Appeal No.	 EAT/779/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 April 2002
Judgment delivered on 23 August 2002

Before
THE HONOURABLE MR JUSTICE WALL
MR D A C LAMBERT
MR P A L PARKER CBE

SHEFFIELD CITY COUNCIL DIRECT SERVICES	APPELLANT

MR R W BARTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR TARIQ SADIQ
(of Counsel)
Instructed By:
Ms Nicola Castle
Sheffield City Council
Legal & Admin Department Services
Town Hall
Sheffield S1 2HH	
For the Respondent	MR JACQUES ALGAZY
(of Counsel)
Instructed By:
Messrs Mills Kemp & Brown
with
Hinchliffe Baker
Solicitors
1-11 Huddersfield Road
Barnsley S70 2LP	

MR. JUSTICE WALL:

1	In this appeal, Sheffield City Council Direct Services (the Appellant) appeals from the unanimous decision of the Employment Tribunal held at Sheffield on various dates between 25 July 2000 and 16 March 2001, with extended reasons being sent to the parties on 28 April 2001.  The Tribunal’s decision was that the Applicant before it, Mr R.W. Barton had been unfairly dismissed by the Appellant.  The Tribunal recorded that there was insufficient evidence before the Tribunal to deal with the question of remedy, even though time was available, and accordingly the remedy issue was to be re-listed for hearing on a date to be fixed in the absence of any agreement between the parties.

2	At the date of his dismissal, Mr Barton was employed by the Appellant as a MOT/Taxi Test Controller based at an address in Staniforth Road, Sheffield, the Appellant’s sole testing station.  
3	The reasons given by the Appellant for Mr Barton’s summary dismissal are set out in a letter dated 20 December 1999 in the following terms:-

“Improper relationships/corruption for personal gain.  This included the acceptance of money, gifts and hospitality from garage owners and taxi drivers whose interests may benefit.  It also included unequal treatment towards some garage owners and taxi drivers.
Breaches of health and safety.  This constituted gross negligence amounting to failure to perform your responsibilities properly with regard to public safety and allowing vehicles to be on the highway in an unfit condition.
Gross mismanagement - in terms of inadequate paperwork and systems and blatant non adherence to both Ministry of Transport Regulations and Council procedures.  This put at risk the Council’s MOT Permit, Operators Licence and a resultant loss of income to the Council. ”

4	Mr Barton appealed against his dismissal, and by letter dated 28 March 2000, he was advised that the decision to dismiss was upheld on the second and third of the grounds set out in the letter of 20 December 1999, namely gross mismanagement and breaches of health and safety.  The appeal panel stated that it was 

“Undecided with regard to the allegations of improper relationships and corruption for personal gain but find however that Mr Barton had treated some garage owners and taxi drivers unequally which in itself constituted gross misconduct.”

5	Both the dismissing officer and the appeal panel took the view that:-

“any one of these actions which were committed over a significant number of occasions would constitute gross misconduct and warrant summary dismissal”

6	At the hearing before the Tribunal, Counsel on the Appellant’s behalf stated that the charges of improper relationships/corruption for personal gain were “not a significant reason on the evidence”.  Counsel also told the Tribunal that “gross mismanagement” of procedures was not the main plank of the Appellant’s case.  Counsel contended that the issue of health and safety was a serious charge, and that was what was significant for the Appellant.  In view of the content of the dismissal letter and the appeal panel’s decision, the Tribunal found itself unable to accept those contentions.  The Tribunal commented:-

“It was clear that the dismissing officer, in her evidence, believed that the charge of improper relationships and corruption for personal gain had been proved.  The appeal panel was undecided as to one aspect of that matter, but also concluded that it believed that unequal treatment had been meted out to garage owners.”

The Facts
7	We take these from the Tribunal’s reasons.  Staniforth Road is an MOT Testing station in the Sheffield area for vehicles for private hire and taxis. The unchallenged evidence of Mr Mushtaq (a garage owner/repairer) was that there were some 1100 private hire vehicles, 300 Hackney carriage vehicles and probably 20 garage owners/mechanics involved in the repair of these vehicles.

8	The allegations leading to Mr Barton’s dismissal arose from a complaint made to Sheffield by two garage owners/repairers, Mr Iqbal and Mr Lone, supported by Mr Hussain, the Chairman of the Taxi Driver Association.  On 12 August 1999, a formal letter of complaint was delivered to the Staniforth Road Test Station, setting out the allegations which were subsequently put forward as reasons for Mr Barton’s dismissal.  The Tribunal noted that identical allegations were made against Mr Cooper, who was Mr Barton’s manager until March 1999 when he retired, and against Mr Barton’s colleague Mr Storey whom the Tribunal found to be in a position of equal responsibility to that of Mr Barton.

9	The Tribunal set out the facts in some considerable detail. It noted that Mr Barton had not been appointed MOT Taxi Test Controller until 15 July 1999, and that up until that time he had been working on an equal basis with his colleague Mr Storey, also an MOT tester.  Mr Barton thus did not become responsible for the running of the test station until July 1999.

10	Between 1991 and late 1998, a Mr Cavell had been in charge of the MOT Test station.  He was in fact the Authorised Examiner.  He instructed Mr Barton and Mr Cooper about the system to be operated at the station and the issue of paperwork.  The Tribunal noted that the system operated by Mr Cavell and approved, at least by inference, by the senior management at the testing station included various practices which were contrary to the MOT regulations/requirements.  These included allowing taxis to return within 14 days of the issue of a certificate indicating they had failed the MOT test (a VT30 certificate); carrying out partial MOT tests up to 14 days after the initial test, and not charging full re-test fees.  The Tribunal found in terms that the fact these practices were contrary to the MOT regulations was unknown to Mr Barton.  That is not a finding we can go behind.

11	The Tribunal further found that the system just described applied not only to taxi/hire vehicles but also to Council vehicles.  There was no dispute that senior management had instigated and was well aware of this practice.

12	The Tribunal also found that there was a practice, also instigated by senior management, called the “scrap paper” system.  That system involved the testing mechanics noting faults found on vehicles on scrap paper, issuing a copy of the scrap paper to the vehicle owner/mechanic and keeping a copy for themselves.  The vehicle would then be allowed out of the garage for repairs to be completed, and would return for a “re-test” within a period of 14 days.

13	It was also established that if the vehicles were returned within 4 days then no re-test fee was charged, nor indeed was a re-test fee charged if the Council’s equipment was not actually used in the course of the re-test.  It was also normal practice for the vehicles to be returned in that period.  Mr Cavell had prepared a report in 1998 dealing with the issue of the failure to charge re-test fees, and the Tribunal found there was no evidence that any action had been taken about this by management at that time.

14	The Tribunal found that in November 1998 Mr Cooper attended an MOT refresher course and was thereafter able to point out to Mr Cavell (the Authorised Examiner) that the system of partial re-tests was against MOT regulations.  As a consequence, action was taken to remedy that situation, and full re-testing was phased in from January 1999.  There was, however, no challenge to the evidence that even at that stage full re-test fees were not charged to Sheffield and at least one other Borough Council.

15	The fact that partial re-tests were common practice at Staniforth Road meant that vehicles were allowed back on the road plying for hire in various states of “unfit condition”.  It was, however, Mr Barton’s evidence that there was a clear distinction drawn between vehicles which were “unfit” and vehicles which were dangerous.  The Tribunal pointed out that the VT30s relied on by the Appellant in the instant case were not completed in the box indicating that the vehicles were unfit to be used on the road.  Mr Barton’s evidence was that if the vehicles had been so, he would have ticked the relevant box.  The Tribunal further noted that no one from the Appellants referred to this issue as having been given any consideration whatsoever.

16	The Tribunal also found, from enquiries made by the Appellant to an environmental officer/transport services manager in West Yorkshire, that testers did have an element of discretion and judgment in deciding whether to pass or fail a vehicle.  It was equally clear that it was difficult for anyone to make a judgment about the exercise of that discretion without having been present at the time of the test.  The Tribunal noted that these considerations played little or no part in the deliberations of the dismissing officer/appeal panel.

17	In June 1999, following Mr Dawson’s appointment to control the department, instructions were issued to Mr Barton and his colleagues that the “scrap paper” system was to cease, and that proper documentation was to be used at all times.  The Tribunal noted that there was no challenge to the proposition that that instruction was carried out, and that the “scrap paper” method of working ceased at that time.

18	There were, however, no written or verbal procedures laid down by the Appellant for dealing with vehicles which failed the MOT/compliance test.  The Appellant relied on the MOT testers training.  The Appellant’s statement of case against Mr Barton referred to licensing officers expecting vehicles to be reported if dangerous or if several faults were found.  It was, however, clear to the Tribunal that the judgment of the tester had to be relied upon. It made sense, the Tribunal found, that there could be several minor faults not rendering a vehicle dangerous or even unfit.

19	The Tribunal found, however, that there was no evidence that any of these considerations had been taken into account by the dismissing officer and / or the appeal panel before coming to the conclusion that Mr Barton should be dismissed, although the evidence was available and could, in the Tribunal’s judgment have been considered by the Appellant without representations from Mr Barton.  The Tribunal accepted Mr Barton’s evidence that there could be several minor faults in a vehicle which, nonetheless, did not render it dangerous or even unfit.  Once again, the Tribunal found that this evidence had not been considered by the Appellants.

20	The Tribunal further found that although there was a system in operation for the notification of faults in taxis, there was confusion about the Licensing Officer’s right under the provisions of section 68 of the Local Government Act 1976 to remove license plates immediately and/or to suspend licences.  The Licensing Officer gave evidence to the Tribunal that Licensing Officers were entitled to remove plates immediately: the dismissing officer was of the view that there was a “14 day respite”, and the appeals officer, when he gave evidence, was unaware of this provision.  Indeed, he was recorded as stating in his evidence that had he known of the “14 day respite” period it might have made a difference to his decision.

21	The Tribunal found there was a system whereby the internal audit department of the Appellant visited the test centre regularly, and in late 1998/9 had carried out a full audit of the test centre following complaints from users.  There was no challenge to the evidence that no abnormalities were found in the paper system or accounting procedures, and there were no recommendations for change at that stage.  The Tribunal commented that it was inconceivable that the problems referred to by the Appellant in this case would not have been uncovered or highlighted by audit trails.  There was no evidence from the Appellant on this, and again no evidence that any of this was considered by the dismissing officer or the appeal panel.

22	The Tribunal found that the meeting on 23 June 1999 between members of the taxi trade organisation and senior management of the Appellant was not the first occasion on which such complaints had been made, and Mr Dawson gave evidence to the Tribunal that similar complaints had been made in March 1999 when he took over the test station.  It was clear to the Tribunal that it was a recurring feature, in that taxi drivers regularly complained about “back handers and/or unequal treatment”.  Indeed, the evidence seemed to suggest to the Tribunal that taxi drivers objected to having to have their vehicles tested, with the result that the atmosphere at the testing station was fraught.

23	The Tribunal was critical of the procedure adopted by the Appellant leading up to Mr Barton’s dismissal.  It pointed out that Mr Barton was led to believe that an invitation to a meeting on 22 October 1999 was for an informal chat to clear up certain matters, whereas it was to be a full blown investigatory meeting.  The Tribunal pointed out that Mr Barton was given no documents prior to the meeting, but was shown numerous documents at the meeting and asked to comment.  The Tribunal found that Mr Barton was clearly shocked at the nature and level of the allegations against him, and understandably did not necessarily respond in terms of giving full detailed explanations of his interpretation of the documents shown.  Nonetheless, the investigating team concluded that there was a prima facie case against Mr Barton, and recommended dismissal for gross misconduct in their statement of case.

24	The statement of case, as presented to the Tribunal extended to some 400 pages.  Mr Barton, represented by his trade union, protested at his inability to prepare his defence within the time allowed.  The Appellant, after granting two postponements, indicated that the hearing would go ahead on 15 December 1999 whether Mr Barton was ready or not.  The Tribunal found they took that approach despite the fact that it was clear that Mr Barton was seeking discovery of other documentation.  He thus attended the disciplinary hearing under protest and made written submissions. 

25	Mr Barton appealed the decision to dismiss him.  The hearing of the appeal was held on 28 March 2000, despite his contention that he was unfit to attend the hearing or even to instruct his trade union representative.  There was a letter from his general practitioner in support of those contentions.  The Appellant decided that the appeal hearing would go ahead irrespective of whether or not Mr Barton was fit to attend, and did so.  The Tribunal found however, that Mr Barton did present his appeal fully both in terms of a written statement and in terms of the evidence which was called at that hearing.

26	Evidence was given to the Tribunal by a Mr Mushtaq, who also gave evidence at the appeal hearing on behalf of Mr Barton.  The Tribunal found Mr Mushtaq to be entirely honest, and impressive in terms of his knowledge of the vehicles involved in the complaint, their owners and mechanical repairers.  The Tribunal found that it was also able to understand Mr Mushtaq with a minimum of increased concentration. This contrasted with the Appellant’s appeal hearing, in which the Chair, Councillor Hughes said he was unable to understand what Mr Mushtaq said.

27	The Tribunal dealt with Mr Mushtaq’s evidence in the following way:-

“The Tribunal accepted his explanation that from his point of view the additional charge made to owners of taxis, by mechanics was for the purposes of the mechanic taking the vehicle to be tested.  That procedure would take up to two hours and a charge of between £30 and £40 was made.  The Tribunal accepted Mr Mushtaq’s evidence that he certainly had not been involved in any arrangement with the mechanics / testers at the test station to pay them additional sums of money over and above the Council’s fees to ensure that the vehicles were issued with compliance certificates.  Mr Mushtaq’s evidence was that on more than one occasion vehicles that he had taken to the test station had failed the test and had had to be returned having been repaired for re-tests.  The Tribunal also accepted his explanation in relation to the loan of a car to the applicant and indeed as to his relationship with the applicant.  He gave unchallenged evidence that he had been approached by the complainants asking him to join in with the complaint and that matters had become unpleasant when he refused to do so.”

28	The Tribunal then dealt with the evidence called by the Appellant.  In summary form, the Tribunal was not impressed by that evidence.  It was particularly unimpressed by the appeal hearing.  It commented:-

“There were no notes of the appeal hearing and Councillor Hughes could not particularly recall and certainly not in any detail what evidence Mr Barton’s witnesses had given or what had been taken into account from that point of view.  He was particularly dismissive about the evidence of Mr Mushtaq and was in fact unable to tell the Tribunal what Mr Mushtaq had said.”

29	The Tribunal then proceeded to analyse Mr Barton’s claim by reference (1) to the investigation which the Appellant had carried out; (2) the dismissal and appeal hearing; and (3) the inconsistent treatment which Mr Barton alleged had been meted out to Mr Storey, who had been given a final written warning.  These three elements provided the essential grounds on which Mr Barton’s complaint of unfair dismissal rested.

30	In terms of the primary investigation, the Tribunal was concerned by the fact that the statements from the various taxi driver complainants were all in almost identical terms, and by and large referred to the driver’s “understanding” (a word emphasised by the Tribunal) that money was being taken from them by their mechanics to pay the MOT testers.  The Tribunal pointed out that the statements had been taken in the presence of Mr Hussain, who was in effect leading the complaint on behalf of Mr Inghal and Mr McCone.  Mr Hussain had assisted with interpreting and translating.  The Tribunal commented:-

“The Tribunal was concerned at the seeming lack of impartiality of the process, an approach which appeared to underline the statement of case presented - as one example, it failed to record the substantial reduction in the scope of the testers’ duties which meant that mechanic testers were working normal hours (after the applicant’s suspension) stating that the overload situation which the applicant described was of the applicant’s own making - this was not supported by the evidence of Mr Dawson.”

31	The Tribunal then turned to the disciplinary hearing conducted by the Appellant.  We propose to cite this passage from the Tribunal’s reasons in full.

“The Tribunal’s deliberations focused on the evidence before the dismissing officer and her duty to consider all of that evidence carefully before coming to conclusion.  
In her written statement she claimed to have considered the applicant’s written representations.  She gave no evidence nor did she produce any notes indicating what consideration she had given to the various matters raised by the applicant - for example, there was no evidence of what consideration she gave to the fact that the “scrap paper” system had been abolished as recently as June 1999.  There appeared to be no suggestions that the applicant had fallen foul of that particular recent instruction.  
She dismissed the applicant’s claim of a conspiracy but gave no evidence of what view she took about the fact that after the applicant’s suspension, one of the complainants had been banned from the station for causing similar difficulties to those mentioned by the applicant complaining that the remaining fitters were trying  to put him out of business as had the applicant - this was a matter which should have caused further enquiry from the dismissing officer.  
In addition, at the Tribunal hearing the (Appellant)  pressed  the claim that the applicant had not really challenged the complaints against him - from the Tribunal’s consideration of the applicant’s written representations it was clear he had done so - for example he explained his reasons for not reporting one of the vehicles G736RTN to the licensing office.  He explained in detail about the allegation of him accepting a gift/loan (the use of car for a short period of time) from one of the mechanics.  
No evidence was given as to what if any consideration was given to this and why (if at all) these explanations were dismissed. 
There was evidence contained in the documentation which could have been considered irrespective of the applicant’s contribution.”

32	The Tribunal was not satisfied that the dismissing officer had given any proper consideration to the Applicant’s representations or indeed the available evidence.  Her evidence and demeanour suggested that she preferred the evidence of the management statement of case, seemingly because it better fitted the allegations made against the applicant.

33	The Tribunal then turned to consider the appeal hearing.  Once again, the Tribunal found that the Appellant’s behaviour was unsatisfactory.  We propose, as before, to set out the whole of the Tribunal’s findings on this aspect of the case.

“The Appeal Hearing
The appeal hearing was an opportunity for the respondents to put right any defects of the dismissal hearing.  
The Tribunal considered the appeal hearing and found that it did not do so for the following reasons:
There was no evidence before the Tribunal of what Mr Mushtaq, witness for the applicant, had said to the appeal panel.  
The appeal officer’s evidence was “his English was poor and he was indistinct”.  The Tribunal have heard and seen Mushtaq give his evidence at the hearing and do not believe that he said anything to the appeal panel other than he said to the Tribunal.  Had the appeal panel taken note of what he said it should have been put on enquiry as to some of the allegations against the applicant but seemingly his evidence was simply not considered.  
The appeal panel officer indicated in cross examination that he was unaware of the custom and practice of the 14 day “respite” period to allow vehicles to be brought back and indicated that had he known about that practice it might have made a difference to the decision.  
He was aware of the situation vis a vis Mr Storey and the applicant’s complaint of inconsistent treatment.  Crucially he was aware that the applicant and Mr Storey were operating at the same level.  He believed as had been the underlying suggestion throughout that the applicant was in fact senior to Mr Storey and the panel’s view was that the senior person should take responsibility and take the blame.  
There appeared to be no enquiry into the issue of vehicles being allowed onto the road in an unfit condition and there being a danger to public safety - there was no evidence of any consideration being given to the discretion and judgment which a mechanic could exercise in terms of that situation and, there appeared to be no consideration whatsoever of the fact that there had been no previous complaint against the applicant (or indeed his colleagues) despite audit trails of vehicle test examinations in the past.  It is inconceivable that such audits and examinations would not have identified this system of working.  
The evidence before the Tribunal was that the appeal panel were undecided about the allegations of improper relations in relation to the taking of money but they believed that “the case of unequal treatment had been proved”.  Apart from claiming that this unequal treatment amounted to allowing mechanics to bring vehicles in to be tested at an earlier time than usual there was no evidence as to what this unequal treatment was and there was no investigation in to the applicant’s contention that one of the complainants - Mr Iqbal was in fact one of the primary users of the facility provided for early inspection at his own request.  
The Tribunal were concerned that the appeal panel appeared to prefer the evidence of the management’s statement of case, without properly considering the applicant’s explanations / evidence and on the evidence were left with the clear impression that the appeal panel had not given any proper consideration to the applicant’s explanations.”

34	Finally, the Tribunal considered the issue of inconsistent treatment as it related to Mr Storey.  It found that the allegations made against Mr Storey were identical and by the same complainant.  Whilst Mr Storey’s name may not have been mentioned as often as that of Mr Barton, the Tribunal took the view that this was irrelevant since the statement of case against Mr Storey was presented in very similar terms to that against Mr Barton, namely “the potential to public safety to be put at risk with vehicles being allowed on to the highway in an unfit condition, compounded because of the driver of the vehicle would not always be aware of the vehicle … .”

35	The Tribunal pointed to the fact that the case against Mr Storey was defined as “management believes there can be no justifiable reason for Mr Storey’s actions given his experience as a qualified examiner”.  The Tribunal noted that Mr Storey gave very similar explanations as to the vehicle testing procedures as those given by Mr Barton.  However, the dismissing officer in the case of Mr Storey was different from the dismissing officer in Mr Barton’s case and in Mr Storey’s case the dismissing officer concluded that there was no evidence that Mr Storey had put public safety at risk.  He took the view that Mr Storey was guilty of misconduct but not gross misconduct, and in the case of  Mr Storey, the dismissing officer gave him a final written warning, the inference being that his explanations must have been taken into account.  They did not, however, appear to the Tribunal to be very dissimilar to those of Mr Barton.  The Tribunal went on:-

“The Appellants contended that Mr Storey was not a true comparator because of the extent of the complaints against him and particularly because the applicant had indicated that he would not even have accepted a final written warning in the circumstances of the complaints against him.  The Tribunal do not accept these contentions and find that for the reasons above Mr Storey was indeed a true comparator, particularly on the basis that the respondents apparently took a view that each and every one of the allegations against the applicant, and indeed Mr Storey, were serious enough to justify summary dismissal.”

36	The Tribunal then reminded itself of the test laid down in the case of British Home Stores Ltd v Burchell [1978] IRLR 379 and stated that it was “particularly mindful” in this case that the Tribunal could not impose its own response to the particular situation.  It had to consider the reasonableness of the Appellant’s response.

37	The Tribunal then expressed its conclusions in the following paragraphs:-

“14. … The investigation which the respondents carried out was extensive and was carried out by managers experienced in disciplinary type investigations.  
That in itself does not make it reasonable.  On balance the statement of case produced as a result of that investigation did not appear to be as impartial as one would expect and had the dismissal resulted directly from that report without the intervening disciplinary hearing the (Appellant) would have been in some difficulty in justifying their decision to dismiss.  That however was not the case.  
The Tribunal then went on to consider whether there was a genuine belief in the applicant’s guilt by the dismissing officer and appeal panel.  
On the basis of the management’s statement of case was prepared seemingly to support the allegations made against the applicant, the Tribunal took the view that for a belief in the applicant’s guilt to be genuine both the dismissing officer and the appeal panel were under strict obligation to properly and carefully consider and assess all the evidence before them, that is, particularly to include the applicant’s explanations.  
The Tribunal were not satisfied that either the dismissing officer or the appeals panel had given any proper consideration to the applicant’s explanations or the evidence which he called at the appeal hearing.  
There was no evidence before the Tribunal of any consideration being given to the important issue of discretion/judgment of the tester in concluding that the applicant had allowed dangerous vehicles in a dangerous condition to go on to the highway.  
There was no evidence of any consideration given to the terms in which the complaints of the taxi drivers had been made - they “understood” that they were paying the repairers additional sums of money to pay the testers.  Further, there had been withdrawals of some of those statements and there had been the important evidence of Mr Mushtaq which the appeals panel had clearly not considered.  
There was no evidence as to what if any consideration/weight had been given to the fact that the practices which the applicant (and his colleagues) operated were practices established by management and which in fact had been altered at various stages from January 1999 to June 1999.  Further, there had been a report as late as November 1998 in which these practices had been referred to and clearly no action had been taken at that stage.  
15.	The Tribunal concluded that the (Appellant’s) belief has not been shown to be genuine.  Rather, it has been an unquestioning acceptance of  the statement of case which had been prepared as a result of the investigations to present facts and documents which were collected and collated to support the complaints made against the applicant and his colleagues.
16.	Further, the Tribunal went on to consider the issue of inconsistent treatment of Mr Storey.  The Tribunal concluded he was a true comparator.  The complaints against him were identical with the complaints against the applicant.  He operated at the same level and on the face of it and the evidence before the Tribunal his explanations as to the issues raised against him were not dissimilar from those of the applicant - he was treated differently in terms of penalty for no obvious or compelling reason.
17.	Having taken all those matters into account and considering the provisions of section 98(4) of the Employment Rights Act 1996 the Tribunal find that “in accordance with the equity and the substantial merits of the case” the respondents did not respond within the band of reasonable responses when they concluded that the only alternative in this instance was to dismiss the applicant for gross misconduct.  
The applicant’s dismissal was therefore unfair. 
18.	 The Tribunal considered whether the applicant had in fact contributed in any way to his dismissal and find that he did not.  It may well be that certain practices/facilities needed reviewing.  This could have been brought to the applicant’s attention in many ways but there was no evidence before the Tribunal that the Appellant had any reason for taking the action they did in terminating Mr Barton’s employment.”

38	The principal attack launched on the Tribunal’s reasons by Mr Tariq M Sadiq is that the Tribunal failed properly to apply the test in British Home Stores Ltd v Burchell.  It was wrong to find that the Appellant had not established a genuine belief in Mr Barton’s guilt: it failed to consider whether the Appellant had established reasonable grounds for its belief that Mr Barton was guilty of  misconduct (the second limb of the Burchell test), and should have found that the Appellant carried out a reasonable investigation, given its finding that the Appellant had carried out an “extensive” investigation, and that the investigation had been carried out by managers experienced in disciplinary type investigations.

39	Mr Sadiq also argued that the Tribunal, despite its guidance to itself that it should not do so, in fact substituted its own view for that of the Appellant.  The dismissal of Mr Barton, Mr Sadiq argued, was clearly within the band of reasonable responses for an employer in the Appellant’s situation.  Mr Sadiq also argued that the Tribunal was wrong to treat Mr Storey as a true comparator, and in so doing failed to apply the correct test namely that laid down in the case of Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 at paragraph 24.  Finally, Mr Sadiq argued that the Tribunal was wrong to find no element of contribution by Mr Barton to his own dismissal.  The proper question was not whether there was no evidence before the Tribunal, but whether there was any evidence before the Appellant that Mr Barton had caused or contributed to his dismissal.

40	Despite the skilful way in which these arguments were deployed and developed by Mr. Sadiq, we are not impressed with them, either individually or collectively.  The Tribunal plainly applied the Burchell test.  It reminded itself expressly of that test in the passage from its reasons which we have cited above.  As is well known, that test contains three elements.  Although they are well known, we think it none the less worthwhile citing the words of Arnold J giving the judgment of the EAT in that case.  At [1978] IRLR 380, in paragraph 2 of the judgment Arnold J said:-

“What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually though not necessarily dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element.  First of all, there must be established by the employer the facts of that belief; that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.  And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”

41	For Mr Barton, Mr James Algazy submitted that the Appellant had failed to establish that the Tribunal had committed any of the three errors of law raised in paragraph 5 of Notice of Appeal.  These were:-

“(a) Whether the Employment Tribunal failed to apply or misdirected itself or misunderstood or misapplied the law in reaching a conclusion;
(b) Whether the Employment Tribunal substituted its own views for that of the reasonable employer;
(c) Whether the Employment Tribunal reached a decision which no reasonable Tribunal properly directing itself on the law could have reached.”

42	Mr Algazy argued that the Tribunal manifestly had not misapplied the Burchell test.  Not only was there a specific reference to Burchell in paragraph 14 of the Tribunal’s reasons: each element of the test is then considered in the remainder of paragraph 14 and paragraph 15 of the reasons.  The Tribunal had applied the test and had determined that it had not been established that the Appellant had a genuine belief in Mr Barton’s guilt.  That, Mr Algazy submitted, was a finding, applying Burchell as it did, that the Tribunal was entitled to make on the facts of the case.

43	Mr Algazy attacked the Appellant’s use of the word “perversity”.  He pointed out that no explanation was provided in the Notice of Appeal as to how it was being argued that the alleged misapplication of the Burchell test amounted to perversity, or how the Tribunal’s conclusion was said to fall foul of any of the various formulations of the perversity test set out by Mr Justice Mummery (as he then was) in Stewart v Cleveland Guest (Engineering) Limited [1994] IRLR 440.  

44	As to the second limb of the points of law raised by the notice of appeal, namely that the Tribunal substituted its own view for that of the reasonable employer Mr Algazy argued that the Appellant had confused the concept of a Tribunal determining a dispute of fact with a Tribunal deciding whether or not an employer has acted reasonably.  In determining whether an employer’s conduct was reasonable for the purposes of the Employment Rights Act, Mr Algazy accepted that the Employment Tribunal could not substitute its own view.  That, however, he argued was very different from suggesting that an Employment Tribunal must slavishly accept the views of an employer on issues of fact.

45	Mr Algazy pointed out that no application had been made for the Chairman’s notes of evidence, and that it was clear from the Employment Tribunal judgment that it had throughout been mindful of the correct approach to be followed.  Nowhere had it been suggested by the Appellant that the specific findings complained of had no basis on the evidence before the Tribunal.

46	On the “comparator” issue, Mr Algazy argued that tribunals regularly determined the appropriate comparator in a variety of instances, and were fully entitled to do so.  There was no question of the Tribunal substituting its view for that of the Appellant.  Mr Algazy acknowledged that no specific reference had been made by the Tribunal to the authorities relied upon by the Appellant, but submitted that the Tribunal’s approach was entirely consistent with that laid down in the case of Hadjioannou v Coral Casinos Ltd, and submitted that the Appellant could not point to any error of law or incorrect finding of fact.

47	On the question of contribution to his own dismissal, Mr Algazy submitted that over some 13 pages, the Tribunal had set out its findings and conclusions before addressing the question of contributory fault.  The Tribunal was, he submitted, entirely entitled to rely on the earlier exposition of its views to conclude as it did, that no contributory fault attached to the respondent.  By no stretch of the imagination could that decision be described as perverse.

48	In all the circumstances of this case, we prefer the submissions of Mr Algazy.  In our judgment, the Tribunal was entitled to reach the conclusions it did on the facts which it found.  As the Tribunal pointed out, the fact that an investigation is extensive does not make it either necessarily reasonable or fair.  A conclusion that neither the dismissing officer nor the appeals panel had given any proper consideration to the respondent’s explanations or the evidence which he called is, once again, a matter for the Tribunal, provided the conclusion is not perverse.  The Tribunal’s conclusion that there was no evidence before it of any consideration being given to the important issue of discretion/judgment of the tester in concluding that Mr Barton had allowed dangerous vehicles in a dangerous condition to go on the highway, was a conclusion which was open to it.  Equally, the evidence of the taxi driver’s complaints was clearly unsatisfactory, not least because a number had withdrawn those statements, and the appeals panel plainly had not properly considered the evidence of Mr Mushtaq.

49	The Tribunal was also, in our view, entitled to take into account that a number of practices had been established by management, and only altered at various stages between January and June 1999.  Further, as the Tribunal pointed out, there had been a report as late as November 1998, in which those practices had been referred to, and clearly no action had been taken.  

50	As far as treatment of Mr Storey is concerned, the Tribunal was entitled, in our view, to decide that he was a true comparator and that the complaints against him had been identical to those made against Mr Barton.  As the Tribunal pointed out he was treated differently in terms of penalty for no obvious or compelling reasons.

51	The Tribunal concluded by reminding itself of the terms of section 98(4) of the Employment Rights Act 1996 in deciding that Mr Barton’s dismissal was not “in accordance with equity and the substantial merits of the case”.  In all the circumstances, the Tribunal was entitled to find that dismissal was not “within the band of reasonable responses”.  Furthermore, it was entitled to find that Mr Barton had not contributed to his own dismissal.  As the Tribunal pointed out, it may well be that certain practices/facilities needed reviewing.  This could have been brought to Mr Barton’s attention in many ways, but there was no evidence before the Tribunal that the Appellant had any reason for taking the action they did in terminating Mr Barton’s employment.

52	Employment Tribunals are commonly referred to as “the industrial jury”.  In our view that description applies with particular force to the present case.  The Tribunal, who heard the evidence and saw the witnesses was clear that Mr Barton’s dismissal fell outside section 98(4).  That, in our view, was a matter for them to decide.  Whilst it is possible a different Tribunal may have decided the matter in a different way, or taken a different view of the evidence, we are quite satisfied that this Tribunal was entitled to reach the conclusions it has set out.  We agree with Mr Algazy that this is not a case in which the EAT should go through the Tribunal’s judgment with a toothcomb to see if some error can be found here or there.  In our judgment, the findings are robust, but the reasoning is sound.

53	In these circumstances, the appeal will be dismissed.