West Coast Trains Limited (WCT) v Murphy, EAT, 4 April 2006
Background
Murphy was a service manager on West Coast Trains’ (WCT) passenger trains until her dismissal for gross misconduct in June 2004. She was dismissed after a customer complained that Murphy had sworn at her and displayed threatening behaviour.
The customer initially complained to the train manager, but further details of the alleged incident were written in a letter to WCT by one of the customer’s friends, who had been travelling with her at the time.
Murphy attended an investigatory interview and denied being rude to the customer – rather, she said, the customer had been rude to her.
WCT carried out further investigations and the customer herself wrote a detailed letter about the incident.
WCT followed this with a telephone call to the customer, taken on speakerphone, and notes of the call were made which were signed by the customer. A further investigatory interview was held, after which Murphy was suspended.
In carrying out its investigations, WCT interviewed the train manager and other train staff, and the statements were considered at the subsequent disciplinary hearing.
Murphy’s union representative did not deny there had been a discussion with the customer, but Murphy said she had no recollection of swearing.
The representative raised additional points, and the hearing was adjourned while WCT made further enquiries.
At the resumed disciplinary hearing, WCT stated that it was satisfied on a balance of probabilities that the customer’s allegations were established, and that Murphy would be dismissed. Her internal appeal against that decision failed.
Murphy brought a successful unfair dismissal claim, and was awarded £33,799.82. The tribunal held there was clearly a conflict between the customer’s evidence and Murphy’s, and that WCT had preferred the customer’s evidence “almost without question”.
There was little to support the belief that Murphy was guilty of misconduct, and the investigation was inadequate in the circumstances.
In reaching its decision, the tribunal relied on the guidelines set out in Linfood Cash and Carry Limited v Thomson [1989] IRLR 235 – a case which involved an informant wishing to keep their identity undisclosed for fear of reprisals – for the propositions that:
- corroboration was desirable, but there was no corroborating evidence in this case
- where an informant does not attend any disciplinary hearing, consideration should be given as to whether the disciplinary process
could be continued - the manager responsible for a disciplinary hearing should interview the informant and satisfy themselves as to the weight to be given to that information – other than the telephone call, this was not done.
WCT appealed.
Decision
The Employment Appeal Tribunal (EAT) had “no hesitation” in allowing the appeal. It said the tribunal had made its own qualitative assessment and substituted its view of what had happened between Murphy and the customer for that of WCT.
The tribunal had also failed to take into account that the “range of reasonable responses” test applies to the investigation just as much as to the question of whether the response of dismissal was reasonable or not.
Moreover, the Linfood guidelines did not apply as this case did not involve an informant. In any event, the tribunal’s criticisms were ill-founded because:
- there was corroborative evidence
- it is rarely necessary for a complainer to be available for cross-examination at a disciplinary hearing, and this was not one of those cases. There was never any suggestion that Murphy was prejudiced by not having the customer present
- even the Linfood guidelines do not require a face-to-face interview with an informant, and on the facts, the telephone interview with the customer was far from inadequate.
The case was remitted to another tribunal for re-hearing.
Comment
Linfood concerned circumstances where an individual had informed their employer that a fellow employee had been involved in misconduct.
This involves tension between the desirability of protecting informants who are genuinely in fear, and of providing a fair hearing for employees accused of misconduct.
While the EAT set out guidelines to assist employers, the guidelines are not rules, and every case will depend on its own circumstances.
Murphy did not involve an informant, and the Linfood guidelines were therefore irrelevant. The customer’s identity was not hidden from Murphy – she knew exactly what was alleged to have taken place, by whom, where and when, and she also had access to all the relevant documentation.
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