Appeal No.	 EAT/660/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 November 1996

Before
HIS HONOUR JUDGE PETER CLARK
MR D A C LAMBERT
MRS M E SUNDERLAND JP

MR A COHAIN	APPELLANT

BRITISH RAILWAYS BOARD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 
Revised

	APPEARANCES

For the Appellant	IN PERSON	

	JUDGE PETER CLARK:	This is an appeal by Mr Alan Cohain against a decision of the London (North) Industrial Tribunal, following a hearing held on 29 February and 1 March 1996, dismissing his complaint of unfair dismissal against his former employers, British Railways Board.  Extended Reasons for that decision are dated 7 May 1996,

	The facts of the case are set out in some detail by the Industrial Tribunal.  For the purpose of this judgment they may be summarised in this way.

	The Appellant was employed by the Respondent as a platform cleaner at Euston Station.  He had completed 18 years continuous service when he was dismissed for alleged gross misconduct on 1 December 1994.

	In short, on 19 November 1994, he had been stopped by a senior supervisor Mr Bell, in company with a colleague, Mr O’Donnell, having left the station with items belonging to the Respondent in his holdall, namely one blue tissue roll and 12 air freshners.  British Transport Police were called and he was suspended from duty.

	The Respondent’s disciplinary procedure was put in motion.  An investigatory interview was held on 23 November at which he was asked to provide an explanation.  The investigating manager, Mr Johnston, was not satisfied with the explanation put forward and the case progressed to the next stage, a disciplinary hearing before Mr Cox (the Acting Line Manager) held on 1 December.  Mr Cox did not believe the Appellant’s account, which was that he forgot he had the items in his bag when leaving work.  Reference was made to his state of health.  Put bluntly, Mr Cox believed that the Appellant had intended to steal the items.  He imposed a penalty of summary dismissal.

	An internal appeal followed to Mr Gibbard, the Retail Manager.  A hearing took place on 9 December 1994.  The Appellant raised his medical condition; this was investigated by Mr Gibbard with the Medical Officer, and there were various complaints of harassment which were also investigated.  Ultimately, Mr Gibbard dismissed the appeal.

	Before the Industrial Tribunal it was suggested that there was here disparity of treatment.  Other employees had not been dismissed for similar offences.  The Industrial Tribunal, directing itself in accordance with the guidance provided by this appeal tribunal in Hadjioannou v Coral Casinos Ltd [1981] IRLR 352, and approved in later cases, see in particular by the Court of Appeal in Paul v East Surrey District Health Authority [1995] IRLR 305, concluded that the other cases did not arise in truly parallel circumstances and rejected the submission made on behalf of the Appellant that any difference in treatment rendered the dismissal unfair.

	Further, the Industrial Tribunal considered that the employer passed the well known three-fold Burchell test. and concluded that dismissal for theft, albeit that the value of the goods stolen was small, fell within the range of reasonable responses open to this employer.

	This is a preliminary hearing, held to determine whether or not this appeal raises any arguable point or points of law which ought to go to a full appeal hearing.

	Mr Cohain complains that the Respondent had accused him of something which he did not do.  That is theft.  He took the goods due to forgetfulness.  That was due to his medical condition.  No account was taken of that medical condition by the Industrial Tribunal.  Even if he had been guilty of theft, the value of the goods was small; other employees had received less severe penalties than dismissal for similar offences.

	In our judgement these are all matters which were fully ventilated before, and adjudicated on, by the Industrial Tribunal.  Looking at the decision overall, we are quite unable to discern any error of law in the Tribunal’s approach to this case.

	Accordingly, this appeal must be dismissed.