The Respondent contended that the Tribunal had committed the error which it had instructed itself not to commit by deciding what it would do: the heresy of substitution of judgment for that of management. This Respondent placed great stock in its commitment to safety, had a rulebook to that effect and the Claimant had been guilty of not following it. The Tribunal carried out its own assessment of the gravity of the offence and did not apply the objective standard. This case was one of perversity: see Post Office v Foley [2000] IRLR 827 at paragraph 49. The only correct conclusion was that the judgment of the Tribunal should be set aside and then there should be substitution by us of a finding that the Respondent did not unfairly dismiss the Claimant.
The Claimant's case
On behalf of the Claimant it is contended that there was a gap between the written procedures set out in the rulebook and what happened on the ground. The rulebook specified only one dismissible event and this is relevant when considering whether an employee knew about the consequences; see Lock v Cardiff Railway Company Ltd [1998] IRLR 358 , Morison J (P) and members. This case being one of perversity, the criticisms did not satisfy the test of an overwhelming case necessary for it to succeed: see Yeboah v Crofton [2002] IRLR 634 CA per Mummery LJ. The Claimant said when put to him about what he would do if he saw Mr Atkins behaving in the same unsafe way that he would take him aside informally as a mate but that did not undermine the Tribunal's decision.
The legal principles
The legal principles to be applied in this case, as we have gratefully acknowledged, are not in dispute of this case. The Tribunal is required to go through the stages in BHS v Burchell and it do so in this case. The position of an employee who does not know about the consequences of a breach of the rules was set out in Lock (above) where Morison J said this:
Where two employees are convicted of the same offence against the workplace canon they should be dealt with in the same way. But where different charges are upheld against one as against the other it is only fair that they be treated in different ways although, of course, they could both be dismissed if dismissal were within the band of reasonable responses. A Tribunal must not substitute its judgment for that of the management and must always consider whether action was within the band of reasonable responses. When grounds of perversity are advanced on appeal the overwhelming case suggested in Yeboah v Crofton must be made out.
Conclusions
We prefer the argument of the Claimant which we adopt and will dismissed the appeal.
The important issue in this case related to the Tribunal's depiction of the difference between what happened in the rulebook and what happened on the ground. In making the decision that there was a gulf between the two, the Tribunal relied upon the credibility of the Respondent's evidence. If there is a rulebook it must be followed but if it is not followed all the time because of differences in its application on the ground, it is a matter for an Employment Tribunal to consider when assessing the fairness of a dismissal. In this case, the Tribunal made three findings, which we have cited from paragraphs 54 and 55 of its reasons above, all indicating a division between the black letter rule and the application of it in practice. It did so on the basis of rejecting as incredible the Respondent's evidence on the matter. We also note that it considered when deciding whether or not the dismissal fell within the band of reasonable responses the absence of signatures on work documents, set in the context of long serving employees experienced in working together over a long period of time on the same sites.
We can understand that this employer, conscientious as it is to set down in writing what it expects by way of health and safety from its employees, is dissatisfied with the Tribunal's judgment. After all, reading it in stages it succeeded in defeating the claims made by the Claimants that they were dismissed for anything other than the misconduct with which they were charged. It satisfied the BHS v Burchell test in that its managers had genuine beliefs and carried out a reasonable investigation including a sophisticated appeal machinery with Trade Union representation.
Why did it lose? The reasons are clear to us; the Tribunal has set them out. We discharge the Employment Tribunal of the criticism made on behalf of the Respondent that it substituted its judgment for that of management. As a matter of language, this simply cannot work. Time and again it assesses the matter against the standard of a reasonable employer and a band of reasonable responses. Further, why should it do different from that which it set out to do and said it would do in paragraph 10 of its judgment, which was too eschew substitution of its view? The criticism of the Tribunal that this judgment is perverse does not meet the high standard required in Yeboah v Crofton . An overwhelming case has not been made. On the contrary we can clearly see how the Tribunal reached this judgment on the evidence. We can also see that at some stage the Respondent may be disappointed to have defeated Mr Atkins case and yet to lose to Mr Pullen, but it must be recalled that by the time the decision was made, the charges against Mr Pullen were, as the Tribunal found, significantly less serious than those against Mr Atkins.
Conformity of treatment is an important element of fairness in unfair dismissal. The more serious offence here was committed by Mr Atkins. The allegation that Mr Pullen allowed Mr Atkins to walk unsupervised on a high ledge was rejected by Mr Thrupp; it did not form part of the reasons for his dismissal.
The Tribunal had in mind the inconsistency in the answer given by the Claimant during the disciplinary process and also what his approach would have been had he known that Mr Atkins was about to do that. It yet came to the conclusion which it did. It was one which was open to it. We have no doubt that the same balanced approach informed its judgment on remedy, for the reduction of the Claimant's compensation by 50 percent was a very significant statement about where the responsibility lay. In our judgment there is no error of law in this case, as Bean J correctly diagnosed on the papers at first sift.
We would like to thank Mr Uduje and Ms Criddle for their very helpful arguments. The appeal is dismissed