1. The Notice of Appeal originally contained 14 grounds. Ground 11 was solely concerned with an allegation of bias. Ground 12 was partly concerned with an allegation of bias and criticism of the Employment Judge, as were grounds 1 and 2.

1. By letter dated 28 December 2011 Mr Cameron withdrew the allegations of bias in grounds 11 and 12. At the start of the appeal hearing, he withdrew those parts of grounds 1 and 2 which involved any criticism of the Employment Judge and/or bias.

1. Grounds 3, 4, 6, 7, 8 and 9 all involved assertions that there was evidence to which the Tribunal had failed to have regard or that there was no evidence on which various significant findings were based.

1. By order seal date 29 November 2011, directing that the appeal be set down for a full hearing, parties were directed that if either of them considered that a point of law could not be argued without reference to evidence given or not given at the Tribunal hearing, they required to give notice to the other party of that matter within 14 days of that order, and seek to agree a statement in that regard within 21 days thereafter, failing which they had a further 7 days within which to make an application to this Tribunal for, for instance, a note from the Employment Judge in relation to the evidential issues raised. Accordingly, the deadline for making any such application was 11 January 2012. No application for a note from the Employment Judge was timeously made. Mr Cameron did, by letter dated 3 April 2012 make an application without any explanation for its lateness other than it was something which "had occurred to him" when preparing for the appeal but given that lateness and the imminence of the date of the appeal hearing, it was refused. We were not provided with any agreed statement relating to the evidential matters raised in the Notice of Appeal.

Submissions for the Claimant

1. As stated, the first ground of appeal was that the Tribunal had not judged the reasonableness of the decision to dismiss according to the set of facts known, believed and expressed by the employer at the time. No notices were produced in evidence and Mr Oliphant's evidence was incredible. In relation to that ground, Mr Cameron submitted that the Tribunal had indulged in an atypical form of substitution. They had, he submitted, bolstered the employer's case and reached findings of fact which differed from it. He thought that the inference from the Tribunal's findings was that the Claimant knew it was wrong to place the stone in the handle but the Tribunal failed to state the extent of the wrongdoing. They did not say whether or not the Claimant saw the notices. He believed it was quite clear that the Tribunal had held that the Claimant knew it was wrong to use the stone but had shied away from finding that he had received any instruction to that effect. That being so, how did he know it was wrong?

1. Mr Cameron sought to make much of the notice point, asserting that the Tribunal's conclusion was wrong because they never saw the notices and could not conclude that the Claimant had seen them. He seemed, at one point, to suggest that the Respondents' reliance on the existence and content of the notices had arisen as a surprise at the hearing – at one point he said, in terms, that the Respondents had not relied on the workplace notices at the hearing. That puzzled us, given the references to the matter in the Tribunal's judgment and given, moreover, that the Claimant's ET1 states that his employer had alleged that he had "defied a workplace notice" and the notice explaining why the pins had been removed is relied on by the Respondents in their ET3. If he had been concerned to see the notices and thought it would help the Claimant if the Tribunal saw them, we could not understand why no steps were taken by way of, for instance, seeking a document recovery order prior to the hearing.

1. Regarding the second ground of appeal, according to the Notice of Appeal, the point to be argued was that there was no evidence or insufficient evidence to support the Tribunal's findings in relation to the notices (although the references in the ground of appeal are not to those paragraphs of the Tribunal's judgment that deal with the point about notices). Mr Cameron's oral submission was somewhat different and was that the Respondents' concern was not the Claimant's failure to comply with any workplace notice but with paragraph 7 of the health and safety responsibility document that the Claimant had signed on 16 October 2007. He did not explain how, if that was correct, error on the part of the Tribunal was thereby demonstrated.

1. Grounds of appeal 3 and 5 were taken together. As pled in the Notice of Appeal, they were to the effect that, on evidence led to which the Tribunal had not referred, the Respondents themselves were guilty of health and safety failings in relation to risk assessments, training, devising safe systems of work and generally maintaining a health and safety regime which complied with the Health and Safety at Work etc Act 1974 s.2 and the Management of Health and Safety at Work Regulations 1999. They were, therefore, according to the written ground of appeal, not entitled to be critical of the Claimant. In ground 3, the Notice of Appeal states:

"… a health and safety regime is the sine qua non of a reasonable employer and delinquency in the area the hallmark of an unreasonable one. Further, it is rank hypocrisy for a delinquent employer to apply a 'zero tolerance' policy to employees for alleged breaches of health and safety especially in the absence of training or instruction. Rank hypocrisy is not a quality of a reasonable employer acting reasonably. The tribunal converse finding was irrational, perverse and erroneous."

1. In ground 5, the Notice of Appeal asserted that the notices referred to were not adequately intimated but intimated "by haphazard display on notice boards" and that the Tribunal's approach was "logically flawed" because it:

"condones an employer's failure to communicate workplace rules and train and instruct on health and safety matters. It is an extraordinary and plainly wrong stance for an employment tribunal to adopt."

1. In oral submission in relation to these two grounds of appeal, Mr Cameron said that the Tribunal's decision was clearly wrong. The Respondents' decision to dismiss was objectively unreasonable. He recognised that, without any note from the Employment Judge in relation to the evidence, he could not proceed with the grounds other than in a "truncated way" but it was plain, he said, that dismissal was not within the range of reasonable responses. Flouting a workplace rule did not automatically mean that dismissal was fair. Health and safety had been seen as an aggravating factor but how could that be, when the instruction had not been conveyed to the employee? The employer had had an obligation to identify risk, produce health and safety procedures and to train employees, under reg 13 of the 1999 Regulations. He referred, in support of those submissions, to a decision of the Court of Session in a personal injuries claim, Doran v Shanks Waste Management (2010) CSOH 91, and said that the Respondents had not gone any lengths at all to fulfil their reg 13 responsibilities. Whilst he recognised that his use of the word "rank" in relation to hypocrisy, in the written ground 3 was, perhaps, too strong, he still insisted that there had been hypocrisy on the part of the Respondents. They had double standards.

1. Mr Cameron also insisted on the display of notices having been "haphazard" although he did not point to any finding in fact which supported that assertion – we noted that there were no findings in fact which could be construed as doing so.

1. No submissions were made in support of the fourth ground of appeal.

1. Ground of appeal 6 was stated, in the Notice of Appeal, to be that the Tribunal:

"…unaccountably misconstrued the claimant's evidence by holding that he did not deny misconduct. The finding was perverse, irrational and unsupported by the evidence before it."

and asserted that they had misconstrued his general plea for clemency.

1. Further, that ground of appeal stated that:

"Its reliance on the claimant's alleged confession to establish the existence of a work place health and safety rule was flawed and erroneous. The existence of a disciplinary or health and safety rule cannot be established from a false, coerced confession by the employee alone."

1. Before us, Mr Cameron said he was not insisting on that part of the sixth ground of appeal which asserted that the Respondents had relied on a false, coerced confession. However, the Tribunal had, he insisted, confused the Claimant's "mea culpa" with a confession of guilt.

1. The seventh ground of appeal asserted that the Tribunal had heard no evidence to support a finding (at paragraph 17) regarding the knowledge of other operatives – Mr Cameron's argument was that the Tribunal had found that 'everybody else knew' but they had not heard from all the other operatives and so could not draw that conclusion. He did not accept that paragraph 17, which states:

"17. Those distribution operatives who read the notices knew that the pins had been permanently removed to ensure that all vehicles were to be refuelled manually thereby avoiding damage to the fuel pump and fuel spillage. They were also aware the handle of the fuel pump nozzle was not to be jammed and to do so could result in disciplinary action."

only indicated what anyone who had read the notice in question would, thereby, have come to know.

1. Grounds of appeal 8 and 9, as stated in the Notice of Appeal, are to the effect that Mr Oliphant and Mr Wilson failed to take account of a list of mitigatory factors. The list in ground 8 goes beyond the factors relied on by the Claimant in his oral and written statements to the disciplinary and appeal hearings. Mr Cameron accepted that that was so but submitted that his list, in ground 8, was what the Respondents should have taken into account namely that the Claimant did not see the warning notice prior to the incident, that he suffered from tennis elbow which made refuelling painful, that he had an exemplary record, that he had received no health and safety training and that the Respondents did not have a safe system of work in relation to refuelling.

1. Ground of appeal 10, as stated in the Notice of Appeal, concerned comparative justice. The Tribunal had judged consistency by reference to what happened to Mr Brown and that was erroneous. Mr Brown had actually caused a spillage. Mr Cameron made submissions to the same effect as the written ground of appeal, initially suggesting that other drivers had been treated less harshly for similar offences but then accepting that there were no findings in fact about any other driver apart from Mr Brown.

1. Ground of appeal 13, as stated in the Notice of Appeal, was to the effect that the Tribunal's assessment of the Claimant's credibility was unjust and unexplained and ground 14 stated that the Tribunal's judgment was "an egregious miscarriage of justice".

1. Mr Cameron made no submission as to what should be our course of action if his appeal were to be upheld.

Submissions for the Respondents

1. Mr Foster submitted, under reference to a clear and helpful skeleton that the Tribunal had not fallen into error. They had applied the correct tests and reached sustainable conclusions. This was now solely a perversity appeal and the Claimant's case did not pass the high threshold for such appeals.

1. As a generality, Mr Foster referred to the extent to which the Notice of Appeal proceeded on the basis that there was evidence unaccounted for or a lack of evidence to support the Tribunal's findings and submitted that where an appellant makes such assertions, they cannot properly be considered without, in the absence of an agreed statement, there being a note from the Employment Judge.

1. Mr Foster submitted that the findings of the Tribunal demonstrated that the Respondents had had a consistent approach to the nature of the wrongdoing, throughout. He referred to the Claimant's admissions and the letter of dismissal. The submissions that the Claimant had received no training or instruction was contradicted by his own admissions. Further, the focus on the notices failed to address the wider issues including the fact of the Claimant's knowledge about the refuelling rules. Regarding the sanction of dismissal, the Tribunal plainly had the correct test in mind. In applying it, they took account, appropriately, of the fact that the Respondents considered that what the Claimant had done was gross misconduct, that the only comparable case – Mr Brown's – had resulted in dismissal, and that there was ample evidence that the Claimant knew he should not have done as he did.

1. Regarding that part of the appeal which asserted that the Respondents, as a generality, had an inadequate health and safety system, they did not have to establish anything about their general regime. The point was whether or not the Respondents had reasonably concluded that the rule in question was sufficiently clear to its employees including the Claimant. The allegation of hypocrisy was perverse and wholly unsupported on the evidence. It was not raised in the ET1, at the disciplinary hearing, on appeal, or before the Employment Tribunal. There was no reason for the Tribunal to consider the matter or form any view on the extent of the Respondents' general compliance with their duty of care.

1. Mr Foster submitted that to suggest that the Tribunal misconstrued the evidence regarding the Claimant's admissions was to fly in the face of rationality. What the Claimant said, repeatedly, could not be construed as other than a plain admission of wrongdoing. Nor, he added, was it ever any part of the Claimant's case to the Tribunal that those admissions had been coerced or were false.

1. Mr Foster took issue with Mr Cameron's interpretation of paragraph 17.

1. Regarding mitigation, Mr Foster submitted that there was ample evidence regarding mitigation and referred to the Tribunal's conclusion that it had been taken into account. It had never been suggested to the Employment Tribunal that there had been any failure by the Respondents in that regard.

1. Overall, the Tribunal was the ultimate arbiter of fact, their findings were clear and they had reached a conclusion which was open to them. The appeal should be refused.

1. We have no hesitation at all in concluding that this appeal was manifestly ill founded and shown to be wholly misconceived. We concluded that it was unreasonable to persist with it, particularly once the bias allegations had been withdrawn and nothing had been done timeously to seek a note in respect of the various allegations regarding evidence led or not led. The fact that the appeal had passed the sift should not - if it was - have been regarded as sufficient reassurance that the case was a stateable one. Having heard what was said in support of the Notice of Appeal, we can only conclude that any reasonable representative would have realised that it could not properly be advanced if not at the outset, at least on reviewing the Claimant's appeal.

1. We make these preliminary observations because none of the arguments ultimately advanced were shown to be even stateable. There is no basis for the suggestion that the Tribunal "indulged in a form of substitution", atypical or otherwise. Rather, they considered, appropriately, what it was that the Respondents had concluded the Claimant had done, whether or not that conclusion had been reached after a reasonable investigation and whether or not their decision to dismiss was, in all the circumstances, a reasonable one. Contrary to what was suggested by Mr Cameron, there is nothing in the judgment of the Tribunal that suggests they did anything to "bolster the employer's case".

1. To a large extent, Mr Cameron's submissions focused on the question of whether or not the Claimant had read the workplace notices but in doing so, he wholly missed the point. The Tribunal made clear findings that one way or another, the Claimant knew that drivers had been told not to jam open the fuel nozzle handles and knew that, when he did so, he was doing something that he ought not to have done. What mattered was not how the Claimant knew that but that he did know it – something from which he did not shrink as evidenced by the nature and extent of his admissions, to which we have referred above. Further, Mr Cameron failed to appreciate that whilst the Tribunal had not themselves gone as far as saying that they were satisfied the Claimant had seen the notices, they did find that Mr Oliphant had been and that in all the circumstances that was a conclusion he was entitled to reach. That was enough for Burchell purposes (British Home Stores v Burchell [1978] IRLR 379) as the Tribunal, correctly, appreciated.

1. As regards that part of the appeal which focused on an assertion that the Respondents had, in general, failed in their statutory duties under the 1974 Act and 1999 Regulations and were therefore guilty of applying double standards, we would observe as follows. First, there was no reliance on any such case before the Tribunal. Secondly, it would, in any event, have been irrelevant to the issue of whether or not the Claimant was fairly dismissed for knowingly misusing company equipment in such a way as to amount to a breach of health and safety. Thirdly, ground 3 of the Notice of Appeal contained intemperate language which we consider to have been wholly inappropriate. Mr Cameron did not point to anything in the Tribunal's findings which could begin to have justified the offensive descriptions of the Respondents as being a "delinquent employer" or as being guilty of "rank hypocrisy" or indeed "hypocrisy". That is not surprising because there is nothing whatsoever in them that could possibly have justified such a description nor, in the event, was anything put before us by way of note from the Employment Judge, for instance, which could have begun to support it. What was surprising is that, when given the opportunity to withdraw those allegations, Mr Cameron confined his response to deletion of the word "rank".

1. It may be that Mr Cameron's line of argument based on the Respondents' statutory health and safety duties emanated from a reading of the opinion of Lady Stacey in the case of Doran. If we are right about that, he misdirected himself. Doran** was a decision in a personal injuries claim and of no relevance to the issue that the Tribunal had to determine. Mr Cameron ought to have appreciated that.

1. Similarly, there had, as it turned out, never been any basis for it being alleged that the Claimant had made a false, coerced confession. We were given no explanation of why that very serious allegation of impropriety was ever made nor why it was not withdrawn at an earlier stage. Nor, we would add, was there any basis for Mr Cameron alleging, as he did, that the notices referred to were on "haphazard display", which seemed to us to be nothing more than hyperbole designed to seek to present a general impression that the Respondents were simply irresponsible employers who were not to be trusted – a case which, we hasten to add, was not in any way supported by the Tribunal's findings or by anything in the other documents to which we were referred.

1. In respect of that line and remembering that there had, originally, also been a case of bias pled, we found it difficult to resist the conclusion that the Notice of Appeal had been drafted without regard to the propriety that is to be expected of a responsible solicitor.

1. Regarding other matters, Mr Cameron's interpretation of paragraph 17 of the Tribunal's judgment was, we agree, erroneous but even if he had been correct, it would not have shown that the Tribunal erred as regards the central issues in the case. As for mitigation, Mr Cameron's list was not the list of factors in fact relied on at the time and was not accurate – the Respondents were satisfied that the Claimant had seen the notices, there were no findings that as at the time of the incident the Claimant was suffering tennis elbow symptoms at all (the only references were to his having done so at a much earlier date), he had received appropriate health and safety directions as evidenced by the documents to which we have referred, he knew about the instruction regarding use of the fuel pump nozzle handle, and there was no basis whatsoever for approaching matters on the basis that the Respondents did not have a safe system of work in regard to refuelling. The list in ground 8 was another example of the hyperbole which characterised the Notice of Appeal. Whilst Mr Cameron suggested, at one point, that the Tribunal had failed to explain properly why they were satisfied that due account had been taken of mitigation, we do not accept that they were required to say more than they did, particularly where it was not argued before them that the Respondents had failed to take due account of it.

1. Finally, regarding such criticism of the Tribunal's findings on the Claimant's credibility as was made, Mr Cameron did not point to anything which showed that the Tribunal's finding on a matter which was very much within their province could, in way, be impugned. Indeed, it seemed to us that the Tribunal were careful to explain exactly why they considered that the Claimant's credibility was called into question and were plainly entitled to find as they did, in that regard.

1. In these circumstances, we will pronounce an order dismissing the appeal.