Appeal No. UKEAT/0295/08/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 November 2008
Judgment handed down on 2 April 2009

Before
HIS HONOUR JUDGE BIRTLES
MR D EVANS CBE
MR S YEBOAH

WEST COAST TRAINS LTD	APPELLANT
(T/A VIRGIN TRAINS)

MS R L TOMBLING	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR ANDREW SHORT
(of Counsel)
Instructed by:
Messrs Kennedys Solicitors
25 Fenchurch Avenue
London EC3M 5AD	
For the Respondent	MR JAMES ROBINSON
(of Counsel)
Instructed by:
Messrs Thompsons Solicitors
23 Princess Street
Manchester M2 4ER	

SUMMARY
UNFAIR DISMISSAL:  Reasonableness of dismissal
Employee dismissed for deliberately breaking the IRIS screen in her buffet car on one of the Appellant’s trains.  The Employment Tribunal found that the Appellant had failed to satisfy two of the limbs of Burchell [1978] IRLR 379.  Various grounds of appeal affecting the Tribunal’s reasoning.  Appeal dismissed on the basis that the Tribunal was entitled to come to the conclusions it did on the evidence before it.

HIS HONOUR JUDGE BIRTLES
Introduction
1.	This is an appeal from the judgment and reasons of an Employment Tribunal sitting in Manchester in November 2007 and March 2008.  The reserved decision was sent to the parties on 10 April 2008.  

2.	The unanimous judgment of the Employment Tribunal was that the Claimant was unfairly dismissed.

3.	The Appellant was represented by Mr Andrew Short of Counsel and the Respondent by Mr James Robinson of Counsel.  We are grateful to both of them for their written and oral submissions.

The Material Facts
4.	The Employment Tribunal made detailed findings of fact in paragraphs 6.1 – 6.40 of its judgment.  It will be necessary to refer in some detail to those findings of fact later when we come to consider the grounds of appeal.  However, they can be summarised in the following way.

5.	The Respondent was employed as a Customer Services assistant on trains on the onboard shop staff.  On 12 February 2007 she was working in the buffet on the 08.15 from Manchester to Euston.  Towards the end of that journey, the IRIS screen (the computer based till screen used in the shop) was broken.  The Respondent admitted that she had broken the screen but said that it had been an accident.  In particular, she said that the train had lunged causing her to fall forward and bang her head into the screen causing it to smash: Accident Report:  EAT bundle page 59.

6.	The Appellant did not accept that explanation.  The Respondent and others were interviewed and a report obtained from a Mr Smith, the Fleet Engineer: EAT bundle page 60.  The Respondent was charged with having wilfully broken the screen.  At a disciplinary hearing conducted on 16 April 2007, Mr Grigg rejected her explanation and found that she had committed the misconduct alleged.  His decision letter is dated 25 April 2007: EAT bundle page 91.  The Respondent’s appeal was heard by Mr Knight on 1 June 2007.  Mr Knight rejected the Respondent’s appeal in his letter dated 5 June 2007: EAT bundle page 95.  

7.	There was no dispute that the Respondent had broken the screen.  The principal issue before Mr Grigg and Mr Knight was whether or not to accept the Respondent’s account.  Neither did so.  There were two CCTV recordings.  The first showed the Respondent in the buffet car and the second another part of the same carriage.  Both Mr Grigg and Mr Knight said they would have expected the CCTV evidence to show movement elsewhere in the train if a sudden lunge by the train had caused the Respondent to move in the buffet car in the manner she stated.  Both Mr Grigg and Mr Knight said that the CCTV did not show such movement.

The Employment Tribunal Judgment
8.	The Employment Tribunal held that the dismissal was unfair.  The judgment and reasons are at EAT bundle pages 1 ‑ 18.  

9.	The Employment Tribunal accepted that Mr Grigg (and thus the Appellant) genuinely believed that the Respondent was guilty of the misconduct.  However, they went on to find that the dismissal was unfair because:
(a)	the Appellant “had not shown that they had reasonable grounds on which to sustain that belief”: Reasons paragraph 14; EAT bundle page 15 and
(b)	“the investigation was fatally flawed in various respects.”

10.	The Employment Tribunal’s reasons are set out at paragraphs 13 – 25 of the judgment which say this:

“13	The tribunal accepted that Mr Griggs* had a belief in the fact that the claimant had wilfully damaged the screen which was the property of the respondent.
14.	The tribunal decided that the respondents had not shown that they had reasonable grounds on which to sustain that belief.  This finding was based in part on the inadequacies of the investigation which are referred to below.  The tribunal asked itself the question on what basis did Mr Griggs decide whether the claimant had committed the misconduct.  He said in evidence that he would never know what the cause of the accident was.  It could have been that the claimant had accidentally broken the screen with her hand or knuckle and then tried to cover it up with her head.  Mr Griggs was clearly contemplating this as a possibility at the time of the disciplinary hearing when he put it to the claimant as a possible explanation.  However, if that was his ultimate conclusion, then he cannot show that he believed that the screen was broken wilfully.  The letter of dismissal does not make it clear that he rejected this explanation as he mentions that the CCTV footage shows her: ‘..hitting’ the screen with her hand or fist and also her denial that this was deliberate.  He also refers in the letter to the CCTV footage showing her head hitting the screen.  In conclusion he says that her version of events does not add up and states his conclusions that she is guilty of causing wilful damage to Virgin property.  Taken together with his evidence that he didn’t think he would ever know what caused the screen to be broken, the tribunal concluded that the respondents had not shown that Mr Griggs had reasonable grounds on which to sustain the belief the claimant had committed the misconduct.
15.	A further consideration on this question is the use of the term rough ride by Mr Griggs and his restriction of it to the most severe type of train movement and consequently his decision that the claimant could not have been jolted by a lesser movement, as she claimed to have been.  If Mr Griggs would only accept that the claimant had been jolted by a train movement if there was evidence of the most severe type of train movement he was artificially restricting his consideration in an unreasonable manner.  It is possible that a sudden movement of the train had caused the claimant to hit her head against the screen but Mr Griggs did not accept this.  That in part was why he said he analysed the evidence in the way he did.
16.	The third reason why the tribunal decided that the Respondent had failed to satisfy itself that it had reasonable grounds on which to sustain the belief, was the failure by Mr Hunt to forward the VT01 form and his subsequent decision that the incident could not have been caused by rough riding because there had been no report of rough riding.  The fact that there was no report of rough riding because he had not submitted the VT01 form means that his decision to charge the claimant because the absence of a report of rough riding was a self fulfilling prophecy.
17.	Turning to the investigation.  The Tribunal considered that the size and resources of the respondent organisation are factors in considering appropriateness of investigation.  Mr Griggs conceded that it might have been better if he had asked the witnesses whose evidence he considered what they understood the term rough ride to mean before deciding what their evidence showed.  He also conceded that he should have made further investigations into the work done by the firm of consultants into ride quality in about March 2007.  Mr Griggs also accepted that his enquiry would have been assisted if he had viewed CCTV footage from other parts of the train.
18.	In terms of the investigation carried out by Mr Hunt, the obvious error is the failure by Mr Hunt to forward the report of the accident made by the claimant to the safety team using the VT01 form.  The first time the claimant became aware of this failure and was able to challenge it was at the resumed hearing before the employment tribunal on 5 March 2008 after it had ordered the respondents to disclose the second page of the report form.  This showed that Mr Hunt had not completed it.  The fact that Mr Hunt then told Mr Davies when asked in the catering meeting on 21st February that there was no report of an accident shows his actions in a very bad light.
19.	Mr Hunt did not investigate the propensity of the screens to break.  This occurred to Mr Griggs latterly when he telephoned to speak to Mrs Coleman during the adjourned disciplinary hearing.  The fact that he did not share all of the information which he obtained or put forward a statement or report from Mrs Coleman was in the Tribunal’s view a mistake which rendered the investigation fatally flawed.  The engineering evidence obtained by Mr Hunt was a note written by Mr Smith.  In circumstances where the meaning of the term rough ride is not agreed, the causes of rough rides and other forms of movement are many and the quality of ride quality had recently been investigated. The tribunal considered that this investigation fell below the standard reasonably to be expected of an employer which is a train operating company in a case where an employee is being accused of an offence of exceptionally grave misconduct and in defending herself from that charge is raising issues concerning the cause of the accident which are capable of investigation from an engineering perspective.
20.	This omission is all the more obvious when at the hearing the claimant provided Mr Griggs with evidence that a colleague had injured herself as a result of train movement and a driver had reported a defect of rough riding over a speed of 110 mph.  Mr Griggs admitted that other than speaking to Mr Smith in a conversation of which there is no note and the contents of which were not shared with the claimant, he did not investigate this information.  The tribunal did accept that an employer can decide what lines of enquiry to pursue in such investigations but in the particular circumstances of this case, the failure to look into this and bring the information before the hearing for the claimant to engage with, was a further fatal error.
21.	The claimant was interviewed 3 times by Mr Hunt with no notice of any interview and was misled at the beginning of the first interview into believing that the purpose of the interview was a health and safety investigation into the accident.  Many of the questions were repetitious.  The questions were not neutral.  The questions betrayed a disbelief in the claimant’s description of events.  The transcript of the interviews reads more like an interrogation.  The claimant at one point said that she felt she was being bullied, brow beaten and harassed.  The intention of Mr Hunt seemed to be to obtain a confession from her.  When her representative objected and attempted to make a formal complaint of bullying he was told it was not his role to do so and the questions continued.  The tribunal were quite clear that this was not appropriate.  The manner in which Mr Hunt conducted the investigation including the interviews with the claimant contributed to the unfairness of the dismissal.  Mr Knight conceded that at the point when Mr Davies made the formal complaint, the process should have been halted and the harassment procedure put into motion.
22.	The tribunal considered that the appeal did not correct the problems which it identified with the decision to dismiss.  This was because Mr Knight based his decision on a finding that there had been no rough ride and that therefore the accident had not been caused by an accident.
23.	Mr Short asked the tribunal to consider the application of s. 98A(2) to the evidence in this case.  His primary submission was that the procedure adopted and implemented by the respondent in this case was fair.  He conceded that it would have been ‘..preferable’ if Mr Knight had told the claimant what Mr Smith had said to him in the adjournment of the appeal hearing but his failure to do so did not render the dismissal unfair as this evidence was not material or significant and was after the event. He said that the claimant had not challenged the evidence of which she was aware that the respondents did not believe that there was any causal connection between the incident and the condition of the train.
24.	He went on to say that even if the tribunal did find that the procedure was unfair, none of the defects with the procedure would have made any difference to the outcome because of what the CCTV footage showed.  Even if some further evidence had been obtained by the respondent which showed that there had been rough riding on the date in question this would not have changed the conclusion reached by Mr Griggs that the accident was not caused by rough riding.  The finding by Mr Griggs that the accident was not caused by movement of the train was, he said, ‘..untouchable’ by evidence obtained subsequently about the subsequent condition of the train, according to Mr Short.
25.	With respect to Mr Short the Tribunal did not accept this argument.  The evidence showed that there had simply been no investigation into the suggestion that the accident could have been caused by sudden movement of the train, albeit less than what was accepted to mean rough ride.  As stated at paragraph 6.35 above, Mr Griggs decided upon a particular meaning of rough ride and restricted his investigation into whether such type of ride quality had occurred that day on the train.  This meant that he did not investigate whether the accident could have been caused by a movement of the train of a lesser severity than that indicated by the engineers when they used the term rough ride.  In these circumstances, the Tribunal considered that it was not possible to say what the decision of the respondents might have been had they investigated this incident fully and in our view appropriately.  They are therefore unable to show that they would have decided to dismiss the claimant in any event.”
[*Mr Grigg’s name is “Grigg” not “Griggs”.]

The Grounds of Appeal
11.	The Notice of Appeal is at EAT bundle pages 19‑29.  It is supplemented by Mr Short’s written and oral submissions.

12.	In summary Mr Short submits that:
(a)	the Tribunal erred in its approach to the “reasonable grounds for belief” issue by (i) placing a burden on the Appellant; (ii) at too high a standard; (iii) focussing upon whether the Appellant had, in its view, made any errors of approach or reasoning rather than considering the grounds upon which the Appellant reached its decision and asking whether they continued to provide reasonable grounds for the belief notwithstanding the errors;
(b)	the Tribunal erred in its approach to the “investigation” issue by (i) failing to apply the range of reasonable responses approach in the light of the circumstances of the case (ii) but instead substituting its own view and imposing too high a standard.  

13.	We take each of the grounds of appeal in order.

Ground 1:  Reasonable Belief
14.	Mr Grigg’s decision letter is dated 25 April 2007:  EAT bundle pages 91‑94.  On the third page of that letter Mr Grigg sets out his answers to the main points raised by the Respondent at her disciplinary hearing: EAT bundle pages 91‑92.  He then sets out six matters in relation to the evidence and reaches this conclusion: 
“I believe on the balance of probability you are guilty of causing wilful damage to Virgin Trains property, by deliberately smashing the IRIS screen.”  (EAT bundle page 93)

15.	The Employment Tribunal found that Mr Grigg did believe that the Respondent had wilfully damaged the IRIS screen: Reasons paragraph 13; EAT bundle page 50.

16.	However, the Tribunal went on to find that Mr Grigg had not shown that he had reasonable grounds to sustain that belief for the reasons set out in paragraph 14 of the judgment: EAT bundle pages16.  That paragraph is set out earlier in this judgment.  Mr Short submits that the proper application of the Burchell test does not require an employer to show that it has excluded as a possibility all alternatives (and particularly those which have been disallowed by the employee) before it can reasonably believe that the employee is guilty of the misconduct alleged:  British Home Stores Ltd v Burchell [1978] IRLR 379 at para. 2 and Boys and Girls Welfare Society v McDonald [1996] IRLR 129 at paras. 24 – 25.

17.	We agree that there is no requirement in law that an employer must show that it knew exactly how something happened before it can reasonably believe that the employee is guilty of the misconduct alleged.  Each case is fact sensitive.  We do not read paragraph 14 of the Tribunal’s reasons requiring the employer in this case or indeed stating as a rule of law that the employer is required to exclude every alternative explanation put before it before the Tribunal can conclude that the employers have shown that they have reasonable grounds to sustain their belief that the employee had committed the misconduct in question.

18.	The Tribunal heard directly from the witnesses including the Respondent, who was an employee of some ten years service with an exemplary record.  They also had access to the detailed interviewing notes of the Investigating Officer (Mr Hunt), full notes of the disciplinary hearing conducted by Mr Grigg, and details of the appeal hearing conducted by Mr Knight.  They were also able to review the CCTV evidence of the incidents which resulted in damage to the IRIS screen.  In our judgment the Tribunal were entitled to come to the view without substituting its judgment for that of the Appellant that the evidence pointed all one way i.e. to accidental damage to the IRIS screen being caused when the Respondent’s head hit the screen twice as the train was travelling at a 120 plus mph to her obvious physical discomfort.  In the light of the matters set out by Mr Grigg in his dismissal letter dated 25 April 2007 and especially the six paragraphs set out at EAT bundle page 93 we think that it was a permissible option for the Employment Tribunal to take the view that no reasonable employer on this evidence could have found that the incident was the result of deliberate and wilful action on the part of the Respondent (for no discernable motive).

Ground 2 – Sudden adverse train movement (1)
19.	At paragraph 15 of its Reasons set out in full above the Tribunal gave further reasoning as to why it concluded that Mr Grigg did not have reasonable grounds for his belief that the Respondent had committed the misconduct in question i.e. deliberately breaking the IRIS screen: EAT bundle page16.  

20.	Mr Short submitted that even if Mr Grigg had deliberately restricted the use of the term “rough ride” to the most severe type of train movement that excluded the possibility of the Respondent being jolted by lesser movement (as she claimed she was) it was an error of law for the Tribunal to conclude that Mr Grigg did not have reasonable grounds for his belief without considering the impact of the flaw upon Mr Grigg’s reasoning when taken as a whole.  He refers to part of Mr Grigg’s decision letter: EAT bundle page 93.  Mr Short submits for various reasons that Mr Grigg was entitled to reject the Claimant’s explanations that there had been a sudden train movement.

21.	We see no error of law in the Tribunal’s reasoning.  Much of the argument focussed on whether or not the train was subject to “rough riding”, a technical term no doubt understood by the engineers but used more loosely by other members of staff.  The incident had not been formally recorded as such.  However, as the Tribunal correctly identified in its findings, a jolt or adverse movement which fell short of the technical definition of “rough riding” would account for the accident, allowing for the fact that as the CCTV shows the Respondent was standing and unsupported on the two occasions she fell against the screen.  We also reject Mr Short’s submission the Tribunal were in error in finding that Mr Grigg had acted unreasonably in rejecting the Respondent’s explanation that there was a lesser movement of the train causing the Respondent to hit her head against the screen.  Mr Short focuses on the use of the Tribunal’s word “possible”.  We see nothing untoward in this.  The point the Tribunal were making is that Mr Grigg’s definition of what was a “rough ride” led him to exclude any other possibility.  The Tribunal were entitled to find that no reasonable employer could have come to that conclusion on the facts of this case.

Ground 3 – VT01 Form
22.	This again forms part of the reasoning of the Employment Tribunal in finding that Mr Grigg did not have reasonable grounds for his belief that the Respondent was guilty of gross misconduct.  The reasoning is contained in paragraph 16 as set out earlier in this judgment.  Mr Short’s submission is that the Tribunal erred in focussing on an error by the Appellant rather than considering as a whole the grounds upon which Mr Grigg’s belief was reached and then considering whether it was sustainable or undermined in the light of that error.

23.	We reject that submission.  It was in fact the last of a number of reasons why the Tribunal found that Mr Grigg did not have reasonable grounds for his belief in the Respondent’s guilt.  It was simply one of a number of factors identified by the Tribunal.  It was a factor they were entitled to look at.  The evidence was before them.  Even if they were wrong (which they were not) it does not vitiate the Tribunal’s decision.  

Ground 4 - Sudden adverse train movement (2)
24.	This ground of appeal relates to the appeal.  The relevant part of the Employment Tribunal’s Reasons is at paragraph 22; EAT bundle page 17 – 18.  It is set out earlier in this judgment.  Mr Knight’s letter dated 5 June 2007 dismissing the appeal is at EAT bundle pages  95‑96.  The relevant passage is at the end of the letter: EAT bundle page 96 when he says this:

“This is where I feel the inconsistencies are highlighted between what you can see occurring and what was said.  The CCTV does not show when the screen was broken but if you look through the whole tape it does show Rachel touching the screen with both the palm of her hand and her fist.  If I am to believe that Rachel broke the screen with her head then why is there no evidence of rough riding on the train.  The report in the pack from Mark Smith confirms that there was no evidence of rough riding nor is there any evidence in the maintenance record for this train.  This is also confirmed to me by viewing the alternative camera on the CCTV footage at the time Rachel banged her head as you cannot see any untoward movement. Also the CCTV clearly shows that throughout the whole incident Rachel was on the phone when her head had made contact with the screen.”

25.	Mr Short submits that the Tribunal were in error in (a) separating out Mr Knight’s understanding of the term “rough ride” rather than considering the basis upon which he reached the decision as a whole and/or (b) reaching a perverse decision when the whole of the evidence was that he considered that the CCTV did not show any untoward movement by the train sufficient to cause the incident.

26.	The Appellant’s case was based primarily on the CCTV evidence, which it was claimed failed to show a sufficient movement by the train at the critical time to cause the incident.  This evidence was viewed both by the Tribunal and the Employment Appeal Tribunal.  In our judgment it is at best unconvincing since the passengers filmed in the same carriage were sitting down all the time.  What the CCTV does show clearly is that the Respondent’s head moved sideways into the IRIS screen on two separate occasions (a few seconds apart) while she was talking on the telephone.  The first strike caused her to rub her head and the second was sufficiently severe to cause her to fall at least to her knees.  We reject Mr Short’s two submissions.  We see nothing wrong in the Tribunal identifying the very limited meaning given to the term “rough ride” by Mr Knight (as well as Mr Grigg).  Neither does this decision begin to approach the very high hurdle of perversity set out in Yeboah v Crofton [2002] IRLR 634 at paragraphs 92‑ 95.  See also Stewart v Cleveland Guest (Engineering) Ltd [1994] 1RLR 440 at paragraph 33.

Ground 5 – The adequacy of the investigation
27.	Mr Short submits that the Employment Tribunal correctly referred to Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23 and reminded themselves that they should not substitute their own view of the reasonableness of the adequacy of the investigation from the view point of an objective standard of what the reasonable employer would do; they failed to heed their own self direction and in a number of examples substituted their own view for that of a proper investigation.  Mr Short gives a number of examples.  We take each in term.

A.	Mr Short submits that at paragraph 6.34 of its judgment (EAT bundle page 12) the Tribunal discount the inconsistencies between the interviews given by the Respondent and her witnesses as “peripheral” and submits that Mr Grigg was entitled to judge the veracity of the accounts by testing them against facts that could be established by the CCTV.  Paragraph 6.34 appears in the Tribunal’s findings of facts.  We see no substitution here.

B.	Mr Short submits that at paragraph 6.13 the Tribunal give particular weight to the consistency between the Respondent’s account and the account given by Mr Joe Lane, the Duty Manager in Manchester who met the Respondent on her return to Manchester after the accident.  We can see no reason why the Tribunal were not entitled to point out that the two accounts given by the Respondent were consistent.  We see no substitution here.  Again, paragraph 6.13 is part of the Tribunal’s fact finding.

C.	Mr Short submits that the Tribunal repeatedly imposed an unduly onerous standard of investigation upon the Appellant which went far beyond the Hitt requirements.  He refers in particular to paragraphs 17, 19 and 20 of the Employment Tribunal’s Reasons.  We can see no substitution in any of these paragraphs.  It seems to us that what Mr Short is trying to do is to reargue the facts of the case.  That is not our function.

D.	Mr Short submits that the Tribunal expressly referred in their own view (at Reasons paragraph 6.37; EAT bundle page 13) that the absence of a recorded interview with Mr Smith made the investigation inadequate.  Paragraph 6.37 is again part of the Tribunal’s fact finding exercise.  Mr Smith’s report appears at EAT bundle pages 60 ‑ 61.  It is handwritten.  While neither the Tribunal (nor we) criticise Mr Smith the report is entirely hearsay.  It is in no sense of the word an engineering report.  We see no reason why the Tribunal were not entitled to take a view that Mr Smith should have been interviewed and a copy of that interview sent to the Appellant.  There is no substitution here.

Ground 6 – The Defect Book
28.	Mr Short submits that the Tribunal were in error of law and acted in breach of the rules of natural justice in drawing an adverse inference to the Appellant at paragraph 6.4 of its Reasons on the grounds that the Tribunal were not provided with an extract of the train defect book for 12 February 2007 on the grounds that the Tribunal did not raise this matter with the parties.  This paragraph appears in the section of the Tribunal’s Reasons relating to fact finding.  It is simply making a statement of fact.  What is clear is that the Tribunal were shown an extract for 27 April 2007 (not the date of the incident) but not shown the extract for 12 February 2007 (which was the date of the incident).  Since the Tribunal did not have the extract for 12 February 2007 it did not play any part in its decision.

Ground 7 – Contributory Conduct
29.	Mr Short submits that the Tribunal erred in law in failing to consider the Appellant’s case that there was contributory fault on the part of the Claimant.  This point is raised in paragraph 8 of the Respondent’s ET3 form: EAT bundle page 53.  There is a short answer to it.  Since the primary finding of the Employment Tribunal was that the damage to the IRIS screen was wholly accidental and in no sense deliberate on the part of the Respondent that would rule out any question of contributory negligence.  In our judgment on the facts of this case there was no need for the Employment Tribunal to make an express finding that there was no contributory negligence.

Conclusion
30.	For these reasons we therefore dismiss this appeal.