Appeal No. EAT/369/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 February 1998

Before
HIS HONOUR JUDGE C SMITH QC
MR D A C LAMBERT
MRS R A VICKERS

THE POST OFFICE	APPELLANT

MR S HUGHES	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR B CARR
(Of Counsel)
The Solicitor
The Post Office
Impact House
2 Edridge Road
Croydon
CR9  1PJ	
For the Respondent	MR M WESTGATE
(Of Counsel)
Messrs Simpson Millar
Solicitors
101 Borough High Street
London Bridge
London
SE1  1NL	

	JUDGE SMITH QC:   This is an appeal by The Post Office against the decision of an Industrial Tribunal held at Liverpool on 10 and 11 June 1996.  Extended Reasons were given by the Tribunal on 22 January 1997, when the Industrial Tribunal held that the Applicant before them, Mr Hughes, had been unfairly dismissed.

	We have had the benefit of very able submissions made to us by Counsel on both sides and we should say that we have not found this an easy appeal to decide.

	The essence of the submission on appeal is that the Industrial Tribunal here have, so it is submitted, fallen into the trap of substituting their own evaluation of a witness for that made by the employer, contrary to the decision of Morgan v Electrolux [1991] IRLR 89, a decision of the Court of Appeal and that accordingly they have erred in law in finding the dismissal to be unfair.

	Counsel for the Respondent argues that, if the decision is fairly construed, the Industrial Tribunal have not substituted their evaluation of a witness for that of the employer but rather have legitimately criticised the employer for being too ready to accept that that witness was probably telling the truth in implicating Mr Hughes with serious wrongdoing and thus holding that in that respect the employers failed to carry out a sufficient investigation, so that the quality of the employers’ enquiries were deficient.  It is submitted that the Industrial Tribunal were entitled, as an industrial jury, so to conclude, and reliance was placed upon the very well-known passages in Piggott Bros & Co Ltd v Jackson [1991] IRLR 309, particularly at paragraph 17 of the decision of the Court of Appeal in that case, and the other well-known decision of UCATT v BRAIN [1981] IRLR 224, particularly at paragraphs 22 and 23 of Lord Justice Donaldson’s judgment.
	Before expressing our conclusions on these rival submissions, we must very shortly rehearse the facts leading to the dismissal as found by the Industrial Tribunal and as revealed by the documents before us.  What we say is no more than a brief summary.  For a full résumé of the facts, as in our judgment carefully found by the Industrial Tribunal, we refer to sub-paragraphs 12(1)-(9) inclusive, of the decision under appeal.  What we say is no more than a summary and what it comes to is this:  Mr Hughes was employed as a Postman.  By about March 1995 The Post Office became concerned that mail was being deliberately delayed by “soaking” on the part of some employees i.e. by those employees not delivering items which should have been delivered but holding them back to be delivered later, and video surveillance was carried out.  On 23 August 1995 a Mr Threlfall, a Post Office employee, received and opened a postal packet, read a letter and passed it to Mr Hughes, who also read it.

	Mr Threlfall was interviewed about that matter by the Post Office Investigation Department (POID) on 15 September 1995.  Before he was questioned about the opening of the letter he was asked about “soaking”.  He admitted that he had been guilty of that practice.  He then proceeded, under questioning from POID representatives, to implicate Mr Hughes and other postmen, namely a Mr Llewellyn and a Mr Bonner.  He alleged that for about two months he had given postal packets to Mr Hughes, who had then brought them in on night duty, so he was saying that Mr Hughes was implicated.  Mr Hughes was then interviewed and after eventually admitting (having first denied it) that he had seen Mr Threlfall open a letter and had looked at it when it was handed to him, he was then asked whether he had been guilty of colluding with Mr Threlfall on “soaking”.  Mr Hughes totally denied that allegation.

	There followed, relevantly, disciplinary proceedings against Mr Hughes, which are correctly summarised by the Industrial Tribunal at sub-paragraphs 12(5)-(9) of the Industrial Tribunal’s findings.  What it comes to is this - at the initial hearing Mr Holden, the responsible Manager, put to Mr Hughes what Mr Threlfall had said in his statement.  Mr Hughes said in response that he was shocked by the allegation and denied it.  Mr Holden formed the view that he was inclined to believe Mr Threlfall rather than Mr Hughes because Mr Threlfall was making a clean breast of things and Mr Llewellyn had admitted he was involved.  Additionally, Mr Hughes had the opportunity to accept mail from Mr Threlfall since he worked next to him.  Mr Holden could see no good reason why Mr Threlfall should implicate Mr Hughes maliciously, especially as they were friendly.  Mr Holden noted also that Mr Hughes’ explanation that he thought the letter involved in the incident in August belonged to Mr Threlfall was not supported by anyone else, and, accordingly, Mr Holden took the decision to dismiss with notice.  

	There followed an appeal before Mr Murphy, the appropriate Manager to conduct that hearing, in which it was submitted by Mr Williams, the union representative for Mr Hughes, as it had been by Mr Williams before Mr Holden, that there was only the word of someone dishonest [Mr Threlfall] against the word of Mr Hughes.  There was no evidence that Mr Hughes was delaying his own mail.  Why should he delay Mr Threlfall’s?  His future and family life were at stake.  Mr Murphy, having weighed the matter up, reached the same conclusion as Mr Holden.  He expressed himself in this way:
“Despite Mr Hughes’ denials I have no reason to doubt Mr Threlfall’s statement and I have a belief, as Mr Holden did, that Mr Threlfall has told the truth and I therefore have a belief based on Mr Threlfall’s evidence that Mr Hughes was involved in the wilful delay of mail.”

Thus the appeal was dismissed and the dismissal was upheld.

	It was against that background that the Industrial Tribunal came to apply the law to the above facts which they had found.  They had set out the law correctly in every respect in paragraphs 5-11 of the their decision.  In particular they had cited Lord Justice Stephenson’s comments in Weddel & Co Ltd v Tepper [1980] IRLR 97, including the learned Lord Justice’s statement as follows:
“.....  And they do not have regard to equity or the substantial merits of the case if they jump to conclusions which it would have been reasonable to postpone in all the circumstances until they had, per Arnold J in Burchell [i.e. British Home Stores Ltd v Burchell [1978] IRLR 379] “carried out as much investigation into the matter as was reasonable in all the circumstances of the case”.  That means that they must act reasonably in all the circumstances, and must make reasonable inquiries appropriate to the circumstances.  If they form their belief hastily and act hastily upon it, without making the appropriate inquiries or giving the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are not acting reasonably.”

	The Industrial Tribunal then, having reminded themselves of the law and applying the law to their findings of fact, as they did in paragraph 13, reached the crucial part of their decision in paragraph 13 and expressed it as follows:
“.....  The applicant was suspected of “soaking” the mail and it was this which ultimately led to the dismissal.  The basis for that, and the only basis for that is to be found in the allegations made by Mr Threlfall.  Is that a sound basis for a reasonable employer to reach a conclusion to dismiss?  Mr Holden, and indeed Mr Murphy, seem to have been very ready, indeed all too ready, to accept what Mr Threlfall had said, despite the continued denials of Mr Hughes throughout.  He was an employee of 8 years’ standing and, up to this point, had a good record insofar as conduct was concerned.  An informer, and Mr Threlfall may properly be described as such, should be viewed with at least some degree of scepticism and clearly corroboration of what he says is desirable.  In this case there was none whatsoever.  The video showed nothing as to that.  That should have had an effect upon the course of the investigation.  Mr Threlfall had nothing to lose; he was facing criminal proceedings.  Indeed, criminal proceedings were also instigated against the applicant but were rejected at the committal stage.  .....  Our concern is with the quality of the enquiries which were made in what is, in reality, as we have already said, an informer case where someone “pointed the finger” after having themselves been accused and therefore, again as we have said, having absolutely nothing to lose.  In such instances, an appeal by way of complete re-hearing could have offered a more satisfactory resolution of the matter.”

	In our judgment, having carefully considered the submissions made to us, this was a decision which the Industrial Tribunal were entitled to reach.  In our judgment, the Industrial Tribunal were not saying “we believe Mr Hughes whereas you believed Mr Threlfall”.  Had they so found, then undoubtedly they would have fallen foul of the very important principle laid down by the Court of Appeal in Morgan v Electrolux Ltd.  In that case the Industrial Tribunal had expressed themselves in this way:
“18  .....  To the extent that this refusal was based on Mrs Morgan’s alleged absences from her workplace, we have no reason to think that the evidence on which Mr Duckworth based his decision was any better than that which we have heard.  Virtually the only first-hand evidence on the point was that of Miss Hammond, evidence which in the circumstances ought not to have been preferred to that of Mrs Morgan.  We do not think it reasonable for Mr Duckworth to come to his conclusion on the basis of such evidence.”
and it was there that they fell into error as the Court of Appeal found:
“19  It is the last three sentences quoted above which in our judgement disclose an error of law on the part of the Industrial Tribunal.  Notwithstanding the proper direction which they had given themselves, these sentences indicate that they were substituting their own evaluation of Miss Hammond as a witness for that of the employers, possibly misled by their own incorrect inference that Miss Hammond had been away from work on the Tuesday and part of the Wednesday and therefore was not a credible witness as to the absence of the appellant from her place of work.  Since this was clearly a major plank in the Industrial Tribunal’s finding that the appellant was unfairly dismissed, we agree with the unanimous view of the EAT that there was here an error of law on the part of the Industrial Tribunal which vitiates their decision.”

	It is plain from a proper reading of that decision that the Court of Appeal were considering a case where the Industrial Tribunal had substituted their own evaluation of the evidence of the two ladies for that of the employers.  That is impermissible as the Court of Appeal laid down.  But in our judgment, in the instant appeal, the Industrial Tribunal were not here falling into the same trap.  What they were doing was saying that the employers had been all too ready to accept the word of Mr Threlfall without probing further and in that way the quality of the employer’s enquiry was defective and thus unreasonable.  They were not saying that the employers should have preferred the denial of Mr Hughes to the written accusation of Mr Threlfall, they were saying to the employers “you should not have been so ready without more to accept the accusation of Mr Threlfall and in that way we decide that your investigation was not a reasonable one”.

	In our judgment this was a pure question of fact for them to decide as an Industrial jury.  Nor in our judgment was their reasoning rendered internally inconsistent or in any way undermined by their observation that a complete re-hearing could have offered a more satisfactory resolution.  They did not have to go further than to find that the employers had been too ready, all too ready as they found, to accept the statement of Mr Threlfall without inquiring further into the matter.  It may be that another Industrial Tribunal would have reached a different decision, as might the Employment Appeal Tribunal.  But that is not the test.  Such matters as these are essentially for the Industrial Tribunal to decide.  We do not accept that The Post Office did not know why they had lost.  They do.  They lost because the Industrial Tribunal held that they had been too ready to accept the statement of one employee against another without making closer enquiry.  That, in our judgment, is clear enough.  This appeal must be dismissed.