England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ McMULLEN QC
UKEAT/0453/09/JOJ
BAILII: [2010] UKEAT 0453_09_2104

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/03/2011

Lord Justice Mummery :

Introduction

1. The Employment Tribunal (ET) decided that Mrs Avril Fuller, a school bursar formerly employed by the London Borough of Brent (the Council), was unfairly dismissed for a conduct reason. The issue in the appeal is whether, as the Council argued successfully before the Employment Appeal Tribunal (EAT), the ET misapplied s.98(4) of the Employment Rights Act 1996 (the 1996 Act) to the facts. The EAT made an order that the ET decision against the Council should be (a) set aside and (b) replaced by an order dismissing Mrs Fuller's unfair dismissal claim. I granted permission to appeal on 9 August 2010.
2. Section 98 provides that

"(4) ...the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case."

3. There is plenty of authority on the operation of s.98(4) (and of the similar section in the Employment Protection (Consolidation) Act 1978 which it replaced) in cases of dismissal for misconduct. Some of the cases were cited in the ET and in the EAT. The skeleton arguments on this appeal referred to British Home Stores Ltd v. Burchell [1978] IRLR; British Leyland v. Smith [1981] IRLR 91; Iceland Frozen Foods Ltd v. Jones [1983] ICR 17; Post Office v. Foley [2001]1 All ER 550; J Sainsbury v. Hitt [2003] ICR 111; Airbus UK Ltd v. Webb [2008] ICR 561; and London Ambulance Service NHS Trust v. Small [2009] IRLR 563. There is no useful purpose in dissecting them case by case, or in analysing their similarities to, or differences from, either each other or this case, or in compiling an anthology of pertinent passages from them. The main ground of appeal in this case is based on the undisputed requirement of an objective assessment by the ET of the dismissal process.
4. The ET held that the Council had a genuine belief in serious misconduct by Mrs Fuller. The ET was less clear on the issue whether, before it decided to dismiss her, the Council conducted a reasonable investigation into Mrs Fuller's conduct. The ET was critical of some aspects of the investigation, though full of praise for other aspects. It did not specifically answer the question expressly posed by it in paragraph [33] "Was this belief founded on reasonable investigation in all [the] circumstances?" The Council says that, on a fair reading of its judgment, the ET found that the investigation was reasonable. As aspects of the ET's reasoning on the investigation point are relevant to the overall issue of the reasonableness of the dismissal, I shall postpone detailed discussion to later in this judgment.
5. The Council uses the way in which the ET criticised the investigation to support its principal ground of appeal: that the ET failed to apply to the dismissal process s. 98(4) as interpreted by the tribunals and courts. That objective test is neatly expressed in the question: was the dismissal was within "the range or band of reasonable responses" of a reasonable employer. The main point on the appeal is whether, having posed the correct question "Was it reasonable to dismiss for this misconduct?" At the beginning of paragraph [35], the ET did not apply that objective test in fact and gave the wrong answer to the right question. (Note that, as there are two paragraphs numbered 35 in the ET's decision I will refer in this judgment to the second of them as paragraph [35A])
6. The Council contends that the ET slipped up by approaching the investigation and the dismissal in subjective mode. It said what it felt that it would have done in the circumstances. It wrongly substituted itself for the employer. What the ET would have done about Mrs Fuller's conduct, in the light of its findings of fact about the circumstances of her dismissal, was irrelevant to whether the Council unfairly dismissed her. The ET should have been deciding the question it asked. That is a different kind of question, requiring the ET to consider the reaction of a reasonable employer to Mrs Fuller's conduct: could a hypothetical employer reasonably dismiss Mrs Fuller for that reason?
7. In brief, the Council's case on appeal is that the ET erred in law. It did not apply to the circumstances existing at the time of Mrs Fuller's dismissal the objective standard encapsulated in the concept of the "range or band of reasonable responses". That favourite form of words is not statutory or mandatory. Its appearance in most ET judgments on unfair dismissal is a re-assurance of objectivity. Its absence from this ET judgment is one of several objections taken by the Council to passages in the ET's judgment, which it challenges as subjective and substitutionary.
8. I will summarise the course of the proceedings and amplify the background facts before discussing the submissions on the appeal.

The proceedings

9. Mrs Fuller presented her unfair dismissal claim to the ET following the Council's decision on 28 February 2008 to dismiss her from her employment as Bursar of Vernon House School for gross misconduct.
10. In its decision registered on 19 August 2009 the ET decided the issue of liability in Mrs Fuller's favour. There has since been a remedies hearing, at which she was awarded compensation in the total sum of £49,199.11. There was a reduction of compensation by 20% to reflect her action in contributing to her dismissal. In the meantime the Council pursued its appeal against liability to the EAT. On 21 April 2010 the EAT allowed the appeal. The ET was criticised for not applying the test whether the dismissal was within the range of reasonable responses and for wrongly transposing itself into her employer and deciding that it would not have dismissed her for gross misconduct.
11. The EAT did not remit the matter to the ET for reconsideration on the correct legal basis. Instead, it proceeded to dismiss Mrs Fuller's claim. That could only have been on the basis that there was no point in re-hearing a claim which, in the EAT's view, was bound to finish up with a finding of fair dismissal.
12. A summary of the allocation of powers and responsibilities in unfair dismissal disputes bears repetition: it is for the employer to take the decision whether or not to dismiss an employee; for the ET to find the facts and decide whether, on an objective basis, the dismissal was fair or unfair; and for the EAT (and the ordinary courts hearing employment appeals) to decide whether a question of law arises from the proceedings in the ET. As appellate tribunals and courts are confined to questions of law they must not, in the absence of an error of law (including perversity), take over the ET's role as an "industrial jury" with a fund of relevant and diverse specialist expertise.

Background

13. Mrs Fuller began her employment as Bursar at Vernon School in September 2001. It is a maintained school specialising in teaching children with social and emotional difficulties. It has an average of 30 pupils not in main stream school. There were 20 staff. Due to the nature of the children's behaviour restraint techniques were carried out as a matter of practice throughout the period of Mrs Fuller's employment. As she was one of the administrative staff she had no direct contact with the children.
14. In January 2007 Ms Lucy Addington became the Head Teacher. Most of her attention was absorbed in the considerable disciplinary problems at a school in which the pupils were disruptive on a daily basis. On 22 May 2007 there was an incident. Mrs Fuller commented on the treatment of a child whom members of staff were trying to control. Ms Lucy Addington exchanged words with Mrs Fuller about her intervention. In June 2007 Ms Addington introduced a revised "restraint of behaviour" policy and staff training about it. As Mrs Fuller had no direct involvement with the children, she did not take up the option of attending the training.
15. The main incident leading to dismissal occurred on 19 October 2007 when Mrs Fuller saw an 8 year old pupil being vigorously restrained. He was kicking and screaming. She complained about the screaming. She told the staff, five of whom were present, including a Mrs Kazembe, that they needed to stop. She said that they were hurting the child and that they did not care. Ms Addington, who was present at the incident, asked Mrs Fuller to go back into the office. She refused. Mrs Fuller commented that Ms Kazmebe was restraining the pupil in "a sexual way." Ms Addington threatened to suspend Mrs Fuller and asked her to leave. The pupil reacted violently towards the staff present after Mrs Fuller's intervention and caused further trouble before being led away.
16. Ms Addington investigated the incident, taking statements from 6 staff present. Mrs Fuller was asked to provide a statement. She did not do so. She did not respond to an invitation to attend a meeting about the incident. On 31 October Ms Addington wrote to Mrs Fuller describing the matter as one of "a serious child protection nature." She suspended Mrs Fuller from work. Mrs Fuller instructed solicitors, who wrote asking for details of the allegation. On 5 November Ms Addington wrote referring to Mrs Fuller's "totally inappropriate intervention into a behaviour management issue regarding a pupil", to inappropriate accusations and remarks against members of staff and to it being the second time of an inappropriate intervention, for the first of which she was given a verbal warning not to do it again.
17. In the disciplinary process that followed Mrs Fuller was charged with unacceptable and inappropriate language in front of a pupil, repeated and inappropriate intervention into behaviour management issues, failure to follow reasonable management instructions and "professional competence (sic) of a serious or persistent nature." Following a disciplinary hearing before the Chair of the Governors and 2 other Governors on 28 February 2008, which was held in the absence of Mrs Fuller and her representative, the Council dismissed her for gross misconduct. Four reasons were given: the previous warning of 22 May when the Head Teacher had advised her about another instance of an improper intervention regarding a different child; the serious breach of instruction on the day in question; the potential risks that the child had been encouraged by Mrs Fuller in his aggressive and violent behaviour; and the gratuitous and wholly inappropriate comment made about Ms Kazembe.
18. A detailed dismissal letter was sent on 5 March 2008 stating that her remarks about a sexual motive in the restraint were completely and wholly inappropriate and false and that there was no excessive force used. Mrs Fuller had failed to leave the situation when requested. There was gross misconduct. She had breached the school's general policy and the specific instruction the Head Teacher had given her on 22 May.
19. Her dismissal was upheld on an internal appeal heard on 28 April 2008. The appeal decision was notified on the following day. Mrs Fuller's request for an adjournment of the appeal hearing on the ground that the representative could not attend had been refused. There was, it was said, no good reason why Mrs Fuller could not attend herself. No written grounds of appeal had been received from her. There had also been another internal hearing, which Mrs Fuller did not attend, to deal with a grievance lodged by her. The grievance matter is not relevant to this appeal. I say no more about it.

ET decision

20. As explained above the ET was in no doubt that the Council had a genuine belief in serious misconduct by Mrs Fuller, but on the issue of the reasonableness of the investigation the ET did not make a specific finding. It expressed "concerns about the way in which the investigation was carried out which relate particularly to the investigation of the claimant's own account" by Ms Addington rather than by a more neutral party, such as one of the Governors, or someone from the Council's Human Resources Department. In relation to other witnesses the investigation was held to be exemplary in its speed and thoroughness.
21. On the critical point the ET rightly asked whether it was reasonable to dismiss for that misconduct and concluded no reasonable employer would have dismissed her for a one-off incident, but would have imposed a lesser penalty.
22. The ET rejected an allegation of procedural unfairness.

EAT decision

23. The EAT allowed the Council's appeal on the ground that the ET "committed an error of law in finding that this case was substantively unfair" (paragraph [26]). It had substituted its judgment for that of the management as to the seriousness of Mrs Fuller's conduct. The Council was entitled to rely on the earlier similar incident, even though it did not result in a disciplinary sanction, because it alerted her to the conduct complained of.
24. The EAT said that the ET's judgment-

"18. …contains many passages which point towards a mindset by the Employment Tribunal that it was criticising [the Council]. It is in order for an Employment Tribunal to decide what a reasonable employer would have done. The criticism in this case is of what the employer did without measuring it against that standard. Just because there are criticisms of what the employer did does not mean that the action fell below the standard, or outside the range of responses, of a reasonable employer in dealing with the three stages in British Home Stores..".

25. Illustrations of the ET's criticisms of the investigation were cited: for example, the frequent use by the ET of the expression "we felt" in the ET's criticisms of the investigation and of the decision to dismiss, saying that the ET "felt" that the behaviour "did not merit dismissal."
26. The EAT concluded in paragraph [19] that, notwithstanding the ET's endorsement of the "supremacy of the management view about what restraint was appropriate", the ET had "substituted its judgment about what it would have done about the Claimant's intervention and comments. This was not for it to do. "

Mrs Fuller's submissions

27. This is not an easy case. Tribunals with wide legal and practical experience of work situations and of the operation of unfair dismissal law have reached opposite conclusions. The EAT set aside the ET's order, which the Council says was wrong. This court is asked to set aside the EAT's order, which Mrs Fuller says was wrong. Perhaps it would not be out of place to make a few general comments about these differences, which lawyers and non-lawyers sometimes find unsatisfactory, even inexplicable.
28. Unfair dismissal appeals to this court on the ground that the ET has not correctly applied s.98(4) can be quite unpredictable. The application of the objective test to the dismissal reduces the scope for divergent views, but does not eliminate the possibility of differing outcomes at different levels of decision. Sometimes there are even divergent views amongst EAT members and the members in the constitutions of this court.
29. The appellate body, whether the EAT or this court, must be on its guard against making the very same legal error as the ET stands accused of making. An error will occur if the appellate body substitutes its own subjective response to the employee's conduct. The appellate body will slip into a similar sort of error if it substitutes its own view of the reasonable employer's response for the view formed by the ET without committing error of law or reaching a perverse decision on that point.
30. Other danger zones are present in most appeals against ET decisions. As an appeal lies only on a question of law, the difference between legal questions and findings of fact and inferences is crucial. Appellate bodies learn more from experience than from precept or instruction how to spot the difference between a real question of law and a challenge to primary findings of fact dressed up as law.
31. Another teaching of experience is that, as with other tribunals and courts, there are occasions when a correct self-direction of law is stated by the ET, but then overlooked or misapplied at the point of decision. The ET judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable. The reading of an ET decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid.
32. Ms Price submitted that the ET in this case erred in law in four respects: (i) by substituting its own view for that of the employer in deciding that the dismissal was unfair, an objectionable tendency evidenced by its comments on what constituted a reasonable investigation; (ii) by failing to ask the correct question whether the dismissal was within the range of reasonable responses; (iii) by importing hypothetical mitigating circumstances and factors into the decision and not considering the circumstances faced by the Council at the date of the dismissal; (iv) and by wrongly suggesting that a previous verbal warning was built up into more than it was.
33. I agree with the EAT and with Ms Price that some passages in the ET judgment are written in a way that invites criticisms of the kind made by them. Whether the EAT was justified in setting aside the ET's finding of unfair dismissal and in dismissing Mrs Fuller's claim are the matters to which I now turn.
34. I can dispose of the investigation aspect briefly. The Council says that the ET found that the investigation was reasonable. It also says that the passages in which it did so evidence the tendency of the ET to follow a subjective approach to matters that require objective assessment. That error was carried over into consideration of the decision to dismiss and undermined its conclusion that the dismissal was unfair.
35. In my judgment, the way in which this point has been argued is a good illustration of the dangers identified in the general observations above about appeals. When the relevant passages in ET judgment at paragraphs [33] to [35A] are read in a fair, reasonable and sensible way, in their proper context and in the round, the substance of the ET's reasoning becomes clear.
36. The ET got off to the right start by asking the correct question: "Was this belief founded on reasonable investigation in all [the] circumstances?" Although the ET expressed concerns about some aspects of the investigation by Ms Addington and said that they felt that it would have been wiser for the school to have appointed as investigator a more neutral party felt, they said that the investigation was exemplary in relation to the other witnesses. It is true that the ET did not directly answer the question which it asked. It should have specifically answered its own question. Although it did not, there is no real basis for doubting that it held that the investigation was reasonable and that that conclusion was not vitiated by subjectivity or substitution.
37. Paragraphs [33] and [34] of the ET judgment consist of a mix of critical comments and laudatory comments. If the ET had concluded that the investigation was not reasonable I am confident that it would have said so. That would have meant that the dismissal was unfair and that there would be no need to consider the reasonable response of the hypothetical employer to Mrs Fuller's conduct. However, the ET went on to consider just that. The real ground of this appeal is based on the ET's decision on that basic point.
38. Reading the decision in the round, not just here and there in bits and pieces, it appears that the ET arrived at the conclusion that the dismissal was unfair by the following steps.
39. It began with a correct self-direction under the heading "The law" in paragraph [31]. Having stated that the tribunal had to consider whether a reasonable employer would have dismissed for that misconduct, the ET went on to say that it was not for the tribunal to substitute its own judgment for that of the employer.
40. Next, under the heading "Applying to law to the facts", the ET asked the right question in [35] "Was it reasonable to dismiss for this misconduct?" There then followed a page-long paragraph discussing the Council's reliance on the seriousness of Mrs Fuller's conduct on 19 October "rolled up with what had occurred on 22 May." The ET explained why, while appreciating her genuine concerns about the treatment of children by the staff, it agreed with the Council that what Mrs Fuller did on 19 October was serious and a matter of concern to the Head Teacher. The following passage in paragraph [35] sets off on the wrong foot by stating what the ET "felt" and giving a justification for it by reference to its findings of fact, rather than making its objective assessment of the reaction of the hypothetical reasonable employer to Mrs Fuller's conduct in the circumstances of the dismissal:-

" ...we felt that this behaviour itself did not merit dismissal.[my italics] The claimant had been at the school for eight years, and longer in the employment of the Council; she had no disciplinary record of any kind; there had been one previous intervention by her in discipline which had not been discussed with her in any way such that she would understand what it was that she was not to do. There was no element of blatant or repeated defiance of the Head Teacher's authority, outside the brief episode on 19 October; if the claimant had defied authority it was based on her own lack of understanding of the purpose of the behavioural policy which [is] in turn could have been rectified by training or reasoned discussion with the claimant."

41. Finally, as I read its judgment, the ET did not, within paragraph [35] in fact answer the question correctly posed at the outset. The answer to the question is given at the beginning of the following paragraph [35A] when the ET said

" Looked at carefully we felt that no reasonable employer would have dismissed her for a one-off incident, and that the prior background in relation to the alleged verbal warning of 22 May was built up into far more than it was. We felt that any reasonable employer would have imposed a lesser penalty, which might have involved an apology to Ms Kazembe, and may have [been] involved some kind of warning…"

42. If the ET's answer to its question on reasonableness was simply confined to paragraph 35 I would agree with the EAT and Ms Price that that was an error of law on which the Council's appeal should be allowed. In my judgment, however, the ET's answer to the correct key question was in paragraph [35A] is based on the required objective test.
43. On a proper self-direction of law I accept that a reasonable ET could properly conclude that the Council's dismissal was outside the band or range of reasonable responses and was unfair. If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller's claim.
44. Even if there was an error of law because the wrong legal test was applied, the EAT did not find that the ET decision was perverse. In those circumstances the proper course for the EAT in this case was not to dismiss Mrs Fuller's claim, but to set aside the ET decision and to remit the matter to a different ET for a rehearing at which the reasonable responses test would be applied. It was not inevitable that the fresh hearing would result in a finding of fair dismissal.

Result

45. I would allow Mrs Fuller's appeal. There was no error of law in the ET's judgment that Mrs Fuller was unfairly dismissed. It was not a perverse decision. The EAT was not entitled to set it aside or to dismiss Mrs Fuller's claim.
46. I add three brief comments. They do not affect the outcome of the appeal. They concern the way in which this case came to the ET and was dealt with by it after a three day hearing.
47. First, when the ET asks a correct question, as this ET did about the reasonableness of the investigation into Mrs Fuller's conduct, it is better for the ET to give a specific answer to it in addition to its discussion of the facts, law and argument on the question. It should not be left to the parties, or the EAT or this court to have to work out the answer for themselves. Failing to answer the question could encourage an appeal and false optimism about the prospects of its success.
48. Secondly, it is normally better for an employee undergoing disciplinary action and faced with a possible threat of dismissal to participate in the process by complying with the employer's reasonable requests to provide a statement, information and representations and to attend hearings. I agree with the EAT judgment at paragraph [25] that Mrs Fuller "did not assist herself by not attending the meetings."
49. Thirdly, it is, in general, more sensible for an employee with cause for concern about the way in which fellow employees perform their duties to raise the matter in the right quarters than it is to intervene directly in work situations outside their direct experience or area of responsibility.

Lord Justice Moore-Bick :

50. The background to this appeal has been fully described by Mummery L.J. whose account I gratefully adopt. However, I am unable to agree with his conclusion for the reasons I shall shortly explain.
51. Although this is an appeal from the decision of the EAT, we are primarily concerned with whether the employment tribunal which heard Mrs. Fuller's claim for unfair dismissal erred in law in reaching its decision. The Council has submitted that it did because in certain important respects it substituted its own findings of fact for those made by the disciplinary panel charged with investigating the matter on its behalf.
52. A large part of the tribunal's decision is taken up with its findings of fact. They include findings about the incident on 19^th October 2007, which lies at the heart of the dispute, but also findings about what had occurred on the earlier occasion in May 2007 when Mrs Fuller was said to have intervened when a child was being restrained by members of staff. One potentially important question that arose was whether on that occasion Mrs. Fuller had been explicitly warned that she must not interfere with staff who were seeking to restrain difficult children.
53. In paragraph 31 of its decision the tribunal directed itself that under section 98(4) of the Employment Rights Act 1996, as interpreted in the case of Burchell v British Home Stores [1978] IRLR 379, it had to consider whether there was a genuine belief on the part of the employer that the employee was guilty of the alleged misconduct, whether that belief was reasonably founded (in the present case, whether it had carried out a reasonable investigation as the basis for its conclusions) and whether a reasonable employer could have dismissed for that misconduct. It also reminded itself that it is not for the tribunal to substitute its own judgment for that of the employer. None of that is controversial.
54. The first of the questions identified by the tribunal requires a finding of fact to be made about the employer's state of mind. Did it genuinely believe that the employee had committed the acts which are said to amount to gross misconduct? It is important for a tribunal considering that question to understand that it is not concerned with what actually happened but with what the employer believed had happened. A good example of the distinction is to be found in the recent case of Orr v Milton Keynes Council [2011] EWCA Civ 62. It is understandable that in a case such as the present the tribunal should wish to make findings of fact about what occurred, if only to set the dispute in context, but there is a danger that, if it does so, it may inadvertently treat its findings as if they were facts which were known to the employer, even though that may not be the case. The same is true of inferences that may be drawn from the primary facts: it is the inferences drawn by the employer that matter (provided they are reasonable inferences and genuinely drawn), not those that the tribunal itself might draw.
55. The tribunal's findings in relation to the disciplinary panel's conclusions are set out in paragraph 22 of its decision in which it summarised the panel's letter to Mrs. Fuller of 5^th March 2008. The panel considered her behaviour on 19^th October to amount to gross misconduct as she had breached not only the school's general policy but also the specific instruction the Head Teacher had given her on 22^nd May. In my view it is reasonably clear not only that the panel was judging Mrs. Fuller's conduct on 19^th October in the context of what it understood had been said to her following the incident on 22^nd May, but that it was satisfied that whatever had been said to her on that occasion was sufficient to make it clear that she was not to interfere in a similar way again.
56. The tribunal did not make a finding about exactly what the panel believed had been said to Mrs. Fuller following her intervention in May. In paragraph 4 of the decision it found as a fact that there had been nothing more than a brief conversation between her and Ms Addington and nothing that most people would have recognised as a verbal warning. In paragraph 33 the tribunal found that there had been no real full report from Ms Addington to the panel about events that had taken place on 22^nd May or the alleged final warning, but at the end of that paragraph it seems to have accepted that the panel had reached the conclusion that enough was said to Mrs. Fuller make her aware that she should not challenge the trained staff's operation of the behaviour policy again. That is consistent with my own understanding of the panel's belief and goes some way to explaining why it considered that her conduct on the second occasion justified dismissal.
57. In paragraph 32 the tribunal stated clearly that it was satisfied that the Council had formed a genuine belief that Mrs. Fuller was guilty of serious misconduct; it was also satisfied that, although some aspects could have been handled better, the investigation was reasonable. On that question I agree with what Mummery L.J. has said in paragraph 31 of his judgment.
58. One might have thought, therefore, that the tribunal would be likely to accept that the Council had acted reasonably in dismissing Mrs. Fuller, but when it came to consider that question the tribunal said in paragraph 35:

"Our concern was that it is clear from the letter dismissing the claimant that the seriousness of the claimant's behaviour on 19^th October was rolled up with what had occurred on 22 May, and given our finding that on 22 May the claimant was not spoken to even informally, let alone given a verbal warning, and the fact that she was as a matter of practice unaware of the policy even if a written copy had been left on her desk. We felt that this would not be sufficient to show that she should have been aware that she should not interfere and this means that her behaviour on 19 October was not as serious as the panel had been led to believe. . . . The claimant had been at the school for eight years . . . there had been one previous intervention by her in discipline which had not been discussed with her in any way such that she would understand what it was that she was not to do. There was no element of blatant or repeated defiance . . . if the claimant had defied authority it was based on her own lack of understanding of the purpose of the behavioural policy . . . " (Emphasis added.)

59. The precise nature and extent of the misconduct in question will obviously play a large part in determining whether the employer's decision to dismiss the employee is within the range of reasonable responses. Mrs. Fuller's intervention on 19^th October might not have justified dismissal if it had been the first time she had acted in that way. It would obviously be viewed more seriously if it involved a repetition of previous misconduct and even more seriously if she had been clearly warned on a previous occasion not to do the same again. It was important, therefore, for the tribunal to understand what the disciplinary panel believed the position to be in that respect and to proceed on that basis. In fact, however, the tribunal judged the Council's response by reference to its own findings about the warning (or rather lack of warning) that had been given to Mrs. Fuller on the earlier occasion. It found that "no reasonable employer would have dismissed her for a one-off incident and that the prior background in relation to the alleged verbal warning on 22^nd May was built up into far more than it was". In other words, the tribunal judged the Council's response by the facts as it found them to be, rather than by the facts as the Council understood them to be.
60. I agree with Mummery L.J. that insofar as the tribunal asked itself whether any reasonable employer would have dismissed Mrs. Fuller it asked itself the right question. Unfortunately, however, it answered that question by reference to the wrong facts.
61. In paragraph 18 of its decision the EAT referred to two instances (of which there were many more) in which the tribunal had used language which suggested that it had substituted its own view of the facts, or of what would constitute a reasonable response, for that of the employer. In paragraphs 22-23 of its decision the EAT accepted that the May incident was relevant to the October incident and that the tribunal had been wrong to criticise the Council for paying attention to it. It held that the tribunal had committed an error of law in holding that the dismissal was unfair.
62. Although I have expressed my views in slightly different terms, in substance I agree with the EAT. The tribunal did accept that the events in October had to be viewed in the light of the events that had occurred in May, but it wrongly substituted its own findings about what had been said to Mrs. Fuller following the May incident for those of the disciplinary panel. By doing so it departed in an important respect from the facts as the panel understood them to be and that led it to take a far less serious view of her conduct than had been taken by the panel.
63. However, I do not think that the EAT was right to dismiss the claim altogether. It is not inevitable that if another tribunal were to consider Mrs. Fuller's claim on the basis of the facts as found by the disciplinary panel it would inevitably dismiss her claim.
64. In those circumstances I think the right course is to allow the appeal and to remit the matter to a differently constituted tribunal for the limited purpose of deciding whether in the light of the panel's findings the Council's decision to dismiss Mrs. Fuller was unfair.

Lord Justice Jackson:

65. I agree with Mummery LJ that this appeal should be allowed for the reasons given in his judgment.