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Cite as: [1992] UKEAT 297_91_1111

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BAILII case number: [1992] UKEAT 297_91_1111

Appeal No. EAT/297/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11 November 1992

Before

HIS HONOUR JUDGE J HULL QC

MR T S BATHO

MR E HAMMOND OBE

MRS M SZASZ APPELLANT

LONDON BOROUGH OF ENFIELD RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant MR J MCMULLEN

(OF COUNSEL)

Legal Department

GMB

22-24 Worple Road

London SW19 4DD

For the Respondents MR J SWIFT

(OF COUNSEL)

Director of Corporate Services

PO Box 50

Civic Centre

Enfield

EN11 3XA

JUDGE HULL QC: This is the appeal of Mrs Szasz against a decision of the Industrial Tribunal for London North given on 22nd April last year. The Respondent is Mrs Szasz's former employer the London Borough of Enfield by whom she had been employed as a care assistant, responsible at night for a home where about 50 elderly people, all in need of care, all of them to some extent apparently dependent, lived in the care of the local authority.

Mrs Szasz was not the only person with that responsibility. There were various other ladies. The usual practice was to have two ladies on during the night as care assistants and there was apparently a supervisor who, unlike the care assistants, was not required to remain awake all night but who could be called in an emergency.

At the end of 1989 and beginning of 1990, some disturbing matters started to come to light. It appeared that there was, among other things, very serious ill-feeling between certain members of staff who used to come on on duty at the home during the day and the ladies who were responsible for night care and it was suggested that there was bitterness which amounted to - it has been called - a "vendetta" between the night staff and the day staff. Allegations were being made. There were various matters which had to be enquired into.

At the beginning of January one Eve Nicholas entered the home early one morning and (she said) found the two ladies, of whom Mrs Szasz was one, asleep. They had no right to be asleep. It was their duty to be awake and at that hour they should have been caring for the old people, but they were not. She reported that and it was treated as a serious matter. There was an enquiry and we have been given a large bundle of documents relating to that. At page 222 we have a statement by Mrs Nicholas and from page 226 onwards there is a transcript of the disciplinary hearing which resulted in respect of both ladies, Mrs Szasz and Mrs Hawkes a colleague of hers who were both on duty on this particular night. That was carried out by an officer of the council, Mr Juan Palacious.

Mrs Szasz and her colleague flatly denied what was being said. So far from being asleep, they were perfectly awake. So far from being alone in the room there were two residents there with them. It was a pure invention by this woman, Mrs Nicholas. That was what was put before Mr Palacious. He heard evidence. Mrs Szasz assured him that she was not asleep. At page 238 Mr Palacious reached his decision. He said:

"...I found that the charge of gross misconduct found on the evidence and balance of probability proven.

Normally this would result in dismissal but I have taken into consideration your work records and the need for rehabilitation following complaint rather than punishment I have decided not to dismiss you but to give you a first and final warning. If any further case is brought against you and proven - you will be dismissed. The letter will remain on your file for 3 years . I feel very much that I cannot allow you to remain within Night Care Work but in the spirit of consideration of your past service my decision is

1.That you should not work together - you should be separated for work (different shifts).

2.If no night duty work available at Coppice Wood Lodge or other homes, you will be transferred to day work with subsequent loss of earnings.

3.Your work performance will be monitored for 12 months."

So that was a severe final warning and a serious decision. Against that Mrs Szasz and I think Mrs Hawkes appealed and by misfortune that appeal had to be postponed several times and it had still not been heard by June, by which time other matters were coming to the fore.

Enquiries of a careful and far-reaching sort were made about exactly what had been going on at this Old People's Home and they revealed, in the view of those making the enquiries, a very serious state of affairs. I do not want to go into all the details but there were suggestions that the old people had been, on occasions, disgracefully neglected and allowed to degenerate into most disgusting conditions; and it was alleged that Mrs Szasz was one of those responsible. There is a very long report by a Mr Gregory dealing with these matters. Nobody who read that report with any regard for the public interest and the interest of the old people at this particular home could avoid feelings of horror and disgust and great concern at what is said.

With regard to the staff who were part of the night care team, a report by Mr Gregory and a Mrs Ashworth reads (at page 90) as follows:

"Over the years they have developed a strong and influential power base which is negative and retrogressive in nature.

They are highly plausible and skilled in deflecting challenges about their practice.

Duties are performed perfunctorily and certain practices are restricted because of expediency.

They have accrued such control over what they will do or will not do that they have acquired a sense of impunity.

Management is seen as weak and ineffectual and, that they do not come under continuous supervision by management is exploited.

It is highly probable that sleeping on duty is a frequent practice."

That was the report which was made after enquiries. It must have caused the greatest dismay among those responsible, both the elected and the permanent members of the authority.

As a result of investigations certain complaints were made against Mrs Szasz herself arising out of the state of affairs which I have mentioned and relying upon the evidence of several witnesses. Those are to be found at page 48 of our bundle. There are six complaints that were persisted in; again there are allegations of the grossest neglect of patients. There was a summons to attend the office and in effect answer the charges and these matters were to be heard by Mrs Arnold as Director of Social Services. They were to be heard as a disciplinary matter by Mrs Arnold on Thursday 28 June.

When that hearing took place - there is a record of it starting at page 58 - Mrs Arnold presided. There was a Ms Maureen Allan who had made a number of investigations and was presenting the case so to speak for the prosecution, that is to say pressing the charges against Mrs Szasz. Mrs Szasz was represented by Mr Tarling, a representative of the Trade Union The shop steward for the same trade union, Mr Paul Burrows, was also present as observer.

Ms Allan referred to the evidence of a number of witnesses which is set out in statements in the bundle at pages 51-55. There is the evidence of six witnesses relating to particular incidents and these matters were then dealt with by calling Mr Gregory, who produced the report which I have mentioned; he was cross-examined by Mr Tarling and the other witnesses were then called. It is all set out in the transcript. They were cross examined by Mr Tarling. Mrs Szasz denied all charges which were made against her. Among the witnesses who were called was Mrs Nicholas, who had earlier given evidence in respect of the January matter. Mrs Szasz gave evidence. She said, among other things, that it was totally untrue that she had been asleep whilst on duty. She admitted that occasionally patients did get into a bad state, some of them were incontinent, but there was no question of neglecting them in the way that was suggested. She flatly denied the charges made against her.

Mr Tarling, on her behalf, summed up and so did Ms Allan and then eventually at page 83 we come to the decision. There is, up to this point, no complaint made to this Tribunal about the way in which Mrs Arnold had carried out her duties but then something happened which does give rise to complaint. Mrs Arnold said:

"I have come to a decision. I am satisfied that Brian Gregory has shown that Mrs Szasz was on duty. There is no doubt at all in my mind that each of the witnesses gave an accurate description. [That is all the 6 witnesses I have mentioned]. It is my view that night care staff are individually and jointly responsible for the welfare of all residents. My conclusion is that the complaints are substantiated.

Is there anything you wish to add?"

She, having reached "the verdict", was now considering the question of "sentence". Mr Tarling said:

"I would ask that because of the time when this happened that you look on it with a bit of leniency with your decision."

Ms Allan, as I say taking the position really of "prosecutor" said

"I would remind the hearing that she was on her final warning following a previous disciplinary hearing heard in February this year."

Now that, as I say, was the matter which was still the subject of an appeal. The appeal had not yet been dealt with. Mrs Arnold then said something which has attracted a good deal of attention and indeed criticism. She said:

"Taking both of these things into account, the circumstances that have been outlined and in view of the vulnerability of our clients, it is my decision that you are dismissed with immediate effect. You have the right to appeal and I will be writing to you within the next seven days."

So that was Mrs Arnold's decision and it is of some interest to see that when this appeal to us was launched, one of the grounds was whether the Industrial Tribunal, which considered this matter in due course, erred in law in failing to hold that in deciding to dismissal the Appellant, Mrs Arnold acted unfairly in taking account of the written warning when that warning was under appeal.

Now one can see how that might be put and it was only today that we became aware that that ground was not to be persisted in, although Mr McMullen, appearing for Mrs Szasz, did say Mrs Arnold was wrong to do that bearing in mind that the matter was subject to appeal.

Mrs Szasz, being dissatisfied with the decision of Mrs Arnold, did appeal. At first it was not clear that she wished to appeal. Then she made it plain that she did want to appeal. Pending that appeal there was a telephone discussion between a Mr Gosling of the Council who was Principal Personnel Adviser (Employee Relations) and Mr Tarling. On 1st October Mr Gosling wrote to Mr Rice (another trade union official) as follows, after setting out certain other matters about the appeal:

"Terry Tarling telephoned me and requested that the appeal against the disciplinary transfer [that is the January matter, the single allegation of sleeping on duty] not take place but that an appeal against dismissal be arranged as soon as possible. His point to me during that conversation was that he saw the appropriate procedure for the union was to appeal against the dismissal first of all and then, if he was successful, to deal with the job that Mrs Szasz was going to do having been re-established in employment. Taking his point as being very sensible, I cancelled the arrangements for the appeal against disciplinary transfer and substituted an appeal against dismissal."

and that is evidently part of the reason why the appeal against dismissal came on before the much delayed appeal against the January matter. The appeal against dismissal was to be heard first and until the day when that appeal was heard that was understood to be the situation.

Mr Tarling did not appear for Mrs Szasz on that appeal; her case was conducted by Mr Rice. The appeal hearing was on 31 August and was presided over by Mrs Oborn, who was a Councillor. She had advisers present and when Mr Rice and Mrs Szasz appeared there was an application by Mr Rice. It is described by Mrs Oborn in evidence which she later gave to the Industrial Tribunal in this case (page 32 of the smaller bundle). She described who was sitting with her and she said:

"Mr Rice applied for an adjournment. He said under Respondent's procedure appeal on final warning ought to be heard first and against dismissal on a separate occasion. I found no merit in that application. When I said I would go ahead Mr Rice said he was going to walk out with Applicant. I tried to persuade him to stay. I said we would continue - made it clear. He said he would not stay. They left."

So what happened was that unexpectedly, the agreement having been that the appeal against dismissal should be heard first, Mr Rice was applying for the exact opposite. He wanted the appeal against the warning to be heard there and then and the appeal against dismissal, a far more important matter, to be adjourned. As I say Mrs Oborn was not having it. She said, further on in her evidence (at page 33):

"I recall at the hearing it was said inter-related evidence linking the two Applicants would like to be presented. I said "No" because warning of 25 January has been removed."

and she was referring there to an order which she had made when this application was made to her on 31 August. She said there was a reference to the other disciplinary hearing and:

"I didn't consider it to be of any account. I asked the panel to remove it - in presence of Mr Rice and Mr Spaine. I didn't feel it relevant to dismissal appeal. I didn't take it into account. It was totally disregarded."

Mrs Oborn was saying there that in her view the fair and proper thing was to proceed as they had proposed with the appeal against the dismissal, which was what they had come there to do, and she felt that it was not right to go into the matter of the January warning - sleeping on duty on that one occasion. She felt evidently that it was wrong to mix the two matters up together.

Mr Rice wrote shortly afterwards and said, among other things (page 134):

"You will recall that I requested that the Authority adhere to its procedures and allow the Appeal against the warning to be heard because it involved evidence which had a subsequent affect on the Authority's decision to dismiss Mrs Szasz.

The decision of the Appeal Panel was to discount the warning issued in January and all evidence/documentation associated with it. You will recall that I advised that this was totally unacceptable and we could not proceed with the Appeal against dismissal on such a basis."

To go on with Mrs Oborn's account of the matter she said that Mr Rice walked out with Mrs Szasz, who evidently acted on Mr Rice's advice in this matter. The panel then proceeded to try the Appeal. She said:

"I heard Mr Gregory's evidence and Mr Eastman. We questioned witnesses quite some time. The oral evidence was not materially different from the written statements we had. I was in no doubt Applicant had neglected her duty in sleeping etc. I regarded the charges as very, very serious indeed.

Other options were considered but finally dismissal was the only penalty we could make because we found it quite appalling - evidence showed people under Applicant's care were so neglected."

That decision was conveyed to Mrs Szasz. There is a letter at page 128; the Borough Secretary and Solicitor wrote to Mrs Szasz saying:

"I refer to your Appeal against the decision of the Director of Social Services to dismiss you without notice from the Council's employment. Your appeal was heard by the Staff Appeals Panel on 31st August...

I have to tell you that the Staff Appeals Panel decided to dismiss your appeal.

In conveying that decision to you, I need to deal with some of the issues which arose at the appeal hearing. [at which of course she had not been present except for the first part]

As you know, Mr Rice, representing GMB and acting on your behalf, made submissions at the commencement of proceedings to the effect that:-

(1)on his understanding the Panel was supposed to be considering an appeal against a written warning given to you on 30th January last;

(2)The January decision had a direct bearing on the dismissal decision [this is recording of course what Mr Rice had said] and that appeal should therefore be heard before any other appeal;

(3)he was not aware until he received the formal agenda two days previously that the meeting was convened to hear only the appeal against dismissal and not the appeal against the January decision;

and stated that if the Panel proceeded nevertheless, he would not be able to participate and would withdraw.

Mr Andrew Sparke, presenting the case for the Council, submitted that the two issues were not connected, for the purpose of these proceedings, that the June dismissal letter made no reference to the January decision, that the rationale of the June decision did not on the face of it take into account the January decision, and so it could not be argued that one had a bearing on the other....

After several adjournments, the Panel decided that they could proceed nevertheless to hear the appeal against dismissal, and in doing so would disregard the decision of 30th January. They had noted that Mr Sparke's submission in relation to Mr Burrows' awareness, etc., had not been challenged."

and then going on with his account of what had happened he said among other things:

"Six Care Assistants gave evidence of individual cases, and of working with you, in accordance with their statements attached to the circulated papers.

All these witnesses were closely questioned on various parts of their evidence by members of the Panel.

Mr Sparke made a final submission.

The Panel adjourned to consider their decision. They were satisfied that the case against you had been proved, that this constituted gross misconduct, and that, for the reasons given in the Director's letter of 29 June, summary dismissal without notice is appropriate."

and that was the decision which was conveyed to Mrs Szasz.

Mrs Szasz complained to the Industrial Tribunal and her complaint was heard on 16 April 1991. In her Application to the Tribunal she complained:

"I was unfairly dismissed for alleged misconduct which I totally deny.

In addition the disciplinary and appeal procedure was not fairly applied to allow natural justice. I was dismissed while my appeal against the final written warning was pending and due to be heard in eleven days time.

Further, my employers then went ahead with an appeal against my subsequent dismissal without hearing my appeal against the warning. This despite my request that they adhere to their disciplinary procedure and policy. As a result of their insistence not to follow these, it prevented evidence being submitted in my defence. I therefore refused to take part in the appeal against my dismissal. The reasons for my dismissal pre-date the final written warning, in some instances by as much as 3 years."

That last sentence, mathematically, is undoubtedly a correct statement.

It is to be observed that her first complaint is that Mrs Oborn, in August, had gone ahead with the Appeal without hearing the Appeal against the warning which was given in January; and that was of course precisely what had been agreed, or ostensibly agreed, between the trade union representative and the authority. These matters were considered by the Tribunal. The Tribunal heard the evidence of Mrs Arnold, who said that the final warning had made no difference to her at all. She described her responsibility for the care of the various elderly and defenceless people who it was alleged had been neglected. Mrs Arnold was cross-examined at length on behalf of Mrs Szasz. Mr Gosling gave evidence about the arrangements which he had made for the panel, that is to say the arrangements that the appeal against dismissal should be heard first. Mrs Oborn gave evidence.

Then Mrs Szasz gave evidence. She said that the allegations against her were not true and she added in parenthesis "not proved beyond reasonable doubt" and she said that she was only belatedly and after the January matter made aware of the allegations against her which were tried in June. She said, by way of complaint I think, that she was quite clear that Mrs Arnold, in June, had taken into account this final written warning.

That was the evidence which was before the Tribunal, which I have endeavoured to summarise. Of course it is all set out in the Chairman's Notes.

The Tribunal in their decision at page 12 onwards recorded that submissions had been made to them by Mr Rice on behalf of Mrs Szasz. In para 2 the Tribunal recites that Mr Rice's complaints were:

"(1)the Respondent was acting unfairly in refusing to postpone the hearing relating to dismissal pending the hearing of the appeal on the written warning;

(2)evidence was shut out because of the linkage between the warning and the dismissal appeals;"

and then certain other matters including that the history of the events was murky and muddy.

The Tribunal go on:

"Having heard the evidence, we are satisfied that the Respondent carried out a thorough investigation through Mr B Gregory (who was not called to give evidence but whose written report is in the papers before us) [I have already referred to that]. Mr Gregory's oral evidence, but not the report, was before Mrs Arnold... Mrs Arnold also heard the evidence of six witnesses, apart from Mr Gregory. The Applicant's union representative took an active part in that hearing [Mr Tarling]. Mrs Arnold's decision shows that she was satisfied with the evidence she heard and, notwithstanding the Applicant's denial of the allegations, she came to the conclusion that the complaints were substantiated. We have formed the view on the evidence that, on the balance of probabilities, the Respondent carried out a reasonable and fair investigation. Further, we accept that the conclusion of the disciplinary hearing was one reached with a genuine belief that the Applicant was guilty of the offences charged. We have not heard the oral evidence that was before Mrs Arnold but we have seen the written statements of the witnesses. We have to say that anyone in the position of a manager could and would reasonably have reached the same conclusion as Mrs Arnold by the end of the hearing. Mrs Oborn, in conducting the appeal, came to a similar conclusion after hearing similar evidence. It was far from unreasonable for her to have reached that conclusion. The Applicant's length of employment was considered, as were other possibilities, but, regrettably, a decision had to be made with regard to whether or not the Applicant's employment should continue. The decision reached is not one we should criticise in any way. On the contrary, any reasonable manager faced with the type of allegations made, having found them proved on the balance of probabilities would, in our view, have come to a similar conclusion."

Then they dealt with the question of burden of proof and said, quite rightly, that of course these matters have to be decided both by employers and by Industrial Tribunals on the basis of reasonable probability.

They went on at para 5:

"We feel that the less we say about the decision of the Applicant and Mr Rice to walk out of the appeal hearing the better. It was imprudent, to put it at its most charitable. Events may have turned out differently had they had not seen fit to do so. We do not accept the points made by Mr Rice about the linkage of the cases or as to the alleged breaches of natural justice or departures from disciplinary codes. On the contrary, arrangements were made with those representing the Applicant (before Mr Rice came on the scene) for matters to be dealt with in the way they were in fact dealt with. [That of course is a reference to the arrangements made for the hearing which I have referred to]. Mr Rice and the Applicant can have no real complaint on that score if they decided to change direction or move goalposts (one of the allegations made by the Applicant against the Respondent).

All in all, therefore, we have come to the conclusion that the Respondents have shown the reason for the dismissal. We have considered the criteria to which I have referred and have come to the conclusion that this was not an unfair dismissal. The claim therefore fails and is dismissed accordingly."

The Notice of Appeal to this Tribunal is at pages 1 and 2. I should say that the allegation which I have already quoted "that Mrs Arnold was wrong to look at and consider the warning which had been given" is not persisted in nor is letter (e) and the grounds which are persisted in by Mr McMullen on behalf of Mrs Szasz are set out in letters (a) to (d). First of all there is a general averment of error of law and then we come to the most important one, as it seems to us:

"Whether the Industrial Tribunal, in assessing the reasonableness of the dismissal of the Appellant, should have asked whether it was fair for Mrs Oborn, in conducting the Appellant's appeal against dismissal, to have excluded all evidence and documentation associated with the written warning relating to the alleged events of the night of 1st/2nd January 1990, which Mr Rice wished to use in order to cast doubt on the other, later, allegations by Eve Nicholas concerning that night, allegations which she had not made at the time."

and I have already referred to what Mr McMullen told us is the essence of this matter. What Mrs Oborn herself said is at page 33, in giving evidence to the Tribunal:

"I recall at the hearing it was said inter-related evidence linking the two Applicant [I think this should read matters] would like to be presented."

That, as I say, appears to us to be the most important of the complaints made by Mr McMullen on behalf of Mrs Szasz. The others are subsidiary. At (c) we read:

"Whether the Industrial Tribunal erred in law (para 5 of its decision) in rejecting the submission that there was a linkage between the two sets of allegations made by Eve Nicholas"

and at (d)

"Whether the Industrial Tribunal erred in law in failing to hold that the arrangement previously made between the Appellant's previous representative and the Respondent was simply to disregard the written warning at the hearing of the appeal, and not to prevent Mr Rice relying on documents (including Eve Nicholas' letter of complaint of 3 January 1990) in order to cast doubt on the other allegations made against the Appellant."

I have already referred to the letter of 1st October 1990, which set out without in any way being challenged the agreement between the parties, and it was that the appeal against dismissal should be heard first. When Mr Rice attended before Mrs Oborn in August, he then for the first time suggested that that panel should proceed not with the matter which they had come there to try, but with the appeal against the warning; on the face of it, one must say, not merely departing completely from what had been agreed, but departing also from common-sense because there was no point in going into the warning if Mrs Szasz was to be dismissed. It is true that he said that there was evidence which in some way or other was common to both matters, or evidence which he wished to adduce or attack in some way connected with both matters but what he was insisting on first and foremost (and I say "insist" advisedly, it was not a request) was that the appeal against dismissal should be adjourned and that the panel should proceed to consider the appeal against the warning.

In those circumstances Mrs Oborn, who I think can hardly have been unconscious that there was a complaint about Mrs Arnold having looked at that warning and considered that warning, took what appears to us to be an eminently sensible course. Regarding the appeal against the warning as being positively irrelevant and possibly prejudicial, she said that that matter would be removed entirely from their consideration. As she put it herself at page 32, referring to the other disciplinary hearing:

So that was her view.

It does appear on the face of it to be a fair and sensible view to take. There was the isolated incident of the January misdemeanour, serious as it was, when it was alleged that this lady had been sleeping. Then there was the appeal against a number of grave charges, many of them dating back one, two or three years, on which Mrs Arnold had already reached a conclusion and on which Mrs Oborn, and those advising and assisting her, had expected to embark. What she was being asked to do first and foremost was simply to adjourn that important matter and try the possibly entirely inconsequential matter (as it must have appeared to her) of the appeal against the final warning. What she was dealing with was matters which would certainly merit, subject of course to questions of discretion, the dismissal of Mrs Szasz and which had so appeared to Mrs Arnold, as matters which did justify dismissal. So she, in a way which to any lawyer would appear to be rational and sensible, said we will put this other matter out of our minds altogether, we will take the papers out of the bundle, we will simply keep our eye on what we are doing and get on with it. They did do that and without any reference to the January matter they did reach the conclusion which I have set out.

What she was confronted with first and foremost was not merely a request but a demand for an adjournment and a demand that matters should be taken, ostensibly out of order, in the way I have indicated. When she made the decision which she did make, Mr Rice and his client, advised by him, simply marched out of Mrs Oborn's panel so that the task on which Mrs Oborn was embarking could not be assisted by them in any way.

Mr McMullen has said to us that these matters were linked. Mrs Nicholas who gave evidence in the January matter could also and did give evidence about one of the matters which were tried in June. Furthermore, both incidents had common qualities. Both of them showed the vindictiveness which existed and apparently Mr Rice would say - "I wished to cross-examine witnesses and adduce evidence with regard to both matters as supporting the case". "It's not up to me" says Mr McMullen "to say exactly what evidence would have been adduced or what questions would have been asked". The case which Mrs Szasz wished to put forward was to the effect that so far from these matters best being considered separately, they should be considered together "so that the evidence which I say", says Mrs Szasz "showed malice and vindictiveness and a vendetta of long standing between these witnesses who represented the day shift and me representing the night shift, could be exposed and a number of telling questions could be asked of, for example, Mrs Nicholas as to how it was that only one matter was reported in January when in fact there were matters going back over three years to which she, and perhaps other witnesses, could have spoken - why was that?".

There are a number of points to be made about those submissions. One is that that was not how it was put to Mrs Oborn. It was not suggested to her that these matters should be heard together and that what was required was that evidence should be adduced regarding both, that both should be gone into. On the contrary, it was insisted that so far from those being considered together so that each might throw light on the other, the hearing with regard to the January matter should be dealt with first, here and now and the other matter should be adjourned. That does not sound on the face of it to be a way of using one case to illuminate the other. What was suggested was, the procedural matter as to the order of hearing and that was a matter which was being put forward in flagrant breach of the agreement which had been reached between the parties, namely that the appeal against dismissal should be heard first; which everybody had gone there to do. So that is the first point which occurs to us.

The second is this, that it does not appear that Mr Rice on this occasion condescended to explain to Mrs Oborn that this separate hearing which he wanted was for the purpose of adducing evidence (and he could have indicated the general nature of it) so that having dealt with the January matter they could then proceed (presumably without deciding it) so that they could carry the evidence through to the June dismissal matters. On the contrary, his application for an adjournment and for the panel to try the January matter first having been rejected, Mr Rice simply turned and walked out with his client Mrs Szasz.

It is impossible, as the Industrial Tribunal said, to uphold such behaviour or to think well of it. The fact is that had Mr Rice remained and done his best for his client as Mrs Oborn proceeded with her task, there would have come the point at which Mr Rice would have said, one supposes - "I wish to ask Mrs Nicholas about the January matter because I want to suggest to her that on both occasions she was not telling the truth, she was making up a story and the fact that these earlier matters did not come to light till about March or April or were not reported till then, shows that she was not acting in good faith and was manufacturing a case as she went along and improving matters out of a malicious intention towards Mrs Szasz." Now if that had been put to Mrs Oborn she would have had to decide how to deal with that submission. Then again, if Mr Rice had taken the decision that Mrs Szasz should give evidence to Mrs Oborn dealing with these matters, it would have been necessary to try to persuade Mrs Oborn that she had something to say about the January matter which was highly material to these matters which they were dealing with - but none of that happened.

We observe that until today the complaint against Mrs Arnold was that she had quite wrongly heard about the January matters and taken them into consideration and against Mrs Oborn that she had quite wrongly failed to take them into consideration. It is an extraordinary use of an appeal procedure to put a quite different case on appeal to that which had been put below. Moreover, there was in our view a complete departure from what had been agreed about the way in which the appeal should be dealt with. We have to consider those matters in deciding whether Mrs Oborn conducted her enquiry fairly. First and foremost of course dismissal was the decision reached by Mrs Arnold in June and against that decision, apart from the ground of appeal which is now abandoned, there is no complaint. Mrs Oborn had to review that decision and she chose to do so by hearing all the witnesses again so far as she could, and so far as she was not prevented from doing so by the decision of Mrs Szasz to walk out. She heard the evidence again and therefore it was incumbent on her to treat that fairly and not confine herself to a mere technical or formal review of what Mrs Arnold had done. She appears to have done precisely what would be expected of her.

What she is criticised for is, first and foremost, refusing the demand of Mr Rice and secondly, as a result of that, excluding Mrs Szasz from adducing evidence and making points which she otherwise would have made.

The question for the Industrial Tribunal, before whom the complaint was made, was - did Mrs Oborn act within the band of behaviour which a reasonable employer might in all the circumstances adopt? Not all employers would react in the same way. Probably all employers would take this matter very seriously indeed, but was Mrs Oborn's decision to reject Mr Rice's demand, and to proceed in the way that she did, on the face of it within that band of fair and reasonable behaviour which the Tribunal is required to consider under S.57(3) of the Act?

"... the determination of the question whether the dismissal was fair or unfair . . . shall depend 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 that question must be determined in accordance with equity and the substantial merits of the case.

The Tribunal were not required to decide, any more than we are required to decide, whether they would have proceeded in just the way that Mrs Oborn did. The question was whether, in an objective and sensible way, Mrs Oborn's enquiry could be said to be conducted fairly and reasonably.

We think that Mrs Oborn, confronted as she was with this complete volte-face as to how she should carry on her enquiry, confronted with the demands and indeed defiance of Mr Rice and the departure from what had been agreed previously, acted within the bands of what was reasonable and fair in saying: "I shall go on with this and I shall try the appeal against dismissal as best I can in all the circumstances. I shall put out of my mind everything connected with the January matter as being irrelevant to my enquiry". But that is not the question for us. It was the question for the Industrial Tribunal. The question for us is: Was the Industrial Tribunal entitled, having heard all the evidence, to reach the conclusion that they did? That is the question for us. Is there any error of law disclosed in the way in which the Industrial Tribunal approached their task and the decision that they reached that Mrs Oborn had behaved in a reasonable manner and conducted her enquiry with proper care and fairly? We cannot find that there is any error in the Industrial Tribunal's reasoning and conclusions on that point. The question for us is whether the Industrial Tribunal were entitled, as a matter of law, to reach the conclusion which they did and we are all satisfied that they were so entitled.

The appeal must be dismissed.