Appeal No.   UKEAT/0607/03/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 October 2003

Before
HIS HONOUR JUDGE J R REID QC
MR D BLEIMAN
MR T M HAYWOOD

CONNEX SOUTH EASTERN LTD	APPELLANT

MR JAMES KELLY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ANDREW SHORT
(of Counsel)
Messrs Weightman Vixards Solicitors
High Holborn House
52-54 High Holborn
London
WC1V 6RL	
For the Respondent	MR SCOTT PEARMAN
(of Counsel)
Messrs Clarke Kiernan Solicitors
2-4 Bradford Street
Tonbridge
Kent
TN9 1DU	

HIS HONOUR JUDGE J R REID QC

1	This is an appeal from a decision of an Employment Tribunal held at Ashford Kent.  The decision was sent to the parties on 2 June 2003.  By the decision the Tribunal unanimously held that the reason for the Respondent, Mr Kelly’s, dismissal by the Appellant, Connex South Eastern Ltd, related to Mr Kelly’s conduct, and by a majority, held that the procedural defects in the disciplinary and dismissal process were cured by the internal appeal, but, by a majority, decided that in the circumstances of the case Connex acted unreasonably in treating the conduct of Mr Kelly as a sufficient reason for dismissing and that the dismissal was outside the range of responses open to a reasonable employer.

2	The essential facts are these.  Mr Kelly was a train driver.  On 14 February 2002 he left his train unattended at Slade Green station.  The incident was investigated and he was charged with a breach of the Driver’s Rule Book.  He went sick and as a result the disciplinary hearing was adjourned on a number of occasions, four in all.  On three of those occasions the adjournment was due to his absence.  On 29 March he was found by Connex’s Occupational Health Physician to be fully fit to attend a disciplinary hearing although not fit for work.  On 
17 May the disciplinary hearing was then reconvened.  Mr Kelly was not present though he was represented, he having written the day before indicating he would not attend.  The charge against him was found to be proved and Mr Simmons, who conducted that disciplinary hearing, decided to dismiss him.  Mr Kelly appealed.  He attended his appeal but his appeal was dismissed.  Both the dismissing officer and the appeal officer had considerable reservations about Mr Kelly’s truthfulness in the course of the proceedings.

3	The appeal before us has raised three issues.  The first of those relates to the fact that in the course of its decision the Employment Tribunal did not refer either to the ACAS Code or to Connex’s Rules of Conduct, the relevant passage of which has been put before us at page 67D of our bundle.  So far as that point is concerned, it is true that the ACAS Rules were not specifically referred to in the course of the decision.  What is said on behalf of Connex is that if one looks at the ACAS Rules one would see that they indicate that a proper set of disciplinary rules ought to make an employee well aware of the likely penalties and that the Tribunal should have taken that into account when they looked at the document at page 67D and have taken account of the fact that Mr Kelly must have been well aware that he was likely to be dismissed for the particular breach of his rules of employment which was found to be proved.

4	The ACAS Rules are fundamental to employment relations in this country and they are extremely well known.  We were referred to two authorities, Lock v Cardiff Railway Company Ltd [1998] IRLR 358 and Knight v King Edward VI Grammar School [1999] EAT/963/98 in relation to this.  So far as Lock is concerned, I think I need only refer to the passages in the judgment of the then President, Morrison J, which is referred to at paragraph 34 of the decision of the Employment Appeal Tribunal in the Knight case, under the Chairmanship of Judge Clark.  I can therefore turn straight to paragraph 34 and 35 of that decision which read:

“34	However, Mr Napier makes a further and bolder submission.  He contends the Employment Tribunal’s findings that the sanction of dismissal on the facts of this case fell within the range of reasonable responses open to the employer was a perverse conclusion.  In support of that submission he had referred to the EAT decision in Lock v Cardiff Railway Company Ltd [1998] IRLR 353, Morrison J presiding.  He refers to the absence of reference by this Employment Tribunal at paragraph 8 of the ACAS Code of Practice, which provides:  
“Employees should be made aware of the likely consequences of breaking rules and in particular they should be given a clear indication of the type of conduct which may warrant summary dismissal.”
It is right to say that the precise offence for which the Appellant’s was dismissed does not appear in the examples of gross misconduct which may lead to a summary dismissal in this employer’s disciplinary procedure.
35	Here, he submits, no reasonable employer could dismiss for a first offence of negligence, the consequences of which cannot be compared, for example, with the case of the airline pilot Taylor v Alidair [1978] IRLR 82.  In this connection he draws attention to the facts in the Inner London Education Authority v Lloyd [1981] IRLR 394.  We consider the case of Locke should be restricted to its own facts.  We are not prepared to assume that this experienced Employment Tribunal necessarily overlooked the terms of the ACAS Code of Practice.  Further, in our view the conduct here complained of was capable of amounting to a sufficient reason for summary dismissal.”

We echo the words of Judge Clark.  We are not prepared to assume that this experienced Employment Tribunal necessarily overlooked the terms of the ACAS Code of Practice.  It seems to us, in common with the vast majority of Employment Tribunal decisions, that those rules and code must have been in the mind of the Employment Tribunal but they did not think it appropriate or necessary to make specific reference to them.

5	Moving on to the document at page 67D.  Mr Short, on behalf of Connex, submitted that this document made it clear that dismissal was the likely sanction for an offence of the sort of which Mr Kelly was guilty and the Employment Tribunal was in error in law in failing to take it into account and to make reference to it in their judgment.  It is clear that the document was before them from a very early stage.  It is clear also that it was referred to in the submissions of counsel and in particular in the concluding written submissions which the Tribunal had before them when they were preparing their reserved decision.  The relevant parts of the document at page 67D read as follows:

“Connex South Eastern Rules of Conduct
16	Disciplinary offences
The agreed disciplinary procedure (Procedure Agreement 4) will be applied in any of the following acts of misconduct ….
You disregard rules, regulations and instructions including those contained in the Railtrack Rule Book, affecting the safety of the public, other employees or yourself*… [There is then an asterisk and at the foot of the page it reads]
Offences which break necessary mutual trust that must exist between employer and employee including breaches of Health & Safety rules will constitute Gross Misconduct for which the normal penalty is a summary dismissal in accordance with the disciplinary procedure.  Such offences are indicated with an asterisk(*).”

What is said is that the offence in this case, which was said to be an offence against Rule 4.5.1 of the Driver’s Rule Book, was such an offence, namely an offence which affected ‘the safety of the public, other employees or yourself’, and so the Tribunal should have started from the premise that Mr Kelly knew that he was likely to be dismissed for breach of it: their failure to mention the rule book and to explain why they thought that a summary dismissal was outside the bounds of a reasonable employer response was an error of law which could only be cured by the matter being sent back to a fresh Tribunal.  I should say for the sake of completeness that 4.5.1 reads as follows:

“Train not to be left unattended
You must only leave a traction unit of which you are in charge unattended if:-
●there is another competent person to take charge of it, or
●it is stabled in either a depot, siding or other authorised place, or
●it is necessary to carry out an instruction contained in this Rule Book which requires you to leave the traction 
When you leave a traction unit, make sure it is properly secured.”

6	We take the view that the Tribunal must have had in mind the provisions of these rules.  They were referred to, as far as we can see, repeatedly.  It is our view that the Tribunal must have taken the view that it was not necessary to refer specifically to page 67D.  The ‘asterisk’ section to which I have referred is not entirely in specific terms.  The question of whether it would properly be said that leaving a train, as was done on this occasion, affected ‘the safety of the public, other employees or yourself’, must have been an open one in the minds of the Tribunal.  

7	The circumstances in which this train was left was that when Mr Kelly had arrived at Slade Green, he had found that the relief driver due to take over from him was not there.  He almost immediately left the train and went to the depot.  The train when he left it had been secured, although the locking system on a driver’s cab is apparently not particularly sophisticated.  The driver’s cab was locked and there were in addition security guards with dogs on the station.  He had then gone to the depot, but there he had encountered Mr Meade, who was the service delivery manager at Slade Green Depot and there had been an exchange between them, the terms of which were not agreed, but in the course of which it is perfectly clear that Mr Kelly made it plain to Mr Meade (a) that the train was standing unattended, and (b) the relief driver had not arrived, and (c) that he was going home.  In those circumstances it seems to us that the Tribunal were perfectly entitled to look at this case in terms of Rule 4.5 and it was not incumbent on them to make specific reference to the not entirely clear terms of paragraph 16 (at page 67D).  It cannot, it seems to us, be regarded as being an error of law, such as to require remission, that they did not do so.  

8	The second point that was taken was that paragraph 33 of the Extended Reasons of the Tribunal contains an error of fact which it is said is one which cannot be overlooked and which requires that the matter be sent back for reconsideration.  The relevant passage is this:

“Miss Lester and Mrs Clark thought that dismissal was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case: despite the inconsistencies in the evidence and changes in parts of the Applicant’s evidence, he had, and had convinced the Respondent, found on arrival at Slade Green Station that his relief driver was not there and gone to the depot to report that.”

The decision then goes on to deal with his work record and the fact that it was not a case of wilfully abandoning a train for no good reason without reporting it.  What is said is that the words ‘had convinced the Respondent and had gone to the depot to report that’ (ie the non arrival of the relief driver) was plainly wrong.  It is true that there is no evidence as to precisely why he had gone to the depot.  There were suggestions that he had either gone to collect a bag from the locker or to put a bag into a locker, since he was carrying one, but what is clear is that when he did get there he came across Mr Meade and in whatever terms made Mr Meade aware that the relief driver was not present.  It is true that he did his case no good whatsoever by the alterations in his evidence and by the fact that a good deal of what he said clearly did not accord with the true facts of the case but nonetheless he did report, in whatever terms, once he had got to the depot.  We have to bear in mind that that paragraph has to be read together with the earlier paragraph 13 where the Tribunal were finding the facts, where they said, amongst other things, this:

“The Applicant walked to the depot, which one of the photographs handed to the Tribunal shows to be some little distance from the station.  On arrival he spoke to an official, Mr Meade, and told him that the relief driver had not arrived and there was nobody with the train.  Another  drive (Mr Crane) walked back from the depot to the train in order to take it over.”

9	What we have to ask ourselves is whether, given the inaccuracy in the way in which the matter was put at paragraph 33, because clearly the employers were not convinced of anything that Mr Kelly said, the matter has to go back.  In order to answer that question we have to ask ourselves - is there any real possibility that had the Tribunal expressed themselves differently in paragraph 33, ie had they not expressed themselves that Mr Kelly had convinced the Respondent that he had gone to the depot to report the absence of the relief driver, they would have come to a different conclusion?  In our judgment, unhappily though that passage in paragraph 33 is phrased, the Tribunal would nonetheless have come to exactly the same conclusion.  In our judgment therefore it would not be appropriate because of that comparatively minor error of fact to remit the matter to the tribunal for a rehearing.

10	The third point that was taken on behalf of the Appellant was that the decision was perverse.  It was accepted, very sensibly by Mr Short in a very forthright manner, that the hurdle that he had to clear in relation to this was a high hurdle.  The question we have to ask ourselves is - when we read this decision, do we say words to the effect of, ‘my goodness, that is obviously wrong’?  It is clear that it was a decision to which another Tribunal might not have come.  A different Tribunal might, like the minority on this Tribunal, have reached the conclusion that the employer did act within the reasonable bands of response when dismissing.  
11	This is something on which one has to take a fairly broad view.  It is noticeable that even the minority member who considered that dismissal was, in the circumstances, within the band of responses, described it as being a very harsh response, although he could not say it was outside the range of reasonable responses.  

12	We take the view that this is a case where other Tribunals might have reached other conclusions and where, indeed, the members of this Tribunal might well have reached a different conclusion had they been the Tribunal at first instance, but it is not a decision which it can properly be said is one which is perverse.  It has, however, to be said that Mr Kelly did himself no favours whatsoever and the Tribunal were, in our judgment, clearly correct in taking the view that he was substantially at fault and substantially to blame for his dismissal.  We have not, of course, heard all the material about that, but it does seem to us that the conclusion to which the Tribunal, we are told, has come in the course of the remedies hearing namely, that he is 50% to blame for his dismissal, is one which is eminently sensible and eminently just.  Now that, of course, does not bind either that Tribunal or indeed the parties because it is not a matter on which we have heard argument but that is the view that all three members of this Tribunal, having heard what we have heard, think is an appropriate view and a proper one for us to express.  In those circumstances therefore the appeal will be dismissed.