England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ PETER CLARK
UKEAT061010JOJ

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/07/2012

Lord Justice Aikens :

1. This appeal concerns an unfair dismissal claim. It raises two issues. The first is whether either the Employment Tribunal ("ET") or the Employment Appeal Tribunal ("EAT") improperly substituted their own view of the facts relating to the conduct of the appellant ("Mrs Graham") for that of the investigating and dismissing officer of the respondent ("the DWP"). The second issue, which is independent of the first, is whether the decision of the DWP to dismiss Mrs Graham for her misconduct was within the broad range of reasonable responses available to this employer, given the particular misconduct found of this employee and all the circumstances.
2. The appeal, which is made with the permission of Dame Janet Smith, is from an order of the EAT (HHJ Peter Clark, and Messrs Norman and Smith) dated 3 June 2011, by which it allowed an appeal by the DWP from the decision of the ET (Employment Judge Robinson and Messrs Barker and Northam), promulgated on 18 October 2010, whereby the ET had allowed Mrs Graham's claim for unfair dismissal. The EAT not only set aside the decision of the ET, but also concluded that the case was so clear that there was no need to remit the matter and so dismissed Mrs Graham's claim altogether.

The Facts

3. Mrs Graham had worked for what is now the Department of Work and Pensions for nearly 30 years prior to her summary dismissal for gross misconduct on 6 March 2009. Latterly she had worked in the Jobcentre at Brunswick House, Birkenhead, as a Advisory Service Manager, which is a supervisory role. Mrs Graham managed 15 members of staff. Her civil service grade was that of a Higher Executive Officer ("HEO"), Band D. It is acknowledged that she was a very experienced officer and had been, up to the incidents which led to her dismissal, scrupulous, conscientious and of exemplary behaviour.
4. Mrs Graham has a daughter, who, in late 2007 or very early 2008, had a friend identified as "Jess" in the judgment of the EAT. On 9 January 2008 Jess telephoned Mrs Graham's daughter and asked her if the Jobcentre could help a friend of Jess's, called Sam Moss, to find a job. Mr Moss was, at the time, a young man of 19. As the EAT remarked at [3], Mr Moss's story was a sad one; his mother had died of cancer, his father was an alcoholic and abusive, and Mr Moss had no other family to help him. He found it impossible to survive on benefits and he needed to find a job. During a period from about 10 January 2008 until about mid-February 2008 Mrs Graham did help Mr Moss, who, in this context, was described as a "benefit customer".
5. Three DWP employees in the Jobcentre thought that this activity of Mrs Graham was irregular and in breach of the DWP's Standards of Behaviour Policy. Three anonymous letters were sent to the local DWP management. This resulted in an investigation of the matter by Mr Keith Glover, a member of the department's local finance team. Meanwhile Mrs Graham was moved to another office, where she continued to work in a post similar to her previous one. She was not suspended during the investigations.
6. After he had undertaken investigations, Mr Glover wrote a letter to Mrs Graham on 14 July 2008. In this he made four accusations against Mrs Graham, all of which were based upon the proposition that, from some stage in January 2008, Mrs Graham had become "an acquaintance" of Mr Moss, who had thereafter become a benefit customer. The term "acquaintance" has particular significance in terms of the rules of conduct of officers of the DWP, as I shall explain below. The accusations were that, after Mr Moss had become an "acquaintance": (i) Mrs Graham had gained access to Mr Moss's records; (ii) Mrs Graham had dealt with job search interviews on his behalf; (iii) Mrs Graham had breached the security of official premises by taking Mr Moss into a staff area, viz. the staff canteen; and (iv) Mrs Graham left her smartcard/computer unattended whilst allowing Mr Moss to use that DWP computer. The letter pointed out that this conduct (generally) might be in breach of the Department's Standards of Behaviour and that it might be regarded as "gross misconduct". The letter invited Mrs Graham to attend a meeting so that she could put her side of the case.
7. The letter had an Annex 1 to it, containing extracts from the DWP's Standards of Behaviour. The parts quoted were:

"Para 1: Mutual Trust is the foundation of the employment contract between the Department and all it's employees.

Para 2: All Civil Servants must follow the Civil Service code. The Standards of Behaviour are based on this code and set out the fundamental standards expected from you at work and in your private life which may impact on your work.

Para 6: You must take care to avoid putting yourself in a position where your wok and private life is in conflict.

Para 15: You must use items of equipment and property only for their designated purposes.

Para 17: You must use the computer systems and the data they contain only for the designated purposes of doing your job. (Original emphasis).

Para 18: The Department is provided with a large amount of information which we hold on customers, members o the public, which must be kept accurately, confidentially and securely, you must never use your official position or information gained in the course of your official duties".

8. It is to be noted that there is no reference to "acquaintances" or "acquaintanceships" in those paragraphs.
9. The meeting to which Mr Glover referred did not, in fact, take place until Friday 13 February 2009. Following the meeting Mr Glover wrote another letter to Mrs Graham, dated 4 March 2011. In this Mr Glover announced that, having considered all the facts of the case, he had concluded that Mrs Graham's actions in relation to Mr Moss amounted to "gross misconduct" and that the disciplinary penalty to be imposed would be summary dismissal from 6 March 2010. The letter said that Mr Glover was satisfied that Mrs Graham had breached the DWP's "Standards of Behaviour" of which extracts had been set out in Annex 1 to his letter of 14 July 2009. In particular Mr Glover said that he was satisfied that: (i) Mrs Graham was "acquainted" with Mr Moss; (ii) during this acquaintanceship, Mrs Graham "accessed" Mr Moss's records and dealt with job-search interviews on his behalf; (iii) Mrs Graham breached the security of official premises by taking Mr Moss into a staff area and (iv) Mrs Graham left her smartcard unattended whilst allowing Mr Moss the use of a DWP computer. Enclosed with the letter were three further documents entitled "Findings of Fact"; "Additional Evidence and Potential Mitigation" and "Allegations of Misconduct", all of which had been prepared by Mr Glover as a result of his investigations and the statements presented and made by Mrs Graham at the meeting of 13 February 2009.
10. The "Allegation of Misconduct" document sets out five allegations of which the first is that Mrs Graham "is acquainted with a benefit customer – Mr Sammy Moss" and the second is that she "accessed [Mr Moss's] records during this acquaintance". Before us, it was agreed that these first two allegations should be treated as one and we referred to them together as Allegation One. Under the heading "Allegation 1 – [Mrs Graham] is acquainted with a benefit customer", Mr Glover recorded that Mrs Graham admitted that she became an "acquainted" (sic) to Mr Moss as from 25 January 2008. The paragraph continued:

"It can not be shown for certain that [Mrs Graham] was acquainted with Sammy Moss prior to this date, but by her own admission, she dealt with him on a number of occasions after this date. The additional evidence from witnesses would support this though, again, not necessarily prior to 25/1/08".

11. Under the paragraph headed "Allegation 2 – [Mrs Graham] accessed his records during this acquaintance", Mr Glover accepted that if there was no acquaintance before 25 January 2008, then any interventions prior to that date could not be considered inappropriate. The paragraph also stated that Mrs Graham admitted making job-searches on Mr Moss's behalf and it continued: "…I would suggest on the balance of probabilities [she] will have accessed DWP systems to do this".
12. The other three allegations were that Mrs Graham dealt with job search interviews on Mr Moss's behalf (Allegation 3); that she breached the security of official premises by taking the customer in to staff areas, viz the canteen (Allegation 4) and that she left her smartcard unattended whilst allowing the customer to use a DWP computer (Allegation 5). The "Decision" at the end of the document was that all five allegations were proved. Mr Glover recorded that he regarded these activities as "Gross Misconduct". Under the heading "Penalty" Mr Glover accepted that Mrs Graham acted in good faith to serve a vulnerable customer and at times may have acted "without thought". He acknowledged that she was a very experienced manager, with 30 years experience and committed to customer service. But that very experience should have "steered her away from the decisions she made and the actions she took". Mr Glover concluded that Mrs Graham had "compromised the employment contract between herself and the department" and he considered that a continued working relationship and trust would be "impossible". He stated he was "not convinced" that there was mitigation to alter the seriousness of "this offence", so he considered alternative penalties to be inappropriate, "trust being critical in any management position whether at Band D or Band C". Therefore the penalty had to be dismissal without notice with effect from 6 March 2011.
13. The relevant "Standards of Behaviour Policy" document in our bundle, which is dated November 2007, (there were amendments after the facts of this case) is obviously fuller than the extracts that were annexed to Mr Glover's letter of 14 July 2008. This Policy document stipulated that:

(1) Para 6: "You must take care to avoid putting yourselves in a position where your work and private life is in conflict. For example you must not deal with anyone with whom you have family or personal connections. You must seek advice from your manager if you are unsure of whether or not someone is considered to be connected to you".

(2) Para 15: "You must use items of equipment and property only for their designated purposes and in accordance with instructions given…"

(3) Para 17: "The Department provides computer systems to enable you to do your job effectively. You are required to use the appropriate systems of the Department and you must use the computer systems and the date they contain only for the designated purposes required for your job. You must not access, or attempt to access your own or other people's records without authorisation…..You must be mindful of the following standards, among other things, when using the internet or e-mail facilities:

………

to maintain the integrity of the Department's computer systems, it is also important that you comply with all computer security controls. In particular, you must keep your password confidential and ensure that your SMART card is only used by yourself.

………….."

14. We were also shown a Departmental document called "Disciplinary Action", which states that it was updated on 29 February 2008 and so was extant at the time of Mr Glover's July 2008 letter and thereafter but not at the time of the alleged misconduct by Mrs Graham. Under the heading "Penalties for Misconduct", at paragraph 6, it identifies three levels of misconduct. The first is "Minor Misconduct". The second is "Serious Misconduct". The last is "Gross Misconduct". Under each of these headings there are three boxes which give descriptions and examples of the type of misconduct covered by each of the three levels and also the "possible outcomes" if an employee is found guilty of misconduct of that type.
15. Examples of "Serious Misconduct" that are given include "Deliberate unauthorised access to information" and "lending or borrowing a computer device (PID, Smartcard) or otherwise allowing unauthorised access". The "Possible Outcome" identified is in the following terms:

"The normal penalty will be a final Written Warning. If managers accept mitigation put forward by the employee this may mean it can be reduced to a Written Warning"

16. Under the heading of "Gross Misconduct", the description given is:

"Acts which result in a serious breach of contractual terms and which destroy the employment contract between the business and the individual and makes any further working relationship and trust impossible, including repeated serious misconduct".

Examples of such conduct given include "Persistent unauthorised access to or use of information".

The "Possible Outcome" box for "Gross Misconduct" states:

"The normal penalty will be Dismissal (with or without notice). If managers accept mitigation put forward by the employee this may mean it can be reduced to a Final Written Warning".

The Decision of the Employment Tribunal

17. The ET heard evidence from Mrs Graham and Mr Glover. Both were cross-examined in the course of a day long hearing. For the purposes of this appeal the following statements in the ET's decision are relevant. First, at [12], the ET stated that Mr Glover informed the ET that he had decided that Mrs Graham and Mr Moss only became "acquainted" on 25 January 2008 and that Mrs Glover did not access Mr Moss's records after that date, although she had done so before that date. Further, that paragraph records that Mr Glover accepted that Mrs Graham had not done any Job-search interviews for Mr Moss but "had simply allowed Mr Moss to use her computer to do a Job-search", which was something that he could have done on any computer, eg. at home or in a library.
18. Secondly, [14] to [16] deal with the occasion when Mrs Graham took Mr Moss into the staff canteen. The paragraphs record that Mrs Graham accepted that she had breached security in doing so, that she had subsequently been reprimanded for that and that she had accepted (before the ET) that she should not have done it.
19. Thirdly, [22] records that Mr Glover found proved the allegation that Mrs Graham had left her Smartcard unattended whilst allowing Mr Moss to use the DWP computer. But that paragraph continued:

"…although it is unclear as to whether [Mrs Graham] had left her Smartcard in the computer. She certainly had left the area where her computer was situated to speak to other members of staff some feet away whilst Mr Moss seemed to continue to carry out some work on her computer".

20. The ET then considered the law, quoting section 98(4)(a) and (b) of the Employment Rights Act 1996, and reminding themselves that they "..must not substitute our views for the views of the dismissing officer or indeed any of the officers involved in the process of dismissal". The ET referred to the well known decision of Arnold J sitting in the EAT in British Home Stores Limited v Burchell [1978] IRLR 379.
21. Then, at [33] the ET posed the question: "..what did [Mrs Graham] actually do wrong?". The ET's answers are given at [34] –[40] of their decision. In summary, the ET concluded that: (i) Mrs Graham was trying to help a vulnerable adult who needed help. (ii) Mr Glover accepted that Mrs Graham did nothing to obtain private information about Mr Moss once he had become an acquaintance "as defined by" the DWP. The ET did not set out this "definition" in its decision, but I think that the date of the start of the "acquaintanceship" must be that of 25 January 2009, mentioned above. (iii) Taking Mr Moss into the canteen was "something and nothing" which was not, of itself, deserving of dismissal. (iv) Mrs Graham's most "heinous misdemeanour" was to leave Mr Moss next to her computer unattended for a very short period of time, as Mr Glover accepted. At the time Mr Glover was dealing with the case, such an action was categorised by the Department as one of "only serious misconduct" as opposed to one of "gross misconduct". (v) There was no strict policy on the issue of allowing the public into the working side of the Jobcentre, but "…only a risk assessment which suggested that it was not good practice". (vi) The decision to dismiss Mrs Graham did not "sit well" with the decision to send her to another centre to work, and to permit her to continue to use a computer for that purpose. It was, the ET said, also incongruous that the DWP had stated that the trust and confidence in Mrs Graham had evaporated and so had to lead to her dismissal, yet the Department knew that she had done what she had with the best of intentions and they had not suspended her after the allegations were made, but allowed her to continue to work in another Jobcentre in the region.
22. The final paragraph of the ET's decision, [41], states:

"In coming to our conclusions we are not substituting our views for the views of the dismissing officer. The sanction of dismissal was outside the band of reasonable responses, recognising that that band is a very broad band. No reasonable employer in these circumstances would have dismissed this claimant and consequently we find the dismissal unfair and the claimant must have her remedy".

The decision of the EAT

23. The DWP appealed on the ground that the ET had done exactly what they said they stated that they must not, viz. substitute their view of the facts for that of the employer. The DWP also alleged that the findings of fact concerning Mrs Graham's "acquaintance" with Mr Moss were perverse. Accompanying the Notice of Appeal was a request for the Employment Judge's Notes of Evidence, a request made pursuant to paragraph 7 of the EAT Practice Direction. Pursuant to an order of the EAT, the judge responded in a letter dated 11 March 2011. The first relevant answer concerned Mr Glover's evidence about the version of the disciplinary procedure that he should have using at the time of Mrs Graham's case. The note records that Mr Glover accepted in evidence that "in isolation, (access to computers) it should be serious misconduct for that one incident" and Mr Glover confirmed that if there had been only that one incident, then Mrs Graham would not have been dismissed.
24. The second relevant aspect concerned Mr Glover's evidence on when Mrs Graham became an "acquaintance" of Mr Moss. The letter of 11 March records that Mr Glover said at the hearing that "the claimant only admitted to being an acquaintance of Mr Moss's after 25 January 2008" and that Mr Glover accepted that Mrs Graham did not gain access to any information relating to Mr Moss after that date. Under the heading "Ground 12", the letter states:

"…Mr Glover gave evidence that he, as dismissing officer, only accepted that [Mrs Graham] was an acquaintance from 25 January and not before that. That was his finding not the Tribunal's finding.

In any event Mr Glover accepted in cross-examination the word "acquaintance" did not appear in the standards of behaviour policy only that an employee must "take care to avoid putting yourself in a position where your wok and private life are in conflict".

25. Certain matters set out in the letter of 11 March 2011 were challenged by the DWP and a further application was made to the EAT that all the ET judge's notes be made available. That application was refused, but the judge was asked to comment on the DWP's version. He did so in a letter dated 5 May 2011, in which Judge Robinson said that he had been through his notes to see whether or not he agreed or disagreed with the representations of the solicitors for the DWP in their letter dated 18 March 2011 and attachments to it.
26. In summary, the letter of 5 May 2011 dealt with two aspects of Mr Glover's and Mrs Graham's evidence. First, there were comments on the issue of access to the computer. The letter stated that Mr Glover confirmed that there was access to the computer on one occasion only and that that, in isolation, should be "serious misconduct". Secondly, there were comments on the issue of "acquaintance" and the time when Mr Moss became an "acquaintance" of Mrs Graham. The letter first quoted Mrs Graham's evidence as being that she looked at Mr Moss's details only when he was a customer "but when he was an acquaintance I did not", whilst she accepted that, as a senior manager she did not normally deal with enquiries. The letter also records that "the claimant never accepted that [the fact that she knew Mr Moss's personal circumstances from January 2008 through Mrs Graham's daughter] made her an "acquaintance" for the [DWP's] purposes and Mr Glover agreed and could not define the word "acquaintance". The letter also records that Mrs Graham accepted that Mr Moss was an "acquaintance" when she met him at her home on 25 January 2008 and she accepted that she never "declared him" as an acquaintance when he had become one. But she also insisted that she did not "access LMS records once he became an acquaintance".
27. The letter then deals with Mr Glover's evidence on the question of when Mr Moss became an "acquaintance" of Mrs Graham. The letter records at pages 3 - 4 (again in summary): (i) Mr Robinson's note was that Mr Glover only accepted that Mrs Graham was an acquaintance from 25 January 2008 and not before that date. (ii) When Mr Glover was cross examined by counsel for Mrs Graham about the date on which she became an "acquaintance" of Mr Moss, the tribunal's note records that Mr Glover did not agree with the suggestion that the first time that Mrs Graham became an acquaintance was on 25 January 2008. The letter then records this answer from Mr Glover, part of which is in quotations and part is not:

" 'What I was trying to establish is whether there was a point in time the claimant acknowledged she was an acquaintance – I did not accept 25 January was the starting point'. I think the relationship changed 9 or 10 January".

(iii) The letter also records a further exchange in the course of Mr Glover's cross-examination in which counsel put to him that Mrs Graham described to him how she became an acquaintance on 25 January. Mr Glover's response is noted as: "Yes, she told me that, insisted that it was 25 January was the first date she had an acquaintance with Mr Moss".

28. At [2] of the EAT's decision it set out what it understood was the DWP's "clear policy" about standards of behaviour which it said was known to Mrs Graham. The EAT described this in the following terms:

"Staff must not use their positions to help friends, families or acquaintances. 'Acquaintances' are defined in this way: 'An acquaintance is someone whose personal circumstances become known to an employee of the Department outside work".

29. This "clear policy" statement and definition appears to have been taken from a DWP poster entitled "Dealing with Family and Friends". That poster was before the ET. However, so far as I can see, the ET had no evidence that Mr Glover had referred to this poster as the foundation of his view on when Mr Moss had become an acquaintance of Mrs Graham. Indeed the poster itself was not referred to at any stage prior to the hearing in the ET. It seems that another document was produced, for the first time, before the EAT which dealt with the same subject. This document is headed "Liverpool & Wirral Security Notice" and is dated 11 May 2006. It deals with two subjects: (1) "Dealing with friends, family and acquaintances" and (2) "Accessing your own records". The document is addressed to all staff. It pointed out that there had been a worrying increase in the number of investigations concerning staff members who have been the subject of disciplinary procedures due to "…impropriety, for dealing with claims or accessing records belonging to friends family or acquaintances*". The star referred to an explanation at the foot of the document which expands on the meaning of acquaintance. The explanatory note stated:

"*If you have knowledge of someone's personal circumstances, gained outside work then that person is your acquaintance. If you are unsure then discuss the issue with your line manager. They (sic) will decide if the person falls within this category".

30. The notice reminded staff of the rules set out in document called "Standards of Behaviour". The quotation is, however, in slightly different terms to the extract of paragraph 6 that was set out in Annex 1 to Mr Glover's letter of 14 July 2008 and is also different to the terms of paragraph 6 quoted at [13] above. The May 2006 Notice is in these words:

"You should be careful not to put yourself in a position where your work and private life are in conflict. This means that you must not have any dealings which involve a relative partner, friends or acquaintances, unless your manager has given specific permission". Some examples include:

Confirming attendance

Handling claim documents

Submitting to vacancies or Jobcentre Plus programmes

Accessing or inputting information on computer systems

This list is not exhaustive."

31. The EAT first considered the ET's findings of fact on the issue of when Mrs Graham became acquainted with Mr Moss. At [8(a)] of the EAT's decision it recited the fact that the ET had concluded that Mrs Graham became acquainted with Mr Moss on 25 January 2008. The paragraph recorded that the DWP challenged that conclusion. The EAT then referred to the letter of 5 May 2011 sent to the EAT from the ET, which I have quoted at [26]-[27] above. [8(a)] of the EAT's decision continued:

"…the [ET] judge said that the Tribunal accepted that Mr Glover did not agree with [Mrs Graham's] case that she first became acquainted with Mr Moss on 25 January 2008; he (Mr Glover) thought the relationship changed on 9/10 January 2008. The [DWP's] definition of acquaintance [which is that in the Poster] is as we have earlier set it out. Plainly the information received by [Mrs Graham] about Mr Moss via her daughter's friend placed Mr Moss in that category as at that date (9 January 2008)."

32. The EAT's conclusion, stated at [6], [13] and [14], was that the ET had done exactly what it had said it must not do, viz. substitute its own subjective views for the views of the employer. The EAT said that this approach of the ET was evident in [33] of its decision, where the ET asked an "impermissible, subjective question" and so fell into error; and in [34] where the ET gave its own characterisation of the actions of Mrs Graham as "…simply trying to help a friend of her daughter's. Not a very close friend on the evidence we have heard". Further, the EAT concluded that the ET had substituted its own subjective view of the seriousness of Mrs Graham's actions in helping Mr Moss to fill in job applications in the Jobcentre, with her assistance, and in taking Mr Moss into the staff canteen, which she knew was wrong. Lastly, the EAT concluded that the ET had placed its own gloss on the allegation that Mrs Graham had left her Smartcard in her computer when unattended. The EAT noted that Mr Glover had looked at CCTV footage which, on his observation, showed Mrs Graham leaving her computer with Mr Moss typing on it.
33. The EAT therefore held, at [14] of its decision, that it was "entirely satisfied that [the ET] fell into the trap of substituting their own view for that of the employer". Therefore the ET's decision could not stand. The EAT further held, at [15], that, on the facts and in the circumstances of this case, "dismissal ….plainly and unarguably fell within the range of reasonable responses [to the conclusion that there had been misconduct by the employee]", so that the claim must be dismissed; there was no need to remit the matter to the ET.

The Law

34. In this case there is no dispute that the reason why the DWP dismissed Mrs Graham was for what the Department regarded as her gross misconduct in the way she had dealt with the case of Mr Moss. There is also no dispute that this would be a "valid" reason within section 98(1)(b) of the Employment Rights Act 1996 ("ERA"). Once those two matters are established, an ET's task is to decide whether the dismissal was fair or unfair. The statutory test is that set out in section 98(4) of the ERA, the present version of which came into force on 1 October 2006. The addition of the introductory words "In any other case" at the start of section 98(4) is to take account of the introduction of a new section 98(3A), which deals with dismissal upon retirement. Section 98(4) states:

"In any other case where the employer has fulfilled the requirements of subsection (1), 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 or unreasonably 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."

35. In Orr v Milton Keynes Council [2011] ICR 704, all three members of this court concluded that, on the construction given to section 98(4) and its statutory predecessors in many cases in the Court of Appeal, section 98(4)(b) did not permit any second consideration by an ET in addition to the exercise that it had to perform under section 98(4)(a). In that case I attempted to summarise the present state of the law applicable in a case where an employer alleges that an employee had engaged in misconduct and has dismissed the employee as a result. I said that once it is established that employer's reason for dismissing the employee was a "valid" reason within the statute, the ET has to consider three aspects of the employer's conduct. First, did the employer carry out an investigation into the matter that was reasonable in the circumstances of the case; secondly, did the employer believe that the employee was guilty of the misconduct complained of and, thirdly, did the employer have reasonable grounds for that belief.^[1]
36. If the answer to each of those questions is "yes", the ET must then decide on the reasonableness of the response by the employer. In performing the latter exercise, the ET must consider, by the objective standards of the hypothetical reasonable employer, rather than by reference to the ET's own subjective views, whether the employer has acted within a "band or range of reasonable responses" to the particular misconduct found of the particular employee. If the employer has so acted, then the employer's decision to dismiss will be reasonable. However, this is not the same thing as saying that a decision of an employer to dismiss will only be regarded as unreasonable if it is shown to be perverse.^[2] The ET must not simply consider whether they think that the dismissal was fair and thereby substitute their decision as to what was the right course to adopt for that of the employer. The ET must determine whether the decision of the employer to dismiss the employee fell within the band of reasonable responses which "a reasonable employer might have adopted".^[3] An ET must focus its attention on the fairness of the conduct of the employer at the time of the investigation and dismissal (or any internal appeal process^[4]) and not on whether in fact the employee has suffered an injustice.^[5] An appeal from the ET to the EAT lies only in respect of a question of law arising from the ET's decision: see section 21(1) of the Employment Tribunals Act 1996.

The arguments of the parties

37. Mrs Graham prepared her own Grounds of Appeal. Mr John Hendy QC was then instructed on her behalf. In his written and oral argument he has rightly concentrated on three of the twenty odd grounds of appeal that Mrs Graham had originally put forward. In the forefront of his argument is Ground 2 viz. that the EAT impermissibly retried the case on the facts and impermissibly substituted its own findings of fact and its own views of those facts in place of those of the ET. He submitted that the EAT would only be entitled to do that if it were established that the ET had been perverse in its conclusions of fact and that, he submitted, was neither the conclusion of the EAT nor was it demonstrated in this case. Mr Hendy submitted that the ET was entitled to find, on the evidence, that Mr Moss was not an "acquaintance" of Mrs Graham until 25 January 2008 and that [8(a)] of the EAT's decision was an impermissible reassessment by the EAT of the evidence on this key issue.
38. Secondly, Mr Hendy supported Ground 3 which is that the EAT permitted the DWP's counsel to rely on a new document (viz. the poster) which defined what is meant by "acquaintance" when that document had not been used at the time of the investigation and decision to dismiss Mrs Graham and it was wrong to consider the facts in the light of that definition or description. Moreover, there was no evidence before the ET on whether the 11 May 2006 "Liverpool & Wirral Security Notice" about dealing with friends, family and acquaintances had been Mr Glover's guide or in his mind at the time.
39. Lastly, Mr Hendy relied on Ground 11, viz that the EAT erred in its conclusion that the ET substituted its view of the facts for that of the employer. In this regard, Mr Hendy emphasised the fact that the relevant DWP Disciplinary Document did not characterise use of a department computer or Smartcard as "gross misconduct" but "serious misconduct" and he submitted that the ET was entitled to take that characterisation into account when considering whether, on its findings of fact, the decision of the DWP to dismiss was fair or not.
40. Mr Gott QC, who appeared for the DWP, submitted that the key Ground of Appeal is Ground 11. Mr Gott submitted that the ET failed properly to consider what he described as "the Burchell elements" when dealing with the case and when it did address those issues the ET clearly substituted its own views of the facts for those of the employer. Furthermore it substituted its own view for that of the DWP on what a reasonable response should be to the misconduct established.
41. As for Grounds 2 and 3, he submitted that the only point in issue here was the date at which Mrs Graham became an "acquaintance" of Mr Moss. He submitted that the conclusion of the ET was perverse, as was demonstrated by the responses of Employment Judge Robinson to enquiries from the EAT for notes of the evidence of Mr Glover on that topic. In this regard he showed us Grounds 12 and 13 of the DWP's Notice of Appeal to the EAT which alleged that the ET's findings on when Mr Moss became an "acquaintance" and what steps Mrs Graham took thereafter were "perverse". He argued that it was clear that Mr Glover had not conceded in the ET that Mrs Graham only became an acquaintance on 25 January 2009 and that, in fact, he believed that she had done so by 10 January 2009. Mr Gott submitted that an examination of the "Findings of Fact" of Mr Glover, which accompanied the Dismissal letter, demonstrated that Mr Moss had become sufficiently known to Mrs Graham well before 25 January 2008 and, in fact from 10 January 2008, so that she should not have become involved in assisting him to search for jobs in the way she had. Mr Gott relied heavily on the note in the ET's letter to the EAT of 5 May 2011, in particular that Mr Glover's evidence to the ET was that he did not accept that 25 January 2008 was the starting point and that the relationship changed on 9 or 10 January 2008.
42. As to the definition of acquaintance, Mr Gott accepted that that the definition in the poster to which the EAT referred in its decision at paragraph 2 was not in use in early 2008. But he submitted that it is, effectively, no different in fact from the formula used in the DWP's Standards of Behaviour document, which had been circulated in May 2006. That document had been in the bundle before the EAT.
43. Mr Gott accepted that Mr Glover had not specifically identified the nature of the "acquaintance" by reference to which it was said that Mrs Graham had infringed the DWP's Standards of Behaviour; nor could he rely on any express finding of Mr Glover at the time of the investigation and dismissal as to a specific date on which the "acquaintance" had started. But he submitted that the notes of Mr Glover's evidence before the ET (recorded in the letter of 5 May 2011) and his conclusions in his document "Allegations of Misconduct" were sufficient to indicate what Mr Glover believed to be the case and so merit the conclusion of the EAT that the ET had erred.
44. In any event, Mr Gott submitted, the EAT was correct to say hold that the ET had applied its own subjective judgment to the seriousness of the allegations about taking Mr Moss into the canteen and Mrs Graham allowing Mr Moss to use her computer. The ET was wrong to do so and that entitled the EAT to reconsider the whole matter, including the issue of whether the response of the DWP in dismissing Mrs Graham was within the range of reasonable responses.

Discussion and conclusions

45. At the heart of this appeal are the two opposing allegations that the two tribunals, first the ET and then the EAT, wrongly substituted their own views of the facts, particularly in relation to what we have called Allegation One, instead of evaluating the facts as found by the dismissing officer of the employer. That is the substance of Grounds 2 and 3 of the Grounds of Appeal, viz that the EAT retried the case on the facts and that a misleading document was introduced at the EAT stage to define "acquaintance" or "acquaintanceship" and Mr Gott's argument that the EAT was entitled to do what it did because the ET had itself been guilty of "substitution". The decision of this court in London Ambulance Service NHS Trust v Small [2009] IRLR 563 (at [41]-[43]) restated the well-established rule that an ET is not entitled to substitute its own findings of fact for those of the employer or its investigating or dismissing officer, except in very exceptional circumstances, discussed in the Orr case at [79]-[80]. Equally, the EAT is not entitled to substitute its own findings for those of the ET unless the latter are perverse.
46. In these circumstances it seems to me that this court should start by asking the questions that should be asked when an employee is alleged to have committed misconduct and is dismissed for that reason. As already noted, there is no dispute that the DWP dismissed Mrs Graham for what it regarded as her gross misconduct in the way she dealt with the case of Mr Moss. There can be no dispute that this is a "valid" reason within section 98(1)(b) of ERA. An ET that is considering whether the dismissal of an employee accused of misconduct was fair then has to ask itself three questions. On the first – did the employer carry out a reasonable investigation – the answer in this case is obviously yes, it did. On the second – did the employer believe that the employee was guilty of the misconduct complained of – the answer, to my mind at least, is also obviously yes. Mr Glover clearly believed that Mrs Graham was guilty of misconduct in relation to what he described as the five allegations and we called the four. The "Decision" in the "Allegations of Misconduct" document demonstrates that fact.
47. So the key question that the ET had to consider is the third one: whether the employer had reasonable grounds for that belief. It seems to me that the ET's decision amounts to a conclusion that the DWP could not have had reasonable grounds for believing that Mrs Graham had committed "gross" misconduct; she may have been guilty of "serious" misconduct, but, the ET appears to have decided, any DWP belief that her conduct amounted to "gross" misconduct was not based on reasonable grounds. Therefore the decision of the DWP to dismiss her summarily was outside the bounds of the reasonable steps, by the objective standard of the hypothetical reasonable employer, that the DWP could take, so that Mrs Graham's dismissal was therefore unfair.
48. The cornerstone of Mr Hendy's arguments, which focused on what we called Allegation One, therefore must depend on three factors: (i) what was the applicable departmental rule about a DWP employee acting when that employee had some kind of "acquaintance" or relationship with a "benefit customer"; (ii) what was Mr Glover's belief, at the time he decided the issue, on when such a relationship began to exist between Mrs Graham and Mr Moss; and (iii) what did Mr Glover decide that Mrs Graham had done for Mr Moss after that "acquaintance" had begun. Having considered those three factors it will then be possible to evaluate whether the ET was correct in its implicit conclusion that Mr Glover's belief that Mrs Glover had committed "gross" misconduct was not based on reasonable grounds.
49. The first problem is that, in my view, it is completely unclear from the Dismissal Letter or the accompanying documents what particular materials Mr Glover relied on in order to decide whether Mr Moss was an "acquaintance" of Mrs Graham or not. The only document he quoted from is the DWP's "Standards of Behaviour" (annexed to Mr Glover's letter of 14 July 2008), but that extract does not refer to "acquaintance" or "acquaintanceship" at all; nor does the full document.
50. Further, when Mr Glover made his decision that Mrs Graham should be dismissed, it is unclear what he had decided about the date on which Mr Moss had become an "acquaintance" of Mrs Graham. No clear date (at least prior to 25 January 2008) is apparent from the Dismissal Letter itself, nor is it clear in the Findings of Fact or the Allegations of Misconduct documents which accompanied it. In the "Findings of Fact" document under "Allegation One" viz. that Mrs Graham was acquainted with a benefit customer, the conclusion seems to be that Mrs Graham became acquainted with Mr Moss from 25 January; but under "Allegation Two" it refers to Mrs Graham obtaining access to Mr Moss's records on 10 and 16 January, and so implies that the acquaintanceship started earlier than 25 January. As already noted, the "Allegations of Misconduct" document is equivocal on these aspects.
51. When the ET heard evidence from Mr Glover in relation to Allegation One, the object of the exercise must have been (a) to explore what Mr Glover's actual beliefs about Mrs Grahams misconduct were at the time of the investigation and dismissal, so as (b) to enable the ET to reach a view on whether Mr Glover's beliefs about her misconduct were based on reasonable grounds or not. The ET had before it the DWP "Standards of Behaviour" document, to which it obliquely referred in [6] of its decision, all the documents produced by Mr Glover during the investigation and his oral evidence. The ET itself did not attempt to define "acquaintance" any more than Mr Glover did in his documents.
52. It seems to me that, given the different statements by Mr Glover in the contemporary documents, (which Mr Gott accepted were equivocal) the ET was entitled to make the conclusion it did at [12]. The EAT relied solely on the record of Mr Glover's one answer in cross examination recorded on page 3 of the ET's letter of 5 May 2011 for its conclusion that there was an "acquaintanceship" from 9 or 10 January 2011. There are at least four problems with this conclusion. First, that is only one answer out of many given in oral evidence; secondly, Mr Glover is recorded as not being able to define the word "acquaintance" whether by reference to DWP documents or otherwise; thirdly, Mr Glover's oral evidence was given after the events and might (albeit entirely subconsciously) be coloured by the need to justify the course taken in dismissing Mrs Graham and, lastly, that single answer recorded in the letter of 5 May is contradicted by the statement in the contemporaneous "Allegations of Misconduct" document in which Mr Glover stated that it cannot be shown for certain that Mrs Graham was "acquainted" with Mr Moss before 25 January.
53. I understood Mr Gott to accept that nothing improper was done after 25 January and that if it was accepted that the "acquaintance" only began on 25 January 2008 then there could be no complaint about Mrs Graham gaining access to Mr Moss's records before that date – which she obviously did. If, as I have concluded, the ET was entitled to conclude that, at the time, Mr Glover did not himself believe that Mrs Graham had become an "acquaintance" of Mr Moss before 25 January 2008, then any belief by him that Mrs Graham had been guilty of Allegation One was not based on reasonable grounds. That is, effectively, what the ET concluded.
54. It must follow from this that the ET was also entitled to take the view that Mr Glover should not have taken into account Mrs Graham's actions covered by Allegation One when deciding whether or not she had been guilty of "gross misconduct" overall. It seems to me that the purpose of the question posed by the ET at [33] – "what did the claimant actually do wrong" – was precisely to identify those aspects of Mrs Graham's behaviour that Mr Glover was reasonably entitled to take into account when reaching his overall decision.
55. Next I consider Ground 11 of the Grounds of Appeal, viz. that the EAT was wrong to hold the that ET had substituted its view for the employer's. For the reasons I have already given, I respectfully disagree with the EAT that the ET asked itself the wrong question at [33] of its decision. I accept that paragraph could have been better phrased. But I do not accept that, thereafter, the ET was applying its "own subjective judgment" to the facts. It was, in my view, trying to analyse what Mr Glover believed Mrs Graham had done by way of misconduct and whether his beliefs were based on reasonable grounds. I accept, however, (and as the EAT noted) that the ET does not say expressly that this is what it was doing.
56. In this context, the most important paragraph of the ET's decision is [36] which deals with the most serious and admitted misconduct of Mrs Graham, which was to leave Mr Moss unattended at her computer with its Smartcard in it so he could use it. The relevant "Disciplinary Policy" document clearly categorises such misconduct as "serious" rather than "gross". In this case Mrs Graham committed the misconduct on only one occasion. I take the point that Mr Glover was entitled (indeed obliged) to consider the whole of Mrs Graham's conduct overall when deciding on whether to categorise it as "serious" or "gross" misconduct. But if his belief that Mrs Graham had engaged in improper access to Mr Moss's records when an "acquaintance" was not based on reasonable grounds, then that vitiates his assessment of the seriousness of Mrs Graham's conduct overall.
57. My overall conclusion is that Mr Hendy is correct in submitting that the EAT was guilty of retrying the case on the facts and making its own assessment of matters in place of those made by the ET. To my mind that fatally undermines the EAT's conclusion that the action of the DWP in summarily dismissing Mrs Graham was within the reasonable bounds of action by the objective standard of the hypothetical reasonable employer. As Mr Gott did not advance any independent argument to attack the ET's conclusion that Mrs Graham's summary dismissal was not within such bounds and was unfair, then that conclusion should, in principle, be restored. However, before I deal finally with that issue, I must consider Mr Gott's Respondent's Notice, which sought to support the EAT's decision on other grounds.
58. The Respondent's Notice relies on admissions made by Mrs Graham during the disciplinary process as to when she became aware of Mr Moss and his position and her admissions that she dealt with job search interviews on his behalf and took him into the canteen area. Further, it refers to the statements in the "Finding of Facts" and "Allegation of Misconduct" documents that Mr Glover prepared simultaneously with the Dismissal Letter. It submits that a definition of "acquaintance" can be derived from the Standards of Behaviour policy and other documents of the DWP and that Mr Glover's belief as to Mrs Graham's conduct was reasonable. Moreover, it submits that the breakdown in trust and confidence between Mrs Graham and the DWP was, of itself, a reasonable and fair basis for dismissal.
59. The problem with these submissions is that they put a gloss on how Mr Glover approached the matter at the time. To adopt those submissions would, I think, mean that this court would also fall into the very trap into which both the ET and the EAT have been accused of falling, viz. substituting our own view of the facts for that of the employer at the time. The only possibly viable argument is that the necessary trust and confidence between Mrs Graham and the department had broken down and that was, itself, a fair and reasonable basis for summary dismissal. But I have decided that I cannot accept that submission either and that is for two reasons. First, that conclusion would itself have had to have been based (in part) on the "acquaintanceship" issue. If Mr Glover's belief as to misconduct in that respect was either wrong or not based on reasonable grounds, that undermines the basis for saying that the trust and confidence must have broken down. Secondly, any conclusion on the trust and confidence issue must depend on whether, overall, Mrs Graham's conduct is reasonably to be described as "gross" misconduct. In the absence of Allegation One, and on the basis that allowing Mr Moss to use the computer once for a short time was only "serious" misconduct, that has to be reassessed. That is the last issue, which I must now consider.
60. I sum up my conclusions so far as follows: (i) on Allegation One, Mr Glover must have believed that Mrs Graham had committed that misconduct, but, looking at the evidence overall, in particular what he wrote at the time, that was a belief not based on reasonable grounds. That is because (a) he never properly defined what he meant by "acquaintance"; so (b) he could not pin-point a date when that relationship began so that he could not say with any certainty that Mrs Graham had gained access to Mr Moss's personal records prior to 25 January 2008 when Mrs Graham accepted that Mr Moss became an acquaintance. (ii) On the allegation about dealing with job search interviews on Mr Moss's behalf, very little was said on this appeal. Mrs Graham admitted during the investigation that she had done one job search on his behalf. (iii) On the allegation about the canteen, that was admitted. But it was not suggested that this was to be characterised as "serious" misconduct, let alone "gross" misconduct. (iv) On the unauthorised use of the computer, this misconduct had to be accepted. It is properly to be characterised as "serious" misconduct.
61. Once the ET decided (as I think that it did) that Mr Glover's belief that Mrs Graham had obtained access to Mr Moss's personal records whilst an "acquaintance" was not based on reasonable grounds, it seems to me inevitable that the ET should call into question the fairness of the DWP's decision to dismiss Mrs Graham summarily. Assuming that Mr Glover's belief that Mrs Graham had committed all the other allegations was reasonable, I think that the ET was entitled to hold that the decision of the DWP to characterise the remaining misconduct as "gross" was an unreasonable decision. Therefore, I conclude that the ET was entitled to hold that the DWP's decision to dismiss Mrs Graham summarily was outside the broad band of what was reasonable, looked at from the objective point of view of the hypothetical reasonable employer.
62. The EAT criticised the fact that the ET took account of the fact that Mrs Graham was not suspended after Mr Glover's initial investigation and between the time of his letter of 14 July 2008 and the decision to dismiss. In my view, the ET was entitled to take that fact into account when assessing whether the DWP really did think, reasonably, that its confidence and trust in Mrs Graham had been so destroyed that she could not longer remain in its employment. With respect, I agree with the ET's expression that Mrs Graham's summary dismissal does not "sit well" with the decision to allow her to do similar work but at a different job centre and to permit her to have access to the computer system there. It was a point well made.

Disposal

63. For the reasons given above, I would allow this appeal and restore the decision of the ET. Any issues on remedy must be remitted to the ET for determination.

Lady Justice Rafferty:

64. I agree with both judgments.

Lord Justice Pill:

65. I agree with the conclusion of Aikens LJ and with his analysis.
66. The first question to be considered is whether, on the evidence, the Employment Tribunal ("the Tribunal") was entitled to hold that the sanction of dismissal was outside the band of reasonable responses by the respondent to the conduct of the appellant at work in early 2008. A part of the challenge to the Tribunal's conclusion, is a challenge to the Tribunal's finding, as the fact-finding Tribunal, that the benefit customer Mr Moss did not become an "acquaintance" of the appellant until 25 January 2008. It is now alleged that he became an acquaintance on 10 January.
67. The events of early 2008 must be considered in a context in which the Tribunal found that the appellant had given the respondent "30 years unblemished service". That finding is not challenged.
68. As stated in the dismissal letter of 4 March 2009, the allegations were:

". . . you were acquainted with a benefit customer (Sammy Moss), you accessed his records during this acquaintance, you dealt with job-search interviews on his behalf, you breached the security of official premises by taking the customer in to a staff area, and you left your smartcard unattended whilst allowing the customer use of a DWP computer."

The relevance of the January 25 date is that it is accepted on behalf of the respondent that the appellant did nothing to obtain private information about Mr Moss after 25 January.

69. Of the appellant taking Mr Moss into a staff area, the Tribunal stated: "Taking Mr Moss into the canteen to have a sandwich was something and nothing and certainly not, by itself, deserving of dismissal." The Tribunal described the "most heinous misdemeanour" as "leaving Mr Moss next to her computer unattended for a very short period of time." It was stated in the respondent's undated document headed "Disciplinary case – findings of fact":

"Jan [the appellant] did leave her desk and moves out of view of the CCTV cameras. She re-appears approx 20ft away on another bank of desks, leaning over to work on the desk. In doing so, she clearly loses sight of her own desk, PC and Sammy Moss because of the baffle boards between desks.

Whilst Jan is away from her desk, one of the customers [Sammy Moss] stands up and walks around her desk to view the monitor. He then turns the monitor around to face his seat, and is clearly using the PC, whether inputting or viewing it is unclear. Whichever way, the PC had to be 'live' which can only be done with the use of a smartcard and password.

When Jan returns to her desk, she leaves her monitor facing the customer. She could only see the rear of the equipment."

It was clear that for that short period of time the computer, fitted with smartcard, was unattended.

70. The respondent's Standards of Behaviour Policy provided that for "lending or borrowing a computer device (PID smartcard) or otherwise allowing unauthorised access", the normal penalty will be a "final written warning" but, if mitigation is accepted, that may be reduced to a written warning. It is defined as serious misconduct and not as gross misconduct for which the normal penalty is stated to be dismissal with or without notice which, if mitigation is accepted, may be reduced to a final written warning.
71. The respondent's representative who wrote a letter on 14 July 2008 setting out the allegations against the appellant was Mr Keith Glover. The allegations were summarised and reference was made to the respondent's standards of behaviour: "you must take care to avoid putting yourself in a position where your work and private life is in conflict" and "you are responsible for ensuring there is no conflict of interest between your interests outside of work". The word "acquaintance" does not appear.
72. Mr Glover also prepared the "disciplinary case - findings of fact", conducted a disciplinary meeting on 13 February 2009 and signed the dismissal letter of 4 March 2009. Mr Glover is variously described as Finance Business Partner, Decision Maker and Manager. The notes of evidence of the Tribunal hearing reveal that Mr Glover stated that if the smartcard incident had been the only incident of which the appellant had been accused, Mr Glover would not have dismissed her. There were "multiple offences", he said, and he looked at the "collective picture".
73. The appellant was first told of Mr Moss' problem on 9 January through a friend of her daughter. The appellant claimed that it was only on 25 January when Mr Moss visited her home that she considered Mr Moss to be an acquaintance outside work.
74. In submitting that the Tribunal made an erroneous finding of fact on a material matter, Mr Gott, for the respondent, relied on a note of evidence which records Mr Glover as saying:

"What I was trying to establish is whether there was a point in time the claimant acknowledged she was an acquaintance – I did not accept 25 January was the starting point."

The note continues, though this part is not in quotation marks: "I think the relationship changed 9 or 10 January."

75. For the appellant, Mr Hendy QC relied on other parts of the notes of evidence in which Mr Glover is recorded as accepting that the appellant was not "personally acquainted" with Mr Moss until 25 January. That was the date on which Mr Moss visited her house as a friend of a friend of her daughter's. The Employment Judge's note also records that Mr Glover "only accepted that the claimant was an acquaintance from 25 January and not before that." That record is repeated in a supplementary note requested by the respondent. It was also noted by the judge that Mr Glover agreed he could not define the word "acquaintance". There was no clear evidence as to what contact constituted acquaintanceship or what the word meant in a disciplinary context.
76. The Tribunal's finding that "the distance between the parties in relation to the facts of the case is very small" suggests that the January 10/January 25 issue was not being pressed as being important. That view is supported by the absence of any mention of 10 January in the "allegations on misconduct". To the contrary, it was stated in that document that it "cannot be shown for certain that Jan [the appellant] was acquainted with Sammy Moss prior to [25 January]". It was not alleged at the disciplinary hearing on 13 February 2009 that 10 January was the relevant date for acquaintanceship and it was not alleged in the letter of dismissal.
77. In those circumstances, the Tribunal was, in my judgment, entitled to conclude that what could properly be called an acquaintanceship did not begin until 25 January and also that the respondent was not seeking to treat the date of 10 January as relevant or material. It was accepted by Mr Glover that the appellant "did nothing to obtain private information about Mr Moss" after 25 January.
78. In making its assessment, the Tribunal was, in my judgment, also entitled to take into account that, on receipt of the allegations, "instead of suspending the claimant, they sent her to Garston to do similar work and the claimant continued to have access to the computer system". That approach does not fit easily with Mr Glover's conclusion, expressed in the allegations of misconduct on 14 July 2008, though not in the decision letter, that he "would consider any on-going working relationship and trust impossible." The appellant was not suspended but worked at Garston from 19 February 2008 until her dismissal in March 2009.
79. The court is entitled, as was the Employment Appeal Tribunal ("EAT"), to make an assessment whether, on the evidence, the Tribunal could properly conclude that the sanction of dismissal was outside the band of reasonable responses open to the respondent. I agree with Aikens LJ, and have no doubt that the Tribunal was entitled to reach that conclusion.
80. I note Aikens LJ's adoption, at paragraphs 58 and 61, of the expression "hypothetical reasonable employer" from Foley v Post Office [2000] ICR 1283, when considering the test to be applied by a Tribunal in circumstances such as the present. When using the word "hypothetical", which Mummery LJ has not repeated in his recent assessment in Fuller v London Borough of Brent [2011] EWCA Civ 267 of the procedure to be followed, Mummery LJ was not, in my view, advocating a hypothetical as distinct from a practical exercise. It is the conduct of the actual employer which needs to be assessed.
81. In the same paragraph in Foley, Mummery LJ cited the judgment of Browne-Wilkinson J in Iceland Frozen Foods v Jones [1983] ICR 17 and stated that it remained binding. Browne-Wilkinson J had held, at page 25A-C, that "the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair : if the dismissal falls outside the band it is unfair. . . . The question in each case is whether the industrial tribunal considers the employer's conduct to fall within the band of reasonable responses . . ."
82. The task of the Tribunal is to consider the actual employer in the situation in which he finds himself. In the particular circumstances, was dismissal within the band of reasonable responses? The Tribunal held, at paragraph 41, that the sanction of dismissal was outside the band of reasonable responses and that "no reasonable employer in the circumstances would have dismissed." The test was correctly applied. This employer could not reasonably dismiss; no reasonable employer placed in these circumstances would have dismissed.
83. Of course, the respondent is required to maintain high standards and to require such standards of an Advisory Service Manager at a Job Centre. The appellant has accepted that she should not have taken Mr Moss into the staff area, for which she was admonished. The Tribunal found, however, that members of the public were allowed to go into the working side of the building, though it was not "good practice". The appellant should not have left a computer unattended with the smartcard inserted and I also bear in mind what was left of the other allegations, as analysed. This was misconduct in relation to a single benefit customer for a short period of time and in circumstances in which, by the respondent's own standards, the most serious of the allegations was not gross misconduct and did not justify dismissal.
84. The Tribunal was in my judgment entitled to find that to respond to such conduct as was established by instantly dismissing an employee with 30 years unblemished service was outside the range of reasonable responses. I agree with the analysis of the Tribunal and with that of Aikens LJ. The EAT should not have reversed the decision of the Tribunal.
85. I agree that the appeal should be allowed and the decision of the Tribunal restored.

Note 1   British Home Stores v Burchell (Note) [1980] ICR 303 at 304, per Sir John Arnold. That was a case of alleged dishonest conduct. The principle has been applied to misconduct cases generally since then. See in particular: Foley v Post Office [2000] ICR I263; London Ambulance Service NHS Trust v Small [2009] IRLR 563.    [Back]

Note 2   Iceland Frozen Foods Ltd v Jones [1983] ICR 17 at 24-25; Foley v Post Office [2000] ICR 1283 at 1292D – 1293C, per Mummery LJ, with whom Nourse and Rix LJJ agreed.    [Back]

Note 3   Ibid.    [Back]

Note 4   West Midlands Co-operative Society Ltd v Tipton [1986] 1 AC 536.    [Back]

Note 5   W Devis & Sons Ltd v Atkins [1977] AC 931 at 952G per Viscount Dilhorne, with whom the other law lords agreed.    [Back]