Appeal No.	 EAT/1186/98
		 EAT/1345/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 December 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR D A C LAMBERT
MR J A SCOULLER

FOCSA SERVICES (UK) LIMITED	APPELLANT

MR N WHITE & MR D FULTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR HOWARD 
(of Counsel)
Instructed by:
Mr J A C Porter
Solicitor
Messrs Wrigley Claydon
P O Box 44
Prudential Buildings
Union Street
Oldham OL1 1HR	

For the Respondent	
MR LINDEN
(of Counsel)
Instructed by:
Mr D Cockburn
Messrs Pattinson & Brewer
Solicitors
30 Great James Street
London WC1N 3HA

	JUDGE PETER CLARK:	These are appeals by the employer, Focsa Services (UK) Limited (Focsa) against decisions of an Employment Tribunal sitting at Carlisle, first that the Applicants Messrs White and Fulton had been unfairly dismissed, and secondly orders that both Applicants be re-engaged by Focsa.

	Background

	The Applicants had commenced employment with Allerdale District Council (the Council), in the case of Mr White in June 1986 and Mr Fulton in March 1994.  

	In March 1996 Focsa won the contract for refuse collection services in the Allerdale area.  The Applicants’ employment was then transferred to Focsa.  At the relevant time they worked on Round 1 of the Allerdale Collection Service.  Their regular driver was Mr Colin Murphy.

	On 25 February 1998 Mr Penney, Focsa’s Senior Contract Manager, also formerly employed by the Council, received a telephone call from Mr Denby, the Council’s Environmental Services Unit Manager, who told him that a member of his staff had witnessed two employees riding on the back of a refuse collection vehicle in Coniston Close, Workington, a road covered by Round 1.

	Focsa took a serious view of operatives riding on the back of collection vehicles.  Mr White had received a letter warning operatives that they were not to ride on vehicles and that if they were found doing so they would be instantly dismissed, as would drivers who allowed operatives to ride on a vehicle.  Both Applicants accept they knew of the rule.  To emphasise the point a fellow operative had been dismissed for a similar offence two weeks earlier and in another case, at a different location, a man had lost a leg in an accident whilst engaged in a similar activity,

	In these circumstances, having ascertained which round was involved, Mr Penney asked the Cleansing Services Manager to make arrangements for the men involved to be brought back into the office.  The two Applicants, who from the outset and throughout denied the allegation, were brought in and suspended.

	Mr Penney then made arrangements to see the Council employeee who had reported the matter to Mr Denby.  She is referred to in the Tribunal’s reasons as Ms A.

	A disciplinary hearing was fixed for 3pm on Monday 2 March.  At 2pm that day Mr Penney saw Ms A in the presence of Mr Denby.  Having spoken to her at some length Mr Penney was confident that she was a truthful witness.  She did not know either of the Applicants.

	She was willing to give a statement but wished to remain anonymous for fear of repercussions on herself or her family.  Mr Penney believed her fear to be genuine and assured her that confidentiality would be maintained.  She drew a sketch plan showing where she said she was standing in Coniston Close when the vehicle passed her on the way towards Coniston Crescent.  She also signed a short statement which read:

“On Wednesday, 25 February 1998, at approximately 8.25 am I saw two loaders riding on the back of the refuse vehicle on Coniston Close, Workington.”

	Her signature to that statement was witnessed by Mr Denby.  That statement, with Ms A’s signature obscured, was first disclosed to the Applicant’s representative on discovery in the Tribunal proceedings, although the sketch was produced at the disciplinary hearing.

	The disciplinary hearing then took place.  Both Applicants were represented by their respective shop stewards.  Mr Murphy was also present.  Both Applicants continued to deny the allegation.  Mr Murphy’s evidence was inconclusive; he could not say whether the Applicants were riding on the back of the vehicle.  They discussed the route and the procedure adoped.

	Mr Penney adjourned for about 25 minutes to consider the matter.  When the hearing resumed he told the Applicants that Ms A had nothing to gain by lying “you have more to lose and therefore I accept her side.  You are therefore dismissed for gross misconduct.”  He advised the men of their right of appeal and Mr Fulton responded “we’ll take this to court”.  Mr Penney said that the witness would have to stand up in Court.

	The Applicants appealed to Mrs Godfrey, the Human Resources Manager.  The appeal was heard on 16 March.  The Applicants were represented by Mr Graham, Union full time official, who in the course of his submissions, expressed concern that the employer was not prepared to give him a copy of Ms A’s statement.  At the end of the meeting Mrs Godfrey indicated that she wished to visit the site and speak with Ms A.

	She then did so.  Ms A repeated her version of events.  She felt it her duty as a member of the Council’s office staff to report an incident which had a serious health and safety feature.  She was aware of the dismissal of an employee for a similar offence two weeks earlier.  She was told that the matter might go to a Tribunal and she indicated, at that stage, that she would be prepared to attend and give evidence.  Mrs Godfrey visited the site and agreed with Mr Penney’s view that the Applicants could easily have stood on the back of the vehicle to go from one point to the next.

	In the result  Mrs Godfrey upheld Mr Penney’s decision to dismiss the Applicants, writing to each on 20 March 1998 and expressing her conclusion in this way:

“I have visited the road and area in question and also spoken in great detail to the witness and I am of the opinion that the witness is telling the truth and you were indeed riding on the  back of the refuse vehicle in Coniston Road at approximately 8.25am on 25 February 1998.  I therefore have to advise you that the decision taken by Mr Penney to dismiss you is upheld and I am satisfied that the decision was fair and reasonable taking account of all the circumstances.”

Pausing there, the reference to Coniston Road appears to be mistaken.  The sketchplan drawn by Ms A referred to Coniston Crescent, Coniston Drive and Coniston Close but not Coniston Road.

	After the appeal had failed, Mr Graham on behalf the Applicants, asked whether the company would consider alternative employment given the mens’ length of service.  

	Mrs Godfrey later told him that there would be temporary positions in the grounds maintenance section, to which the Applicants would be given first choice.  The pay there was lower and there was no guarantee of permanent employment.  That suggestion was not acceptable to the Applicants.

	The Tribunal Decisions

	In the event, Ms A did not give evidence before the Tribunal.  In their liability decision with extended reasons promulgated on 31 July 1998, following a hearing held on 16 July, the Tribunal accepted that the reason for dismissal in each case related to the Applicant’s conduct.  On the question of reasonableness under Section 98(4) of the Employment Rights Act 1996, the Tribunal considered the guidelines, of which Focsa had apparently been unaware, set out by the Employment Appeal Tribunal in Linford Cash & Carry Limited v Thompson (1989) IRLR 235 for dealing with cases based on the evidence of an anonymous informer.  Applying those guidelines they concluded that, at the very least, the Applicants ought to have been provided with a full statement from Ms A.  Her evidence was uncorroborated.  She worked for the Council and could not be regarded as wholly independent.  It would have been fairer had she been called to give evidence.  If she was unwilling to do so, management should then have considered whether the disciplinary process could continue and whether other investigations might be made.

	On that basis the Tribunal held that Focsa had not carried out as much investigation as was reasonable and that the dismissal was unfair.

	Further, the Tribunal would have found that even had they concluded that the investigation was adequate, Focsa acted unreasonably in automatically implementing the penalty of dismissal without considering any penalty short of dismissal in the light of the mitigation put forward on behalf of the Applicants.

	The matter was then adjourned for a remedies hearing which took place on 25 September 1998.  The Applicants sought reinstatement, alternatively re-engagement.

	In a remedies decision with extended reasons promulgated on 15 October 1998 the Tribunal ordered that both Applicants be re-engaged in the capacity of refuse collector or employment of a similar nature.   Consequential orders were made as to the rate of pay, payment of back pay since dismissal, continuity of employment and holiday entitlement, the orders to be complied with by 4 January 1999.

	In reaching that conclusion the Tribunal took into account their findings, first that bearing in mind the size of the organisation, equivalent employment would become available for the Applicants within three months and without detriment to existing permanent employees.  Secondly, there was no suggestion in this case that there would be any ongoing problem in the Applicants’ relationship with colleagues or middle management if they returned.  Nor had the Council made any representations on the matter as the body which had let the Refuse Collection Contract to Focsa.

	The Appeals

	Dealing first with the Liability appeal (EAT/1186/98), Mr Howard accepts that in order to succeed he must persuade us that both alternative findings of unfairness by the Tribunal were impermissible at law.

	As to the first basis for the Tribunal’s conclusion, it is necessary for him to show that the findings in paragraph 14 of the liability reasons were perverse.  That no reasonable Employment Tribunal, properly directing itself, could conclude that the investigation undertaken by Focsa was inadequate and unreasonable.

	Mr Howard submits that, in accordance with the judgment of Mr Justice Wood in Linfood at paragraph 21, expressly approved by the Court of Appeal in Morgan Electrolux (1991) IRLR 89, per Lord Justice Balcombe at paragraph 11(3), it is not for the Employment Tribunal to substitute its view for that of the employer in judging the credibility of the witnesses at the internal disciplinary proceedings.  That, however, is what he submits this Tribunal has impermissibly done.

	We accept the principle, but not that the Tribunal breached it.  Their focus was on the fairness of the procedure employed by Focsa.  The Linfood guidelines in dealing with anonymous informants do not have the rigid force of the statute, but they nevertheless provide useful guidance to employers when dealing with this particular problem.  Breach of the guidelines will not automatically render a dismissal unfair, but may do so, depending on the circumstances of the case and the view taken of it by the industrial jury.

	Take the desirability of a full written statement from the informant, adapted to preserve anonymity.   Failure to take that step, and to provide a copy to the employee charged with a disciplinary offence, may result in a finding by the Employment Tribunal that the Applicants did not know sufficiently what was said against them.  That was the Tribunal’s conclusion in this case.  We cannot say that such a conclusion was a perverse one on the facts of the case.  Bentley Engineering Co Ltd v Mistry (1979)  ICR 47, an authority to which this Tribunal expressly directed themselves.

	It follows that the liability appeal fails at the first hurdle.  It is therefore strictly unnecessary for us to consider the alternative basis on which the Tribunal found the dismissal to be unfair.  However, had it been necessary to do so, we should not have interfered with the Tribunal’s finding that in shutting their minds to a penalty short of dismissal, and in disregarding the mitigation put forward on behalf of the Applicants, these employers acted unfairly.

	Turning to the appeal against the remedies decision (EAT 1345/98), Mr Howard acknowledges his difficulty in raising the question of contribution as a factor in determining the question whether  or not reinstatement or re-engagement should be ordered, the point not having been raised below.  We find that there are no exceptional circumstances which would allow him to raise the point for the first time in this Employment Appeal Tribunal.  Jones v Burdett Coutts School (1998)  IRLR 521.

	In any event, the argument was bound to fail in the absence of any evidence before the Employment Tribunal as to the fact of the misconduct alleged.  The Applicants denied riding on the vehicle; Mr Murphy’s evidence took the matter no further;  Ms A did not give evidence.

	Further, this is not a case, on the Tribunal’s findings, where the necessary mutual trust and confidence had been destroyed.  Compare  Wood v Crossan (1998)  IRLR 680 and the cases there referred to.

	Finally, Mr Linden makes the point, not challenged by Mr Howard, that at the first remedies hearing stage the Tribunal is only required to reach a provisional view as to the practicability of an order for re-engagement.  Port of London Authority v Payne (1994)  IRLR 9.  If the order for re-engagement is not complied with by 4 January 1999, it will be open to Focsa at a subsequent hearing dealing with breach of the re-engagement orders to argue that it has been impracticable to comply with those orders.

	In these circumstances, the remedies appeal also fails in our judgment.  Consequently both appeals must be dismissed.

	Before parting with this case, we wish to make it abundantly clear that our decision in no way condones the practice of operatives riding on the back of refuse collection vehicles anymore than did the Employment Tribunal’s decision.  This case was decided below, permissibly in our  judgment, on the fairness of the procedure used.  It is not the function of that Tribunal or this to make any findings of fact as to whether or not the men were in breach of the rule.