Appeal No.UKEAT/0765/03/ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 February 2004
Judgment delivered on 6 April 2004

Before
HIS HONOUR JUDGE D SEROTA QC
MR M CLANCY
MS N SUTCLIFFE

THOMAS LAWLOR	APPELLANT

LEX PLC (t/a RAC MOTORING SERVICES)	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS S PALMER
(of Counsel)
Instructed by:
Messrs Bulfin & Co
Solicitors
203 Field End Road
Eastcote
Pinner
Middx HA5 1QZ

For the Respondent	MR D MARTIN
(of Counsel)
Instructed by:
Croner Consulting
Croner House
Wheatfield Way
Hinckley
Leics LE10 1YG	

HIS HONOUR JUDGE D SEROTA QC

Introduction
1	In this appeal the Applicant maintains that the Respondent failed to carry out a sufficient investigation before his dismissal for gross misconduct.  

2	This is an appeal by the Applicant against a Decision of the Employment Tribunal at London South (Mrs F Spencer, Chairman) registered on 1 September 2003 after a four day hearing.  The Employment Tribunal dismissed the Applicant’s claim for unfair dismissal and his claims for unpaid wages and breaches of contract.

Factual background
3	Mr Lawlor was employed as an RAC Patrolman.  He joined the RAC in May 1981.  At the time of his dismissal he was both a Shop Steward and a Health and Safety Officer.  

4	At some point in 1999 a new system of payment was introduced for Patrolmen.  We shall explain later on in this decision the relevant details.  In the middle of 2000 Mr Lawlor believed he had not received all the pay to which he was entitled.  He had various meetings with his line manager but was not satisfied with the results.  

5	In March 2001 the RAC introduced an Autopay system in place of the previous system that relied on EDP forms.  The new system would generate additional payments to patrolmen automatically, having regard to its records, which we assume were on a database.

6	At some time in August or September 2001 Mr Lawlor told his Patrol Manager he would take out a grievance in relation to his claim that he had not been paid in full for earlier claims made on EDP forms.  He met with his Patrol Manager, Mr Harvey, who went through all Mr Lawlor’s documentation.  On 2 November 2001 Mr Harvey told Mr Lawlor that some of his claims would be paid but that the RAC had queries about a number of the EDPs and this might lead to disciplinary action.  He was then suspended pending a disciplinary hearing.

7	On 4 December 2001 the Applicant was sent notice of the disciplinary hearing in which it was alleged against him that he had failed to follow company procedures in a number of respects, including, the completion of EDP forms, and claims for non-operational overtime, and that he had made potentially fraudulent claims which caused a loss of trust and confidence.  He was sent a bundle of documents which included 31 EDP claims which the RAC believed to have been made in breach of procedure and were not consonant with the RAC’s computer records.  The allegations concerned a period between 7 October 1999 and February 2001.  There were also allegations concerning claims for non operational overtime which the RAC believed had not been authorised. 

8	On 31 January 2002 a disciplinary hearing began.  It ultimately lasted over some two days and there are 104 pages of transcript as to what took place.  Mr Lawlor was represented by his trade union representative, Mr Evans.  The disciplinary hearing was presided over by the dismissal officer, Mr McKee.  Mr McKee had considerable experience with the RAC.  He began as a Patrolman, he also managed Response Centres and had been (or was at the time) Regional Operational Manager for Scotland.  Mr McKee was thus experienced as a Patrolman and had experience of the management and control both of Patrolmen and Response Centres as well as in the RAC’s management procedures.

9	Mr McKee went through all 31 claims with Mr Lawlor who had his diary with him and went through Mr Lawlor’s explanation.  We shall return to Mr Lawlor’s explanation later in this decision.  Mr Lawlor then carried out further investigations after 31 January and found that documentation or computer records supported Mr Lawlor’s explanations in six cases.  He also found that in many shifts where Mr Lawlor had claimed he had overrun and not had time to take meal breaks, he had slack periods when meal breaks could easily have been taken.  It is to be noted (and this is central to the appeal) that Mr McKee did not interview the individual Controllers to see if certain additional jobs had been authorised (although not entered into the records) nor did he ask managers if there was a custom and practice to claim additional payments for work done during meal breaks taken at the end of the shift.  Neither did he make enquiries as to whether a van had been repaired, which Mr Lawlor maintained he had taken for repair.

10	The hearing resumed on 7 March.  Mr Lawlor offered further explanations, especially in relation to meal breaks.  At the end of the day Mr McKee concluded that the majority of Mr Lawlor’s claims were dishonest and he had simply twisted the rules to suit himself. We shall refer later to Mr McKee’s findings.  As a Shop Steward and Health and Safety Officer of considerable experience he had a clear understanding of the pay system and would himself have been a point of contact for colleagues who had queries.  Mr McKee concluded that Mr Lawlor knew he was obliged to take meal breaks during his shift, but if he did not take those meal breaks he was not entitled to claim payment for a notional meal break at the end of his shift.  He also knew that reserve hours had to be negotiated with his manager and fixed in advance and that a meal break could not be converted into reserve hours.  Mr McKee also concluded that in cases where Mr Lawlor alleged staff at the Response Centres had credited him with extra jobs he had not done, Mr Lawlor knew they had no authority to do so.  Mr McKee also considered that various claims made in respect of jobs that had been cancelled were dishonest.  For example, in one case he found that the Response Centre record showed a job had been cancelled after one minute, when Mr Lawlor claimed it had been cancelled after six minutes.  Mr McKee’s investigation from the record showed that Mr Lawlor had in fact accepted another job and acknowledged this four minutes after the despatch of the first.  Mr McKee concluded that Mr Lawlor claimed for jobs according to his own rules.  He was dismissed.  He appealed against his dismissal and the appeal was heard on 29 April and 13 May 2002 by an Appeal Panel that consisted of Ms Hunter, the Head of Contractor Services, Ms Sara Jakes, the Human Resources Manager, and Mr Alan Martin, the Branch Chairman of the TGWU who was also a Patrolman.  The appeal was in the form of a review and lasted for some four hours.  During the appeal a letter from an ex-colleague, Ms Ede, was produced and Ms Ede stated that when the RAC was short of patrols she would work through her lunch break and go home early.  She did not, however, allege that it was practice to claim for an overrun if work was done during a meal break.  Ms Hunter, accordingly, rang the Response Centre Manager, Mr Wheeler, to establish whether there was a practice of taking lunch breaks at the end of the shift.  Mr Wheeler denied that this was the case.  Mr Martin had never heard of this practice himself.  Ms Ede had left the RAC and was not contacted further.  The appeal was dismissed.  

The system of payment
11	We said earlier that we would set out in greater detail the system of payment.  This was carefully set out by the Employment Tribunal at paragraphs 6 and 7 of their Decision.  The relevant policies and rules were set out in an RAC document entitled “Demand Led Rostering - working arrangements for leading patrols and service patrols” amended in July 2000.  

12	Patrolmen were contracted to work for a basic 1831 hours in a year (an average of 40 hours per week inclusive of meal breaks) for which they received their basic salary.  Patrolmen could earn additional payments in a variety of ways.  These included:

(a) Reserve hours.
On a voluntary basis a Patrolman could commit to an additional eight hours per week.  Payment was made up of two elements.  A fixed fee was paid for the hours to which the Patrolman had committed and was paid through the payroll, and, secondly, an additional fee was payable for each job (a reserve job) completed during the reserve hours.  Patrolmen were permitted to claim for a job which was given out and subsequently cancelled, providing the job was cancelled more than five minutes after despatch.  Jobs cancelled within five minutes, or which the Patrolmen did not acknowledge, should not be claimed for as a job.

(b) Overruns
All Patrolmen were obliged to accept jobs up until the end of their rostered shift, whether that was a normal or reserve shift.  If a job accepted before the end of shift overran, the Patrolman was entitled to make an additional claim for the time spent outside the rostered shift.  No overrun could be claimed if a job was completed within the shift.

(c) Non operational overtime
A Patrolman could claim for work outside his normal rostered shift on non-operational matters, including training, trade union activities or van maintenance and repair at a fixed hourly rate.  All claims for non operational overtime were required to receive the prior authorisation of the line manager.  

13	All claims for reserved jobs, overruns and non-operational overtime were required to be made weekly on EDP forms.  The Response Centre recorded and retained records of jobs allocated to and attended by Patrolmen.  A job was “called clear” when the Patrolman radioed the Response Centre to say that it was finished.

14	Patrolmen were required to take a meal break, the length of which depended on the length of the shift and which was paid for within the shift.  RAC guidelines provided that breaks should be taken after three and a half hours into the shift and that no Patrolman should work more than six hours without a break.  Patrolmen were required to notify the Response Centre to inform them when the break would be taken and to give one job’s notice.  

Disciplinary Hearing
15	The Employment Tribunal analysed the various allegations made against Mr Lawlor, and investigated in the disciplinary proceedings, and then placed the allegations into a number of different categories.  These were then analysed by reference to the nature of the allegation, Mr Lawlor’s explanation and Mr McKee’s response to that.  

16	The principal complaint made against Mr Lawlor was that on some thirty one occasions he had claimed overrun payments when the RAC’s log (generated by the Response Centre) showed that his jobs had been completed within his rostered shifts.  On 31 January Mr Lawlor gave a number of different explanations.  

17	Mr Lawlor’s initial case in respect of nine occasions when he had claimed an overrun was that he had worked through a shift without a meal break in order to help the Response Centre when it was finished.  He had “finished” his shift early to compensate for not having taken a meal break but continued to work and to claim the time he would have spent on the meal break as an overrun.  He maintained this was a common practice well known to line managers.  He subsequently gave a different explanation when it was put to him that there was slack time during which he could have taken his meal break before the end of the shift.  He then explained that he did not know when the next call was coming and he preferred to work rather than sit in his van during the break.  

18	In three cases Mr Lawlor maintained that he had overrun because of problems with the van and he had claimed time for taking the van to be repaired.  In one case he claimed he was entitled to an overrun in accordance with the rules dealing with jobs that had been accepted but overran.  The Employment Tribunal records that his reading of the rule was at odds with its natural meaning.

19	In five cases Mr Lawlor maintained that the RAC computer records were incomplete or inaccurate.  On one occasion he maintained that someone else must have called him clear at a time when he had not finished, and in one case he claimed an extra half an hour as he had been “messed around” by the controller.  

20	Mr Lawlor had also made claims for reserve jobs he had not carried out.  His claims were for jobs in excess of those recorded by the Call Centre.  In one case he claimed that the Response Centre had agreed to credit him with two jobs instead of one as an incentive because he was reluctant to take on a job.  He also disputed the number of jobs as having been cancelled within five minutes; in two cases he maintained that he had not acknowledged the jobs.  In relation to one job he had arrived at the wrong location and maintained that the controller agreed he would be credited with two jobs if he went to the correct location.  As we have said, Mr McKee concluded that the majority of Mr Lawlor’s claims were dishonest and he had simply twisted the rules to suit himself. As a Shop Steward and Health and Safety Officer of considerable experience he had a clear understanding of the pay system and would himself have been a point of contract for colleagues who had queries.  Mr McKee concluded that Mr Lawlor knew he was obliged to take meal breaks during his shift, but if he did not take those meal breaks he was not entitled to claim payment for a notional meal break at the end of his shift.  He also knew that reserve hours had to be negotiated with his manager and fixed in advance and that a meal break could not be converted into reserve hours.  Mr McKee also concluded that in cases where Mr Lawlor alleged staff at the Response Centres had credited him with extra jobs he had not done, Mr Lawlor knew they had no authority to do so.  Mr McKee also considered that various claims made in respect of jobs that had been cancelled were dishonest.  For example, in one case he found that the Response Centre record showed a job had been cancelled after one minute, when Mr Lawlor claimed it had been cancelled after six minutes.  Mr McKee’s investigation from the record showed that Mr Lawlor had in fact accepted another job and acknowledged this four minutes after the despatch of the first.  Mr McKee concluded that Mr Lawlor claimed for jobs according to his own rules.

21	In relation to a number of factual issues, one of the lay members dissented from the majority view of the Chairman and the other lay member.  We of course bear in mind, as Mr Martin for the Respondent submitted, that we should not consider this case with greater scrutiny or suspicion because it is a decision by a majority and in Chief Constable of the Thames Valley Police -v- Kellaway [2000] IRLR 170 at 174, Morison J observed that the fact that there was a majority decision “is a good indicator of the care which must have been taken by all three members”.

22	The majority of the Tribunal accepted not only that the Response Centre Manager was not authorised to negotiate with Patrolmen and authorise the credit of extra jobs where the rules would otherwise not allow him to do so, but that Mr McKee concluded that Mr Lawlor was aware of this lack of authority.  There was also no record to corroborate the Applicant’s account.  

23	The Employment Tribunal referred to two specific incidents because these were singled out by the RAC as being indicative of dishonesty.  Firstly, on 18 January 2001 the Applicant claimed for a three hour overrun for a period during which he was on a duty shift.  He was, therefore, paid twice.  Mr Lawlor explained that he had originally been rostered to work for three hours but had cancelled those three hours because he was obliged to attend a trade union meeting.  The meeting ended early so he put himself back on to the roster.  This explanation did not make clear why Mr Lawlor claimed for an overrun when he had told the Controller he was going back on to rostered hours.  

24	On 14 February 2001 Mr Lawlor claimed two reserve hours and two reserve jobs despite having finished his last job within the shift.  He explained that he had refused the last job as he was on a meal break and the Response Centre agreed to credit him with two hours to work through his meal break.  There is no record of this agreement on the log at the Response Centre.  Again, the majority were satisfied that the Response Centre staff had no authority to come to such an agreement with a Patrolman.  

25	The third type of allegation considered by Mr McKee related to non operational overtime.  Claims were rejected because there had been no prior authorisation.  Mr Lawlor maintained that he had received authority or had left a message on his line manager’s answerphone or a message with the Response Centre.  He did not always feel that it was necessary to obtain prior authorisation because of the degree of trust between Patrolmen and line managers.  

The Decision of the Employment Tribunal 
26	Mr Lawlor’s case to the Employment Tribunal was that the true reason for his dismissal was his trade union activities or the fact that he was pursuing a claim for unpaid wages.  There was no reasonable investigation into allegations of dishonesty made against him and the Respondent’s belief in that dishonesty was unreasonable.  

27	The Employment Tribunal, in our opinion, correctly directed itself as to the law and in particular had regard to the decision in British Home Stores -v- Burchell [1980] ICR 303.  It correctly directed itself that it had to consider whether what the RAC did was within the band of reasonable responses for an employer to make having regard to the misconduct charged.  The Employment Tribunal reminded itself that in cases of misconduct the employer did not have to prove beyond reasonable doubt that the employee was guilty of the conduct with which he was charged, but must have a genuine belief in the misconduct based on reasonable grounds and after reasonable investigation.  The belief would not be reasonable if the employee had not been given a fair chance to state his case and present his side of the story by way of explanation or mitigation.  

28	The majority found that Mr Lawlor had been dismissed because the Respondent had a genuine belief in his dishonesty.  That was the reason for his dismissal and not trade union activities or the fact that he had raised issues of alleged underpayment.  

29	The majority considered that Mr McKee had reasonable grounds after reasonable investigation for concluding that Mr Lawlor had made dishonest claims for payment.  They noted that he had been shown the evidence against him in respect of each claim and had been given the opportunity to state his case in relation to each of the thirty one claims.  In relation to the nine claims relating to claiming extra hours, when Mr Lawlor claimed not to have taken his meal break, the Employment Tribunal had in mind the Respondent’s rules making it clear that for health and safety reasons the break must be taken within six hours of starting a shift.  The Employment Tribunal noted that Mr Lawlor had initially stated that he had not had time to take his meal break.  When this was investigated by Mr McKee and found to be untrue he gave an alternative explanation to the effect that his management knew he was claiming for his meal break as an overrun.  Mr McKee did not investigate this matter further by taking it up with his managers because such conduct would not only be contrary to procedure but also against health and safety regulations.

30	In paragraph 40 of its Decision the majority addressed itself to Mr McKee’s failure to ask the Applicant’s line manager specifically whether this procedure had been implicitly authorised by them.  They did not consider this was fatal to the fairness of the investigation.  The majority accepted that the rules were clear and that any deviation from the rule authorised by the managers would have to be in very clear terms, especially as the end result was that Mr Lawlor was paid twice for his time.  The Employment Tribunal also noted that the allegation was specifically checked by Ms Hunter prior to the appeal hearing and found to be false.  The Employment Tribunal also noted Mr Lawlor’s position in relation to lunch breaks was made clear at the reconvened hearing when Mr Lawlor had stated that he had cancelled reserve hours rather than take a lunch break when told.  

31	The majority also considered the failure of Mr McKee to ask the Response Centre staff whether they had authorised Mr Lawlor to claim for additional jobs.  However they noted that this was outside the authority of those staff and, if admitted, would in itself be a breach of procedure.  We remind ourselves as to the finding made by the Employment Tribunal at paragraph 25 of its Decision.  Mr McKee’s belief was that Mr Lawlor would have been aware of the lack of authority of Response Centre staff to agree to credit extra jobs or hours.  

32	The majority then noted that lunch breaks and additional jobs were not the only issue.  Other allegations were made against Mr Lawlor and were left unexplained by him, in particular the claim for a three hour overrun on 18 January 2001.  They then had this to say:

“42 …… It would undoubtedly have been better to enquire of the managers whether there was a practice of allowing meal breaks to be claimed as overrun.  However, the majority of the Tribunal find that, given the number of other claims which the Applicant had made which had not been explained satisfactorily, this failure was not fatal to the fairness of the dismissal.  In the view of the majority the issue is not whether further investigation might have been carried out by the employer, but whether the investigation which was in fact carried out was adequate and reasonable in all the circumstances.”

We consider that the approach of the majority to the question as to whether an appropriate investigation had been carried out was impeccable.  

33	The majority concluded:
“43  Standing back and looking at the totality of the allegations against the Applicant it is the view of the majority of the Tribunal that Mr McKee had carried out a reasonable investigation and was entitled to conclude, as he did, that the EDP claim forms demonstrated a pattern of claims which did not follow the Respondent’s procedures and which indicated dishonesty.  The purpose of an investigation in these circumstances is not to determine, as in a court of law, whether the Applicant was guilty of the conduct charged but to establish whether there were reasonable grounds for the employer’s belief that there had been misconduct on the part of the employee.  In the view of the majority, Mr McKee’s conclusion that the Applicant’s explanations were inherently improbable in the light of his further investigations and had not been satisfactorily explained was a reasonable one.  The Applicant had been given a fair hearing and a chance to state his case.  As to the severity of the sanction, the majority find that despite the Applicant’s length of service, dismissal was a reasonable sanction where the Respondent had reasonably concluded, as it had, that the Applicant was deliberately ignoring proper procedures as to payment.”

34	Before leaving this part of the Decision we would also note that after the adjourned hearing on 31 January the Employment Tribunal found that Mr McKee had undertaken a number of investigations as to Mr Lawlor’s allegations.  He considered his explanations against the Respondent’s computer records and looked for additional information such as notepads or additional entries which might indicate that additional jobs were being credited by the Response Centre.  He found supporting evidence in six cases.  In relation to the meal break overrun, he had examined the computer records and found that in many shifts where Mr Lawlor said he had taken his meal break at the end of the shift there had been quiet periods during the shift when Mr Lawlor could have taken his meal break.  Mr Lawlor also checked whether there had been transmission problems with radios on the days Mr Lawlor claimed for jobs cancelled within the five minute period, to see if there could have been a problem with timing.  He found no record of any transmission problems.  

35	We record that Ms M Foster-Norman, who was in the minority, concluded that the RAC had not established a genuine belief on reasonable grounds after a reasonable investigation that Mr Lawlor was guilty of misconduct.  She did not consider that the RAC carried out an adequate investigation in all the circumstances and in particular considered that Mr McKee should have gone back to Mr Lawlor’s line managers and the Response Centre staff to check whether there was a practice of allowing Patrolmen to claim for their meal break as an overrun at the end of the shift.  If such a practice had been established this would have demonstrated that Mr Lawlor was not dishonest.  She noted that dishonesty required a careful investigation and further investigation should have been made including the interviewing of  line managers and Response Centre staff. 

The Notice of Appeal
36	The Notice of Appeal, as amended asserts that the Employment Tribunal “reached a perverse conclusion and/or erred in law and/or failed to give adequate reasons” when concluding that the Respondent had a genuine and well founded belief in Mr Lawlor’s dishonesty.  It erred similarly in reaching the conclusion that the investigation carried out by Mr McKee and his subsequent conclusion of dishonesty was reasonable in all the circumstances.

37	There was in the event no dispute between the parties as to the principles of law which should be applied in this case.  Miss Palmer drew our attention to A -v- B [2003] IRLR 405 in which the EAT has held that the more serious an allegation against an employee the more detailed the employer’s investigation should be, and should include a search for exculpatory evidence.  Mr Martin accepts this proposition.  We remind ourselves that it is for the Employment Tribunal to determine whether at each stage of the disciplinary process the employer’s response was within the band of reasonable responses.  The Burchell test applies to the reasonableness of the investigation carried out by the employer.  Thus it is not for an Employment Tribunal to substitute its views for those of the employer as to what was a reasonable and adequate investigation, if satisfied that the investigation carried out by the employer was within the reasonable band in all the circumstances; see Sainsbury Supermarkets -v- Hitt [2003] IRLR 23.

38	We also remind ourselves that Miss Palmer accepted that her case was one of perversity, but one based upon the findings of fact made by the Employment Tribunal rather than one put on the basis that the Employment Tribunal should have found other facts.  Mr Martin reminded us that we are not ourselves concerned with the question as to whether the RAC acted within the reasonable band of responses but whether the Employment Tribunal was perverse in finding that it had so acted.  He reminded us that we have not had the benefit of seeing the witnesses, hearing cross-examination and seeing all the documents.  

Mr Lawlor’s submissions
39	The thrust of Miss Palmer’s submissions was that the investigation carried out by Mr McKee was inadequate and that vitiated the entire disciplinary process.  He should have contacted the Applicant’s line managers, Response Centre staff and other Patrolmen in relation to issues arising out of the use of radios and meal breaks.  

40	She drew our attention to the fact that Mr Lawlor had been employed for some twenty years; the events of which complaint took place had taken place between October 1999 and February 2001, so there was room for mistaken recollection and they only came to light after Mr Lawlor had raised queries about underpayment.  His assertion throughout was that although he may have used the wrong procedures he was not dishonest.  Mr Martin submitted that we should not assume that the Employment Tribunal or Mr McKee ignored factors such as Mr Lawlor’s long unblemished service and the gravity of the charge.  We agree with this submission.  We are equally satisfied that the question as to whether Mr Lawlor had been dishonest or simply guilty of breach of procedures would have been clearly in the mind of an experienced dismissing officer such as Mr McKee and the Employment Tribunal.  These particular points seem to us to be “jury points” and we have no doubt the Employment Tribunal had them clearly in mind.  

41	Miss Palmer took us through the various allegations made against Mr Lawlor and submitted that in each case further investigation should have been carried out.  Thus in the case of meal breaks she submitted that there was some flexibility as to when meal breaks would be taken and whether they might be taken at the end of shifts.  The investigation took place some nine months after the last incidents so there was scope for poor recollection.  Mr Lawlor’s explanation for not taking breaks during quiet periods was one that might possibly have been investigated and would have shown at most a breach of procedure but not dishonesty.  This was not cured on appeal because the only enquiries that were made were to one manager.  One manager of the panel had experience but there was no further enquiry made of Ms Ede or other persons working from Mr Lawlor’s call centre.  

42	In relation to the van Miss Palmer submitted that Mr Lawlor was entitled to claim for taking the van to repair; the issue was whether this should have been by way of overrun or overtime.  Mr Lawlor never checked to see if the van in fact had been repaired.

43	So far as non operative overtime was concerned, Mr Lawlor had claimed that it was the usual custom and practice for him to seek approval and act upon it without necessarily receiving confirmation until after the event.  This could easily have been verified by checking with his manager.  We would interpolate here that this point is a little disingenuous because Mr Lawlor’s claim for unpaid overtime had been the subject of extensive investigations and discussions with his manager and been rejected.  Miss Palmer pointed out that the rate of pay for overtime was slightly higher than overrun so that if Mr Lawlor did have problems with the van and had charged by way of overrun, he was charging at a lower rate than he might otherwise have been expected to receive.

44	Mr Lawlor had maintained that the computer records did not show the full picture and Mr McKee, it was submitted, should have checked whether the computer had been shown to be inaccurate.  Thus on one occasion when he was “called free” by someone else, that person was never interviewed and that was crucial to the question of dishonesty.  

45	In relation to the issue of radio transmissions, Mr Lawlor had complained of problems and said that radios were not working.  Although Mr McKee investigated the logs and records he did not interview anyone to see whether, if contrary to what was shown by the records, Mr Lawlor’s may not have been working on particular dates.  

46	Miss Palmer then referred to certain specific agreements that Mr Lawlor maintained had been made with the call centre.  In one case he mentioned a specific name, Julie Tucker, but she was never interviewed.  The Respondent’s case was that the agreements were utterly improbable but nonetheless she was never interviewed and although it may have seemed strange to the employers, Mr Lawlor’s version of events might have been confirmed.  Mr McKee never went to the call centre to investigate.  

47	Insofar as overtime was concerned Mr Lawlor maintained he did not need prior authority providing this was notified in advance Mr Lawlor had said this was agreed with his manager.  We have already observed that this particular allegation appears to have been investigated by Mr Harvey in relation to Mr Lawlor’s claims that this overtime had in fact been authorised or there was a practice, contrary to the Respondent’s instructions, that it might be retrospectively approved. There is no evidence that Mr Harvey found any trace of such a practice.  

48	Miss Palmer submitted that the Employment Tribunal failed to pick up on the question of whether Mr Lawlor had acted dishonestly.  Mr McKee’s enquiries did not enable him to form a view as to whether Mr Lawlor had behaved dishonestly.  If it had been possible to chip away at some of the allegations it would have had an effect on the others and on the ultimate sanction.  The enquiries that Mr McKee should have made of other persons were well within the resources of the employer in relation to a case of a long standing employee charged with dishonesty.  

49	Miss Palmer finally submitted that the appeal was only a review and would not be sufficient to overcome the defects of Mr McKee’s investigation.  In any event she submitted that Ms Ede should have been contacted together with other people who knew Mr Lawlor’s working practices.  The manager who was spoken to was not from his “patch” so would not know the working practices of Mr Lawlor.  

50	Mr Martin submitted that the investigation was started by Mr Harvey, a Patrol Manager, who must have investigated the claims for overtime and by Mr McKee, a man of considerable experience including patrol experience, Response Centre management experience and experience in management procedures.  After the first disciplinary meeting on 31 January Mr McKee (who had already examined the RAC computer records) carried out further investigations during the course of which he considered other computer records including notepads and records of transmission problems with radios.  His investigations revealed that the initial explanation given by Mr Lawlor on 31 January in relation to having taken his meal break at the end of the shift because he was busy doing jobs, was false.  In those circumstances and having regard to the insufficiency of explanations given in some cases, the fact that Mr Lawlor had lied, Mr McKee may well have felt it was not a useful way of conducting his investigation to ask people many months after the events to recall such matters as whether there were transmission difficulties in radios at a particular time.  He was perfectly justified in relying upon the logs which he had checked.  

51	Mr Lawlor was a most experienced Patrolman, a shop steward and a Health and Safety Officer.  There is no evidence that he sought guidance from his manager as to procedures which he claimed were not clear.  He knew, so Mr McKee found, that Response Centre staff were not permitted to credit him with additional hours.  In considering the position overall, Mr McKee was entitled to have regard to two instances where Mr Lawlor had failed to give any satisfactory explanation for claiming for an overrun; namely the incidents on 18 January 2001 and 14 February 2001.  

52	The finding by the Employment Tribunal that Mr McKee believed Mr Lawlor knew that call centre staff were not authorised to credit him with additional hours or additional jobs, was a most important finding which was justified on the facts and explains why Mr McKee did not investigate with call centre response staff or managers the practice alleged by Mr Lawlor.  Such a practice would not only have been wholly unauthorised (to everyone’s knowledge) but would also have been in breach of RAC procedures and contrary to the requirements as to taking of meal breaks.  It might also be said that as Mr Lawlor was a shop steward, if he had evidence of the practices that he claimed, he could and should have been expected to supply some evidence himself.  

Conclusion
53	I have the benefit of sitting with Mr Clancy and Ms Sutcliffe who have great industrial experience.  It is perhaps helpful to record their views that even though they might not have conducted the investigation in the way Mr McKee did, and they might have interviewed other persons, they would regard his investigation as being well within the scope of reasonable investigations on the facts of the case.  The proper scope of any investigation is of course always fact sensitive.  

54	In our opinion the Employment Tribunal’s approach cannot be faulted.  They correctly identified the issue as not being whether further investigation might have been carried out by the employer but whether the investigation that was in fact carried out was adequate and reasonable in all the circumstances: the Employment Tribunal stood back and looked at the totality of the allegations against Mr Lawlor and, concluded that Mr McKee had carried out a reasonable investigation and was entitled to conclude that the EDP claim forms demonstrated a pattern of claims which did not follow RAC procedures and which indicated dishonesty.  Again they correctly reminded themselves that:
“the purpose of an investigation in these circumstances, is not to determine, as in a court of law, whether the applicant was guilty of the conduct charged but to establish whether there were reasonable grounds for the employer’s belief that there had been misconduct on the part of the employee.  In the view of the majority, Mr McKee’s conclusion that the Applicant’s explanations were inherently improbable in the light of his further investigations and had not been satisfactorily explained was a reasonable one.”

In our opinion the Employment Tribunal was entitled to conclude that Mr McKee was entitled, if not bound, to look at the allegations as a whole and to tailor further investigations to what he considered necessary after hearing the Applicant’s explanations.  In the circumstances the decision of the Employment Tribunal that the investigation was adequate and reasonable in the circumstances was well within the band of what a reasonable and properly directed Employment Tribunal might determine.  

55	We have referred to the various allegations against Mr Lawlor and the further enquires that it is asserted Mr McKee should have made.  These points were fully considered by the Employment Tribunal.  In particular in paragraph 42, the majority of the Tribunal accepted that it would:
“undoubtedly have been better to enquire of the managers whether there was a practice of allowing meal breaks to be claimed as overrun”, 
but against the totality of the evidence available to Mr McKee, the Employment Tribunal considered that his investigation was adequate and reasonable in all the circumstances.  

56	It is quite clear to us that the Employment Tribunal carefully had in mind the volume of material before Mr McKee and considered that he had material before him to justify his finding that the majority of Mr Lawlor’s claims were dishonest; that he had been circumventing the system and had twisted the rules to suit himself.  

57	We can see no basis for finding either that Mr McKee failed to distinguish between dishonesty (of which he had evidence) and simple breach of procedures or that the Employment Tribunal failed to have the distinction in mind.  

58	In the circumstances the appeal must be dismissed.