London Underground Ltd v Strouthos

On an application for permission to appeal, an adverse resolution of disputed facts does not necessarily amount to a positive finding of dishonesty. Nor does alleged unauthorised use of a company vehicle, inadequate insurance, or failure to disclose its destination inevitably establish gross misconduct. Where an Employment Appeal Tribunal substitutes its own conclusion on the basis of an inferred finding that was neither expressly made nor specifically put to the employee, there may be an arguable case for remittal. Permission was therefore granted, with the substantive merits left open.

The applicant had been employed by London Underground Ltd for 20 years before being dismissed on notice for gross misconduct. The disciplinary charge arose from his taking a company line car to Belgium for a rifle-club competition, returning with alcohol and tobacco, and the subsequent impounding of the vehicle by Customs.

The Employment Tribunal found unfair dismissal but held that the applicant had contributed 20 per cent to his dismissal. The Employment Appeal Tribunal, presided over by Judge McMullen QC on 4 June 2003, reversed that decision. The application to the Court of Appeal concerned whether the Employment Appeal Tribunal was entitled to infer a positive finding of dishonesty and substitute its own conclusion, or whether there was an arguable case for remittal.

Permission to appeal granted. Scott Baker LJ left the substantive issues open.

1. The Employment Appeal Tribunal had reasoned that the Employment Tribunal’s resolution of two factual disputes necessarily implied that the applicant had acted dishonestly. Scott Baker LJ was far from satisfied that this was justified. The Employment Tribunal’s finding that the applicant knew he should not have used the line car did not, without more, amount to an express finding of dishonesty.
2. The distinction mattered because the alleged deception concerned taking the vehicle abroad and without the required insurance. The Employment Tribunal had accepted that the duty manager had authority to release the vehicle and that its use in England would not have been objectionable. It had also rejected the contention that the Customs incident brought the employer into disrepute so as to constitute gross misconduct.
3. The Employment Tribunal had stated that using the vehicle, travelling without company insurance, and failing to disclose the destination did not fall within the range of reasonable responses justifying dismissal for gross misconduct. The Court of Appeal considered that, even if the Employment Tribunal’s findings could not stand, there was a very arguable case that the matter should be remitted for rehearing.
4. Permission was granted with all matters left open for argument. The appeal was to be listed for half a day before three Lords Justices, or two Lords Justices and a puisne judge.

• Court of Appeal (Civil Division) — On 17 December 2003, permission to appeal was granted, with all matters left open.
• Employment Appeal Tribunal — On 4 June 2003, the decision of the Employment Tribunal was reversed.
• Employment Tribunal — Following the hearing on 10 and 11 September 2002, the applicant was found to have been unfairly dismissed, with a 20 per cent contribution to his dismissal.