Lay tribunal members’ common sense approach to misconduct outweighs legal opinion in the EAT and indicates there could be trouble ahead.
McCafferty v Royal Mail
The Government changed the law in April so that unfair dismissal cases are now heard by an employment judge sitting alone unless a judge orders otherwise.
In this case the EAT had to determine whether the two lay members of an employment tribunal were right to outvote the employment judge and find that a dismissal for alleged misconduct was fair.
When McCafferty, a postman, experienced difficulties in getting a lift to work in a Royal Mail van, he used a taxi. He did this on 87 occasions, giving his name and address, but using Royal Mail’s taxi account at a cost to the employer of £2,422.80. Following an investigation and a disciplinary hearing, he was dismissed for gross misconduct on the grounds that he knowingly, and without authorisation, used the Royal Mail taxi account for his own personal purposes. McCafferty said he did not think he was doing anything wrong, primarily because he had told his manager that he travelled to work in a van. The manager who dismissed him did not believe this.
A tribunal’s function, when determining whether a dismissal is fair and reasonable, is to determine whether the decision to dismiss fell within the band of reasonable responses “which a reasonable employer might have adopted”. The authority for this is Iceland Frozen Foods Ltd v Jones. A tribunal must not simply consider whether they personally think the dismissal is fair, and they must not substitute their decision for that of the employer.
The two lay members in this case decided that the decision to dismiss McCafferty was within the band of reasonable responses because the manager that dismissed him had reasonable grounds for concluding he had tried to conceal his use of the taxi account. In their view, McCafferty would, as a matter of common sense, know that it was not common practice for an employer to pay for its employees to travel to work, and he had never sought permission to use a taxi on the Royal Mail’s account.
The employment judge disagreed. In her view there were insufficient grounds for forming a belief that McCafferty had knowingly, and without authorisation, used the account for his own purposes, because he had been seen turning up for work in a taxi on numerous occasions and had given his name and address when ordering taxis.
The dismissal was held to be fair. McCafferty appealed.
The EAT rejected McCafferty’s appeal. The EAT said the two lay tribunal members were entitled to conclude that:
- there were reasonable grounds for the belief that McCafferty had knowingly used the taxi account without authority and had tried to conceal the fact from management
- the tribunal had applied the right test and the dismissal fell within the range of reasonable responses.
The EAT said the employment judge’s conclusions on reasonableness were, however, clearly her substituting her own views, despite her prefacing them with a reminder not to do so. The EAT highlighted the case as an example of tribunal lay members reaching a different conclusion drawing on their valuable “common sense” and knowledge of what any employee could be expected to know.
Comment: The EAT pointed out that, had the claim been heard under the new ‘judges sitting alone’ rule, the result would have been different. It called this a “sobering thought”. Despite a lack of support for the proposal in the Government’s employment law review, it took the view that the potential savings to be made were too great to ignore. This is a decision that may come back to haunt the government. As the EAT rightly pointed out, this case underlines the need to give careful consideration to any views expressed by the parties to a dispute as to whether or not there is a case for proceedings to be heard by a full tribunal – an employment judge and lay members.
It does beg the question – by applying the Iceland Frozen Food test, isn’t there always a case for a three-person panel? One thing is for sure is that only time will tell whether decisions by judges sitting alone will lead to some poor decisions – a case of cost saving over justice maybe.