EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2013] CSIH 86
Lady Paton Lord Bracadale Lord Drummond Young	XA67/12 OPINION OF THE COURT delivered by LORD BRACADALE in the Appeal by CJD Appellant; against A decision of the Employment Appeal Tribunal ROYAL BANK OF SCOTLAND Respondents; _______________

Appellant: Grant-Hutchison; Wilson Terris & Co SSC

Respondents: Napier, QC; Brodies LLP

24 October 2013

Introduction

[1] Between 7 July 2003 and the date of his dismissal on 23 March 2009 the appellant was employed as a customer services officer by the Royal Bank of Scotland (the respondents). In a judgment dated 16 June 2010 an employment tribunal (the tribunal) found that the appellant had been unfairly dismissed by the respondents and that the respondents had discriminated against him within the meaning of section 1(1)(a) of the Sex Discrimination Act 1975 (the 1975 Act), contrary to section 6(2)(b) of that Act. The case was continued for a hearing on remedy. Before that was heard the respondents appealed to the Employment Appeal Tribunal (the EAT). The EAT upheld the appeal on both legs and dismissed the appellant's claims. Against that decision the appellant has appealed to this court.

The legislation

Unfair dismissal

[2] The relevant sections of the Employment Rights Act 1996 (the 1996 Act) provide:

"98.- General.

(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show-

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it-

...(b) relates to the conduct of the employee,

...

(4) [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.

98A Procedural fairness

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if-

(a) one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,

(b) the procedure has not been completed, and

(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

(2) Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

(3) For the purposes of this section, any question as to the application of a procedure set out in Part 1 of Schedule 2 to the Employment Act 2002, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under section 31 of that Act."

Sex discrimination

[3] The relevant sections of the 1975 Act provide:

1. Direct and indirect discrimination against women

(1) In any circumstances relevant for the purposes of any provision of this Act, other than a provision to which subsection (2) applies, a person discriminates against a woman if-

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or

(b) he applies to her a requirement or condition which he applies or would apply equally to a man but-

(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

(iii) which is to her detriment because she cannot comply with it.

(2) In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if-

(a) on the ground of her sex, he treats her less favourably than he treats or would treat a man, or

(b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but-

(i) which puts or would put women at a particular disadvantage when compared with men,

(ii) which puts her at that disadvantage, and

(iii) which he cannot show to be a proportionate means of achieving a legitimate aim.

(3) Subsection (2) applies to-

(a) any provision of Part 2,

(aa) sections 29 to 31, except in so far as they relate to an excluded matter,

(b) sections 35A and 35B, and

(c) any other provision of Part 3, so far as it applies to vocational training.

2.- Sex discrimination against men.

(1) Section 1, and the provisions of Parts II and III relating to sex discrimination against women, are to be read as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are requisite.

(2) In the application of subsection (1) no account shall be taken of special treatment afforded to women in connection with pregnancy or childbirth.

5.- Interpretation.

...

(3) Each of the following comparisons, that is-

(a) a comparison of the cases of persons of different sex under section 1(1) or (2),

(b) a comparison of the cases of persons required for the purposes of section 2A, and

(c) a comparison of the cases of persons who do and who do not fulfil the condition in section 3(2),

must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

6.-Applicants and employees.

(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her-

...

(b) by dismissing her, or subjecting her to any other detriment.

63A.- Burden of proof: employment tribunals

...

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent -

(a) has committed an act of discrimination ....against the complainant which is unlawful by virtue of Part 2 or section 35A or 35B, or

(b) is by virtue of section 41 or 42 to be treated as having committed such an act of discrimination...against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act."

Factual background

[4] Until January 2009 the appellant was in a relationship with LC who was another employee of the respondents. The appellant lived with her in her flat in Glasgow.

[5] On the night of 3/4 January 2009 an incident occurred at the flat involving the appellant and LC. The incident is described in paragraph 14 of the tribunal's judgment in the following terms:

"During the evening of Saturday 3 January, the claimant left said flat and went for a number of drinks whilst the said LC remained in her flat with a friend. The claimant returned to the said flat late in the evening of Saturday, 3 January, or in the early hours of Sunday 4 January. There was then an altercation involving the claimant and the said LC. There was a degree of physical contact (unwanted) involving the claimant and the said LC in the course of which the claimant pushed the said LC, but the full extent of which has not otherwise been established. It is not established that the claimant pushed the said LC in circumstances in which he was not entitled to do so. There were also raised voices. A neighbour called the police. The claimant left the flat, but returned. When he returned he kicked the door of said flat. It has not been established that he thereby caused any damage to said door. He was subsequently arrested by the police. The said LC was not arrested or charged. The claimant was held in custody and appeared in Glasgow Sheriff Court on Monday 5 January 2009. He was charged with assault and breach of the peace. He was not charged with vandalism. He pled not guilty to both charges and was granted bail on the standard conditions, including the condition that he would not contact the said LC. An intermediate diet was fixed for 26 January 2009."

As a result of the incident coming to the notice of the respondents the appellant was interviewed by David Lowe, an area manager of the respondents, on 12 January 2009. The note of the meeting included the following statement:

"The extent of the assault charge is [the appellant] is charged with pushing LC onto a sofa. He says she was slapping and scratching his face and he pushed her off. [The appellant] is not aware of LC attending the hospital".

The appellant was suspended at the end of this meeting. On or about 16 January 2009 Mr Lowe interviewed LC. Mr Lowe's summary of the information provided by LC included the following:

"[the appellant] came home at 12.45 on 4 January. Her friend, A, was still there. [the appellant]was quite drunk. He had also taken a lot of cocaine which he confirmed when she asked him. They argued and he threw a cushion at her. He got more angry. He generally has a real temper. She thought he was going to drive if he left so she tried to take the car keys from him. She felt like slapping him but didn't. He slapped her on the face and she slapped him back. Both voices were raised. He then launched at her, grabbed her hair, slapped her face and was pushing her head against the door. L got into the hallway. He was still trying to grab her hair and push her to the ground.....L then ran into the common stairwell. She went back in and she tried to push him out the flat. He slapped her again and pushed her to the sofa and restraining her on the sofa and slapping her on the face. She got up and he went to leave the flat. She hit him on the back and he slapped her. This went on for a few minutes more on the common stairwell. A neighbour witnessed this. He threatened her 'I'm going to fucking kill you and every member of your fucking family'. As he left he kicked a hole in the wall in the common stairwell as he left the building. About a minute later [the appellant]returned to the flat and kicked the door open, damaging the door. He attacked her again and pulled her to the floor, trying to kick her. They got him out of the flat and locked the door."

It is immediately apparent that there was a significant conflict between the accounts of physical contact given by the appellant and LC.

[6] The appellant pled not guilty at the intermediate diet on 26 January and trial was fixed for 3 April 2009.

[7] The respondents instituted disciplinary proceedings against the appellant. These were conducted by Leslie McNabney, an area manager of the respondents who had retired by the time of the hearing before the tribunal. By letter dated 10 March 2009 Mr McNabney wrote to the appellant setting out the allegations and explaining that at the disciplinary hearing he would be considering whether the appellant's conduct constituted gross misconduct under section O of the respondents' Group Disciplinary Policy which was in the following terms:

"Other conduct, both inside and outside employment, considered to be seriously detrimental to the Group, its property, employees, customers or members of the public, or creating a security, health or safety hazard".

The specific allegations to be discussed were as follows:

"(1) On 3 and 4 January 2009 you allegedly assaulted LC.

(2) On 3 and 4 January 2009 you allegedly vandalised LC's property.

(3) You were subsequently arrested on 4 January 2009 and charged with assault, vandalism and breach of the peace.

(4) On 20 February you entered St Enoch Square branch. On calling the police, the branch manager (Jennifer Kane) was advised that by entering LC's place of work you had breached your bail conditions".

The letter enclosed a copy of the note of the meeting with Mr Lowe on 12 January 2009.

[8] The fourth allegation arose in the following way. The appellant had a personal bank account with the respondents. At some point prior to 20 February 2009 certain charges were levied on his account. Having unsuccessfully attempted to have these charges removed by visiting the Cardonald branch of the respondents, he decided to visit the branch where, until his suspension, he had worked and where LC continued to work. His intention was to discuss the charges with Jennifer Kane the manager there. LC saw the appellant and became distressed. A question arose as to whether by visiting the branch he had breached a condition of bail and the police were summoned. In the event the police took no action.

[9] The disciplinary hearing was held on 23 March 2009. The note of the meeting, which is set out at paragraph 33 of the tribunal's decision, records that The appellant claimed that he was acting in self-defence. He said, "I went to leave and she slapped me and scratched my face. I pushed her onto the sofa". He went on to say, "I was scratched. The female policewoman said, 'Have you seen the state of your face?'". Towards the end of February 2009 the appellant had made a formal complaint to the police against LC. At paragraph 74 of the tribunal's judgment it is stated:

"Subsequently, the claimant provided photographs of his face taken shortly after 4 January 2009 and these showed that the claimant had scratches on the right side of his face. There was also a note on the reverse of the photograph from the claimant's doctor to the effect that he had examined the claimant and found scratches on his face consistent with his version of events".

[10] During an adjournment Mr McNabney obtained a copy of the bail conditions pertaining to the appellant and confirmed that there was no reference to him requiring to refrain from entering LC's place of work. At the end of the meeting the appellant was dismissed. At paragraph 36 of its judgment the tribunal records the verbal reasons for the dismissal given by Mr McNabney at the end of the meeting:

·      " Regarding you vandalising LC's property, you told us this charge was dropped and notwithstanding you admitted you did it, I have not considered this. Regarding you entering St Enoch Square branch, my view is that it was not the right thing to do. You had gone to a previous branch and should have accepted their decision. To phone Jennifer Kane or David Lowe would have been reasonable, but I believe it was a misjudgement to go into St Enoch Square, albeit this was not a breach of bail.

·      The Court case regarding assault and breach of the peace is still to be heard. Under the Group's gross misconduct policy, both inside and outside employment, and I have to make a consideration that you represent a risk.

·      In mitigation, I consider you were acting in self-defence and appreciate there are two sides to every story, however, charges were brought against you and you admitted assault. With regards to entering St Enoch Square branch I believe that this was not the right thing to do".

[11] The decision to dismiss the appellant was confirmed by letter dated 27 March 2009 written by Mr McNabney. It included the following:

"The specific allegations were:

(1) on 3 and 4 January 2009 you allegedly assaulted LC.

(2) on 3 and 4 January 2009 you allegedly vandalised LC's property.

(3) you were subsequently arrested on 4 January 2009 and charged with assault, vandalism and breach of the peace.

(4) on 20 February you entered St Enoch Square branch. On calling the police the bank manager (Jennifer Kane) was advised that by entering LC's place of work you had breached your bail conditions.

Taking all the information into consideration I took my decision because I consider that you have failed to meet acceptable standards in relation to your conduct outside the workplace on 3 and 4 January 2009 where you confirmed that you assaulted LC who is an employee of the Group. You also confirmed that you have been charged with assaulting LC and breach of the peace.

.....

At the meeting you asked me to consider the following:

(1) with regard to allegation 4 - breach of bail conditions, there is no mention in the bail conditions that you should not go near LC's place of work.

I would like to confirm that during the adjournment I obtained a copy of the bail conditions supplied to LC from Victim Support and agree that as there is no reference to refraining from entering LC's place of work, I did not consider this allegation further.

(2) you asked me to consider that the police have now dropped the vandalism charge.

I would confirm that following this information I did not consider this allegation further.

(3) you asked me to consider that you assaulted LC in self-defence and you have since made a complaint to the police.

You confirmed that subsequent to your complaint to the police that no charges have been brought against LC. You also confirmed that charges have been brought against you for assault and breach of the peace which you have admitted to the police and to me in our meeting on 23 March 2009.

I consider that as a result of this assault, you present a risk to the Group, employees and property".

[12] On 3 April 2009 the Crown accepted the appellant's plea of not guilty to assault and he pled guilty to a charge of breach of the peace and was admonished.

[13] The appellant invoked the internal appeal procedure and the appeal was heard on 13 May 2009. The appeal was conducted by Jennifer Moultrie, a regional manager of the respondents, who gave her decision in a letter to the appellant dated 25 May 2009. Miss Moultrie refused the appellant's appeal and upheld the decision of Mr McNabney to dismiss him. She gave as her reasons for her decision the following:

"During the meeting you provided evidence that you had pleaded guilty to the charge of breach of the peace and were admonished. With reference to the assault charge your plea of not guilty was accepted. You confirmed that in light of the guilty plea for breach of the peace, you now have a criminal record. It was confirmed to you that whilst you were not found guilty of assault in the criminal court, the purpose of the appeal was to enable me to consider whether your actions towards another member of staff were, for the purposes of the Group, unacceptable to the extent of gross misconduct and whether you are deemed to still present a risk to the Group, its employees or property.

I would also like to note that I told you during the meeting that I was concerned due to you acting in an aggressive manner towards me. You said that this was not intentional but down to your frustration as you have repeatedly been asked to go through the events of 3/4 January 2009, during the investigation, disciplinary and through the court proceedings. Whilst I take this on board, I had already explained to you at the start of the meeting why it was important for me to hear your side of the story in terms of the events that led to your arrest. I felt that you continued to act inappropriately towards me when I questioned you.

You stated that you had pushed L in an act of self-defence as she was scratching you on the face and you have photos to prove this and indeed the police commented. You were asked whether it could have been that the police considered these to be wounds caused by LC acting in self-defence against you, which you denied. You confirmed you had photos of your face and provided me with copies via post, received on 15 May 2009.

I made my decision to uphold the original decision to dismiss you from the information I had available to me. Whilst you say you were acting in self-defence, I do not consider that your subsequent actions on the night indicate this. Following the incident where you consider yourself to have been the victim, you returned to the flat after leaving and proceeded to kick the door (itself an act of aggression) which you admitted was something you should not have done and you acknowledged there were 'raised voices'. You also attempted to return to the flat a third time and the only reason you didn't was because you had been apprehended by the police and taken into custody. You subsequently pled guilty to the charge of breach of the peace even though in the meeting you indicated to me that the disturbance was due to 'two females' being involved. No one else was charged or convicted in relation to this incident which leads me to believe that you were considered to be the main perpetrator of the disturbance, to such an extent that it had prompted neighbours to call the police and subsequently you being taken into custody for 36 hours. You were also placed on bail, with one of the conditions being that you made no contact with L, including not going to the flat you had shared with her.

You stated in the meeting that whilst you admit you pushed L this was self-defence and at a later date you formally complained to the police that she had assaulted you. You confirmed that this formal complaint was some time after the incident, to which the police took no further action. You stated that male complaints of domestic violence are not normally taken seriously, however, I have to consider the fact that you did not make a complaint until a later date, even though you believed it was you who was the victim of an assault, not LC.

...in summary from the information I have available to me, whilst you have not been found guilty of assault in the criminal courts, I consider from a Group perspective that your conviction in court and your actions and behaviour to be entirely inappropriate for an employee of the Group and that you are a risk to the Group, its members of staff and property. I therefore uphold the original decision to dismiss you from the Group for gross misconduct".

The decision of the tribunal

Unfair dismissal

[14] The tribunal heard the evidence of the appellant, Mr McNabney and Miss Moultrie. The tribunal noted that both at the internal proceedings and in the hearing before it the word "assault" was used in a non-technical way to describe any physical contact by the appellant on LC whether innocent or culpable.

[15] The tribunal recognised that it was appropriate to approach the case applying the guidelines set out in British Home Stores Limited v Burchell 1978 IRLR 379. The tribunal addressed the question as to whether the employer had shown the reason for the dismissal. It is clear that it found Mr McNabney to be a very unsatisfactory witness. At paragraph 101 the tribunal stated:

"We considered seriously making a finding that the respondents had not established the reason or principal reason for the dismissal, but with hesitation, took the view, by a narrow margin, that the claimant was dismissed because the said McNabney believed that he had pushed the said LC. No doubt he also formed the belief that the claimant had acted badly in other respects, but we are satisfied that the principal reason for the dismissal was the belief that the claimant had pushed the said LC. This view is supported by the terms of the letter of 27 March 2009 in which the said McNabney twice explicitly relies on 'the assault' but on no other factor. We are, however, convinced that the said McNabney, if he was not fully convinced that the claimant acted in self-defence, at least harboured such doubt concerning the culpability of the claimant in pushing the said LC that it cannot be said that he believed that the claimant had culpably assaulted the said LC".

The tribunal found that the respondents had not established that the reason for the dismissal fell within any of the categories set out in section 98(2) and was not for some other substantial reason. Paragraph 102 of the tribunal's judgment contains the following:

"The suggestion was that the reason for the dismissal was related to the conduct of the claimant. In this connection the conduct must be in some way reprehensible. It is simply impossible for us to say that the said McNabney truly believed that the claimant had assaulted the said LC in the sense that his admitted pushing of her was culpable. He repeatedly confirmed at about the time of the dismissal that he accepted that the claimant acted in self-defence. In these circumstances we cannot be satisfied that the reason, or principal reason, for the dismissal was related to the claimant's conduct (though things are no better from the point of view of the respondents, were we to be so satisfied) and that notwithstanding the fact that the said McNabney appeared to believe that to 'assault' another in self-defence is in some way culpable. The respondents have not established that the reason for the dismissal fell within any of the categories set out in section 98(2)".

On this basis the tribunal held that the dismissal was unfair. In case they were in error in that conclusion, they went on to follow the remaining Burchell guidelines and examined the material upon which Mr McNabney relied. In doing so they proceeded, contrary to the finding they had made, on the assumption that Mr McNabney believed that the appellant had not only pushed LC but had done so in circumstances in which his doing so was blameworthy. Mr McNabney's position in evidence was that in reaching his decision he had had regard to the material provided by the appellant and to no other material. This was notwithstanding the fact that he had available to him a copy of the statement taken from LC on 16 January 2009 and the statement from Jennifer Kane taken on 23 February 2009 in relation to the incident at the bank. The tribunal disbelieved the evidence of Mr McNabney on this point. At paragraph 108 they record:

"As narrated, the claimant was not provided with any statement other than his own, and [at] no time were the contents of the remaining statements put to him. There was nothing in what was said to him by the claimant to suggest that he accepted that the said LC was 'really frightened' or 'intimidated' by him, but the said McNabney reached this conclusion. He could only have done so on the basis of documents not produced to the claimant or the contents of which were not put to him. The inescapable conclusion is that the said McNabney did, in fact, have regard to the said statements to be found at pages 49 and 60-61, notwithstanding his evidence to the contrary".

The tribunal went on to point out that there was nothing in the material upon which Mr McNabney claimed to have proceeded which was capable of supporting the conclusion that the claimant had culpably assaulted LC. The tribunal noted that the appellant's admission that he had pushed LC was throughout qualified by the assertion that he had done so acting in self-defence. The tribunal pointed out that Mr McNabney could not reasonably have proceeded to the conclusion that the appellant had culpably assaulted LC on the basis of the material upon which he claimed to have acted, unless he was satisfied that the assertion of acting in self-defence was not true and he had done nothing to satisfy himself that it was not true. The tribunal noted that the contents of LC's statement would have given Mr McNabney more than sufficient material from which he could conclude that the appellant had indeed culpably assaulted LC.

[16] The tribunal then examined the adequacy of the investigation carried out by the respondents. It recognised that proceeding on the basis that Mr McNabney relied solely on the appellant's own statement it could not be said that the appellant did not know the nature of the charge against him or that he did not have an adequate opportunity to deal with the evidence against him. Taking account, however, of its rejection of the evidence of Mr McNabney in this regard, the tribunal held that Mr McNabney must have proceeded on the basis of material which was highly prejudicial to the appellant and which the appellant had not had an opportunity to comment upon. The tribunal recognised that in terms of Hussain v Elonex 1999 IRLR 420 there was no iron rule that an employer must hand over a copy of a statement obtained by him in the course of disciplinary proceedings to an employee against whom disciplinary action is contemplated and that it was frequently sufficient for the essence of the case to be put to such an employee. However the tribunal took the view that no reasonable employer would have failed to put the serious allegations made by LC to the appellant. It noted that it would have been a simple, straightforward matter to do so and would have cost nothing in terms of time, inconvenience and expense.

[17] The tribunal went on to take the view that the respondents should have put the appellant's position to LC, and that no reasonable employer would have failed to interview LC again in order to establish her position in connection with the appellant's statement, especially in view of the fact that Mr McNabney did not disbelieve the appellant.

[18] The tribunal concluded that the initial decision to dismiss was unfair (paragraph 117).

[19] The tribunal went on to consider whether the internal appeal process could cure any earlier defect. It is plain from the terms of paragraph 121 of their judgment that the tribunal also had difficulty with the evidence of Miss Moultrie, particularly with regard to her belief as to the reason why the appellant had been dismissed. It appears that she gave a range of answers when questioned about that. The tribunal stated at paragraph 119:

"We accepted that the said Moultrie believed that the claimant had been dismissed for [culpably] assaulting the said LC, and that the [culpable] assault was the only component of the gross misconduct for which the claimant was dismissed."

The tribunal went on to say:

'We also accepted - again not without hesitation - that the said Moultrie believed that the claimant had been dismissed for pushing the said LC in circumstances in which the said pushing constituted a [culpable] assault'".

At paragraph 126 the tribunal stated:

"The fairness of the decision to dismiss must be judged according to the circumstances as they were believed to be at the time of the dismissal. See W Devis & Sons v Atkins 1977 IRLR 314. It follows that, if an appeal is to cure any defect in the initial disciplinary process, the reason for which the appellant body confirms the decision to dismiss must be the same as the reason for which the employee was dismissed. See Monie v Coral Racing Limited 1980 IRLR 464. The reason for the dismissal is the set of facts known to, or believed in by, the employer that causes him to dismiss. See Abernethy v Mott, Hay & Anderson 1974 IRLR 213. When the said McNabney took the decision to dismiss he believed that the claimant had 'assaulted the said LC in self-defence'. If attention is focused upon the facts accepted by the said McNabney rather than on the label that he used to describe them, it is clear that he did not believe that the claimant was the aggressor. At the end of the appeal process, the said Moultrie, however, concluded that the claimant was, indeed, the aggressor and used that expression to describe the claimant. The set of facts known to, or believed in by, the said Moultrie was different in a very fundamental way from the set of facts known to, or believed in by, the said McNabney. On appeal from a finding of a set of facts that did not constitute misconduct (whatever view the said McNabney may have taken) the said Moultrie found proven a set of facts that implied guilt. We are satisfied that the appeal process could not in this case cure the initial defect in the decision to dismiss".

The tribunal went on to observe that the appeal process suffered from the same flaw as the initial decision to dismiss had with respect to the failure to put the statement of LC to the appellant and to put the position of the appellant to LC.

Sex discrimination

[20] The tribunal found that LC was an appropriate comparator for purpose of comparing the treatment by the respondents of the appellant on the one hand and of LC on the other. At paragraph 155 of its judgement the tribunal reached this conclusion:

"We are quite satisfied that the circumstances of the case of the claimant and that of LC are not materially different. The salient facts are that each made allegations of [culpable] assault against the other. It is true that the claimant was charged and pled guilty to breach of the peace, and that he visited the workplace of the said LC in circumstances in which it was foolish to do so, but it has to be borne in mind that the claimant was not dismissed for having committed a breach of the peace, nor was his appeal against dismissal refused because he committed a breach of the peace nor was he dismissed, nor was his appeal refused, because he visited the workplace of the said LC. In determining what is "material" regard has to be had to the reason for the alleged acts of discrimination which are related to the dismissal of the claimant. In identifying what is material, it is necessary to consider why the respondents did not consider the claimant's position in a rational manner, and why they did not carry out an adequate investigation. The essence of the claimant's complaint against the respondents is that the respondents did not bother to investigate his version of events, and we have already found that this complaint is justified, and the crucial issue relates to whether the failures were tainted by considerations of sex."

The tribunal set out its approach to the facts in paragraph 164:

"In approaching this issue, we asked ourselves not simply whether the failures of the said McNabney were consistent with the hypothesis that he acted in reliance on an automatic sexist assumption, but whether they were more consistent with that hypothesis than with any competing hypothesis.

The tribunal went on in paragraphs 165 and 166 to find as follows:

"It has to be borne in mind that the failure in this case was not minor or trivial. In failing to put the claimant's side of the story to the said LC, and in failing to put the latter's version to the claimant the said McNabney did not simply fall below the standards of the reasonable employer: the failure was gross; in acting as he did, said McNabney fell very far below the standard reasonably to be expected of him. To borrow an expression from another branch of the law it was "obvious folly" not to carry out investigations adumbrated. The grossness of the failures cries out for an explanation, and no satisfactory explanation was forthcoming. The explanations put forward (insofar as any was put forward) reeked of rationalisation and after the fact justification.

We are satisfied that the actings or failures of the said McNabney are not only inexplicable on the hypothesis that he was heavily influenced by considerations of gender, but that his failures make more sense on that hypothesis than on any competing hypothesis. That explanation "fits the facts". It explains why the said McNabney saw no need to carry out an adequate investigation; any belief that the claimant had assaulted the said LC culpably would obviously be supported by a belief that it was overwhelmingly likely that in any dispute between a man and woman involving physical contact the man is the aggressor. No evidence said to have been accepted by him could have led to the conclusion that the claimant was the aggressor. He must have found the claimant credible at least to the extent of not rejecting his position that he had acted in self defence; the only conceivable explanation for his finding that the claimant "assaulted LC in self defence" is that he found the claimant credible, but was torn between an acceptance of the claimant's position and an inability to comprehend that a woman could [culpably] assault a man."

The tribunal went on to conclude at paragraph 169:

"We are satisfied that the said McNabney acted on an assumption, conscious or subconscious, that an accusation of [culpable] assault by a woman against a man was more than likely to be well founded."

The decision of the EAT

Unfair dismissal

[21] The EAT held that the tribunal misdirected itself regarding the meaning of "conduct" in terms of section 98(2) of the 1996 Act. There was no requirement that the conduct should be reprehensible before the employer could be shown to have established that dismissal was for a potentially fair reason.

[22] The EAT held that the tribunal misdirected itself in determining that it was not open to Mr McNabney or Miss Moultrie to regard the appellant as having assaulted LC because his admission was qualified by saying that it was in self-defence. The EAT had regard to what they described as Miss Moultrie's carefully reasoned rejection of the appellant's case of self-defence to which the tribunal had failed to have regard. At paragraph 21 the EAT said this in relation to an assault:

"They [the tribunal] considered that the claimant had not, when admitting what he did to LC, incriminated himself because of his 'self-defence' explanation (paragraph 111). Surprisingly, nowhere do they show any awareness that in this jurisdiction, the societal attitude (and legal approach) to assault is such that where one person attacks another in any way, that he does so in response to some provocation, such as, in this case, prior slapping or scratching by the victim does not negative culpability. He still commits an assault."

[23] The EAT criticised the tribunal's approach in failing to take account of the fact that the assault was not the only aspect of the appellant's conduct that concerned the respondents. The EAT stated that Mr McNabney and Miss Moultrie looked at the conduct of the appellant as a whole, which included a disturbing incident of and conviction for breach of the peace. According to the EAT the tribunal had wrongly focused on assault as being the reason for dismissal.

[24] In relation to the failure to provide the appellant with copy statements from LC and Jennifer Kane, the EAT observed that there were no findings which showed that the appellant was prejudiced by that step not being taken. The EAT suggested that the appellant would have had the statement which LC made to the police and there was nothing that would indicate that she would have changed her mind if the respondents had reverted to her to advise her specifically that the appellant did not accept that her account was accurate. The EAT stated (paragraph 56) that the notes of the disciplinary and appeal hearings show that LC's account was put to the appellant for his comment. The same points applied in relation to the tribunal's position that Mr McNabney should have reverted to LC with the appellant's position. The EAT went on to say:

"It is not the case that employers must, in all cases, shuttle back and forth between employee and witnesses to see if they wish to change their statement. It is not as if the claimant's account obviously called LC's account into question; rather, the impression is of the common situation of one side of an incident giving one account of it and the other side giving another. Standing back and looking at matters objectively, as the Tribunal should have done, it could not have been concluded that the procedure adopted by the respondent was not a fair one."

[25] The EAT noted that the tribunal had failed to consider the provision of section 98A(2) and took the view that if the tribunal had done so, it could only have concluded that the appellant would still have been dismissed.

Sex discrimination

[26] The EAT held that the tribunal had no proper basis for finding the LC was an appropriate comparator. The distinctions to be drawn between them were relevant and substantial.

[27] The EAT held that the tribunal had misdirected itself in the application of the relevant law as to burden of proof. The burden of proof could not pass to the respondents unless there were facts from which it could properly be inferred that the claimant's dismissal was an act of unlawful discrimination. The EAT pointed out that the tribunal's approach was to start with a hypothesis, namely that dismissal occurred because the respondents proceeded on the basis of sexual stereotyping, and then to see whether any of the facts possibly fitted that hypothesis. This was an erroneous approach. The EAT went on to state that the only fact the tribunal really relied on was that the respondents had not reverted to LC with the appellant's account of events. The EAT held that that matter alone could not enable tribunal properly to conclude on the basis of the whole evidence that discrimination had occurred.

Submissions

The appellant

[28] Mr Grant-Hutchison on behalf of the appellant submitted that the tribunal was correct to come to the conclusion that the respondents had failed to establish a potentially fair reason to dismiss in terms of the Act. To constitute conduct within the meaning of section 98(2) of the 1996 Act the conduct required to be "actings of such a nature, whether done in the course of employment or outwith it, that reflects in some way upon the employer-employee relationship." (Thomson v Alloa Motor Company Ltd [1983] IRLR 403.) In the appellant's case the conduct for which he was dismissed, namely an act of self-defence, could not be categorised as falling within that test. In Burchell there was reference to "misconduct".

[29] The tribunal did not err in holding that a claimant who uses reasonable force to defend himself cannot be guilty of an assault. The tribunal had done no more than state a correct proposition in law. The EAT had erred in holding that the tribunal had misdirected itself in determining as they did that it was not open to Mr McNabney to regard the claimant as having assaulted LC because his admission was qualified by saying it was in self‑defence.

[30] The EAT erred in law in taking into account the views of Miss Moultrie and her decision letter of 25 May 2009 at paragraph 54. The EAT had effectively conflated her views with that of the dismissing officer. The only purpose for which Miss Moultrie's conclusion could properly be considered was when deciding whether the internal appeal hearing cured any defect in procedure and even then, only if the reason for which the appellant body confirmed the decision to dismiss was the same as the reason for which the employee was dismissed. The internal appeal procedure was not a re-hearing of the disciplinary hearing. The reasoning of the internal appeal decision could not be used to change the reason given by the dismissing officer which was what mattered (Monie v Coral Racing Ltd [1980] IRLR 464). The appellant had been dismissed by Mr McNabney for pushing LC in self-defence. The dismissal was confirmed on appeal for very different reasons. Miss Moultrie had believed that the appellant was the aggressor and that he was not acting in self‑defence.

[31] The tribunal did not err in law in finding that unfair procedure had been used. The tribunal was stating the minimum that should be done in the facts and circumstances of the particular case. In this regard they were simply following Burchell. It was for the tribunal as an industrial jury to find what any reasonable employer would have to do to implement a fair procedure and for dismissal to be fair. The EAT had erred in law by substituting its view as to what constituted a fair procedure for that of the tribunal without first having identified an error in law in the tribunal's decision (Sneddon v Carr-Gomm Scotland Ltd [2012] IRLR 820 at 824 paragraphs 14 and 15).

[32] In relation to the failure of the tribunal to consider section 98A(2) of the 1996 Act Mr Grant-Hutchison submitted that there was no practical effect because the tribunal had already found that the dismissing officer had found that the appellant was not culpable and had acted in self-defence but had gone on to dismiss him. That remained the case whether the procedure was fair or not.

[33] In relation to the sex discrimination case Mr Grant-Hutchison submitted that the search for a comparator should be focussed by having regard to the nature of the discrimination. The tribunal was entitled to find that LC was an appropriate comparator. The EAT and the court could intervene only if the choice of the tribunal was absurd or perverse (Hewage v Grampian Health Board 2011 SLT 319 per Lord Justice Clerk Gill at para. [43]).

[34] Mr Grant-Hutchison submitted that the EAT had erred in its criticism of the approach to the onus of proof by the tribunal. When the whole evidence was considered the tribunal was entitled to conclude that Mr McNabney had acted in reliance on an automatic sexist assumption.

The respondents

[35] On behalf of the respondents Mr Napier QC submitted that the EAT had correctly held that the tribunal had erred in requiring for the purposes of section 98(2) of the Employment Rights Act 1996 that the conduct of the employee required to be "reprehensible". There was no basis for reading that word into the legislative provisions; it would place an additional burden on the employer in seeking to defend a claim based on the employee's conduct. For the purpose of establishing the reason for dismissal the employer only needed to demonstrate a genuine belief; the belief did not have to be correct or justified (Trust Houses Forte Leisure Limited v Aquilar 1976 IRLR 251; Maintenance Co Ltd v Dormer 1982 IRLR 491). The respondents believed that the conduct impacted on the employer/employee relationship (Thomson v Alloa Motors (supra)).

[36] Mr Napier submitted that the finding of the tribunal that Mr McNabney did not believe in the culpability of the appellant was a perverse decision, contrary to the facts. The tribunal concluded that there was no basis on which Mr McNabney could have truly believed that the assault was culpable. This was a perverse finding. There were grounds on which Mr McNabney could have believed that the physical contact with LC was unlawful and culpable. It was perverse not to find that the principal reason for dismissal was that the appellant had culpably pushed LC. Mr Napier submitted that the construction to be put on the verbal reasons given by Mr McNabney at the end of the meeting for the dismissal should be read as Mr McNabney saying that he had considered the matter of self-defence and had rejected it. The letter dated 27 March 2009 confirming the dismissal should be read in the same way. The tribunal's interpretation was contrary to the only fair reading of the letter.

[37] The tribunal had erred in failing to take into account the fact that the dismissal was not just because of the assault on LC. The tribunal had become caught up in an overcomplicated analysis of the words "assault" and "self-defence" and had failed to appreciate that the respondents had dismissed the appellant because it viewed his conduct in relation to LC as being unsatisfactory. The question of assault and self-defence were not the only issues with which they were concerned. They looked at the conduct as a whole. This was very clear from what was said by Miss Moultrie. Mr Napier submitted that while Mr McNabney had focused on the question of assault, Miss Moultrie had also made reference to the breach of the peace, the kicking of the door and the return to the flat; in these circumstances it was permissible to look at whole conduct and the tribunal could look at the two sets of reasoning to decide whether the belief of the employer fell within a reasonable band. In West Midlands Co-operative Society Ltd v Tipton 1986 ICR 192 the employee sought to introduce evidence at the appeal stage relevant to show the weakness of the reason for dismissal. Mr Napier submitted that the approach must cut both ways. If it was right for the employee then it must also be so for the employer.

[38] In relation to the tribunal's rejection of the evidence of Mr McNabney that he had not had regard to the terms of LC's statement in coming to his decision, Mr Napier accepted that if Mr McNabney had had regard to the prejudicial statement by LC and it had not been produced to the appellant then that would be unfair. He submitted, however, that the basis on which the tribunal held that Mr McNabney was not telling the truth in this respect was unsound. The tribunal reasoned that because Mr McNabney gave evidence that he had found LC to be "really frightened" or "intimidated" by the actions of the appellant, Mr McNabney must have had access at the time he made his decision to dismiss to the statements of LC which had not been disclosed to the appellant. It reached that decision without having put the point to Mr McNabney in the hearing. It did not follow that because Mr McNabney gave that evidence at the hearing he must have had access to the statements of LC at the time of the dismissal. The fact of LC's distress and her upset are referred to in the ET 3 form production page 21 and 22 where information in relation to LC was available to Mr McNabney prior to the hearing before the tribunal. There was, accordingly, no sound basis for the tribunal's conclusion that Mr McNabney was not telling the truth when he said that he did not have regard to LC's statement.

[39] The tribunal had erred because if it had looked at the matter objectively it could not have concluded that the procedure adopted by the respondent was not a fair one. In criticising Mr McNabney for failing to provide copies of statements to the appellant the tribunal made the mistake of substituting its own views on what would have been appropriate for those of the employer. Mr Napier referred to London Ambulance Service NHS Trust v Small 2009 IRLR 563 where at paragraph 43 Mummery LJ said:

"It is all too easy, even for an experienced ET, to slip into the substitution mindset. In conduct cases the claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer. He has lost his job in circumstances that may make it difficult for him to get another job. He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question - whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal".

Mr Napier submitted that this is precisely what had happened in this case. The tribunal was attempting to analyse the events of 3/4 January and the subsequent disciplinary proceedings by reference to what it saw as acceptable conduct on the part of the employer, despite professing to apply an objective standard by reference to the standard of conduct to be expected of a reasonable employer.

[40] In relation to the failure on the part of the tribunal to consider section 98A(2) of the 1996 Act the EAT were correct to conclude that, had the tribunal done so, it could only have concluded that, had a fair procedure been followed, the claimant would have been dismissed. Mr Napier submitted that in a case such as this, where defects in the procedure were identified as highly relevant by the tribunal in relation to its finding of unfair dismissal, its failure to have regard to the provision which had the power to prevent a procedural failure making a dismissal unfair was fundamental. The decision of the tribunal raised the question as to whether the tribunal was aware of the existence of the provision far less whether it had applied its mind to it. The failures which the tribunal identified were the failure to make available to the appellant the statements of LC and JK and the failure to go back to LC and put to her the position of the appellant. Mr Napier submitted that these were not breaches of the Burchell procedure but, even if they were, then in terms of section 98A(2) such procedural failure would not have made the dismissal unfair. It was clear that if these steps had been taken it would not have made any difference to the outcome.

[41] In relation to the sex discrimination case Mr Napier submitted that the tribunal was not entitled to choose LC as an appropriate comparator. There were significant differences between the positions of each of the appellant and LC. Mr Napier accepted that he required to demonstrate that the tribunal had reached a perverse conclusion before the EAT or the court could intervene. That was a high hurdle. In any event, the tribunal had gone wrong in its approach to the burden of proof. Instead of examining the facts with a view to deciding what inferences it could draw from them the tribunal had relied on the hypothesis that Mr McNabney was guilty of sexual stereotyping. The tribunal had failed to follow the approach set out in Igen Limited v Wong 2005 IRLR 258 in relation to the first stage which required the complainant to prove facts from which the tribunal could conclude that there had been discrimination. Only then did the burden of proof move to the employer. The approach of the tribunal was fatal to the sex discrimination case.

Discussion

Unfair dismissal

[42] At paragraph 91 of its judgment the tribunal noted that as the case was one in which the respondents' position was that the appellant had been dismissed for misconduct and in which the appellant disputed that at the time of his dismissal he had been guilty of the misconduct alleged against him, it was a case in which it was appropriate to follow the guidelines set out in British Home Stores Limited v Burchell (supra):

"In a case where an employee is dismissed because the employer suspects or believes that he has committed an act of misconduct, in determining whether that dismissal is unfair an industrial tribunal has to decide whether the employer who discharged the employee on the ground of the misconduct in question entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.

This involves three elements. First, there must be established by the employer the fact of that belief, that the employer did believe it. Second, it must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief and third, the employer at the stage at which he formed that belief on those grounds must have carried out as much investigation into the matter as was reasonable in all the circumstances".

[43] The first element to be examined is whether it has been established by the employer that the employer did believe in the guilt of the employee of the misconduct at the time of the dismissal. Before going any further it is necessary to consider the finding of the EAT that the tribunal had misdirected itself regarding the meaning of "conduct" in terms of section 98(2) of the 1996 Act. At paragraph 102 of its judgment the tribunal stated its view that conduct for the purpose of section 98(2) of the 1996 Act required to be "reprehensible". The EAT held that there was no requirement that the conduct in question be reprehensible before the employer could be shown to have established that dismissal was for a potentially fair reason. Anything that an employee did or failed to do was conduct under section 98(2). In our opinion the use of the word "reprehensible" by the tribunal was unfortunate. We agree with what was said in Thomson v Alloa Motor Company Ltd (supra) that conduct within the meaning of section 98(2) means "actings of such a nature, whether done in the course of employment or outwith it, that reflect in some way upon the employer-employee relationship". We note that in the passage from Burchell quoted above reference is made to "misconduct". The question arises as to whether, despite the unfortunate use of the word "reprehensible", the tribunal was nevertheless applying the appropriate test. Having assessed the evidence the tribunal concluded that the conduct of the appellant which constituted the reason for the dismissal was that in the course of a domestic argument he pushed his girlfriend on to a sofa in response to her scratching him on the face. According to the appellant this action was in self-defence. At paragraphs 101 and 102 of its judgment the tribunal concluded that it could not be said that Mr McNabney believed that the appellant had culpably assaulted LC. Leaving aside, for present purposes, the question as to whether on the evidence before it the tribunal was entitled to come to that finding, the conclusion by the tribunal that such an action could not found "conduct" for the purposes of section 98(2) was in our opinion no more than the application of the test in Thomson. It is difficult to see how the action of an employee, acting in self-defence, pushing another person onto a sofa in a domestic situation could be such as to reflect upon the employer-employee relationship. In our opinion the reference by the tribunal to a requirement that the conduct be reprehensible did not, in the event, lead to any error in the application of the correct test.

[44] At the heart of this case is the question of what was the belief of Mr McNabney in identifying the reason for dismissal at the time of the dismissal.

It is clear that the account given by the appellant of the incident was very different from that given by LC. The evidence of Mr McNabney was that in reaching his decision he had regard only to the material provided by the appellant. Throughout the disciplinary hearing the appellant's position was that he had pushed LC onto the sofa while acting in self-defence because she was attacking him.

[45] The tribunal heard the evidence of Mr McNabney and had before it the record of the disciplinary hearing and the letter dated 27 March 2009. The tribunal plainly found Mr McNabney to be an unsatisfactory witness. The tribunal had the advantage of hearing and seeing him giving evidence and would be able to judge his demeanour. His evidence was confusing and self-contradictory. The tribunal summed up its view of the evidence of Mr McNabney at paragraphs 93 to 100:

"93. We turn to the evidence of the said McNabney. We have to say that we did not find it at all straightforward. At times, he appeared to suggest that he had dismissed the claimant, because he believed that he had been guilty of [culpable] assault, vandalism, breach of the peace and breach of bail conditions. His evidence in this respect was obviously and immediately contradicted by the terms in which he expressed himself at the end of the disciplinary proceedings, and in the letter of 27 March 2009, pages 70/71: at the close of the disciplinary proceedings he said in terms that he had not considered the vandalising of LC's property, notwithstanding the fact that the claimant had admitted having done so; the said McNabney also stated that going to St Enoch Branch was not the right thing to do, but makes no comment concerning whether going to said branch was culpable or merely foolish; [in evidence, the said McNabney stated that he had not considered whether the claimant's conduct in going to said branch was blameworthy or merely foolish]; said McNabney says that he accepted that the claimant acted in self-defence, but goes on to say that he had admitted 'assault'; in the letter of 27 March 2009 the said McNabney stated that, having established that the bail conditions did not specifically prohibit the claimant from going to his place of work he did not consider the allegation further, and confirmed that he did not consider the allegation of vandalism; having accepted at the end of the disciplinary hearing, that the claimant acted in self-defence in connection with the physical contact with LC, he states in said last mentioned letter that the claimant had admitted 'assault'. He then stated that he considered that, as a result of the 'assault' the claimant presented a risk to the 'group, employees and property'.

94. In relation to the first charge there is therefore an allegation that the claimant admitted 'assault' coupled with an acknowledgement that he did so in self-defence, but an assertion that that 'assault' presented a risk not only to the respondent's employees, but also to the 'group', its employees and 'property'.

95. In relation to the second charge, there is an allegation that the claimant admitted vandalism (which is not, strictly speaking, the case), but an assertion that this matter was not considered.

96. In relation to the third charge, it is indisputable that the claimant was, in fact, arrested and charged with [culpable] assault and breach of the peace (though not with vandalism).

97. In relation to the fourth charge it is again indisputable that the claimant entered the said branch, but a clear statement by the said McNabney that the fact that he had done so was not considered.

98. The only charge upon which the said McNabney explicitly founds in the letter of dismissal is the charge of 'assault'.

99. At one point before us, the said McNabney suggested that he took the view that the claimant's statements before him at the disciplinary hearing amounted to an admission of the 'core behaviour' underlying the criminal charges, and appeared to suggest that that behaviour had been the reason for the dismissal. He explained that in making the statement that he had not considered the allegation of vandalism further, he meant only that he had not taken into account the criminal charge of vandalism, though he appeared to accept at one stage in his evidence that any accusation of vandalism was problematic given that there was nothing to suggest that the door had been damaged, whether the claimant had kicked the door with the intention of damaging it, or with the intention of opening it. He did, however, give evidence to the effect that the kicking of the door was violent conduct. He accepted, however, that the matter had not been investigated in the course of the disciplinary hearing. He gave evidence to the effect that the claimant had for practical purposes admitted 'assault', vandalism and breach of the peace. Although he accepted that technically the claimant had not been in breach of his bail conditions, he often spoke as if it were truly the case that he was. He gave evidence that he believed that LC was 'really frightened' and 'intimidated' by the claimant.

100. It is also fair to say that from time to time there was a suggestion in the evidence of the said McNabney that the fact that he believed that the respondent's reputation was liable to be damaged by the mere fact that the claimant had been charged and that, whether or not, he was found guilty of any charge".

It was against that background that the tribunal concluded at paragraph 101, first, that the principal reason for the dismissal was the belief that the appellant had pushed LC, and, secondly, that it could not be said that Mr McNabney believed that the appellant had culpably assaulted LC. Were these findings, as is contended by the respondents, and as was found by the EAT to be the case, perverse findings not founded by the evidence, or were these conclusions to which the tribunal was entitled to come?

[46] It is appropriate at this stage to remind ourselves of what was said by Mummery LJ in Yeboah v Crofton [2002] IRLR 634 at para 11:

"11. ... The function of the Court of Appeal is to review the proceedings in, and the decision of, the Employment Tribunal in order to determine whether a question of law arises from them. If the Employment Tribunal conducted the proceedings and delivered decisions in accordance with the law, no questions of law would arise for correction by this court: neither the Employment Appeal Tribunal nor this court would be entitled to interfere with the original decisions, even if they concluded that they might have conducted and decided the cases differently.

12. When the principal ground of appeal is, as here, perversity of the decision of the fact-finding tribunal, there is an increased risk that the appellate body's close examination of the evidence and of the findings of fact by the Employment Tribunal may lead it to substitute its own assessment of the evidence and to overturn findings of fact made by the Employment Tribunal. Only the Employment Tribunal hears all the evidence first hand. The evidence available to the Employment Appeal Tribunal and to the Court of Appeal on an appeal on a question of law is always seriously and incurably incomplete. Much as one, or sometimes both, of the parties would like it to be so, an appeal from an Employment Tribunal is not a re-trial of the case. The scope of the appeal is limited to consideration of questions of law, which it is claimed arise on the conduct of the proceedings and the decision of the Employment Tribunal. The legal points must, of course, be considered in the context of the entirety of the proceedings and the whole of the decision, but with an awareness of the limitations on the court's competence to question the evidential basis for findings of fact by the Employment Tribunal. It is a rare event for the appellate body to have all the documents put in evidence in the Employment Tribunal. No official transcript of the oral evidence exists. If an order is made for production of the chairman's notes, it is usually on a selective basis, related to the particular grounds of appeal, which should always be particularised on a perversity challenge. Most important of all, none of the witnesses give oral evidence on an appeal."

In addition, we were referred to a passage in the judgment of the EAT in Associated Society of Locomotive Engineers and Firemen v Brady [2006] IRLR 576 per Elias J, President, at para 55:

"Mr Sethi properly reminded us of certain well established general principles derived from the authorities. The EAT must respect the factual findings of the Employment Tribunal and it should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not 'use a fine toothcomb' to subject the reasons of the Employment Tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the Tribunal to make findings on all matters of dispute before them, nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the Tribunal has essentially properly directed itself on the relevant law."

In approaching the issues in this case we bear these principles in mind.

[47] In relation to the first of the findings of the tribunal in paragraph 101 the EAT found that the tribunal had failed to take account of the fact that the physical contact was not the only aspect of the appellant's conduct upon which Mr McNabney and Ms Moultrie relied. The EAT considered that both had looked at the conduct of the appellant as a whole. In our opinion the EAT erred in this respect. It seems to us that on the oral evidence of Mr McNabney, together with the record of the disciplinary hearing and the terms of his letter dated 27 March 2009, the tribunal was entitled to conclude that the reason for the dismissal was the push on LC as a result of which she landed on the sofa. The evidence pointed against Mr McNabney having regard to other matters. Indeed, he specifically stated that he was not having regard to them. In his letter Mr McNabney specifically excluded the allegation of vandalism and the allegation that the appellant had breached his bail conditions. He went on to say "I consider that as a result of this assault, you present a risk to the Group, employees and property".

[48] Secondly, we agree with the submission of Mr Grant-Hutchison that the dismissal was confirmed on appeal for different reasons from the reason constituting the belief of Mr McNabney. Not only did Ms Moultrie reject the appellant's claim of self-defence, she also had regard to his conduct before the appeal hearing. It is clear from her decision letter that she had regard to the whole circumstances of the events of 3/4 January. While she may well have been trying to redeem what was no doubt from her point of view a very inadequate treatment of the case by Mr McNabney, it seems to us that the result of that approach was that she confirmed the dismissal for reasons which were different from the reason in the mind of Mr McNabney at the time of the dismissal. In our opinion the tribunal was entitled to conclude, as it did under reference to Monie at paragraph 126 of its judgment, that the appeal process could not cure the initial defect in the decision to dismiss.

[49] The EAT held that the tribunal had misdirected itself in determining that it was not open to Mr McNabney to regard the appellant as having assaulted LC because his admission of having pushed her was qualified by saying that it was in self-defence. The EAT referred to the rejection by Ms Moultrie of the appellant's case of self-defence and the EAT's own analysis of self-defence. For reasons outlined above we are of the view that it is not open to the respondents to rely on what happened at the internal appeal hearing. We have difficulty in understanding the analysis of self-defence in paragraph 21 of the EAT decision. Mr Napier contended that the letter dated 27 March 2009 should be read as indicating that Mr McNabney was rejecting self-defence. We are unable to accept that submission, which is contrary to the terms of the letter as further explained in Mr McNabney's evidence. If that is what Mr McNabney meant when he wrote the letter he had every opportunity to clarify the matter when he gave evidence. Clearly, he did not do so. Far from it, he gave highly confusing evidence. Mr McNabney claimed to have relied only on the account given by the appellant. The appellant's account was clearly indicative of a push in self-defence. The tribunal were entitled on the basis of the evidence before them to come to that view that Mr McNabney did consider that the appellant had acted in self-defence.

[50] For these reasons, in our opinion the tribunal was entitled on the evidence before it to conclude at paragraph 105 that it was not satisfied that the reason for the dismissal fell within one of the categories set out in section 98(2) of the 1996 Act and was not for some other substantial reason. Accordingly, the tribunal was entitled to find that the dismissal was unfair and the appeal falls to be allowed.

[51] That is sufficient to dispose of the appeal in relation to unfair dismissal but, as the tribunal went on to examine the Burchell guidelines in relation to the level of investigation conducted by the respondents, we comment briefly on that aspect of the case.

[52] The EAT were critical of the rejection by the tribunal of the evidence of Mr McNabney that he had proceeded only on the basis of what was stated by the appellant himself and that he had not had regard to the terms of LC's statement at the disciplinary hearing. At paragraph 108 of its judgment, which we have quoted above, the tribunal explained the basis on which it came to the conclusion that Mr McNabney's evidence in this regard should be rejected. It is, of course, a matter for comment that this was not put to Mr McNabney. We are not impressed by the suggestion advanced by Mr Napier that it was possible that Mr McNabney's knowledge of the distress of LC had been derived from his having seen the ET 3 form. It seems clear from certain of the questions asked by Mr McNabney at the disciplinary hearing that he had sight of LC's statement prior to the hearing. Mr Napier conceded that it would have been unfair to have proceeded on the basis of LC's statement because the appellant had not been given a copy of the statement or information as to its contents. We consider that the criticisms by the tribunal of the investigation carried out by the respondents in relation to the statement of LC are criticisms which they were entitled to make. We are inclined to the view that the criticism directed at the failure to revert to LC with the appellant's position is less well founded.

[53] In light of the conclusion to which we have come in relation to whether the conduct of the appellant was conduct within the meaning of section 98(2) we do not consider it necessary to remit the case back to the tribunal to address the failure to refer to section 98A(2).

Sex discrimination

[54] The tribunal found that LC was an appropriate comparator. In Hewage v Grampian Health Board (supra), at paragraph 43 Lord Justice Clerk Gill giving the Opinion of the Court said:

"The EAT therefore decided to allow the respondent's appeal rather than remit the case to the ET for reconsideration. In doing so, in my opinion, the EAT erred. The EAT did not suggest that the ET's adoption of the cases of Professor Forrester and Mr Larmour as comparators was irrational. Instead, it simply substituted its own judgment on the point on a consideration of the findings in fact. That is not, in my view, the correct approach. Unless the ET's judgment on a question of that kind is absurd or perverse, it is not for the EAT, or this court, to impose its own judgment on the point".

The court held that the ET was entitled to choose Professor Forrester and Mr Larmour as comparators. In dealing with the issue in the United Kingdom Supreme Court (Hewage v Grampian Health Board [2012] ICR 1054) Lord Hope of Craighead recognised that the situations which were being compared in each case were not precisely the same. After identifying a number of differences he went on to say that "the question whether the situations were comparable is, however, a question of fact and degree, and there was a good deal of evidence the other way" (para.22).

[55] In relation to the question of the appropriateness of LC as a comparator we note, as the EAT did, that while both had alleged assault, unlike LC, the appellant had not made a contemporaneous complaint of assault to the police; unlike LC he had been charged; unlike LC he had been taken into custody and faced prosecution. That said, it was a matter for the tribunal to apply its judgment to questions of fact and degree in assessing whether the situations were comparable. We are unable to say that in doing so it reached an absurd or perverse result.

[56] The tribunal then required to apply section 63A of the 1975 Act in relation to proof of discrimination. The words "could...conclude...that the respondent...has committed an act of discrimination" in that section mean that a reasonable tribunal could properly so conclude from all the evidence before it (Madarassy v Nomura International plc 2007 IRLR 246 per Mummery LJ para.57). If no adequate explanation is given by the respondents the tribunal must make a finding that there has been discrimination. In Igen Limited v Wong (supra) the Court of Appeal revised and approved the Barton guidance as to the approach to be taken in the application of section 63A. In terms of section 63A(2) the first stage required the appellant to prove that there were facts from which it could properly be inferred that his dismissal was an act of unlawful discrimination. The proper approach for the tribunal in these circumstances would be to examine the facts proved and see whether from these facts it could draw the necessary inference. Instead, the tribunal began with a hypothesis that the dismissal had occurred because Mr McNabney proceeded on the basis of sexual stereotyping. It then concluded that it could not find a better hypothesis to fit the facts and came to the conclusion that there was sex discrimination. We agree with the EAT's conclusion that this was an erroneous approach. We agree that the failure to put the appellant's side of the story to LC could not found the necessary inference. The tribunal failed properly to follow the guidance in Igen and we are satisfied that the EAT were correct in concluding in the latter part of paragraph 60 that it could not accept that the factual background was such that the tribunal could properly conclude that the dismissal was an act of discrimination. In these circumstances we agree that the EAT were correct in dismissing the discrimination claim.

Decision

[57] For the reasons set out above we shall allow the appeal in so far as it relates to the claim of unfair dismissal and restore the finding of the tribunal that the dismissal was unfair. We shall return the case to the tribunal to consider remedy. We shall refuse the appeal in so far as it relates to the claim of sex discrimination.