United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A LYNCH (of Counsel) Messrs Rollit Farrell & Bladon Solicitors Wilberforce Court High Street Hull HU1 1YJ
For the Respondent	MR D BROWN (of Counsel) Messrs Thompsons Solicitors Price House 37 Stoney Street The Lace Market Nottingham NG1 1NF


 


JUDGE PETER CLARK: The Applicant, Mr Goodall, presented a complaint of unfair dismissal against his former employer, the Respondent University on 25^th March 1998. That complaint came before an Employment Tribunal sitting at Leeds, comprised of the Chairman, Mr C T Grazin, sitting with Mr D Sellers and Mr A G Stickings, on 8^th June 1998. By a decision promulgated with extended reasons on 25^th June 1998 (the first decision) the Employment Tribunal upheld the complaint and ordered the Respondent to reinstate the Applicant. It is against that decision that this Appeal is brought by the Respondent. We shall use the same descriptions of the parties as below. Subsequently, on 28^th October 1998 the same Tribunal was reconvened, the Respondent having failed to comply with the reinstatement order.

1. By a second decision, promulgated with extended reasons on 19^th November 1998, the Employment Tribunal held that it was practicable for the Respondent to reinstate the Applicant and they ordered the Respondent to pay to the Applicant compensation consisting of a basic award of £4,389.22; the maximum compensatory award of £11,300 and an additional award, based on 22 weeks pay, of £4,491.30, a total of just over £20,000.

The Facts

2. The Applicant was continuously employed by the Respondent from the 12^th June 1978 until his dismissal on 2^nd February 1998. That decision was upheld at an internal appeal hearing held on 12^th March 1998.
3. The events leading up to the dismissal were these. At the relevant time the Applicant was one of a number of site caretakers at the George Street Campus of the University in central Hull.
4. There was, on the ground floor of the site, known as the School of Architecture, a large canteen. The Respondent hired out that canteen for private functions. One such function took place on the evening of Friday 19^th December 1997. The Applicant was not on duty that night; another caretaker, Mrs Doreen Wake was. So too was a catering officer, Maxine Mooney.
5. The following Monday morning, 22^nd December, the Applicant came on duty, according to the burglar alarm records, at 6.09 am. At about 8.30 that morning the Applicant reported to his immediate line manager, Mr Richards, that substantial damage had been done to two separate toilet areas on the ground floor of the building; the first was adjacent to the main entrance, the second was adjacent to the Savile Lecture Theatre.
6. The Respondent, not unnaturally, wished to enquire into the cause of the damage. Mr Mullaney, the Director of Estates and Facilities, wrote to Mrs Wake, Ms Mooney and the Applicant. He asked the first two for a full written report detailing the close-down procedure, including any reported damage, relating to the night in question; of the Applicant, he required a full written report of his opening procedure and the damage found on the Monday morning.
7. No other enquiry was made of any member of staff or otherwise. In particular, no enquiry was made of the hirer of the premises that night, or of the security staff on duty, or any of the party-goers.
8. In response to Mr Mullaney's enquiry the Applicant said that he found the damage at about 6.20 am and reported it at about 8.30 am. Mrs Wake said that she locked the Savile Theatre toilet block at about 9.30 pm when there was no visible damage. She said that she checked the other toilet block near the main entrance at about 1.15 am before leaving the building and there was no visible damage there. Ms Mooney found certain minor problems there at 1.15 am but did not see any of the damage reported by the Applicant.
9. On receipt of those reports, collected by Ms Langton, an assistant personnel officer, she recommended to Mr Crothall, the pro-Vice Chancellor, that the Applicant be suspended. He agreed with that advice and by a letter dated 16^th January 1998 the Applicant was suspended pending an investigation into the damage. He was provided with copies of the statements of Mrs Wake and Ms Mooney and was told that at the conclusion of the investigatory process the Respondent might instigate formal disciplinary action against him. Thereafter, the Respondent obtained information from the security alarm company. That showed that the premises were secured at 1.28 am on 20^th December 1997 and re-opened at 6.09 am on 22^nd December. Mr Mullaney then sent a note to Ms Langton, expressing serious concern about the Applicant's statement and, the Employment Tribunal observed, clearly accepting the accuracy and veracity of the statements made by Mrs Wake and Ms Mooney. He also referred to a complaint of harassment made by Mrs Wake and her Trade Union against the Applicant and other male caretakers. A copy of that note was shown to the Applicant.
10. On 23^rd January 1998 the Applicant was told to attend a disciplinary hearing on 30^th January, it being alleged against him that he had caused substantial damage to the toilet area at the George Street premises.
11. That hearing took place on 30^th January before Mr Crothall. Ms Langton attended and took notes. The Applicant attended with his Trade Union representative, Mr Fields. The note taken by Ms Langton was not challenged. It was the Applicant's case that he had no motive to cause the damage and had not done so; it was caused by the party-goers on the night of 19^th/20^th December. Mrs Wake was brought in to give her account and was questioned by Mr Fields. Mr Fields suggested to Mr Crothall that Mrs Wake had neither locked or checked the toilets as she had said.
12. Mr Crothall then dismissed the Applicant for gross misconduct. A letter of dismissal dated 2^nd February 1998 was sent to the Applicant, advising him of his right of appeal.
13. The Applicant did appeal and an appeal panel consisting of 3 University Governors was convened on 12^th March 1998, chaired by Mr Dunn OBE. The format of the appeal proceedings amounted to a re-hearing, so the Employment Tribunal found. Again, there was an undisputed note of the proceedings. Ms Mooney attended the appeal. She described the Christmas part held on 19^th/20^th December as lively, "with young people". The Employment Tribunal point out that Mrs Wake's evidence was that there had been 100 people present, with more ladies than men and that they were not young people. Mrs Wake said at the appeal that there had been "no trouble with no shouting or bawling". Ms Mooney said there was no unruliness, people were well behaved. The Employment Tribunal observed that such judgments are, of course, subjective. Ms Mooney also said that there were streamers on the floor, a one-pint glass in a toilet pan and that the floor in the open area was dirty, containing a mess of mainly serviettes, food and beer spillages.
14. The appeal panel also heard evidence from Mr Richards, Mr Mullaney, the Applicant, Mr Barker, a cleaner, called on behalf of the Applicant by Mr Fields, who again represented him, and Mr Braithwaite, caretaker for the Fine Arts Block. Mr Fields was also permitted to recall Ms Mooney, Mrs Wake and Mr Richards. Both sides summed up their respective cases.
15. The appeal panel, after deliberation, then made various findings of fact, of which the four principal findings, so the Employment Tribunal found, were as follows. We set out those findings of the appeal panel together with the Tribunal's comments as they appear in paragraph 15 of the first decision reasons:

"(i) They [the appeal panel] found, inter alia, that "entry was refused at 9.30 pm." There is nothing in the notes of the appeal hearing to support that conclusion, albeit that was the original intention of the hirer.

(ii) "The Savile Theatre toilets were locked at 9.30 pm." Clearly, the appeal panel accepted the evidence of Ms Wake on that point.

(iii) "Ms Wake and Ms Mooney checked the toilets adjacent to the caretaker's lobby before leaving and found them undamaged." Again, the appeal panel must have accepted unequivocally the evidence of Ms Wake and Ms Mooney on that point.

(iv) "Mr Goodall rang Mr Richards at 8.20 am to advise him of the damage he had found at 6.20 am." In answer to the Tribunal, Mr Dunn indicated that he did not find as a fact that the Applicant had found the damage at 6.20 am but that he had alleged to Mr Richards, in the call at 8.20 am, that that was the case. It would have been preferable if the matter had been put more clearly in the findings. More importantly, Mr Dunn confirmed that he accepted at the time of the appeal hearing, and at the time of these proceedings before the Tribunal, that the damage was in place by 6.20 am. The consequence of that acceptance is that Mr Dunn was of the opinion that the Applicant had committed the damage between 6.09 am and 6.20 am."

16. The appeal panel then expressed their decision in this way.

"[We] place great credence on the evidence of Ms Wake and Ms Mooney and regard them as reliable witnesses. With the evidence of the lock-up time of the building, the sophisticated alarm system and the opening time, we have concluded that there was no damage to the toilets at 6.09 on Monday 22^nd December 1997."

17. The Tribunal continue:

"The panel could not accept that the party-goers had caused the damage, there being no evidence to substantiate those claims, and they were satisfied, on the balance of probabilities:

"that the damage can only have been caused by [the Applicant] and therefore we uphold the decision made at the disciplinary hearing. Therefore [the Applicant] is dismissed."

Conduct Dismissals

18. It is well established that where the employer establishes that the reason for dismissal related to the employee's conduct it is not for the Employment Tribunal to decide, as a matter of fact, whether or not the employee was guilty of the conduct alleged, here deliberate damage to property. Nor is it for the Tribunal to substitute its view of the facts for the facts of management. Its task, following the well-known Burchell test, is to determine (the burden of proof being neutral as between the parties) whether the employer had an honest belief, based on reasonable grounds following a reasonable investigation that the employee was guilty of the misconduct alleged. If so, then provided that dismissal for such a disciplinary offence falls within the range of reasonable responses open to the employer, the dismissal will be fair.

The First Tribunal Hearing

19. We have been assisted in building up a picture of the Employment Tribunal's approach to this case and the conduct of the proceedings by a letter written by the Chairman commenting on the detailed Notice of Appeal and dated 25^th February 1999 (the Chairman's letter) and the comments of his lay colleagues, particularly Mr Stickings.
20. We see from paragraph 3 of the Chairman's letter this observation:

"Our immediate reaction, prior to hearing any evidence, was that it was surprising that this Applicant should, for no apparent reason, have decided to commit serious criminal damage to his employer's premises. Having heard all the evidence, that remained our view."

21. Before the Employment Tribunal the Applicant was represented by Mr Fields and the Respondent by Mr Maidment, a solicitor.
22. The first witness called by the Respondent was Mr Crothall. It is said, at paragraph (C) of the grounds of appeal, that at the conclusion of Mr Fields' cross-examination of that witness the Chairman said to Mr Fields words to the effect that he should now observe and take notice of some of the questions he should have asked. There then followed a protracted cross-examination of Mr Crothall by the Chairman. In response (letter paragraph 8) the Chairman points out that Mr Fields was a relatively inexperienced advocate. He had prepared a list of 10 questions to put to Mr Crothall. He read those questions out and without reference to Mr Crothall's answers he then stopped. It seemed to the Chairman entirely proper to ask Mr Crothall to deal with the matter in very much more detail and he did so. He accepts that he used words to the effect set out in the grounds of appeal to Mr Fields. That was a criticism of Mr Fields. In answer to the suggestion that he engaged in a protracted cross-examination of Mr Crothall the Chairman refers to the comments of his colleague, Mr Stickings. He said that in his opinion:

"the Chairman was seeking clarification of the facts concerning the scope of the Respondent's investigation and the fairness of the Respondent's Disciplinary Procedure as applied to the Applicant."

23. After Mr Crothall Mr Dunn, Chairman of the appeal panel was called. Again, it seems that Mr Fields' cross-examination of that witness was brief and the Chairman took up the questioning on behalf of the Employment Tribunal.
24. The Respondent had two further witnesses available at the Tribunal, Ms Langton and Mr Mullaney. The Chairman indicated to Mr Maidment that it was the view of the panel that they would learn nothing more of the merits of the Respondent's action by hearing further evidence. In those circumstances Mr Maidment called no further evidence.
25. Mr Fields then prepared to call the Applicant to give evidence. He was told by the Chairman that it was unnecessary to call him. In the Notice of Appeal it is said that the Chairman added that Mr Fields might conclude that the Respondent had failed on its own evidence to show it acted reasonably, which was the issue before the Employment Tribunal. Accordingly, the Applicant was not called and did not give evidence at the first hearing.
26. The Chairman, in his letter, does not accept that he referred to the failure of the Respondent to show that it had acted reasonably. He was well aware that there is no onus on the Respondent.
27. Unfortunately, the Chairman's recollection does not accord with that of the Applicant as well as the Respondent. In his comments on the Notice of Appeal served with his Respondent's answer dated 4^th December 1998, by which time he was represented by experienced solicitors, Messrs Thompson's, the Applicant said this:

"The Respondent [Applicant below] concurs that the Tribunal Chairperson did indicate that the Respondent's representative [Mr Fields] may take the view that the Appellant's representative had failed to establish that the Appellants had acted reasonably in all of the circumstances."

28. On the question of dispensing with the evidence of Ms Langton, Mr Mullaney and the Applicant, we return to the comments of Mr Stickings. His recollection is that in relation to the Respondent's two further witnesses the Chairman asked Mr Maidment whether in view of the time and the desirability of completing the hearing without need of an adjournment to a future date he considered that the witnesses would add any evidence not covered by Mr Crothall and Mr Dunn. Mr Maidment decided not call them.
29. As to the question of the Applicant giving evidence, Mr Stickings poses this question:

"Should not the Respondent's case, of its own merit, be sufficient to satisfy the Tribunal, and not require what can only be called a "fishing expedition" to make up for deficiencies in the Respondent's case."

30. At paragraph 14 of his letter, the Chairman adopts Mr Sticking's approach, saying of the absence of evidence from the Applicant:

"If he had given evidence he would no doubt have repeated to us exactly what he had told the disciplinary hearing and the appeal. That would not have assisted us in any respect. He would have done no more and no less than provide ammunition to the Respondent by way of the fishing expedition to which Mr Stickings properly refers."

31. Accordingly, based only on the oral evidence of Mr Crothall and Mr Dunn and the documentary evidence before it the Employment Tribunal proceeded to reach its decision, not only on the question of fairness, but also on the remedy sought by the Applicant, reinstatement.

The First Decision

32. In setting out the facts the Employment Tribunal said this at paragraph 4 of their reasons:

"The School of Architecture has, on its ground floor, a large canteen. It is the practice of the University to hire out that canteen to outside commercial bodies for private functions. One such function was booked to take place during the evening of Friday 19^th December 1997. The caretaker on duty was Ms Wake. We did not hear evidence from Ms Wake nor did we have any direct evidence from her or any other person as to what actually occurred that night. We do, however, find that this was a party attended by something between 100 and 220 persons, a substantial number of whom were young, however that word is defined. We know that the organiser of the party provided a free bar. We know that the party took place on the Friday night immediately prior to Christmas. It was almost certainly a Christmas party for a commercial company. The members of the Tribunal can and do take judicial knowledge of the fact that, in such circumstances, it is not unknown for parties to get out of hand, primarily as a result of consuming excessive drink. It is not unknown for damage to be caused to premises by persons at such functions. It is not unknown for a substantial amount of mess to be causes, in terms of spilt food and drink. There is no certainly that any such events happened on the night of 19^th December but, in the view of the members of the Tribunal, there is at least a possibility that such events might have occurred and, in the light of subsequent firm evidence before this Tribunal, we find that there is a probability that such events did occur."

33. We shall refer to that finding later in this judgment.
34. Having set out the facts in relation to the disciplinary investigation and its outcome the Employment Tribunal correctly posed two questions for their determination under Section 98 of the Employment Rights Act 1996:

(i) What was the reason or principal reason for dismissal?

(ii) Did the Respondent act reasonably in treating that reason as a sufficient reason for the dismissal of the Applicant, having regard to all the factors set out in Section 98(4) of the Act?

35. Dealing first with the dismissal decision taken by Mr Crothall they accepted that a potentially fair reason for dismissal was made out relating to the Applicant's conduct. Mr Crothall believed that the Applicant had caused substantial damage to the toilet areas.
36. Turning to the question of reasonableness, the Employment Tribunal referred to the well-known 3 stage Burchell test. Mr Crothall had an honest belief in the Applicant's guilt; was that belief based on reasonable grounds following a reasonable investigation?
37. As to the adequacy of the investigation, the Employment Tribunal criticised the Respondent's investigation in these respects. First, the Respondent's personnel function did not interview Mrs Wake, Ms Mooney and the Applicant at the initial stage; they merely obtained written reports. No other persons were asked to provide information; the cleaners on site on the Monday morning ought to have been approached. They rejected the Respondent's argument that it was for Mr Fields to call further evidence, if he thought it necessary, at the disciplinary stage; it was the duty of the Respondent to ensure that all relevant information such as was reasonable was obtained. The Respondent failed to carry out a reasonable investigation.
38. Further, the Respondent did not have reasonable grounds for believing that the Applicant was guilty of causing the damage. Leaving aside the absence of a reasonable investigation the Tribunal took into account the following matters. They opined that it was a substantial part of the Respondent's case that as the evidence of Mrs Wake and Ms Mooney corroborated each other's account and the Applicant's account was uncorroborated, that the two women must necessarily be believed.
39. Pausing there, we can find no warrant for that assertion by the Tribunal. The Respondent simply accepted the women as truthful. In any event, in some respects, the women's evidence did not synchronise, and on some aspects, for example, Mrs Wake's evidence that she locked the Savile Theatre toilets at 9.30 pm, was not corroborated by the other.
40. The Employment Tribunal then embark on their own evaluation of the truthfulness of the women's evidence, neither of whom were called before them on the basis that it was not for the Employment Tribunal to exercise its own judgment as to their veracity.
41. At paragraph 22 of their reasons the Employment Tribunal criticise the Respondent for excluding from their thought process the fact that the damage was reported immediately after a Christmas party. Any reasonable employer must inevitably have concluded that it was far more likely than not that such damage had been caused at the time of the private function. We note that that finding as to the inevitable conclusion of the reasonable employer coincides with this Tribunal's finding of fact at paragraph 4 that there was a probability, in the light of firm evidence, that the damage was caused that night. What that "firm evidence" was is not explained in the reasons; nor is it apparent to the reader what it was, other than the evidence from Mrs Wake and Ms Mooney that there was a mess caused by spilt food and drink after the party that evening.
42. At paragraph 23 the Employment Tribunal advance a number of theories of why Mrs Wake and Ms Mooney may, deliberately or otherwise, have got it wrong in their account of the events of the night of 19^th December.
43. Finally, whilst accepting that Mr Crothall genuinely believed in the Applicant's guilt, they found as a fact that Mr Dunn and the other members of the appeal panel did not hold that belief genuinely. The conflicting nature of the evidence presented to the appeal panel and their own findings, forced the Employment Tribunal to conclude that the appeal panel members felt duty bound to support the original dismissal decision and failed to approach their task with the independence of mind with which the Tribunal approached its task.
44. In so finding that the appeal panel had no genuine belief in the guilt of the Applicant, the Tribunal effectively rejected Mr Dunn's evidence as dishonest. In the words of the Chairman at paragraph 21 of his letter

"The members of the Tribunal were conscious that we were making a serious finding against a well-respected member of the local community."

45. In these circumstances it is unfortunate that the precise nature of that serious criticism was not put to Mr Dunn at the hearing. Apparently, it only occurred to the Tribunal during their deliberations; the Chairman did not consider it necessary to reconvene the hearing before making those findings about Mr Dunn because, had the suggestion been put to him, he would simply have roundly and flatly rejected it. Presumably, such a denial would have cut no ice with the Employment Tribunal.
46. Having found the dismissal unfair the Employment Tribunal proceeded to order the Applicant's reinstatement. In answer to the complaint that the Tribunal did so without hearing from the Applicant at that stage, the Chairman commented that the Applicant would only have denied committing the damage; nothing was to be gained from hearing that evidence. It does not appear to have occurred to the Tribunal that the Applicant might possibly have been responsible for the damage and thus, was wholly unsuitable for re-employment.

The Appeal

47. In a forceful submission Mr Lynch contends that the Employment Tribunal impermissibly substituted its own view of the Applicant's responsibility for the damage and followed that through by denying the Respondent a fair hearing on the real issues in the case. In support of that broad complaint he makes the following points:

(i) That the Tribunal substituted its own view for that of the Respondent is established by these indicators:

(a) The Chairman's observation in his letter that before hearing any evidence the Tribunal members thought it surprising that the Applicant should, for no apparent reason, have decided to commit serious criminal damage to his employers' premises and that having heard all the evidence that remained their view. That was not the question for the Tribunal. Further, they heard no evidence from the two witnesses whom the Respondent relied on, Mrs Wake and Ms Mooney, precisely because it was not for the Tribunal to assess their credibility.

(b) The Tribunal found, in paragraph 4 of their reasons, that the damage was probably caused by the party-goers; a finding based apparently on the fact that food and drink had been spilt, causing a mess, and the Tribunal's own perception that Christmas parties sometimes get out of hand due to excessive drinking, leading to damage being caused. That is a wholly impermissible approach to the question of the reasonableness raised by Section 98(4) of the Act.

(c) The Tribunal expressed its own views as to the credibility of Mrs Wake and Ms Mooney based on their own speculation and by ascribing to the Respondent a basis for their accepting the women's evidence, mutual corroboration, which is not borne out by the evidence.

(ii) The Tribunal, having reached their own view as to the truth of the matter, then did not permit a fair hearing in that:

(a) The Chairman engaged in an extensive cross-examination of the only two witnesses called, Mr Crothall and Mr Dunn.

(b) He dissuaded the Respondent's representative from calling further evidence and Mr Fields from calling the Applicant.

(c) The Tribunal made a serious finding as to the probity of Mr Dunn and his colleagues on the appeal panel without giving him (or them) a chance to deal with the point.

(d) It is common ground between the parties and Mr Stickings, although not the Chairman, that he said that it was for the Respondent to satisfy the Tribunal that it had acted reasonably in dismissing the Applicant.

48. In response, Mr Brown has focused on the Tribunal's findings as to the Respondent's failure to carry out a proper investigation, a permissible ground for concluding that the dismissal was unfair.
49. In relation to the matters raised by Mr Lynch he submits:

(i) That the Tribunal properly directed themselves in law and specifically reminded themselves that they must not substitute their view for that of the Respondent (reasons paragraph 23).

(ii) The Chairman's observation in his letter as to the Tribunal's reaction prior to hearing the case did not amount to pre-judgment.

(iii) Mr Maidment, an experienced solicitor, was quite capable of deciding whether or not he needed to call further evidence.

(iv) Since the question for the Tribunal was not whether the Applicant was in fact guilty of the misconduct alleged, his evidence was strictly irrelevant. (cf London Borough of Hackney -v- Usher [1997] ICR 705.)

(v) There was nothing untoward in the way that the Chairman managed the case. It was for him to test the case advanced by the Respondent for dismissing the Applicant in the absence of professional representation.

(vi) Even if the Tribunal made some strange findings, that does not undermine their core conclusion that here the Respondent had failed to carry out a reasonable investigation.

(vii) Although the precise nature of the Tribunal's eventual finding in respect of Mr Dunn was not put to him, that finding was not of itself disposative of the case. (cf C F Laurie -v- Holloway [1994] ICR 32.

50. He submits that we ought not to interfere with the first decision. There is no separate appeal against the second decision. They should stand.

Conclusion

51. We recognise the force of Mr Brown's submissions in support of the Tribunal's decision. Taken individually the complaints made by the Respondent may be isolated and minimised as he has sought to do. We have no doubt that the Chairman was fully familiar with the correct principles of law which ought to be applied in this case. The finding that the Respondent failed to carry out a reasonable investigation will generally be a question of fact for the Tribunal with which we cannot and should not interfere.
52. However, we have looked at this case in the round; was the overall impression conveyed to the Respondent by the Tribunal one of pre-judgment based on their own perception of the underlying merits of the matter?
53. It is abundantly clear to us that the Tribunal formed a premature and irrelevant view that it was not the Applicant but the party-goers that caused the damage. That of course, was not the question for them. Having done so, the proceedings and the first decision were firmly directed towards a finding in favour of the Applicant. Hence, the Chairman's descent into the arena to teach the Applicant's representative how to cross-examine his opponent's witnesses; the indication to the Respondent's representative that he need call no further evidence; a similar indication given to the Applicant's representative not to call him, on the basis, we are satisfied, that the Respondent had failed not simply to make out a case which it was not obliged to make out, but had failed and would fail to dislodge the Tribunal from its pre-conceived idea as to the truth of the matter. We find the Chairman's comment that giving the Respondent an opportunity to cross-examine the Applicant would have provided ammunition to them by way of a fishing expedition revealing. It shows that the Tribunal had by then reached an unshakeable view on the matter. It is correct to say that in a properly conducted exercise by the Tribunal the Applicant's evidence as to the core events is strictly immaterial. But where the Tribunal embarks on speculation as to the credibility of witnesses relied on by the Respondent in reaching its decisions and as to the Applicant's motive or lack of motive for causing the alleged damage it seems to us that the Respondent was placed at a double disadvantage.
54. Our view is reinforced by the Tribunal's finding, at paragraph 4 of their reasons, that the damage was probably caused by the party-goers, an irrelevant view, based on inadequate grounds, namely, the unsurprising mess spoken to by Mrs Wake and Ms Mooney and the Tribunal's own view as to why their evidence could not be believed.
55. The treatment of Mr Dunn's evidence is a further troubling feature of the Tribunal's approach. There is no question of his being placed in a different category from any other witness before a Tribunal by virtue of his position, as the Chairman suggests the Respondent is seeking to do; it is that he should be treated in the same way as any other witness and given the basic right to defend himself from serious criticism. What deeply concerns us is the Chairman's comment that it was unnecessary to reconvene the Tribunal to put a suggestion to Mr Dunn which he would have rejected. That fuels the impression that the Tribunal had adopted a closed-mind approach to the case. Just as the Applicant could not usefully give evidence because he would assert that which the Tribunal apparently accepted; Mr Dunn would simply reject that which the Tribunal firmly believed.
56. In these circumstances we have concluded that the first decision and consequently, the second decision cannot properly stand. The appeal is allowed. Both decisions are set aside. The case will be remitted for a complete rehearing before a fresh Employment Tribunal.