Turner v East Midlands Trains Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Sir Stephen Sedley,Lord Justice Maurice Kay,and |
| Judgment Date | 16 November 2012 |
| Neutral Citation | [2012] EWCA Civ 1470 |
| Docket Number | Case No: A2/2012/1688/EATRF |
| Court | Court of Appeal (Civil Division) |
| Date | 16 November 2012 |
[2012] EWCA Civ 1470
Lord Justice Maurice Kay, Vice President of the Court of Appeal
Lord Justice Elias
and
Sir Stephen Sedley
Case No: A2/2012/1688/EATRF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ SEROTA QC
UKEATPA/1052/11/DA
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Heather Williams QC and Mr Paul Draycott (instructed by Thompsons Solicitors) for the Appellant
Mr Jason Galbraith-Marten and Ms Sheryn Omeri (instructed by Kennedys Solicitors) for the Respondent
Hearing date : 9 October 2012
It is now a firmly established principle of unfair dismissal law that when an employment tribunal has to determine whether an employer has acted fairly within the meaning of section 98 of the Employment Rights Act 1996, it applies what is colloquially known as the "band of reasonable responses" test. In other words, it has to ask whether the employer acted within the range of reasonable responses open to a reasonable employer. It is not for the tribunal to substitute its own view for that of the reasonable employer. That principle has been enunciated in the line of cases beginning with British Home Stores v Burchell [1978] IRLR 379 and affirmed in cases such as Post Office v Foley [2000] IRLR 827, Sainsbury's Supermarkets v Hitt [2003] ICR 111, London Ambulance Service NHS Trust v Small [2009] IRLR 563 and, most recently, Orr v Milton Keynes Council [2011] ICR 704.
The issue raised in this case is whether that test has to be modified in circumstances where the employee's rights under Article 8 of the European Convention on Human Rights are engaged as a consequence of the dismissal. The contention is that where this is the case, it is for the court to determine whether or not the Article 8 right has been unlawfully infringed; it is not enough for the court simply to review the decision taken by the employer, and which, it is submitted, is all that the traditional test permits.
The facts.
For the purpose of understanding the issues in this appeal, the facts can be summarised relatively briefly. The appellant was a senior train conductor who had continuously worked for the respondent or its predecessors for more than 12 years. At the time of her dismissal she had a clean disciplinary record. She would issue tickets using a computerised ticket machine (an Avantix machine). Sometimes the machine would produce what was termed a "non-issued" ticket. There are two kinds of non-issued tickets. The first arises in those very exceptional cases where a passenger changes his or her mind as to the ticket requirements during the transaction. Such tickets must always be returned by the conductor and should be recorded on the shift sheet i.e. the record for the particular shift. The second kind is what are termed "automatic non-issued tickets" (ANIs). These are tickets which are faulty in some respect so that they ought not to be sold to the customer. These tickets should also be returned, but in this case there is no requirement to record them on the shift sheet.
The charge against the appellant was that she had inappropriately and over a period of time deliberately manipulated the ticket machine so as to produce ANIs of the second kind of sufficiently merchantable quality to give the appearance of being genuine tickets and had then fraudulently sold them to members of the public and dishonestly kept the proceeds.
There was no direct evidence that the appellant had acted in this manner; the case for the employer was based upon statistics and the inferences which, it was alleged, could properly be drawn from them. These statistics were derived from a sample 36-week period commencing on 4 April 2009 and terminating on 12 December 2009. It was discovered that the appellant had 132 ANIs in the relevant period, whereas the next highest number of ANIs for a senior conductor was twenty.
The key conclusion of the Tribunal is summarised at paragraph 36 of the decision as follows:
"It is correct that in the course of the Hearing the Judge did observe that there are no instances of potentially suspect tickets having been issued "en bloc" but that rather the evidence relied upon points to a single, usually low value, ticket being generated occasionally and usually only once per shift. Whilst the Judge might, therefore, have been inclined to question the likelihood of this pattern being in fact indicative of the dishonesty alleged it is highly significant that the lay members of the tribunal have no such scruples. From their long experience of both sides of industry both Mr Bratby and Mrs Bullock readily accept that the evidence before the Respondents was more than sufficient to justify the conclusion that this was indeed indicative of repetitive, albeit spasmodic pilfering, and that the relatively low sums involved are not at all atypical of this type of dishonesty in the workplace. There is certainly no reason to say that the view taken by the Respondents was, therefore, outside the band of reasonable responses. To hold otherwise would indeed be inappropriately to substitute our own view for that of the reasonable employer with specific knowledge of their own industry."
The appellant contends that for a variety of reasons it was not legitimate to draw this inference because there were other factors which tended to suggest that the statistics may be inaccurate or misleading and that the appellant may be innocent. Indeed, at the heart of the appeal is the contention that there was an inadequate investigation of various matters which, if properly explored, might have demonstrated that the statistics were unreliable. I deal with these points later in the judgment. It is important to note, however, that it is conceded that on the traditional band of reasonable responses test, the employment tribunal's conclusion that the investigation was fair is unassailable. The submission is that the effect of the dismissal was to engage the rights of the appellant under Article 8 of the Convention and that the investigation did not satisfy what is alleged to be the stricter procedural requirements which the proper protection of Article 8 rights requires.
The decision of the Employment Tribunal on the Article 8 points.
The Employment Tribunal considered the particular submission being advanced in this appeal. It found that Article 8 was not engaged and so the relationship between that provision and section 98 did not arise. But the Tribunal considered that even if it did, and the court had to read section 98 compatibly with Article 8 in accordance with section 3 of the Human Rights Act, the application of the traditional band of reasonable responses test was itself compatible with Article 8. The Employment Tribunal set out at length extracts from the judgment of Lord Justice Mummery in X v Y [2004] ICR 1634 in which His Lordship analysed in considerable detail the effect of Article 8 on the law of unfair dismissal. The Tribunal emphasised certain passages in that judgment, and in particular the following observations of Mummery LJ at para 59(4):
"It is not immediately obvious, on a reading of section 98 without reference to a particular set of facts, as to how it could be incompatible with or be applied so as to violate article 8 and article 14 and so attract the application of s3. Considerations of fairness, the reasonable response of a reasonable employer, equity and substantial merits ought, when taken together, to be sufficiently flexible, without even minimal interpretative modification under s3, to enable the employment tribunal to give effect to applicable Convention rights. How, it might be asked, could the proper application by the employment tribunal of the objective standards of fairness, reasonableness, equity and the substantial merits of the case result in the determination of a claim for unfair dismissal that was incompatible with article 8?"
The Tribunal considered that even had Article 8 been in point, these observations were applicable in this case. The Tribunal also noted that whilst Lord Justice Mummery had gone on to say that Article 8 exceptionally might make a difference to the reasoning of an employment tribunal, there was nothing exceptional to justify any different approach in this case.
The employee appealed to the Employment Appeal Tribunal. His Honour Judge McMullen QC rejected the appeal on paper essentially on the ground that the Employment Tribunal had reached a perfectly sustainable decision on the facts and that the EAT was not entitled to interfere.
The grounds of appeal were amended and there was a further reconsideration by the same judge under Rule 3(8) but again that was unsuccessful. At that point the appellant sought an oral hearing to determine whether she should be allowed to appeal, as she was entitled to do under Rule 3(10). Her claim was considered by His Honour Judge Serota QC. He held that the EAT was bound by the decision in X v Y and that it would have to be for the Court of Appeal or the Supreme Court to choose to depart from that decision. He concluded therefore that the appeal had no reasonable prospect of success before the EAT but accepted that the appellant had raised interesting and important arguments which at least merited consideration by the Court of Appeal. Hence he granted permission to appeal.
The appellant submits that in fact the EAT misunderstood her argument on X v Y. She was not asking the EAT to depart from it but rather to recognise that this was an exceptional case where Mummery LJ's...
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