Appeal No.	 EAT/1091/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 February 1997

Before
HIS HONOUR JUDGE C SMITH QC
MR P R A JACQUES CBE
MR B M WARMAN

SOUTH WEST TRAIN CO LTD	APPELLANTS

MISS D FRANCES WEIMER	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR G ALLIOTT
(of Counsel)
Messrs Vizards 
Solicitors
42 Bedford Row
London 
WC1R 4JL	
For the Respondent	MR T E W WEIMER
(Father of the Respondent)	

	JUDGE COLIN SMITH QC:   This is an appeal by South West Train Co Ltd against a decision of an Industrial Tribunal held at Southampton in March and July 1996 when the Chairman sitting alone by consent of the parties held that the applicant before him Miss Deborah Frances Weimer had been unfairly dismissed by the appellants. The Chairman assessed her contribution to the dismissal at 25% and adjourned the remedies hearing in default of agreement.

	It is apparent from the decision of the Industrial Tribunal that the respondent had been dismissed from her employment with the appellants as a general purpose relief clerk on a finding of gross misconduct on 17th July 1995, when the appellants concluded, following a disciplinary hearing and an internal appeal, that the respondent had misappropriated the sum of £43, which was common ground she had received on 9th May 1995 during her shift, when in error she had charged a passenger twice for, a ticket valued at £43. In fact it related to car parking.

	The Chairman made his findings of fact in paragraphs 2 to 5 of his decision, from which it can be seen that at the end of the day in question, namely 9th May 1995 the appellants’ records showed that there was a perfect balance at the end of the respondent’s shift. The error on 9th May 1995 did not come to light until the end of June 1995, when it was reported to the appellants by the customer concerned on receipt of her credit card statement. And thus it was that the respondent was not interviewed about it until some 53 days after the incident had occurred, and that she did not receive the relevant documents until 13 days after that.

	The Chairman recorded that investigatory meetings took place on 29th and 30th June 1995 and that these were followed by the disciplinary hearing on 17th July 1995. Although the Chairman did not actually refer to it, there also followed an appeal hearing.

	The Chairman also found that the ticket office clerks, including the respondent, were under a duty to complete a shift sheet and if they failed to balance at the end of their shift, that they were obliged to declare any surplus or loss on their records, and were obliged to complete a report if there was discrepancy in excess of £5. He found that it was not in dispute that the respondent had always complied properly with this procedure in the part and that she had an unblemished record and was highly thought of by the appellant employers.

	The Chairman summarised the issues between the parties in paragraph 5 of his decision, and at paragraph 7 and 8 set out the principles of law which he was to apply in deciding whether the dismissal was fair. In particular in paragraph 7 the Chairman set out section 57(3) of the 1978 Act, correctly noted that an Industrial Tribunal must not substitute its own decision for that of the employer, and reminded himself of the Iceland test, i.e., the range of reasonable responses test. In paragraph 8, it appeared to us that the Chairman has correctly paraphrased the valuable guidelines contained in British Home Stores v Burchell.

	The  Chairman went on to decide in paragraphs 9 to 11 of his decision, that the decision to dismiss fell outside a band of reasonable responses which a reasonable employer might have adopted. In so finding, the Chairman based himself on two particular matters, namely, first, the delay which had occurred between the date of the alleged misconduct and the time when the respondent was first asked to give an explanation about it. The Chairman found, on consideration of the evidence before him, that the delay had prejudiced the respondent since it had made it more difficult for her to recall at the end of June 1995 events which had taken place on 9th May 1995, and therefore adversely affected her ability to put forward an innocent explanation for the discrepancy which had arisen on that day. The Industrial Tribunal expressly found that the appellants were not to blame for the delay. Secondly, the Industrial Tribunal stated “In addition there was the respondent’s exemplary record to be considered”. The Industrial Tribunal concluded in paragraph 11 that having carefully considered all the evidence, it did not feel able to say that a reasonable employer would have dismissed in the circumstances of this case.

	In the light of those findings and that decision expressed in that way, we turn to consider the submissions made to us today. Counsel for the appellants, Mr Alliott, has submitted to us in effect:

(1)	that the Chairman misstated the law which he had to apply in deciding whether the dismissal was fair. In particular, it was submitted to us that the Chairman had in some way confused the interrelationship between the British Home Stores v Burchell test on the one hand, and the Iceland range of reasonable responses test on the other. We should say straight away that we unanimously reject that submission. In our judgment the Chairman here correctly summarised the effect of the three-fold test in British Home Stores v Burchell in paragraph 8 of the decision; and then correctly went on to direct himself that, at the end of the day, the ultimate test for him to apply was “the range of reasonable responses test”, as formulated by the Court of Appeal in British Leyland UK Ltd v Swift [1981] IRLR 91, and of course Iceland Frozen Foods v Jones [1983] IRLR 439, see also now Boys and Girls Welfare Society v McDonald [1996] IRLR 129. There is no doubt at all, in our judgment, that the Chairman expressly directed himself correctly in relation to these tests, so we must reject Mr Alliott’s first submission.

(2)	Mr Alliott’s next submission, in our judgment, was really a submission that on the assumption that the Chairman had correctly identified the law and purported to apply it to the facts which he found, he had either reached a conclusion on the facts that no reasonable tribunal properly directing itself could have reached, or alternatively, had failed to make the necessary findings with regard to the appellant’s conduct of the investigation to enable him properly to reach conclusions upon it.

	In seeking to support this submission, we allowed Mr Alliott to take us through a very substantial bundle of documents which was placed before the Industrial Tribunal by the respondent, but which we had not seen before the beginning of the hearing of the appeal. We should say that we strongly deprecate such a practice. Appellants must appreciate that it is for them to make quite sure that documents upon which they intend to rely in support of their submissions, must be copied and submitted well in advance of the hearing on an appeal to the Employment Appeal Tribunal.

	However, despite that, we have carefully considered those documents. What they come to is that it is clear that at the time of the initial investigatory hearing on 29th June 1995, the appellants had the necessary documents which established that the customer had indeed been mistakenly charged twice by the respondent for her car parking ticket in the sum of £43. That of course was never in dispute and was accepted on all sides to be an error on the part of the respondent. It appears from the record of that meeting that Miss Weimer, the respondent, was:

(a)	denying that she had misappropriated any money; and
(b)	suggesting that she might have made some other compensating error on the shift in question which had caused her to show a correct balance at the end of the shift. 

She is recorded as saying, in a distressed state as it is recorded, that she knew she had not taken the money and asked what would happen if she were unable to prove it. She made it clear that she did not remember the events of either the day in question or the shift in question. See page 73 of the bundle. There followed the charge levelled against her, and importantly at pages 78 and 79 in the bundle, a detailed request from the respondent for all relevant accounting and other documents held by the appellants relating to the shift in question which she only received for the first time at some point in time before the disciplinary hearing which took place on Monday 17th July 1995. There followed a lengthy disciplinary hearing, during the course of which (as can be seen particularly at page 88) the respondent put forward a complicated explanation for the £43 surplus not being detected by her. In our judgment, from the documents themselves, this was plainly an attempt by her to reconstruct what may have happened. Putting it shortly, she stated that she remembered being flustered by a group of Arab customers who had required two tickets to Manchester and four tickets to Woking. She believed that she had mistakenly charged them for only one ticket to Manchester, thus accounting for £39.50 of the £43 surplus, and in regard to the other Manchester ticket which she had charged them for, she believed that she had wrongly charged them £36.50 instead of £39.50 thus accounting for a further £3 of the surplus. With regard to the remaining 50 pence, which should have still been in surplus, she mistakenly stated at the hearing that she must have failed to put 50 pence into the till to account for a phone call she had made. This was a mistake, because on her explanation, there should still have been a surplus rather than a deficit of 50 pence.

	There is no doubt, as Mr Alliott was able to demonstrate from the documents, that that explanation having being put forward by the respondent, the appellants were able to fasten upon a number of reasons why it was an unlikely explanation. Mr Alliott submitted that the sheer unlikelihood of so many error occurring on one shift justified the employers in concluding that the explanation was unacceptable. He pointed out, correctly, that for the respondent’s explanation to be correct, the respondent would have had to be flustered by customers, to have failed to charge for one ticket to Manchester, to have incorrectly charged £36.50 instead of £39.50 for another ticket to Manchester, to have handed tickets over to the value of £126.60 in exchange for £84.10, and to have made other errors. He also pointed out, correctly, that the computer printout at page 66 and the particulars of cheques recorded at page 43, did not appear to support the respondent’s explanation, at least unless there were yet other errors in the way that those transactions had been recorded by the respondent.

	Thus, he submits, that in the face of all that evidence, the appellants manifestly acted reasonably in concluding that the respondent had panicked and taken the money, rather than that a compensatory error was committed. He refers to what he submits was the correct approach taken by Ms Hopkins, the Area Retail Manager, as expressed by her at page 91 of the bundle. He pointed out that at page 110 of the bundle Mr Dorey, who heard the appeal, had reached the same conclusion, namely that either money had been taken or there was a tremendous coincidence. Mr Dorey preferred the former conclusion and dismissed the appeal.

	No doubt it would have been better, in our judgment, had the Chairman set out in more detail the course which the disciplinary procedure, including the appeal, had taken, and had referred expressly to the matters which we have summarised above appearing from the documentation before him. However, we note that the Chairman stated that he had carefully considered all the evidence in the case. 

	In our unanimous judgment, investigation of that material before us today and the consideration of the submissions made to us in respect of it, disclose no error of law on the part of the Chairman or any perverse finding on his part in his approach to the material before him. Indeed, in our judgment, the very fact that the appellants have focused to such an extent on this documentation, only goes to show that there really is no point of law on this appeal. The Chairman, in our judgment, was entitled to conclude that, although the delay in investigating this very serious allegation was no fault of the appellants, yet it was a very serious factor indeed which had, on his findings, caused actual prejudice to the respondent in defending herself before her employers against the serious charge which she faced. The Chairman was, in our judgment, sitting as he was as an industrial jury, entitled to conclude that any reasonable employer would have concluded that due to the delay and the inevitable prejudice caused by it, it was not possible reasonably and fairly to reach a conclusion that the respondent should be dismissed. He was entitled to find that the appellants’ decision to dismiss was for that reason outside the band of reasonable decisions open to a reasonable employer. Indeed, we should say that we derive support for his decision from the documents placed before us today, which make it clear that the respondent felt herself from the first at a serious disadvantage because she could not remember many weeks later what had occurred during that day or on that shift. In our judgment the Chairman was entitled to conclude that no matter how careful the subsequent investigation, and no matter how cogent were the points taken by the appellants in demolishing the respondent’s proffered explanation, the simple facts of the delay and the prejudice occasioned by it caused the investigation to be unreasonable and unfair so that the dismissal was equally unfair. In our judgment, in reaching this conclusion, the Chairman was further entitled to weigh in the scales of the judgment as to the reasonableness or otherwise of the appellant’s decision, the fact that the respondent had an unblemished record and had always complied with the requirements relating to surpluses and losses on her shift sheets. Of course we accept that once serious misconduct is proved, an employee’s good record cannot prevent the sanction of dismissal, but that is a different thing from that good record being taken positively into account by a reasonable employer in deciding whether an offence of dishonesty has been made out against that employee. Accordingly for those reasons, in our judgment, the appeal discloses no error of law in the approach nor any perversity in the findings of the Chairman, and so this appeal must be dismissed.