Appeal No. EATS/0047/03

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 16 December 2003

Before
THE HONOURABLE LORD JOHNSTON
MR P PAGLIARI
DR W M SPEIRS

RICHARD SPELMAN	APPELLANT

SCOTRAIL RAILWAYS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mrs S Stark, Advocate
Instructed by-
Messrs Jain Neil & Ruddy
Solicitors
4th Floor
150 West George Street
GLASGOW   G2 2HG

For the Respondents

	

Mr A Strain, Solicitor
Of-
Messrs Biggart Baillie
Solicitors
7 Castle Street
EDINBURGH   EH2 3AP

	

LORD JOHNSTON:

1.	This is an appeal at the instance of the appellant employee against a finding of the Employment Tribunal sitting in Glasgow that he had not been unfairly dismissed from his employment with the respondents.

2.	The accepted ground for dismissal was conduct, and, this in turn, related to a single incident involving the appellant and a manager, where it was alleged that while passing in the yard, the manager was assaulted by the appellant by means of the latter deliberately colliding with him causing him “to spin round”.

3.	The manager complained and an investigation was carried out at two levels by the employers before the decision to dismiss was confirmed.

4.	Against that background the decision of the Tribunal is as follows:-

“Section 98 (1) and (2) of the Employment Rights Act 1996 require that the respondents must demonstrate the principal reason for the applicant’s dismissal.  The respondents have discharged that onus in so far as the principal reason for his dismissal related to his conduct.

In terms of Section 98 (4) of the Act the question as to whether the dismissal was fair on unfair (having regard to the reasons shown by the employer) is to depend upon whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and the question is to be determined in accordance with equity and the substantial merits of the case.

In our view the procedures of the respondents cannot be faulted.  They conducted an investigation among the relevant witnesses.  The investigating officer took written statements.  A person who had not taken part in the investigation presided at the disciplinary hearing.  The applicant was aware of all the allegations which were made against him.  He was given a full opportunity to state his position.  Mr Dally disbelieved the applicant’s account.  Mr Dally reached a view that the evidence before him suggested nothing less than an assault by Mr Spelman upon a manager.  He decided to dismiss.

The applicant’s appeal was heard and considered by Mr McCarron. He too disbelieved the applicant and refused the appeal.

In our view the decision to dismiss, notwithstanding the applicant’s lengthy record of service, fell within the range of reasonable responses.  Likewise we are satisfied that procedurally and substantively the disciplinary process could not be faulted.

It is not for this Tribunal to substitute its own view for that of the respondents.  The respondents had ample material before them from which to reach the conclusions which they did and as we say, despite the valiant efforts of Ms Stark, there is no basis upon which this Tribunal could hold that the decision to dismiss was not a reasonable sanction open to a reasonable employer acting reasonably.  For these reasons the application will be dismissed.”

5.	The grounds of appeal, focussed on behalf of the appellant, although running into double figures numerically, concentrate entirely upon whether or not the employer was entitled to conclude that the incident in question had been deliberate against a background, which is highly significant, of the employee consistently denying that anything had happened at all.

6.	Neither party disputed that the relevant test laid down in British Home Stores v Burchell [1980] ICR 303 applied.  However, Mrs Stark, appearing for the appellant, submitted that the Tribunal had sufficiently failed to investigate whether or not the act in question had been deliberate.  She criticised the Tribunal for their reference to the phrase “ample material” and she at one stage appeared to suggest that both the employer and the Tribunal should have made a further investigation of this one aspect.

7.	With this last point we are not concerned since it does not feature in the grounds of appeal.

8.	We have to say at once that the decision to be taken by the Employment Tribunal relates to their view of the reasonableness of the employers’ action to dismiss in the context of the material that was before the employer at the time.  At this level this Tribunal is required to consider whether or not the Tribunal had sufficient material to support their own decision if it was one in favour of the employer.

9.	We are entirely satisfied despite the fact that the findings of the Tribunal and, indeed, its conclusions, are somewhat succinct and could have been expanded, that the Tribunal was plainly satisfied against the context of the various in-depth investigations carried out by the employer, that the employer genuinely believed there had been an assault, that it was deliberate and that that belief was reasonably based.

10.	In these circumstances we are entirely satisfied that the Tribunal’s support of the employer is more than justified by the evidence before the Tribunal which, in turn, more than justifies the action of the employer in dismissing.

11.	In these circumstances this appeal is without merit and will be dismissed.