate all the other comparables satisfactorily."
And they explain shortly why they say that was so.

	There is one valid criticism of Mrs Spray's investigation relating to the list which is referred to in paragraph 15. The evidence was that she made a mistake about this. Other criticisms were of course directed by the Tribunal to that investigation.

	This Tribunal today, does not require or expect that every decision of an Industrial Tribunal shall be a model of its kind. There is scope for flexibility, in style, in content, and presentation. The Tribunal does need to know however whether the Tribunal below correctly applied its mind to questions which had to be considered. There is of course clear authority for that proposition.

	Many authorities were cited to us; it may be convenient if I refer in particular to the case of Securicor Limited v Smith [1989] IRLR 356. The head note is self-explanatory. I can appropriately read the heading in relation to the Court of Appeal's decision.

		"The Court of Appeal held:

		 The Industrial Tribunal had erred in holding that the respondent's dismissal following an incident involving a breach of the company's rules governing the collection of cash from customers' premises was unfair because no reasonable employer would have rejected the respondent's final appeal against dismissal, whilst allowing that of the other employee concerned on the ground that he was less blameworthy. Therefore, that decision should have been overruled by the EAT on appeal. 

		The question for the Industrial Tribunal was whether or not the employers acted reasonably and in within the band of reasonable responses in acting upon the findings and conclusions of the appeal panel. Therefore, where two employees are dismissed for the same incident and one is successful on appeal but the other is not, in determining the fairness of the latter's dismissal the question is whether the appeal panel's decision was so irrational that no employer could reasonably have accepted it. 

		In the present case, [the judgment goes on to say] the employers had not acted unreasonably in accepting the appeal panel's decision that the respondent was more culpable for the incident. The appeal panel distinguished between the culpability of the two employees on the basis of causation and decided that the respondent's appeal should be dismissed but that of the other employee allowed. The Industrial Tribunal had found that that conclusion was perverse but it could be perverse only if there was no rational basis for such a conclusion. Although it would have been open to the appeal panel to reach a different conclusion, they did not do so for rational and clear reasons. Since no facts were found by the Industrial Tribunal to indicate that the factual basis of the appeal panel's decision was wrong, it could not be said that the appeal panel's decision was perverse. The Industrial Tribunal had substituted their own view of the facts and the conclusions to be drawn from them and therefore had erred in law. Moreover, had the employers refused to accept the findings of the appeal panel and dismiss the other employee, he would have had an unanswerable case that his dismissal was unfair, since the employers would have rejected a reasonable finding by the very panel which they themselves set up and formed a part."

	Here on behalf of Mr Bhatti it is pointed out that, in the present case before us, the Tribunal has referred to factors upon which it says the appeal panel's decision was wrong.

	It is not however, in our judgment, sufficient for there simply to be references in a Tribunal's decision to a reasonable employer, e.g. paragraph 13 in the present case. The position is that, in our judgment, it is not apparent that the Tribunal directed its mind to the question, was the dismissal within the range of reasonable responses or to ask whether Mrs Spray's decision was so irrational that no employer could reasonably accept it. The reasons here do tend to suggest that the Tribunal substituted its own view of the facts as to the investigation and also as to comparatives.

	In all the circumstances this Tribunal has unanimously reached the decision that there was an error of law on the fact of it. We have considered the question of remitting the matter. We conclude that this is the right course to take. In the result the present decision cannot stand, the appeal is allowed and the matter must be remitted to a fresh Tribunal.