Train conduct

Tombling v West Coast Trains Ltd

In misconduct dismissals employers have to show, among other things, that they had reasonable grounds for believing there had been misconduct and carried out a reasonable investigation. In Tombling v West Coast Trains Ltd, the Employment Appeal Tribunal (EAT) said that although employers do not have to know exactly how something happened before concluding there had been misconduct, each case has to be decided on the facts available to the tribunal.

The claimant’s union, the RMT, instructed Thompsons to act on her behalf.

Basic facts

Ms Tombling had worked as a customer services assistant for about ten years with West Coast trains with an unblemished record. However, on 12 February 2007 she was working in the buffet car on the 08.15 train from Manchester to Euston when she was thrown forward by a sudden movement of the train, and banged her head on the computer-based till screen causing it to smash.

West Coast trains, however, did not believe her explanation as to how the till was broken because none of the CCTV evidence showed the train lurching forward at that time. At a disciplinary hearing on 16 April, it said that there had not been any “rough riding” to account for the damage and decided that she had wilfully broken the till and dismissed her. Following an unsuccessful internal appeal against that decision, she claimed unfair dismissal.

Tribunal decision

The tribunal agreed with her that she had been unfairly dismissed. It concluded that as West Coast Trains did know for sure what had caused the accident, it did not have reasonable grounds for believing that she had wilfully damaged the screen.

It also said that the investigation it carried out had been fatally flawed because the investigating officer did not complete and forward a copy of Ms Tombling’s report of the accident to the safety team. Instead he had said there was no report.

EAT decision

The EAT said that there was no requirement in law for employers to show they knew exactly how something had happened before they could reasonably believe that an employee was guilty of the alleged misconduct. Each case depends on the individual facts.

Given the evidence available (including CCTV evidence of the incidents leading to the damage) the tribunal in this case had been entitled to come to the conclusion (without falling into the trap of substituting its view for that of the employer) that the screen had been accidentally damaged when Ms Tombling hit her head against it.

It was, therefore, entitled “to take the view that no reasonable employer on this evidence could have found that the incident was the result of deliberate and wilful action on the part of the Respondent (for no discernable [sic] motive)”.

As the CCTV showed that Ms Tombling was standing unsupported on the two occasions she fell against the screen, causing her to hit her head against it, the tribunal was entitled to decide that no reasonable employer could have come to the conclusion that she had caused the damage willfully, given the facts available.