Appeal No. EAT/556/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 July 1997

Before
THE HONOURABLE MR JUSTICE KIRKWOOD
MR A E R MANNERS
MS B SWITZER

BLACKBURN BOROUGH TRANSPORT LTD	APPELLANT

MR B CLARE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR M MALONE
(Solicitor)
Messrs Mace & Jones Grundy Kershaw
Solicitors
14 Oxford Court
Manchester
M2  3WQ	

		MR JUSTICE KIRKWOOD:   This is the preliminary hearing of an appeal by an employer.  From about 1986 until August 1996 Mr Clare worked as a bus driver.  He was employed by Blackburn Borough Transport Ltd.  The bus he drove at the material time was a one-man bus; there was no conductor.  On boarding, a passenger paid his fare to the driver, who issued a ticket.  Issuing a ticket in respect of the fare was important as the company had emphasised to all drivers.  

	On 22 August 1996 Mr Clare picked up passengers at Darwen Vale School. Two boys and a girl got on.  The two boys ran straight upstairs leaving the girl on the platform to pay.  She asked to pay one full and two half fares.  She put £1.10 on the tray on the top of the ticket machine.  Mr Clare was suspicious about the age of the two boys, whether they were entitled to travel for half fare, so he did not issue tickets.  He left the money on the tray where the girl had put it.  She went upstairs to join the boys.  Mr Clare meant to confront the boys when they came downstairs to disembark.  Two stops later an Inspector got on.  Mr Clare told him at once that he had not issued tickets to the boys and girl because be he was suspicious about their age and was going to confront them.  The Inspector said he was not happy about that explanation.  He told Mr Clare to drive on to Blackburn town centre, there Mr Clare was relieved of his duty and suspended pending an investigation.

	On 27 August 1996 a disciplinary hearing was held by a Mr Nicholson, the company’s Traffic and Marketing Director.  Mr Clare told him what had happened as he had told the Inspector.  There was no dispute that Mr Clare said the same at that disciplinary hearing as he had to the Inspector.  That was not an issue.  Mr Nicholson decided that failing to issue the tickets amounted to misconduct.  He decided indeed that it amounted to gross misconduct and dismissed Mr Clare summarily.  Mr Clare appealed.  He gave the same explanation.  His appeal failed.  
	Mr Clare had been regarded as a competent and conscientious employee.  His integrity was not questioned by the company.  As the Industrial Tribunal summarised it in paragraph 6:
“The applicant’s integrity was never questioned by the respondent.  ..... The applicant was dismissed simply because the respondent regarded the failure to issue tickets per se as gross misconduct justifying summary dismissal.  The only definition of gross misconduct in the respondents Disciplinary Procedure is “conduct of such a kind that the employer sees no alternative but to dismiss”.”

	On 30 October 1997 Mr Clare presented a complaint of unfair dismissal to the Industrial Tribunal.  The complaint was heard by the Tribunal sitting in Manchester on 8 January and 6 March 1997.  It found that Mr Clare was unfairly dismissed by the Respondent company.  In its Extended Reasons promulgated on 27 March 1997 the Industrial Tribunal held, and held correctly, that in the circumstances of this case the only question for it was the question of fairness raised by Section 98(4) of the Employment Rights Act 1996.  Indeed in the circumstances of this case the issue was narrower still:
“8	..... whether the decision to dismiss the employee fell within the range of proper responses of a reasonable employer confronted with this situation.”

	In its Extended Reasons the Tribunal carefully rehearsed the submissions made on behalf of both parties and then gave its conclusion:
“11	   We accept that the respondent had emphasised to all the drivers employed by the respondent the importance of issuing tickets in return for cash fares.  This does not mean that a failure to comply with this direction automatically constitutes gross misconduct justifying summary dismissal.”

They then made reference to Scottish Midland Co-Operative Society Limited v Cullion [1991 IRLR 261.  They went on to deal with the submission, Mr Malone for the company had made.  They said:
“11.   ..... Nor do we accept Mr Malone’s submission that the applicant should have put before the disciplinary hearing and/or the appeal hearing his explanation for not going half way up the stairs  to confront the two boys.”

That, evidently, was something that arose during the Tribunal hearing.  The Tribunal continued:
“This was not an option which was ever put to the applicant on behalf of the respondent in the course of either of those two hearings.  In any event, on the basis of the evidence we have heard, we regard such a suggestion as being both unrealistic and implausible as it would inevitably mean the driver would have to leave his cabin with the money collected from passengers unprotected.
12	At the end of the day the respondent seeks to justify dismissal of a long serving and well regarded employee simply because the applicant had failed to comply with certain procedures.  In our view, wholly insufficient regard has been paid by the respondent to the applicant’s accepted integrity and the very difficult circumstances with which the applicant was confronted at the time of the incident.”

	The Tribunal then made a reference to their view of the offence which really is outside the ratio of their decision.  Then (they say):
“12	   ....The applicant offered a plausible and honest explanation for his failure to do so [that is to issue tickets].  Without substituting our own views for the decision reached by the respondent we are completely satisfied that in the circumstances of this case the decision to dismiss the applicant was wholly outside the range of responses of a reasonable employer.”

The Respondent appeals.

	Notwithstanding a lengthy Notice of Appeal raising a large number of points, many of which are in the nature of perversity points, and which, I may say, we have all considered, Mr Malone says that the key and fundamental point for argument on appeal turns upon the failure of the Tribunal specifically to address a single answer Mr Clare gave during the disciplinary hearing held by Mr Nicholson.

	For the purpose of this hearing we can go to the written evidence of Mr Nicholson, which was in these terms:
“When asked why he did not issue tickets, Mr Clare said that because he was not sure the two halves were under sixteen, he kept the money proffered (£1.10) and did not issue tickets as he was going to challenge them when they alighted.  Asked why not challenged on boarding, he said that he did not want to embarrass them in front of other passengers.”

	That final sentence is the one which Mr Malone says is key to the question of reasonableness on dismissal and was not addressed by the Tribunal.  It is plain that it was a question asked in the nature of a cross-examination as to the primary reason that Mr Clare had given and given, as the Tribunal found, consistently throughout, and it does not seem to have been explored beyond that.  The reason of not wanting to embarrass the youngsters was however plainly canvassed very fully before the Industrial Tribunal.  Mr Clare, we are told, was cross-examined about it.  Mr Malone addressed it in his written submissions, prepared and put in at the conclusion of the evidence.  In those written submissions he attached weight to this point.  Mr Malone argues that the Tribunal did address other explanations raised at the Tribunal hearing but did not turn their minds to, or at least specifically deal with, this explanation given at the disciplinary hearing.  It is this explanation about embarrassment that Mr Malone says goes crucially to the reasonableness of dismissal because it was a lame answer and should therefore have been dealt with by the Tribunal.

	Questions of weight and significance of individual pieces of evidence are for the Industrial Tribunal.  It is for the Tribunal to consider what did, or should reasonably, have weighed with the employer.  The decision of the Tribunal is not to be held fatally flawed for failure to allude directly to a point of evidence just because the employer considers it, at any rate on later argument, to be fundamental.  I say “later argument” referring both to the submissions put in at the conclusion of the evidence and before us.  On this aspect the Tribunal found as I have said, that the Applicant offered a plausible and honest explanation for his failure to issue the tickets.  

	The nub of this case however, is the one to which I have referred in paragraph 6 of the Extended Reasons and it is necessary for me to elaborate a little from paragraph 5 as well.  Paragraph 5 states:
“A disciplinary hearing was convened before Mr Nicholson, the Traffic & Marketing Director of the respondent, which the applicant attended on 27 August 1996 accompanied by his trade union representative Mr Malik.  The same explanation was offered to Mr Nicholson as had been offered to the Inspector.  Mr Nicholson decided that the applicant had been guilty of misconduct by failing to issue a ticket to the girl and her two companions and furthermore this constituted gross misconduct for which the applicant would have to be summarily dismissed.  The applicant invoked his right of appeal against this decision.  The appeal panel comprised the Chairman of the respondent, its Managing Director Mr Ashton and another Director of the respondent.  On this occasion the applicant was represented by his wife and a fellow driver also attended to support the applicant.  The applicant presented precisely the same explanation to the Appeal Panel for not issuing tickets in relation to this incident.  The applicant’s appeal was rejected and his dismissal was confirmed.”

Paragraph 6 states:
“The applicant’s integrity was never questioned by the respondent.  Furthermore, it is clear from the minutes of the appeal hearing that the applicant’s previous disciplinary record was not taken into account.  The applicant was dismissed simply because the respondent regarded the failure to issue tickets per se as gross misconduct justifying summary dismissal.  The only definition of gross misconduct in the respondents Disciplinary Procedure is “conduct of such a kind that the employer sees no alternative but to dismiss”.”

	That, then, was found by the Tribunal to be the reason for dismissal.  Those findings to which I have just referred, are not challenged.  They implicitly exclude the reason for dismissal being what the employer is said to regard as a lame answer.  Although Mr Malone seeks to argue before us that the answer about embarrassment is key, in fact the key to this case is the absolute rule applied by the employer - failure to issue ticket equals gross misconduct equals summary dismissal.  

	The employers case therefore was as the Tribunal found it to be.  In paragraph 11 of the Extended Reasons they said, and I repeat:
“We accept that the respondent had emphasised to all the drivers employed by the respondent the importance of issuing tickets in return for cash fares.  This does not mean that a failure to comply with this direction automatically constitutes gross misconduct justifying summary dismissal.”

In argument before us, Mr Malone conceded that it could not be argued that failure to issue a ticket was inevitably and in all circumstances a gross misconduct transgression, incapable of mitigation, and necessarily to be visited by summary dismissal.  

	The question rightly identified by the Industrial Tribunal was the question of reasonableness in all the circumstances.  We do not accept that it is arguable, as Mr Malone contends, that the failure to mention specifically the answer as to embarrassment flaws this decision, because the key question identified by the Tribunal was the one to which we have referred.

	Accordingly we hold that the case is not arguable at a full hearing on that point.  I have referred to the lengthy and detailed Notice of Appeal.  Mr Malone told us frankly that if we were against the employer on the “embarrassment point” the remainder of the Notice of Appeal is unarguable.  Mr Malone did not quite put it like that; he said it would be wasting our time to develop or seek to develop argument upon it, and in those circumstances we do not address the numerous points raised in it.

	The conclusion we reach is that this appeal should be dismissed at this stage.