In a highly unusual case, the Employment Appeal Tribunal (EAT) has held that two lay members in an unfair dismissal claim were right to overrule the employment judge, in a decision in which the EAT highlighted the value of lay members in employment tribunal proceedings.
McCafferty v Royal Mail Group EATS/0002/12 (Microsoft Word format, 71K), which was decided before the rules were changed so that employment judges normally hear unfair dismissal cases alone, concerns a Post Office worker who was dismissed for using the employer's taxi account for personal use. Mr McCafferty had been given the respondent's taxi account on four or five occasions on which he was asked to come to work on his days off. However, Mr McCafferty continued to use the taxi account over 80 times in the next year to get to work.
Mr McCafferty was dismissed after the accounts department discovered that he had run up a bill of almost £2,500 on the employer's account. The employer decided that he had to be dismissed for breaching the employer's trust and confidence, despite his previous 19 years' good service and offer to pay the money back.
The key issue in the employment tribunal was whether or not the employer had acquiesced to Mr McCafferty using the taxi account and whether or not he had tried to keep his use of the account a secret. The claimant argued that a manager had often seen him arriving at work in a taxi and so his employer knew what he had been doing. However, it later emerged that the manager did not know that Mr McCafferty had been using the employer's account to pay for the taxis.
In the employment tribunal, the two members were satisfied that the dismissal was within the band of reasonable responses. They recognised that, while not all employers would have dismissed an individual in these circumstances, the dismissal was within the band of reasonable responses.
However, the employment judge felt that, while Mr McCafferty's actions could be defined as theft and gross misconduct, his long service, clean disciplinary record and the option of a lesser sanction made the dismissal unfair.
In dismissing the appeal and finding that the judge was substituting her own views, the EAT made some comments at the end of its judgment about the value of lay members in employment tribunal hearings:
"It will not have escaped notice that this case is an example of the lay members of an employment tribunal reaching a different conclusion on the facts of the case - drawing in part on their valuable "common sense" and knowledge of what any employee could be expected to know (see paragraph 114) - from that of the employment judge. Had this claim been one to which the new Employment Tribunals Act 1996 (Tribunal Composition) Order 2012 (SI 2012/988) applied, it seems likely that it would have been heard and determined by an employment judge sitting alone, in which case the result would evidently have been rather different. Some may consider that to be a sobering thought. It certainly seems supportive of the arguments advanced in response to and against the proposal last year that Employment Judges be able to sit alone in unfair dismissal cases (see: the 2011 Government consultation paper on reform of employment tribunals "Resolving Workplace Disputes"). It perhaps also underlines the need to give careful consideration to any views expressed by parties as to whether or not proceedings should in fact be heard by an employment judge and members (see: Employment Tribunals Act 1996 s.4(5), the provisions of which currently remain in force)."
