Appeal No. UKEAT/0235/16/DA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

	At the Tribunal
	On 20 January 2017

Before
HIS HONOUR JUDGE HAND QC
(SITTING ALONE)

MR A MONCRIEFFE	APPELLANT

LONDON UNDERGROUND LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MS ANNA MACEY
(of Counsel)
Direct Public Access	
For the Respondent	MR TIMOTHY ADKIN
(of Counsel)
Instructed by:
London Underground
Legal Services
42-50 Victoria Street
London
SW1H 0TL

SUMMARY
UNFAIR DISMISSAL - Reasonableness of dismissal

The Appellant’s argument that serious allegations with grave consequences for the employee require clear evidence before it is reasonable to find them proved apply not only to the professionally qualified but to all employees (Monji v Boots Management Services Ltd UKEAT/0292/13 and Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721 considered) was accepted but the Employment Tribunal had not erred by concluding there had been a reasonable investigation even though two potential witnesses had not been interviewed and the Appellant’s argument to the contrary was rejected as raising no point of law.

HIS HONOUR JUDGE HAND QC

1.	This is an appeal from the Reserved Judgment and Written Reasons of an Employment Tribunal comprising Employment Judge Smail sitting at Watford on 1 and 2 October 2015.  The Judgment and Written Reasons were sent to the parties on 27 October 2015, and by them Employment Judge Smail rejected the unfair dismissal claim.  The appeal was the subject of a hearing pursuant to Rule 3(10) of the Employment Appeal Tribunal Rules, and Slade J, having heard submissions on behalf of the Appellant and on the basis of an amended Notice and grounds of appeal, ordered that the matter proceed to a Full Hearing.  This is what I have been considering today; Mr Adkin of counsel appears for the Respondent, as he did below, and the Appellant, to whom I shall refer from now on as “the Claimant”, has been represented by Ms Macey of counsel, who appeared before Slade J but did not appear at the Employment Tribunal.

2.	On 20 June 2014 or, more likely, in the very early hours of the morning of 21 June 2014 a cleaner called Mr Ibrahim Disu saw a wallet in the driver’s compartment at the north end of a Metropolitan line tube train that had been “stabled” on 34th Road in the north sidings at Rickmansworth.  The Employment Tribunal had a helpful plan of the “Roads” at Rickmansworth, which is not in the bundle but which Mr Adkin has provided today.  A Road is a siding, and there are a series of sidings at Rickmansworth that are numbered, I think, 31 to 35: 31 is closest to the main railway line, and 35 is furthest away.

3.	Mr Disu mentioned the fact that he had found a wallet to Mr Raymond Grant, who went to the driver’s compartment, opened the door and saw the wallet.  From a cursory inspection he could see a £20 note and “what looked like a lotto ticket” in the wallet (see paragraph 8 of the Written Reasons).  He climbed down from the train with the wallet and went to his colleague, the Claimant, who, Mr Grant said, was in the vicinity of the 31st Road.  Mr Grant asked the Claimant if it was his wallet.  Initially, the Claimant said it was not but then changed his mind and said it was.  The words affirming his ownership were later reported by Mr Grant as being, “yes it’s got shit loads of money in it”.  Mr Grant gave him the wallet and went back to the 34th Road.  Shortly afterwards he saw some train cleaners, amongst whom was Mr Disu, and Mr Grant told them he had given the wallet to a colleague.  Later, he saw the Claimant again, and there was some discussion about the wallet in the sense that the Claimant told him that he had taken out a lot of money from the bank that night.

4.	Also, late on 20 June 2014 or, more likely, very early on 21 June 2014 a Metropolitan line train driver called Mr Danny Simmonds said that he had lost his wallet whilst on duty.  He contacted the Rickmansworth Duty Train Staff Manager (“DTSM”) the following morning when he realised that his wallet was missing, and the DTSM sent an email to the Metropolitan line DTSM at Rickmansworth about the lost wallet.

5.	Although the Tribunal Judge does not in his factual synopsis, which is paragraphs 5 to 7 of the Written Reasons, specifically refer to some of the documents, it is clear from paragraph 5 that the factual basis of what the Employment Judge sets out there is an exchange of email messages, which now appears at page 115 of the appeal bundle.  It is also clear that the factual basis of part at least of paragraph 6 of the Written Reasons is the manuscript note from Mr Simmonds dated 25 June 2014, which is at page 116.  There is also a finding of fact at paragraph 5 that Mr Simmonds had in the memorandum, which is explicitly mentioned at paragraph 5 (page 116), referred to the wallet having been “on the north end of the train”.

6.	On 21 June, the two DTSMs appear to have explored various avenues relating to the allegedly lost wallet but without success.  On 25 June, Mr Simmonds appears again to have “stabled” his train in the sidings at Rickmansworth, and after doing that he met Mr Disu and mentioned the lost wallet to him.  Mr Disu told him that he had found the wallet and given it to Mr Grant.  The following day Mr Grant was contacted about the matter, and as a result of what he said the Claimant was interviewed on 15 July.  He said he had been on a train on the 31st Road when he saw Mr Grant, who gave him the wallet; it was his wallet, although he had not realised he had misplaced it.  He was asked which trains he had been on and whether he had been on those on which Mr Grant had been working, but he could not remember.  What I have just summarised is set out at paragraphs 8 to 10 of the Written Reasons.

7.	Mr Grant was interviewed again on 24 July.  He recollected that the Claimant had been given the 31st and 32nd Roads to prepare.  Mr Grant had himself prepared five trains before going to the 34th Road.  As Employment Judge Smail noted, “The wallet was found on 34 Road north end”.  Mr Grant thought that it had contained a £20 note, and he had referred to it as having contained what looked like a Lotto ticket (see paragraph 11 of the Written Reasons).

8.	Mr Disu made a statement.  In it he referred to having seen a brown, bulky leather wallet in the driver’s cab at the north end of the train, he having boarded the train at the south end and walked through to the other end.  He had not picked it up, because somebody was preparing the train, and so he decided to ask him whether it was his wallet, and this is what he had done.  Later, in the presence of his colleagues, he asked “the shunt who was prepping the train whether he saw a wallet at the other end of the driver’s cab” (see paragraph 12 of the Written Reasons).  According to paragraph 12, the reply was: “he saw the wallet and that he had given it to his mate who claimed that the wallet belonged to him”.  Those must be references to Mr Grant and to the Appellant.  Following the making of that statement, Mr Disu was also interviewed, on 21 August 2014.  During the course of the interview, he did say that when he had got on the train the driver was on the south end of it; he, Mr Disu, had boarded the train at the north end.  Employment Judge Smail noted at paragraph 14 of the Written Reasons that this revealed an inconsistency as between the two statements made by Mr Disu.

9.	The Claimant was interviewed again on 25 September 2014.  He, according to Employment Judge Smail’s Written Reasons, paragraph 15, “confirmed that the train he boarded was on 31 Road”.  He did not start to prepare it; he had not been on it for very long when he realised he had forgotten something.  What he had forgotten, as I understand it, was the maintenance key, which was necessary in order for him to do certain work on the train.  So, he got off again, went to his car, presumably obtained the maintenance key and returned and eventually boarded the train.  There is in paragraph 15 of the Written Reasons a passage upon which Ms Macey placed some reliance, as did Mr Adkin.  It reads as follows:
“15. … He remembered Fred Harding, the Duty Depot Manager, giving him instructions regarding air blowing off the train so he went to look at that.  He did not board the same train.  He was asked whether he got told to do something else on another train.  He replied he was not told, it was just that Fred had mentioned it previously.  He was in the vicinity.  He first saw Mr Grant when he looked up.  Mr Grant was walking towards him from his train along the path. …” 

He goes on to say that it was in that encounter in that vicinity when Mr Grant gave him back his wallet.

10.	During the second interview, if I have understood Employment Judge Smail’s Written Reasons at paragraph 16 correctly, the Claimant was asked about Mr Disu’s account of having got onto the train on the 34th Road as soon as it arrived.  If that was the sequence of events, then it might be difficult to understand how Mr Disu could have seen the Claimant’s wallet in the driver’s cab at a time when it seemed as though the Claimant had not yet boarded the train.  At paragraph 16 this is how it was described by Employment Judge Smail:
“16. … Could [the Claimant] explain how he could have seen the wallet as soon as the train came into 34 Road before he had a chance to board the train?  The Claimant could not do so. …”

11.	I think it fair to summarise the account given in the rest of paragraph 16 as being that the Claimant then did not appear to be able to explain the sequence of events.  He accepted later in this second interview, as summarised by Employment Judge Smail at paragraph 16, that the way in which he and Mr Grant had carried out the work that night might have meant that he had been left to deal with the 31st and 32nd Roads.  Indeed, he appears to have accepted that was “most likely”, something recorded by Employment Judge Smail as a direct quotation.  He also said he had no idea how the wallet, which had been found, could have been his.  It is perhaps best to quote in full how Employment Judge Smail put it in paragraph 16.
“16. … The Claimant was asked whether he had any explanation how the wallet was found on the train on 34 Road by Ray Grant but was initially seen by the cleaner when he boarded the train as soon as it entered the sidings, on the same train that the train operator reported losing his wallet, could have been his. …” 

Employment Judge Smail recorded that at that point in the second interview the Claimant had replied, “No idea”.

12.	Disciplinary proceedings were commenced against the Claimant on a charge of:
“17. … knowingly and fraudulently claim[ing] that a wallet found on train no. 21076 stabled in 34 Road at Rickmansworth sidings was his property. …” 

A hearing was held on 25 November 2014.  The charge was found proved, and the Claimant was summarily dismissed.

13.	The disciplinary panel’s reasoning was set out by Employment Judge Smail at paragraph 19 of the Written Reasons, which, again, I will quote in full:
“Mr Grant was very clear that he had handed the wallet to you as you had said it was yours when he asked you.  You had confirmed that you did take the wallet giving the reason it was your wallet.  However, your account of the evening has been evasive, vague and contradictory.  Your version of events regarding boarding a train which you cannot recall the train number or the Road it was stabled on is not credible given that there were only three Roads that it could have been stabled on.
Finally the timings you have put forward are inconsistent and during your final summary at the CDI they were contradictory which has led the panel to the conclusion that on balance you could not have been in the area and boarded the train on Road 34.  Therefore you could not have removed your wallet from your pocket and placed it in the train operator’s cab before the train berthed and the cleaner boarded the train.
The panel have taken all of the above into consideration and have found the charge proven.”

14.	As well as setting out the written reasons articulated by the panel, Employment Judge Smail also engaged in a further analysis of the Respondent’s thinking at paragraphs 20 and 21 of the Written Reasons.  He concluded that the panel thought that the question turned on whether “it was possible that the Claimant had been on train 34 so that he could have lost his wallet” (see paragraph 20 of the Written Reasons).

15.	The Claimant appealed.  At the appeal further evidence was available in the form of downloaded computer records from the train.  In fact, although it is not clear from the Written Reasons, the appeal had taken place over two dates; the first was 5 February 2015.  Towards the end of that hearing it became clear that the Claimant was asking for two things: first, that other cleaners be interviewed; and secondly, the computerised records, which would be available from machinery on the train, be downloaded.  This is not, as I say, clear from Employment Judge Smail’s Written Reasons.  Indeed, there is no reference to interviewing other cleaners and no real explanation of what happened in relation to that matter.  It is clear, however, that Mr Munro, who was conducting the appeal, did cause the computers to be interrogated and the data to be downloaded.  This is obvious from paragraph 23 of the Judgment.

16.	The data showed that the train had been deactivated at 01.36 hours.  It was not disputed that this would have been a record of the driver, Mr Simmonds, shutting the train down after having stabled it on 34th Road.  The records also showed that the train was activated again at 01.47 hours, and it was accepted that this must have been done by Mr Grant.  It could not have been the Claimant, because the evidence was that he did not have “the relevant key” (see paragraph 25 of the Written Reasons).  There was no evidence from the computer record that the train had been put into what might be described as maintenance mode before 01.47 hours.

17.	At the appeal there was discussion of investigative work that the Claimant said he had undertaken or at least been preparing to undertake in relation to pneumatic equipment on a train.  This is important to Ms Macey’s submissions, and I should quote part of paragraph 23 as follows:
“23. … He took the point that there had been no download evidence and obtained it for himself.  It had been represented to him by the Claimant that he was on the 34 when he came back noting that there was an air leak under the train.  He phoned his manager who told him to pull the lanyard under the train.  He stated he pulled the lanyard and checked the HMI, the Human Machine Interface.  Mr Munro asked: “What were you checking for, the HMI?”  The Claimant replied he did not know, he could not remember.  He did not finish prepping the 34 because Mr Grant came along.  He went on to the 31, realised that he had forgotten something, went upstairs then came back to 34 then back to the 31.”

18.	The manager referred to there was Mr Harding.  The extent to which Mr Harding might be an important witness is an aspect of Ms Macey’s appeal.  At paragraph 24 Employment Judge Smail notes that Mr Munro had obtained the HMI.  Mr Munro rejected the appeal and upheld the decision to dismiss.

19.	Subsequently, the Claimant was tried for theft at St Albans Magistrates’ Court.  He was acquitted.  Nowadays, Reasons are given even in the summary jurisdiction of the Magistrates’ Court, and a note was made, which Employment Judge Smail reproduced at paragraph 27 of the Reasons.
20.	It is important to the Claimant’s case on this appeal, and I shall quote the note in full:
“Mr Moncrieffe, we have listened with care to the evidence today which has been detailed in places and at times led to areas of confusion.  However, as a bench we all ended up with the same view as to the events.  The Crown’s key point was that it was unlikely that two wallets would be lost at the same time and second that a wallet was seen in the cab by two other individuals and it is the same cab that the driver had driven in.  Third, they say that there is no clear explanation as to how you lost your wallet.  Fourth, they argued that the time issues upon arrival between Disu and his sighting means that you had not the time to board the train and misplace your wallet, but on the other hand as was rightly pointed out by your lawyer in his closing speech, Mr Simmonds was not sure where or when he lost his wallet.  There was also the lottery ticket and that cast doubts upon which wallet was handed over and we agree that the same crest and compartments as explained by Mr Simmonds were not seen on the wallet recovered by the witness.  We also accept the third argument advanced that the early issue supports your accounts of the evening duties and gave you cause to board the train.  After careful consideration we are not sure and therefore the case is not proved. …” 

21.	I have no need to read the rest.  It might be thought strange that reasoning and indeed the fact of a subsequent criminal trial and acquittal was narrated in detail by Employment Judge Smail, but that was because there is a provision in the Respondent’s procedures for a procedure called “Director’s Review”, even after an appeal has been dismissed.  Such a procedure was implemented in this case, and a Director, Mr McNaught, did carry out such a review.

22.	The account given by the Claimant to Mr McNaught is set out by Employment Judge Smail at paragraph 29 of the Written Reasons, and, again, I think it is necessary to set it out in total, because Employment Judge Smail, in effect, says little more about it other than that he thought Mr McNaught’s conclusion was reasonable.  Paragraph 29 reads as follows:
“29. The version of events put forward was that the Claimant had left Watford underground station and arrived back at Rickmansworth sidings at approximately 01.20am.  The Claimant entered via the south entrance and parked up next to the yard hut.  He entered the yard hut for a PNR and left again at approximately 01.25.  He then walked up the path to the south end of Rickmansworth sidings arriving at approximately 01.30.  On his arrival he entered the cab of the train on 31 Road with the intention to begin prepping.  Unfortunately he could not begin as he could not find his train keys.  He then left the cab of 31 Road north end and witnessed the arrival of train 21076 on 34 Road whilst standing on the boards waiting to cross.  After train 21076 had stabled, he heard air blowing off from underneath the north end of one of the stabled trains.  He checked and confirmed air blowing off from 21076 from around the levelling valve on 34 Road.  He called Fred Harding, the DDM at Neasden to inform him that the valve was blowing off and would seat properly.  He was instructed to keep yanking it which resulted in it seating and the air stopped blowing off.  He then entered the north end cab of 21076 with the intention to access the HMI to check if any active events had been triggered.  Unfortunately he was unable to complete this task because he had no keys.  He emptied his pockets in search of them.  Not being able to find them, he returned to his car where he found his keys in the car, left there from his return from Watford station.  Having retrieved his keys he returned to 31 Road and began prepping.”

As Employment Judge Smail observed, this account put him “fleetingly” in the north cab of the train on 34 Road.  At the Employment Tribunal it was accepted by the Claimant that his case was that he must have lost his wallet in the 50 seconds or so when he was in the cab at the north end of 34 Road (see paragraph 30 of the Written Reasons).  This was rejected by Mr McNaught, who upheld the earlier conclusions there had been one wallet on the train and it had belonged to the train driver.  He was not persuaded by the more complete account given by the Claimant.

23.	Between paragraphs 32 and 36 Employment Judge Smail sets out his discussion and conclusions.  He started with the proposition at paragraph 32 that the Claimant’s case was that he had lost his wallet on the train on the 34th Road.  Employment Judge Smail then expressed himself in these terms, which Mr Adkin placed emphasis on:
“32. … The significance of this to the Claimant, the penny dropping so to speak, really only developed over time.  His position in the first fact-finds was not that he had entered the train on the 34 Road and lost his wallet.” 

24.	Taking that matter forward into paragraph 33, he described the account given by the Claimant as his “evolved case”.  Employment Judge Smail took the view that this was not likely, and he says this at paragraph 33:
“33. … It was reasonable for the respondent to find that Mr Simmonds had lost his wallet in the train as the Claimant explained before Mr McNaught was Mr Simmonds’ position at the Magistrates’ court; that Mr Simmonds had left his wallet on that train although precisely when he mislaid it was not clear to him.  It could have been at any time between Aldgate and Amersham but it was that train.  The Claimant had not maintained, except on appeal before Mr Munro, that he examined the HMI on a train.  He had not because he did not have the keys to activate the HMI.  Then before Mr McNaught he confirmed that he had been in the cab of the train on 34 Road so as to be able to lose his wallet.  It was open to the respondent to rely upon what he said in his fact-finds when he gave no credible position of having been in the train on 34.  That meant there were reasonable grounds for believing, as they found at the CDI, that there was no credible basis for him entering the train on 34 so as to be able to lose his wallet; and that regrettably, is the Achilles heel in the Claimant’s position.” 

25.	Employment Judge Smail did recognise that there were some unsatisfactory aspects to the Respondent’s evidence at paragraph 34.  He said this:
“34. It is unsatisfactory that Mr Grant’s description of the wallet neither accords with the Claimant’s account of the amount of money he had nor with Mr Simmonds’ account of the amount of money he had.  There was a document before Mr McNaught in which the wallet was described by Mr Simmonds as being in black leather, with clear pouches inside for cards and passes, that there were cards in the wallet, a staff pass which would have had his name on and £150 in cash.  Mr Grant’s description of seeing a £20 note and what appeared to be a lottery ticket is a long way away from the amount of money described both by Mr Simmonds and the Claimant in respect of his alleged wallet.  Mr [Grant] did say he did not inspect the wallet in any detail.  That said, this is an unsatisfactory element that helped acquit the Claimant at the Magistrates’ court.” 

26.	That too may be an important passage from the Claimant’s point of view.  Employment Judge Smail, however, thought that other evidence acted as a counterbalance.  This is the effect of paragraph 35 of the Written Reasons.  He says this:
“35. However, the respondent has been able forensically to examine whether the Claimant ever was on the train on 34 Road so as to be able to lose his wallet.  They have rejected that position.  That position, as I say, only emerged first before Mr Munro on the appeal, and then in a more considered fashion before Mr McNaught on the Director’s Review.  There was compelling evidence that Mr Simmonds had lost his wallet on the relevant train, that a wallet had been seen by Mr Disu, that a wallet had been given to Mr Grant who in turn had given a wallet to the Claimant.  The Claimant, regrettably for him, did not credibly put himself in position that he could lose his wallet on train 34.  His final position before the Director’s Review, and before me today, was that he must have lost it in the 50 seconds or so that he says he was in the cab.  That neither a likely nor credible position.  He knew that he did not have the keys sufficient to start prepping or reviewing the train when he was on the train on 31 Road.  That was why he left the train on Road 31 to go back to his car.  The account that he has had to spin thereafter has been contrived and reasonably rejected by the respondent.” 

27.	It should be observed that in the above there appears to be a conflation of two factors: what Employment Judge Smail himself made of the evidential material and what amounted to a reasonable analysis by the Respondent.  Employment Judge Smail completes his findings at paragraph 36.  He says this:
“36. The reason for dismissal was misconduct.  The respondent had reasonable grounds for the belief that the wallet was Mr Simmonds’ and had reasonable grounds for rejecting the Claimant’s account.  There had been a reasonable investigation following a fair procedure.  Dismissal was a sanction within the reasonable band of responses.  The Respondent reasonably concluded that the mitigation put forward was not sufficient to mitigate the breach of trust that was involved in the misappropriation of the wallet.  The dismissal was fair.”

28.	Before turning to the grounds of appeal, I should draw attention to the fact that at paragraphs 2 and 3 of the Written Reasons Employment Judge Smail directed himself that what was at issue was section 98, and in particular section 98(4), of the Employment Rights Act 1996 (“ERA”) and that in that context he needed to consider the analysis made by a division of this Tribunal in British Home Stores Ltd v Burchell [1978] IRLR 379, in which Arnold J, presiding on that occasion, analysed the way that he thought Employment Tribunals should approach the task, then essentially the same task on the same statutory wording but to be found in a different statute, namely in Schedule 1, paragraph 6(8) of the Trade Union and Labour Relations Act 1974.  At paragraph 2 of the judgment Arnold J set out three stages that he thought formed a useful sequence of analysis.  He was a brilliant Judge, and it may be wondered whether in undertaking what for his intellect would have been a fairly routine task he understood that he was begetting a positive torrent of authority on the question as to how one should approach what is now section 98(4).

29.	Be that as it may, it is now common to divide the analysis into four parts, as did Employment Judge Smail at paragraph 3 of his Judgment.  The further division occurs because it is now probably beyond doubt, because it has been said so often by the Court of Appeal, that not only has there to be a genuine belief in misconduct but that there must be reasonable grounds for that belief.  It can be observed that is not actually what Arnold J said, but it is probably far too late to make that objection now.  This is how it was approached by Employment Judge Smail, and he reminded himself of the danger of substitution by referring himself to Sainsburys Supermarkets v Hitt [2003] IRLR 23 CA and reminded himself about what is called the band of reasonable responses by reminding himself of the judgment of Browne-Wilkinson J (as he then was) in Iceland Frozen Foods Ltd v Jones [1983] ICR 17 EAT (see paragraph 3 of the Written Reasons).

30.	It is not said that there was anything wrong with that self-direction.  The error alleged to have been made by Employment Judge Smail arises at paragraph 36 in the third sentence, which I have quoted above, namely that there had been a reasonable investigation.  The complaints about that investigation are to be found in the amended grounds of appeal to which I have already referred.  There are two points, but Ms Macey emphasised their cumulative effect; in other words, that I should not consider them in isolation from each other but combine them and assess their combined weight.  She reminded me, in terms of how I should approach this matter, what another President of this Tribunal, Wood J, had said in the judgment in Inner London Education Authority v Gravett [1988] IRLR 497 at paragraph 15.  There, he was clearly discussing at page 499 what plainly was the predecessor to section 98(4).  He says this: 
“15. The situations which arise upon this second limb can and will be infinitely variable; at one extreme there will be cases where the employee is virtually caught in the act and at the other there will be situations where the issue is one of pure inference.  As the scale moves towards the latter end, so the amount of inquiry and investigation, including questioning of the employee, which may be required is likely to increase.  The sufficiency of the relevant evidence and the reasonableness of the conclusion seem to us to be inextricably entwined.  However, it may be that some further inquiry is clearly necessary before the relevant evidence can be considered sufficient.  That was the view taken by the Tribunal in the present case.” 

31.	In a sense, this encapsulates all of Ms Macey’s submissions.  It should be remembered, however, that these remarks were made in the context of a decision where the extent of the investigation had been found to be inadequate by the Employment Tribunal.  In the present case, it is the opposite conclusion that is under challenge.

32.	Finally, before I consider the suggested shortcomings in the investigation, I need to remind myself of the scope and nature of my task in deciding this appeal.  I think I can best do so by considering what Mummery LJ said in Brent London Borough Council v Fuller [2011] ICR 806 CA.  At paragraph 3 of his judgment in Fuller Mummery LJ refers to there being, as he puts it, plenty of authority on section 98(4), and he cites, as had the Employment Tribunal, a whole list of authorities, the last of which was London Ambulance Service NHS Trust v Small [2009] IRLR 563 CA.  It will be remembered that in his judgment in that case Mummery LJ had used the memorable phrase “substitution mindset”.  This is part of the theme that he developed in the Fuller case in that passage of his judgment at pages 812 and 813 of the ICR report that covers paragraphs 26 to 30.  I make no apology for citing them in full.  They must be remembered by any Judge of this Tribunal and, for that matter, of Employment Tribunals:
“26. This is not an easy case.  Tribunals with wide legal and practical experience of work situations and of the operation of unfair dismissal law have reached opposite conclusions.  The appeal tribunal set aside the tribunal’s order, which the council says was wrong.  This court is asked to set aside the appeal tribunal’s order, which Mrs Fuller says was wrong.  Perhaps it would not be out of place to make a few general comments about these differences, which lawyers and non-lawyers sometimes find unsatisfactory, even inexplicable.
27. Unfair dismissal appeals to this court on the ground that the tribunal has not correctly applied section 98(4) can be quite unpredictable.  The application of the objective test to the dismissal reduces the scope for divergent views, but does not eliminate the possibility of differing outcomes and different levels of decision.  Sometimes there are even divergent views amongst appeal tribunal members and the members in the constitutions of this court.
28. The appellate body, whether the Employment Appeal Tribunal or this court, must be on its guard against making the very same legal error as the tribunal stands accused of making.  An error will occur if the appellate body substitutes its own subjective response to the employee’s conduct.  The appellate body will slip into a similar sort of error if it substitutes its own view of the reasonable employer’s response for the view formed by the tribunal without committing error of law or reaching a perverse decision on that point.
29. Other danger zones are present in most appeals against tribunal decisions.  As an appeal lies only on a question of law, the difference between legal questions and findings of fact and inferences is crucial.  Appellate bodies learn more from experience than from precept or instruction how to spot the differences between a real question of law and a challenge to primary findings of fact dressed up as law.
30. Another teaching of experience is that, as with other tribunals and courts, there are occasions when a correct self-direction of law is stated by the tribunal, but then overlooked or misapplied at the point of decision.  The tribunal judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable.  The reading of an employment tribunal decision must not, however, be so fussy that it produces pernickety critiques.  Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid.”

33.	I also should make it clear that, as with any other Judge, the circumstances of the individual, the Claimant Appellant in this case, are not being examined by me as if I were a scientist in a laboratory.  I am acutely aware of the importance to the Claimant of the events that have led to his dismissal.  There is one school of thought, which perhaps simply relates to more general jurisprudence about the nature and burden of proof, that the graver the outcome or consequences the more carefully one should examine the factual material.  This is discussed by a division of this Tribunal presided over by HHJ Eady QC in the case of Monji v Boots Management Services Ltd UKEAT/0292/13.  It is an unreported decision.  Monji, however, whilst unreported, does discuss the fact that to some people findings of misconduct are profound.  For instance, professional people found guilty of misconduct may not only lose the particular job; they may find themselves disqualified from following their profession.  In this judgment, the division of this Tribunal presided over by HHJ Eady QC recognised that.  I am bound to say, forthrightly, I do not understand why any distinction should be made between a pharmacist or a man who repairs trains.  A finding of gross misconduct is a serious matter and a serious impediment to the future of any working man or woman.

34.	Nevertheless, it is worth noting the way in which in the case of a pharmacist who was dismissed for gross misconduct this matter was viewed by the Employment Appeal Tribunal and various decisions of the Court of Appeal said to be of like effect were relied upon.  The issue in the appeal, as identified at paragraph 27 of the judgment in Monji, was partly whether the Employment Tribunal had failed to follow what was described as the guidance laid down in cases such as A v B [2003] IRLR 405 EAT and Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721 CA.  Those were both cases that involved people with professional backgrounds.  In a discussion about the relevant legal principles in Monji HHJ Eady QC, not surprisingly, started out with section 98(4) ERA, went on to discuss Burchell and then came at paragraph 44 to the judgment of the Employment Appeal Tribunal in A v B.  She pointed out that there the circumstances in section 98(4) included the gravity of the charge and the potential effect on the employee.  She said this:
“44. … Where disputed, serious allegations of criminal misbehaviour (particularly where these might have an impact upon the employee’s future career) must be the subject of the most careful investigation, albeit usually conducted by laymen and not lawyers.  The requirement is not that the employer adopts the safeguards of a criminal trial but that a careful and conscientious investigation of the facts is carried out and inquiries should focus no less on any potential evidence that may exculpate or point towards the employee’s innocence as the evidence that might prove the charges in question.”

35.	It seems to me that nobody could disagree with that, save that I would introduce the qualification I have mentioned earlier that those words may apply to many people from all different walks of life.  She then goes on to refer to the judgment of Elias LJ in the Roldan case, where he said, and I will quote what she cites at paragraph 45:
“… it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where … the employee’s reputation or ability to work in his or her chosen field of employment is potentially apposite.”

36.	Later, at paragraph 47, she refers to a number of cases: William Hill Organisation Ltd v Steele and Anor UKEAT/0154/08, Crawford v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138, Sneddon v Carr Gomm Scotland Ltd UKEATS/0010/13 and the Court of Appeal’s decision in Turner v East Midlands Trains Ltd [2012] EWCA Civ 1470.  What she takes from Turner is the Court of Appeal saying that the band of reasonable responses test:
“47. … allows for a heightened standard to be adopted in cases where the consequences for the employee are particularly grave …”

37.	Later, when analysing the facts of the particular case, she refers at paragraph 63 to what she thought underpinned the appeal, namely:
“63. … Accepting the potentially career-threatening consequences for the Claimant, did the ET subject the Respondent’s investigation to the appropriate level of scrutiny, as laid down in A v B, Roldan and similar cases?”

38.	At paragraph 59 she refers to the question in the appeal as being:
“59. … whether these matters demonstrate a failure to apply the higher test required by the Roldan line of cases. …”  

39.	It seems to me that this is something that I should bear in mind.  As I have made clear, I do not myself accept that there is any heightened or higher test, nor do I accept that any such heightened or higher test should be confined to those professionally qualified.  The test, in my judgment, is the same in all cases.  It is essentially Ms Macey’s submission that in a serious matter of this kind the Employment Tribunal ought to have looked very carefully at the investigation to see whether it was a reasonable investigation, because where grave allegations are made with potentially very serious consequences for a person who has been employed for a long time without any query being raised about his character, then it is incumbent upon the employer to take all of that into account in examining what has happened and incumbent upon the Employment Tribunal to take it into account in deciding whether that was a reasonable investigation.

40.	What, then, is it that is said not to have been done?  Two matters are raised.  They are both shortcomings in the investigation.  They relate to particular witnesses.  The first is that Mr Simmonds, apart from the telephone conversation, to which I shall come in a moment, was not interviewed in depth.  The second is that Mr Harding was not interviewed at all.  Mr Simmonds, it will be recalled, was the driver of the train who said that he had lost his wallet.  He in fact was the subject of an interview over the telephone on 30 July 2013.  This is not referred to by Employment Judge Smail, although a note of it was in the bundle of documents before the Employment Tribunal, and it was referred to during the course of the hearing before Employment Judge Smail.  It was, of course, later than 21 June when the matter was reported.

41.	The Claimant has to face the fact that in the interview, the note of which appears at page 117 of the bundle, Mr Simmonds says that he had left his wallet in the cab on the console by the TVC handle.  There is in that document a description of the wallet as black leather with clear pouches inside for cards and passes and of the items inside the wallet as including £150 in cash, cards and staff pass.

42.	The Claimant also has to face the evidence of the memorandum written by Mr Simmonds on 25 June, which was closer in time to the incident, where he clearly stated that the wallet was at the north end of the train.  It is clear that the Claimant, if I were hearing this case as the disciplinary tribunal, would say that not much weight should be given to either of those statements because initially, although it had been said in the emails that passed between the two DTSMs that the wallet would have been in the cab, there was no exact location given for it.  Moreover, it must not be forgotten, as is clear from the memorandum at page 116 and as Employment Judge Smail notes in the Written Reasons, there had been a conversation between Mr Simmonds and Mr Disu, and, if I were hearing this case, the Claimant would wish me to understand that he would want to make the point that the clarity that appears in later accounts by Mr Simmonds as to where the wallet had been left may not originate from recollection but be tainted by subsequent discussion.  After all, he does not appear to have recollected it or at least stated it in the early hours of 21 June.  It may have originated from the discussion between Mr Disu and Mr Simmonds, and Mr Disu may have said where he found the wallet and Mr Simmonds has simply adopted that as if it were his own recollection.  In any event, the description of the wallet was clearly known to the Respondent’s management at an early stage in the investigation, because it was set out in the fact-finding interview.

43.	Ms Macey submits that it was incumbent on the Respondent at an early stage, and certainly at the stage at which Mr Disu first described the wallet as brown, to have taken further evidence from Mr Simmonds.  Of course, if I were hearing the case, I might want to know whether it would have been a useful exercise to get the Claimant’s permission to take his wallet, show it to Mr Grant, Mr Disu and Mr Simmonds and obtain their views as to whether or not it was Mr Simmonds’ wallet or it was the wallet that had been found by Mr Disu in the train and handed to Mr Grant.  Later, of course, at the Magistrates’ Court and I am not aware at any earlier stage, it was said by Mr Simmonds that the wallet had a crest on it.  The other factor that bears on the question of Mr Simmonds is whether there should have been a narration of Mr Grant’s evidence that there was a £20 note and a lottery ticket inside the wallet.  That should have been put to Mr Simmonds.

44.	Other questions that might have been addressed to Mr Simmonds were whether he actually remembered where he had left the wallet, whether on the night he remembered where he had left the wallet and where he had been on the train (it appears to have been Mr Disu’s recollection that he was last on the train at the south end of the train).  The other matter is Mr Harding.  Mr Harding was raised at the appeal stage but not at any point before.  Ms Macey submitted that whatever stage he was raised at it had been said, at least at the appeal stage, that he had something to contribute.  He could have said something about where he understood the Claimant to be and his answer might have been corroborative evidence supporting the Claimant’s contention that he climbed onto the train.

45.	This is the case of a man of 14 years’ service with an unblemished record who has lost his job.  Although I have very great sympathy for his position and despite the many forensic points raised by Ms Macey, I cannot allow this appeal.  It seems to me that one must be very careful, as I have indicated by my references to the function of this Tribunal as described by Mummery LJ in Fuller, to disentangle what it is I am here to do from the temptation to become involved forensically in the evidential material in a case of this kind.  First, I need to take careful note of the chronological sequence of events.  Secondly, I need to avoid interesting myself in factual matters.  It is not part of the scope of this appeal that Employment Judge Smail substituted his own conclusions.  It might be thought, looking at some of the passages in his Judgment where he pronounces upon the likelihood of various matters, that he had embarked on that.  It is not, however, a ground of appeal, nor should it be.  The way that he expresses himself from time to time may be symptomatic of a tendency to become embroiled in an analysis of the probability of particular things having happened or not.  It seems to me, however, if I step back and look at his Decision overall, that quite clearly throughout he kept in mind the self-direction that he had given at paragraphs 2 and 3 of the Written Reasons and always considered whether the employer had behaved reasonably at each individual stage.  If he expressed himself in terms of the likelihood of something having happened, in my judgment that was no more than him accepting that the employer was reasonable in concluding that certain things had happened.

46.	Secondly, I am not at all clear what the status of Mr McNaught’s hearing was.  It seems to me, however, that in the absence of any clear indication one way or the other as to whether that is part of the dismissal process or is extraneous to it, that I should assume that it was part of the dismissal process and I should take account of how he decided the matter.  It seems to me that is how Employment Judge Smail has approached the case.  If that is right, then both the question of the completeness of the investigation in terms of Mr Simmonds and the completeness of the investigation in terms of Mr Harding were factors that must have been present in the mind of Mr McNaught.  If I stop the clock, as it were, at the dismissal or even at the appeal stage, it seems to me Ms Macey’s position would be still be difficult because, whilst it can be said that the most thorough of investigations might possibly have involved taking further evidence from Mr Simmonds and involving Mr Harding, at least until the appeal stage Mr Harding’s involvement was not apparent, and in any event both at dismissal and at the appeal stage it seems to me that it was reasonable to consider this matter from the point of view of whether there was credible evidence that the Claimant had left his wallet on the train on 34 Road at the north end of the train.  In my judgment, Employment Judge Smail was entirely correct to regard the investigation up to that point as having been reasonable.

47.	The question that I must consider is whether at the stage that Mr McNaught was examining the matter he should have stopped to consider whether he should ask any further questions of Mr Simmonds.  It seems to me that the point cannot have been overlooked by Mr McNaught because he was considering the fact that the Claimant had been acquitted by the Magistrates, and he may have had some understanding of the issue relating to the wallet.  Whether he knew about the crest, looking at paragraph 34 of the Written Reasons he plainly knew about the description of the wallet.  Did he act unreasonably by not saying to himself, “I must interview Mr Simmonds about that”?  In my judgment, he did not.  He had a welter of information, and he could have appreciated, as Employment Judge Smail put it, that there were some unsatisfactory aspects to the description relating to the wallet in terms of its colour, its composition and its contents.  Mr McNaught did not take the view that a further step was necessary.  He thought that there was compelling evidence that Mr Simmonds had lost his wallet, that Mr Disu had found it, that it had been handed by Mr Disu to Mr Grant, who had given it to the Claimant, who had said that it was his.

48.	Whether one looks at it as a margin of appreciation, a band of reasonable responses or simply whether that was a conclusion that Mr McNaught could have drawn from the evidence in the case, it seems to me that he was entitled to say to himself, “I do not need to ask Mr Simmonds any further questions”, and he was entitled to do that even though this was a catastrophe so far as the Claimant is concerned.  There is a limit to what is reasonable.  Mr McNaught’s failure to investigate further does not mean his review was beyond the reasonable.  At any earlier stage it seems to me that there was no reasonable basis for thinking that interviewing Mr Simmonds again was a necessary step.

49.	I take the same view in relation to Mr Harding.  He was able to put the Claimant in the vicinity of the train, but that would not have taken the matter any further.  At the time that the Claimant in the account that he gave Mr Harding called him he had checked the train and the levelling valve, and, having called Mr Harding, he was instructed to have performed a procedure of pulling on a lanyard, which I understand to be an external procedure.  He did not contend before Mr McNaught that he had then boarded the train.  Mr McNaught understood that he had boarded the train afterwards.  Mr Harding therefore had given no helpful corroboration save to place the Claimant in that vicinity.  Mr McNaught does not seem to have thought that placing the Claimant in the vicinity was sufficient evidence to exculpate him.  That, in my judgment, was a reasonable conclusion, and it was also a reasonable decision not to have taken any further evidence from Mr Harding.

50.	It is for those reasons that I reject Ms Macey’s submissions and dismiss this appeal.