United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D BARNETT (of Counsel) Instructed by: Messrs Rowberry Morris Solicitors Morroway House Station Road Gloucester GL1 1DW
For the Respondent	MR P CADNEY (of Counsel) Instructed by: Messrs Metcalfes Solicitors 46-48 Queen Street Bristol BS1 4LY


 


MR JUSTICE WALL

1. In this appeal, Marlowe Child & Family Services Limited (the Appellant) appeals against the unanimous Decision of the Employment Tribunal sitting at Bristol on 3, 4, 5 and 12 January 2001 (the latter day being members only) and promulgated on 1 February 2001. The unanimous Decision of the Tribunal was that the Applicant before it, Mr Edward McIntosh was unfairly dismissed by the Appellant. Issues of remedy were adjourned to a date to be fixed. We were informed at the hearing of this appeal that the remedy hearing had taken place. The Tribunal had made an award to Mr McIntosh, and had assessed his level of contribution at 50%.

The facts in summary

2. The Appellant specialises in the provision of care, education and therapy for children and young persons. As the Tribunal found, many of the Appellant's charges are in the care of local authorities, to whom the Appellant contracts its services.
3. Mr McIntosh commenced work for the Appellant in April 1996 as a care worker. As part of the recruitment process, he was obliged to give details of any criminal convictions he had. In the context of Mr McIntosh's employment, the Rehabilitation of Offenders Act 1974 does not apply. Mr McIntosh gave details of a number of relatively minor convictions, all of which had been dealt with by means of financial penalties, apart from a conviction for drink-driving in 1986, for which he received a ban.
4. The information which Mr McIntosh gave as to his previous convictions subsequently turned out to be inaccurate, and in the dismissal letter dated 5 May 2000, which is in our papers, Mr Paul Thomas, a director of the Appellant's sister company operating in Pembrokeshire, who chaired the disciplinary hearing, relied upon the factual errors in Mr McIntosh's record as evidence of breach of contract and gross misconduct. Paragraph 5 of the dismissal letter reads:-

"5. Police check

Eddy McIntosh admitted to factual errors on police check. Clear that a different picture was being painted since there considerable discrepancies in dates on issues that are unlikely to have forgotten [sic]. Conclusion was that a false impression was being created, which is clearly a breach of contract and Gross Misconduct."

5. Notwithstanding that finding, the Appellant in this appeal has not sought to rely on the inaccurate information given by Mr McIntosh either as a breach of contract or as gross misconduct warranting summary dismissal. Furthermore, in the light of our subsequent findings, it is right to record that the Employment Tribunal states of Mr. McIntosh prior to March 1999:

"his commitment to the care of young people was never challenged and all appraisals and performance reviews …… were highly satisfactory"

(Extended reasons, page 2, paragraph 4).

6. The remaining matters relied upon by the Appellant for Mr McIntosh's dismissal are set out in Mr Paul Thomas' letter of 5 May 2000. The first relates to a young man identified by the Tribunal as AC. The allegation against Mr McIntosh in relation to AC was that when Mr McIntosh had had this young man in his charge, Mr McIntosh had invited him to go with Mr. McIntosh in one of the Appellant's vehicles on a trip to Tewkesbury. The allegation made by AC was that the purpose of the trip was a purely personal one and that during the course of it Mr McIntosh had driven at speeds in excess of one hundred miles per hour and had frightened AC badly. He had therefore requested that he should not be cared for by Mr McIntosh again.
7. Mr Paul Thomas' finding on this allegation was in these words:

"Complaint of speeding in car and inappropriate use of company time

Gross misconduct for driving recklessly and misconduct for inappropriate use of company time. This was based on the complaint of a young person, which was upheld on the balance of probability that it was extremely unlikely that a young person would make up such a detailed complaint. Also that he would then continue to substantiate this complaint whilst out of the care of (the Appellant). If the first complaint is accepted, it follows that the further allegation of inappropriate use of company time is substantiated."

8. There then followed two allegations relating to a young man identified as JS. In relation to the first of these, the Tribunal found that on 18 March 1999 there had been an incident between Mr McIntosh and JS, which culminated in JS making complaints that Mr McIntosh had sworn at him repeatedly, and had attacked him. This incident led to Mr McIntosh's suspension and he was subsequently charged by the police with common assault.
9. In relation to this incident, Mr Paul Thomas' finding was as follows:-

2. Incident of 18/03/99 re JS

"It is clear from the reaction of the young person that something extremely serious went wrong during this incident. Attitude of Eddy McIntosh was a contributory factor to the incident with little evidence of de-escalatory tactics being employed. Therefore it can be concluded that the restraint was excessive and inappropriate. Whilst it was not possible to prove whether JS was hit in the way he described, it is reasonably safe to conclude that the restraint was aggressive in nature and that JS was emotionally and physically affected by it. Preventing J S from entering his own house is a clear breach of Children Act Regulations and the procedures of the [Appellant]. Gross misconduct therefore occurred."

10. The second allegation involving JS related to the same incident. Mr Paul Thomas dealt with it in the following way:-

" 3. Swearing

Eddy McIntosh admits to swearing directly at JS and this was supported from witness statement of SB. Whilst it is accepted that swearing occurs in daily life, specific sexualised swearing directed at a young person is unacceptable, and is classified as emotional abuse. Misconduct therefore occurred for each individual instance of swearing. The swearing during the incident of 18/03/99 and other swearing heard about during the hearing equates to oppressive practice and the that [sic] this is therefore Gross Misconduct."

11. The final incident relied upon by the Appellant for dismissing Mr McIntosh comprised two telephone conversations on 29 November and 1 December 1999 between Mr McIntosh and Mr Branchflower, the Appellant's Service Manager. In these two telephone conversations Mr McIntosh was abusive towards the Appellant, threatened to sue, and threatened to sell his story to the newspapers. He also made a specific allegation that a former employee of the Appellant, one Simon Miller, had sexually abused a young person in his and the Appellant's care. As Mr Branchflower reported it, Mr McIntosh specifically threatened to take that matter to the newspapers unless he obtained a settlement from the Appellant, and said in terms that he would close the Appellant's business down.
12. As the Tribunal commented, quite apart from the inherent seriousness of the allegation itself, there was an added sting to what Mr McIntosh was saying. The Appellant is very much a family run company. As the Tribunal understood it, two of the Directors, namely Mr Bill Thomas and Mrs Anne Thomas were husband and wife; both had children by earlier marriages and Simon Miller was Anne Thomas's son. Two other officers were, respectively, Mr Simon Miller's brother and sister.
13. Mr Paul Thomas dealt with this allegation in the following way:-

"4. Threatening Marlowe Child & Family Services

Eddy Mcintosh admits to making threats to JB which were substantiated by statement from JB. Whilst it is accepted that Eddy was suffering substantial amounts of stress at the time, his concerns should have been directed at appropriate agencies such as child protection or the police, not the press. This is Gross Misconduct."

14. Mr Thomas concluded his letter to Mr McIntosh by stating:

"To justify dismissal, misconduct must be such that the organisation can reasonably conclude that it can no longer tolerate the employee's continued presence at the place of work. This is the case in this instance and instant dismissal can be the only course of action available."

15. The Appellant was told of his right of appeal. He did appeal. The appeal was dealt with by Anne Thomas, Senior Director of the Appellant Company and Paul Thomas' stepmother. The procedure adopted, apparently with the approval of Mr McIntosh's trade union representative, was that the appeal was dealt with on the basis of the written material which Mrs Thomas reviewed independently. Having done so, she concluded that there was nothing in the disciplinary process or decision to which exception could be taken. Accordingly, she confirmed the dismissal.
16. Two further preliminary points should be made. Firstly, the disciplinary hearing before Mr Paul Thomas took three days, with cross-examination of all relevant witnesses. Secondly, although the Appellant is a closely knit family company, no suggestion of bias or impropriety is made against either Mr Paul Thomas who undertook the disciplinary hearing or Mrs Anne Thomas, who conducted the appeal.

The Law

17. Before analysing the Decision of the Tribunal, we propose to set out the relevant law in some detail. We do so, because the principal ground of appeal is that the Tribunal either failed to apply or misapplied the well known tests set out in British Home Stores Ltd -v- Burchell [1978] IRLR 378; Iceland Frozen Foods Ltd -v- Jones [1982] IRLR 439 and Post Office -v- Foley [2000] IRLR 827. Mr Barnet, for the Appellant, recognised that the Chairman of the Tribunal was one of the most experienced Chairmen in Bristol. He did not quite argue that "Homer had nodded"; but it was his case that the Tribunal erred in law by misapplying the relevant authorities and section 98(4) of the Employment Rights Act 1996 in a number of ways.
18. We begin, of course, with section 98 of the Employment Rights Act 1996. For present purposes, the relevant subsections of section 98 are the following:

"(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."

19. It is, we think, sufficient for us to refer only to three of the leading cases in which section 98 (and its predecessor) have received judicial attention. The first in time is the decision of Arnold J. in British Home Stores Ltd -v- Burchell [1978] IRLR 379. As the headnote states, Miss Burchell was dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. Miss Burchell was dismissed and an Industrial Tribunal found the dismissal to be unfair. However, by the time the company's appeal reached the EAT, Miss Burchell was back working for the company, and did not appear to resist the appeal.
20. The decision is well known for a statement by Arnold J on the proper approach to cases in which (1) there has been a suspicion or belief of an employee's misconduct entertained by the employer; (2) the employee has been dismissed on that ground, and (3) that ground is then reviewed by an Employment Tribunal on the employee's complaint of unfair dismissal. The central point of the appeal to the EAT was, accordingly, the nature and proper extent of a Tribunal's review of the situation as it was at the date of dismissal. Arnold J said:

"What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the Tribunal would itself have shared that view in those circumstances. It is not relevant, as we think, for the Tribunal to examine the quality of the material which the employer had before him, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being 'sure' as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter 'beyond reasonable doubt'. The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion."

21. Having reviewed the facts, Arnold J continued:

" What one there finds, as it seems to us, is the undisputed fact that management did form the belief that Miss Burchell was guilty; that the matters which went into that belief were what had emerged from the examination of the docket signing pattern, what Mrs L had said (though very unspecifically), and Miss Burchell's denial of the equally unspecific retailing of that to her; and the matter of the sun-glasses, where she had accepted, according to the evidence as found by the Tribunal, that she knew that Mrs L was getting the goods too cheap. The question which had to be determined by the Tribunal was, as we think, quite simply whether a reasonable management could find from those three matters material for a belief that this young lady had done what she was suspected of doing. It seems to us impossible to answer that question except in the affirmative.

What seems to have happened here, as we read the Decision, is that having, as we have already mentioned, started out by stating the function of the Tribunal with accuracy, they then were in the course of their observations or considerations - perhaps very humanely with some degree of sympathy with the young applicant, not professionally represented, and an anxiety to see that she got a fair crack of the whip - departing from the task which they had set themselves, and that they embarked upon an independent evaluation of the evidence, not for the purpose of seeing whether management could reasonably have drawn the conclusion which management in fact drew, but whether that was by an objective standard a correct and justifiable conclusion. And moreover they were led into examining the matter from the point of the standard of proof which could be derived from the matters which had been stated, which were known to management, in order to see whether the conclusion was justified. There are extensive citations from the well known case of Hornal v Neuberger Products Ltd (1956) in which the Court of Appeal considered in great particularity different standards of proof - or, perhaps more accurately put, whether there was a different standard of proof - in a civil case on the one hand and in a criminal case on the other. That, as we think, had absolutely nothing whatever to do with the proper task of the Tribunal, which had throughout to do that which this Tribunal initially embarked on doing, which was to examine the reasonableness or otherwise of the conclusion reached by management.

They also, it seems to us, became confused along the line between the two somewhat distinct tasks of investigating whether the conclusion of management was a reasonable conclusion on the basis of the material which they had before them and whether, in assembling that material, management had carried out the sort of investigation which a reasonable management could have regarded as sufficient. At the end of the day, no doubt, the two things run close and parallel; but they are distinct."

22. The next case in time is Iceland Frozen Foods Ltd -v Jones [1982] IRLR 439, a decision of the EAT presided over by Mr Justice Browne-Wilkinson. Mr Jones was a night shift foreman at the Appellants' warehouse, one of whose duties at the end of the night shift was to lock up the warehouse and office and to reactivate the security system. He was dismissed following an incident when the day shift arrived to find that the office accommodation was unlocked and the electronic security system had not been reactivated. It was also discovered that the work done by the night shift was essentially smaller than normal, and Mr Jones' employers drew the inference that he had not only not locked the premises or reactivated the alarm, but that he had also been party to a deliberate go-slow by the night shift. He was, accordingly, summarily dismissed.
23. An Industrial Tribunal found the dismissal was unfair. They did not regard the failures in relation to security as being serious, and they did not think it was reasonable to dismiss Mr Jones in respect of the go-slow, since he had been told some three months earlier that he had been too tough with the workforce. The Tribunal also took the view that the dismissal had been unfair on procedural grounds, since Mr Jones had not been permitted to exercise his contractual right to be accompanied by a union representative at a disciplinary hearing. They also took the view that the discussion between the employers and Mr Jones had been too short to allow him to put his case. The Tribunal stated expressly that they were not deciding the case on the basis of whether the decision to dismiss fell within the band of reasonable conduct which a reasonable employer could adopt.
24. The employer's appeal to the EAT was allowed. After reviewing the relevant authorities, Browne-Wilkinson J. said this:

"Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the Industrial Tribunal to adopt in answering the question posed by s.57(3) of the 1978 Act is as follows.

(1) the starting point should always be the words of s.57(3) themselves;

(2) in applying the section an Industrial Tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer's conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.

25. At paragraph 27 of the judgment, dealing with the procedural issues, Browne Wilkinson J said this:

"As to the alternative ground relied on by the Industrial Tribunal, namely, procedural unfairness, as we have said we do not think it the correct approach to deal separately with the reasonableness of the substantive decision to dismiss, and the reasonableness of the procedure adopted. The correct approach is to consider together all the circumstances of the case, both substantive and procedural, and reach a conclusion in all the circumstances. Moreover, it has been demonstrated to us from the notes of evidence that on an important issue on procedure the Industrial Tribunal apparently misdirected itself. The Industrial Tribunal took the view that Mr Boyland at the short interview did not give Mr Jones an opportunity to state his case as to the reason for the go-slow. The notes of evidence disclose that both Mr Boyland and Mr Jones himself gave evidence that at that interview Mr Jones did put forward his explanation of the go-slow by the night shift. In the circumstances, it cannot be safe for us to uphold the decision of the Industrial Tribunal on the grounds of procedural unfairness alone."

26. The third case is the decision of the Court of Appeal in Post Office -v- Foley; and HSBC Bank PLC -v- Madden [2000] IRLR 827.
27. These two cases, raising the same point, were taken together by the Court of Appeal in order to resolve what Mummery LJ described as:

"the current state of uncertainty in the Employment Tribunals on some fundamental aspects of the law of unfair dismissal".

In each case, the employee had been dismissed for alleged misconduct. Mr Foley had been give leave of absence from his shift in order to deal with a domestic problem. About an hour later, he was sighted in a nearby public house. His defence was that he had gone to the public house to call for a taxi, and had left sometime before the alleged sighting. His employers rejected that explanation and decided to dismiss him. That decision was upheld following an appeal which took the form of a rehearing. His complaint of unfair dismissal was rejected by the Tribunal which found that the decision to dismiss him for the alleged misconduct, although "harsh" was not unreasonable. The Tribunal concluded that the dismissal was within the range of reasonable responses, and was mindful that it must not impose its decision upon that of a reasoned on-the-spot management. Mr. Foley appealed to the EAT, which allowed his appeal on the ground that there had been no consideration as to what was the range of reasonable responses to the conduct in question.

28. Mr Madden was dismissed by the bank after an internal investigation indicated that he had been involved in the misappropriation and fraudulent use of three customer debit cards. The Tribunal found that the dismissal was unfair, concluding that the whole tenor of the internal investigation was to point to Mr Madden as the likely culprit, and that the investigator's conclusions had been accepted too readily and uncritically. The EAT dismissed the employer's appeal against that decision, taking the view that the three elements in the test laid down by Arnold J in British Homes Stores -v- Burchell, namely belief in the employee's guilt, reasonable grounds for that belief, and reasonable investigations all related to establishing the reason for dismissal and not to the question of reasonableness. In a disputed misconduct case, the EAT argued that an Employment Tribunal was free to substitute its own view for that of the employer in coming to a view on each of the three parts of the Burchell test. The EAT further held that a Tribunal was also free to substitute its own view for that of the employer as to the reasonableness of dismissal as a response to the reasons shown for it.
29. Giving the leading judgment in the Court of Appeal, Mummery LJ said that "the band or range of reasonable responses" approach to the issue of the reasonableness or the unreasonableness of a dismissal as expounded by Browne-Wilkinson J in Iceland Frozen Foods Ltd -v- Jones and as applied and approved in a number of other decisions remained binding on the Court of Appeal as well as on Employment Tribunals and the Employment Appeal Tribunal.
30. He went on to say that the tripartite approach to (a) the reason for and (b) the reasonableness or unreasonableness of a dismissal for a reason relating to the conduct of the employee as expounded by Mr Justice Arnold in British Homes Stores Ltd -v- Burchell remained binding on the Court of Appeal as well as on Employment Tribunals and the EAT. Any departure from that approach, for example by suggesting that reasonable grounds for belief in the employee's misconduct and the carrying out of a reasonable investigation into the matter relate to the establishing of the reason for the dismissal rather than to the reasonableness of the dismissal was, he said, inconsistent with binding authority.
31. Dealing with the approach of the Tribunal in Mr Foley's case, Mummery LJ said, at paragraph 38:

"In accordance with s.98(4), the tribunal considered all the relevant circumstances and determined the question whether the dismissal was fair or unfair in accordance with the equity and substantial merits of the case. In particular, in accordance with the approach in Burchell, the Tribunal considered whether the Post Office had established reasonable ground for its belief that Mr Foley was guilty of misconduct and that it had carried out as much investigation into the matter as was reasonable in all the circumstances of the case."

32. Having dealt with a defect in the disciplinary hearing, and having agreed with the EAT that the deficiency had been remedied on appeal, Mummery LJ went on to deal with the range of reasonable responses approach. This is what he said:

"43 The employment tribunal then followed, as it was bound by authority to do, the Iceland Foods approach and held that, although it was of the view that the decision to dismiss was 'harsh', it was not entitled to substitute itself for the employer and impose its 'decision upon that of a reasoned on-the-spot management decision (paragraph 29)'. Instead it asked, as required by authority, whether the dismissal was within the range of reasonable responses for this employer to have dismissed this employee'. It found that it was."

33. This approach was approved by the Court of Appeal. Mummery LJ in his judgment, reiterated the correctness of the approach in Iceland Foods. Members of the Tribunal must not simply consider whether they personally think that the dismissal is fair, and they must not substitute their decision as to what was the right course to adopt for that of the employer. The proper function of the Tribunal is to determine whether the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.
34. In the Madden case, there was no dispute that the reason for the dismissal of Mr Madden related to his conduct within the meaning of section 98(2)(b) of the Act - that is to say the bank's reasonable belief that he had been involved in the misappropriation of the three debit cards which were subsequently used fraudulently; and that that led to an irretrievable breakdown of trust between the bank and Mr Madden. The Court of Appeal held that the Tribunal had impermissibly substituted itself as employer in place of the bank in assessing the quality and weight of the evidence before the person conducting the disciplinary hearing, principally in the form of the Investigating Officer's Report. Instead, the Tribunal should have asked itself whether, by the standards of the reasonable employer, the bank had established reasonable grounds for its belief that Mr Madden was guilty of misconduct and whether the bank's investigation into the matter was reasonable in the circumstances. Mummery LJ criticised the Tribunal in these terms:

"78 In my judgment no reasonable tribunal, properly applying the approach in Burchell and Iceland Foods to the facts, could have concluded either (a) that the bank had failed to conduct such investigation into the matter as was reasonable in all the circumstances or (b) that dismissal for that reason was outside the range of reasonable responses."

79 Instead of determining whether the bank had made reasonable investigations into the matter and whether it had acted within the range of responses of a reasonable employer, the tribunal in effect decided that, had it been the employer, it would not have been satisfied by the evidence that Mr Madden was involved in the misappropriation of the debit cards or their fraudulent use and would not have dismissed him. The tribunal focused on the insufficiency of the evidence to prove to its satisfaction that Mr Madden was guilty of misconduct rather than on whether the bank's investigation into his alleged misconduct was a reasonable investigation."

35. Mummery LJ 's judgment ends with this helpful paragraph:

"80 This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an appeal against, the merits of the employer's decision to dismiss. The employer, not the tribunal, is the proper person to conduct the investigation into the alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response."

The application of these principles to the instant case

36. How do the Reasons given by the Tribunal in the instant case match up to the three decisions cited? Mr McIntosh's disciplinary hearing began on 25 April 2000, a little over two months from the date of his acquittal before the justices of assaulting JS. He was warned of the matters which would be investigated, namely the JS incident, the alleged deliberate falsification of the record of his previous convictions, an allegation of threats arising out of the telephone conversations with Mr Branchflower, and the allegation relation to AC. The Tribunal recorded that there was subsequently a meeting between Mr McIntosh and his full time trade union representative and the Appellant, at which the charges were discussed and paperwork provided.
37. The disciplinary hearing itself extended over three days. No complaint was made of the fact that it was presided over by Mr Paul Thomas, who was a step brother to other family members involved in the Appellant's management. Mr Paul Thomas was not so involved and had little knowledge of Mr McIntosh.
38. The Tribunal also recorded that at the hearing Mr McIntosh was represented by a full time trade union official and that a number of witnesses were called on both sides and were cross-examined. What are described as "two copious sets of notes" were taken, and accepted as a broadly accurate of what had taken place.
39. The Tribunal records a number of admissions which Mr McIntosh made during the course of the disciplinary hearing:

"18 The applicant admitted he had driven AC in the respondent's vehicle on occasions, but denied using it for personal reasons, or driving fast. He admitted that his recital of his previous convictions in his application form was inaccurate, although he said that this was simply a mistake. Although he denied any intention to extort money from the company he did agree that in worry and frustration he had made the sort of comments which Mr Branchflower had complained of, but he denied absolutely that he had acted in an inappropriate way over the incident with JS. He conceded that when JS had been cheeky he had followed him up to his room to remonstrate with him and he conceded that JS then became sufficiently angry and disturbed for him to restrain JS by clasping hold of him and "sweeping" his feet from under him before lowering him gently to the ground. He agreed that there were subsequent disagreements with JS when he wanted to use his bicycle and wanted to get into the office; on both occasions the applicant stopped him because he was afraid of what the young man would do."

40. The Tribunal identified the first issue which it had to determine as "the true reason for the dismissal". The Appellant's case was simply that Mr McIntosh was dismissed for gross misconduct as set out in Mr Paul Thomas' letter. Mr McIntosh asserted that the real reason he had been dismissed was that he had been making allegations about the misconduct of Simon Miller, and the latter's improper relationship with a child in his care, matters which, he asserted, the Appellant had wished to conceal.
41. The Tribunal resolved that issue in the Appellant's favour. This is what it said:

"23 ……….On the whole of the evidence, we were unanimously satisfied that in fact the allegation relating to Mr Miller was not a significant reason for the dismissal. We thought that the applicant's suggestion that all the other matters which had been raised by the respondent against him were so trivial as not to warrant even disciplinary proceedings, let alone a finding of gross misconduct, was wholly unrealistic and we were unanimously satisfied that the applicant's dismissal was due solely to the fact that Mr Thomas rejected all the applicant's defences on the various allegations, and concluded that they were all matters of such gravity as to warrant summary dismissal. The reason for the dismissal, we found, was gross misconduct and of course conduct is potentially a fair reason for dismissal under the Employment Rights Act."

42. The Tribunal then asked the question: did Mr Thomas act reasonably in reaching the conclusions which he did? In considering that question, the Tribunal immediately, and before looking at the individual findings, reminded itself of the "band or range of reasonable responses" approach set out in Post Office -v- Foley. It said:

"24….. In considering the question, we have taken particular care to remind ourselves that it is not for us to substitute our own view of what we would or would not have done in such circumstances, but to consider whether what Mr Thomas decided fell within the band of reasonable responses available to an employer in such circumstances. We have unanimously concluded, in all the circumstances of the case, that it did not."

43. The Tribunal then turned to the AC incident. As to that, the Tribunal's conclusions were in the following terms:-

"25 As to the AC incident, it is clear that Mr Thomas accepted that although he could not be sure on the evidence that the applicant had actually driven the child concerned at speeds of 100 mph, he was nonetheless satisfied that the applicant had misused the respondent's time by taking the child on a personal errand and driving at such a speed and in such a way as to leave him very frightened. He was impressed that the child did not know the applicant particularly well and that he repeated the allegation when he was re-interviewed approximately a year after the event.

26 It seemed to us that the matter ought reasonably to have been investigated in more depth, in that it does not appear than any effort was made at the time to find out where the applicant actually went or why. The child's account is brief and does not touch in detail upon these matters. The difficulty which the applicant faced was that when the allegation was eventually put to him, something of the order of a year later, the delay meant that it was very difficult for him to mount a proper defence by putting forward a clear account of where he was and what he had actually done at the time; but Mr Thomas does not seem to have taken that point into account at all. We did not agree, therefore, that it was reasonable for Mr Thomas to find this incident substantially proved when the applicant was put at such a disadvantage in providing a defence or explanation."

44. Although the Appellant no longer relies on the inaccurate recital of Mr McIntosh's criminal convictions, it is, we think, instructive to see how the Tribunal dealt with that issue. It did so as follows:

"27 As to the convictions issue it was quite clear that the respondent believed that the applicant had deliberately falsified the details in order to ensure that he could obtain employment. It is certainly true that it is very important that an accurate record of convictions should be provided, given the respondent's child protection responsibilities, and the application form and contract do make the point that a misrepresentation as to one's criminal background may lead to dismissal.

28 Having considered in detail what the applicant disclosed together with the police record as correctly set out, we could not see the basis upon which the respondent could reasonably conclude that this was a deliberate falsification. The dates were wrong but the nature of the convictions and the types of penalty imposed were adequately set out; crucially, there was no concealment of a particular type of conviction which might make the applicant unsuitable to work with children and the most recent conviction, in 1995 was disclosed. We were unanimously satisfied that the respondent's conclusion that there was a deliberate falsification which warranted summary dismissal was not a conclusion which could reasonably have been reached upon the evidence."

45. The Tribunal then turned to the alleged attempt to blackmail the Appellant through Mr Branchflower. It dealt with that incident in this way:

"29 Given Mr Branchflower's account of the telephone conversations which he had with the applicant at the end of November and beginning of December 1999, and the applicant's own comments, it was obviously reasonable for Mr Thomas to accept that the conversations took place broadly as Mr Branchflower outlined. It did not appear to us, however, that any consideration was given to the circumstances in which the applicant found himself. He was still facing a criminal charge which, to somebody in his position, was of the utmost seriousness; that matter had been hanging over his head for the better part of nine months and any reasonable employer must have realised the enormous strain which that put him under; and the matter was compounded by the fact that the respondent was no longer paying him, even though it was not the applicant's fault that the criminal proceedings were taking so long to come to trial. In those circumstances it is hardly surprising that under pressure of events, people may say silly or outrageous things; in our unanimous view, any reasonable employer faced with an employee in such circumstances, doing what the applicant was doing, would have made substantial allowances for the strain that he was under, and would not have found it to be a deliberate attempt to extort money which should be visited with this sort of disciplinary sanction."

46. Finally, the Tribunal turned to the incident involving JS. The Tribunal broke the incident down into three elements namely:

(1) the inappropriate way in which Mr McIntosh dealt with the matter in failing to "de-escalate" it and in using what the Appellant regarded as a wholly inappropriate form of restraint;

(2) the use of swear words;

(3) Mr. McInosh's the use of the word "break", in relation to JS, which does not appear in the dismissal letter, but which the Tribunal describes Mr. Paul Thomas as having "fastened on to ….. and concluded that it was (Mr. Macintosh's) intention to "break JS's spirit on what appeared to us to be the most flimsy of evidence and without giving any consideration to the extent to which (Mr. McIntosh) might have been quoted out of context".

The Tribunal went on: -

"31 It was clear from the documentation that JS was a very challenging young man. It was also clear from the documentation that over the few months preceding this incident, things had quietened down a good deal and this was plainly due to the good work which the applicant and his team had performed with him. On the other hand, it was equally clear that this incident had got badly out of hand; although in the past JS had made threats to report people, he had never actually done so. In this case, however, he had been sufficiently upset to report matters to people whom he trusted outside of the respondent's organisation and by the time that the respondent's staff arrived on the scene, the matter still had not been resolved and in fact JS was in the care of a neighbour who was alleged to have observed the altercation between JS and the applicant outside the house, when the applicant had apparently been attempting to prevent him from going inside.

32 It was wholly correct for the respondent to be very concerned about this matter. On the other hand, it did seem to us that Mr Thomas started very much from the premise that JS was telling the truth and that things had happened very much as he had alleged, notwithstanding the applicant's acquittal of the criminal charge. Even though JS's allegations were that the applicant had started to swear at him and be offensive for no reason, and had then actually assaulted him by punching him, as well as restraining him, the respondent does not seem to have taken any significant steps to investigate in detail just how reliable JS's account was likely to be. It does not appear that others in the team were asked how JS had been behaving recently or what his relationship with the applicant was like; and given the applicant's history of successful work with JS and consistently good reports and appraisals throughout his service, the respondent does not appear to have considered the simple question of whether it was plausible that the applicant should have conducted himself in the way that JS alleged. Indeed, his previous good record was not considered in this context at all. Because the applicant admitted that there had been a couple of occasions when he had sworn in the presence of JS, Mr Thomas seems to have accepted that all JS's allegations about the applicant swearing during the incident were correct; and it did seem to us, with respect, that he took a wholly unrealistically severe view of the use of language which, regrettably, can be heard casually in use wherever young people talk among themselves. He also appears to have fastened on to the applicant's use of the word "break" and concluded that it was the applicant's intention to "break JS's spirit" on what appeared to us to be the most flimsy of evidence and without giving any real consideration to the extent to which the applicant might have been quoted out of context.

33 All this is not to say that we regard the JS incident as trivial. It was quite clear on the evidence that something went very badly wrong and the respondent would have been failing in its duty if it had not investigated the matter in some depth. On the other hand, we were satisfied on the evidence that a child could properly be restrained if circumstances warranted it; and what the respondent does not appear to have considered was whether there was simply a substantial error of judgment on the applicant's part in mis-handling the situation which blew up suddenly, and which warranted a sanction which incorporated a large element of guidance or training rather than simple punishment."

47. The Tribunal then concluded its reasons in these words:

"34 The applicant's case was that even if these incidents were the reason for the dismissal, nonetheless the respondent elected to treat them so seriously because of its concerns about his complaints about Mr Miller. We did not accept that; it seemed to us that the problem here was that Mr Thomas had allowed himself to become unduly influenced by the outcome of recent cases in which abuse had flourished because a child's complaints were not taken seriously, and had swung far too far the other way. We gained the very clear impression that the whole exercise was posited on the basis that what the children said was true, even though there had been an acquittal on the assault charge, and that the respondent was anxious to demonstrate that it took allegations of this sort very seriously and would act swiftly and ruthlessly in the interest of the children in its care That is a laudable approach in itself, but it must not be allowed to overshadow the duty which every employer has to every employee: to treat that employee fairly and only dismiss where it is a reasonable and proportionate response to the facts as shown by a thorough and fair minded investigation. We were unanimously satisfied that to dismiss the applicant for any one of these incidents, or indeed for the whole group of them put together, was not the action of a reasonable employer and we unanimously concluded therefore that the applicant was unfairly dismissed."

48. For the Appellant, Mr Daniel Barnett argued that the Tribunal had confused the Iceland Frozen Foods "range of reasonable responses" test (which is used when deciding whether a disciplinary sanction is reasonable) with the Burchell test for the level of investigation required when deciding whether an employee is guilty of misconduct. He argued that the Tribunal should first apply the Burchell test in order to decide whether an employer acted reasonably in deciding whether or not the employee was guilty of misconduct. It should then apply the Iceland Frozen Foods test to decide whether an employer acted reasonably in dismissing because of the employee's conduct. Mr Barnett pointed to paragraph 24 of the Reasons, in which the Tribunal asked the question: "Did Mr Thomas act reasonably in reaching the conclusions which he did?" and argued that in answering that question in the negative the Tribunal had applied the Iceland Frozen Foods test relating to disciplinary sanction, not the Burchell test relating to the reasonableness of a finding of guilt. Mr Barnett argued, accordingly, that this incorrect approach permeated the Decision and rendered the entire finding of unfair dismissal flawed.
49. Mr Barnett further criticised the Tribunal's test of requiring "a thorough and fair minded investigation" from an employer. He argued this was too high a test, and that the investigation had to be "reasonable". He further submitted that the Tribunal had failed to balance the level of investigation with the size and administrative resources of the Appellant, and pointed to the fact that this was:

(a) a family run business;

(b) that it spent several days on the disciplinary hearing;

(c) that it permitted trade union representation and the cross-examination of witnesses.

50. Dealing with the incidents in turn, Mr Barnett criticised the Tribunal's conclusion that the Appellant had denied Mr McIntosh the chance of a fair hearing by not having put the allegations made by AC to Mr. McIntosh at the time it received them, namely 18 March 1999. He pointed out that the Tribunal had accepted in paragraph 7 of its Reasons that the Appellant had been told by the police not to put the allegations to him at that time. He argued that the Tribunal should have considered (but did not) whether the Appellant acted reasonably in following the advice of the police.
51. So far as the incident relating to the alleged blackmail is concerned, Mr Barnett argued that this was a classic case of the Tribunal substituting its own view for that of the employer. Here, there was no question of any defect in investigation: the only issue was whether or not dismissal was within the band of reasonable decisions for an employer to take. In Mr. Barnett's submission, there was in this instance plainly a range of reasonable responses by any reasonable employer, at one end of which was dismissal for gross misconduct. Furthermore, Mr Barnett argued that the Tribunal's conclusion was perverse. He pointed to the fact that in Mr Thomas' letter of dismissal, Mr Thomas had expressly accepted that Mr McIntosh was "suffering substantial amounts of stress at the time". This, he argued, rendered perverse the Tribunal's finding that "…. Any reasonable employer ……..would have made substantial allowances for the strain that he was under" and that the Appellant had not given "any consideration ….to the circumstances in which Mr McIntosh found himself."
52. Finally, in relation to the J S incident, Mr Barnett submitted that the Tribunal's criticism of the Appellant's failure to investigate this incident properly because it started from the premise that JS was telling the truth was inconsistent with the Tribunal's earlier finding that "it was not possible to prove whether JS was hit in the way he described". This, Mr Barnett argued, demonstrated that Mr Thomas was not starting from the premise that JS was being truthful.
53. Mr. Barnet further argued that by listing steps which the Appellant could have taken, but did not take, to investigate J S's allegations of assault and then relying on them to hold the dismissal unfair was to adopt the approach condemned by the Court of Appeal in Post Office -v- Foley at paragraphs 78 - 79, set out above at paragraph 34 of this judgment.
54. Finally in relation to this incident, Mr Barnett argued that the Tribunal substituted its view for that of the employer both as to: (a) the severity of the swearing incident; and (b) when considering the reasonableness of the dismissal. Mr Barnett argued that the imposition of a requirement that an employer should disregard the "recent cases where abuse had flourished because a child's complaints had not been taken seriously" reinforced if anything rather than detracted from the fact that dismissal might fall within the range of reasonable responses.

The case for Mr. McIntosh

55. For Mr McIntosh, Mr Paul Cadney argued that the Tribunal had not misapplied section 98(4), nor had it confused the issue of reasonable belief in guilt with the issue of the reasonableness of the disciplinary sanction. He pointed out that the Tribunal had specifically considered whether the Appellant's conclusion as to whether the AC incident was reasonable; whether the conclusion that the Respondent had deliberately falsified the details of his criminal convictions was reasonable; whether the acceptance of Mr Branchflower's account of the conversations with the Respondent was reasonable, and separately, whether the Appellant had adequately to take into account the Mr. McIntosh's circumstances at the time in deciding any disciplinary sanction. The Tribunal has specifically considered whether the investigation into the JS allegation was reasonable. Thus, in each case, Mr Cadney argued, the Tribunal had followed the correct approach.
56. Mr Cadney argued that the Tribunal had accurately set out the duty owed by an employer to an employee namely:

"to treat that employee fairly and only dismiss where it is a reasonable and proportionate response to the facts shown by a thorough and fair minded investigation".

Mr Cadney submitted that that was a model direction for a Tribunal to give itself since for an investigation to be "reasonable" it must necessarily be sufficiently thorough to allow reasonable conclusions to be drawn. Plainly, the extent of the thoroughness required will depend upon the particular circumstances of an individual case. In the present case, Mr Cadney argued, the Tribunal concluded that in a number of respects the disciplinary investigation was insufficiently thorough to allow a reasonable conclusion to be drawn. That was a conclusion to which they were entitled to come. The semantic distinction between the words "thorough" and "reasonable" did not reflect any error of law.

57. Mr Cadney then argued that what the Tribunal had done was to conclude (1) that in relation to AC, the investigation was insufficient; (2) that it was unreasonable to conclude that Mr. Mcintosh had deliberately falsified his criminal record; (3) that the conclusion that the content of the telephone conversations with Mr Branchflower in themselves justified dismissal was unreasonable; (4) that the investigation of the J S incident "…….started from the premise that J S was telling the truth", and that what the Appellant did not consider was ".. whether there was simply a substantial error of judgment on the part of Mr McIntosh which warranted a sanction which incorporated a large amount of guidance on training rather than a simple punishment".
58. Mr Cadney submitted that none of those conclusions could be affected by any finding as to the size and administrative resources of the Appellant, nor had it been suggested that the Appellant placed any evidence before the Tribunal that its investigations were in any affected by them.
59. In relation to the JS incident, Mr Cadney submitted that the Tribunal was entitled to find that the investigation had proceeded on the assumptions that JS's allegations were true and then to identify the elements of a reasonable investigation not based on that assumption. That process did not involve substituting its own view for that of the Appellant, but identifying whether a reasonable investigation had in fact taken place. This, Mr Cadney argued, was something the Tribunal was bound to do: - see British Home Stores -v- Burchell.
60. As to the suggestion that the Tribunal substituted its view of the seriousness of Mr McIntosh swearing at JS for that of the Appellant, Mr Cadney argued that the ground of appeal was misconceived. In his submission, the Tribunal was obliged to consider whether in modern times the use of swear words in the presence of a child which are used casually by children themselves and which are freely heard on radio and television could constitute gross misconduct. The Tribunal, he argued, was in those circumstances entitled to conclude that the Appellant had taken an "unrealistically severe view".
61. The finding by the Tribunal that the Appellant should have disregarded the extent of public opinion requiring extreme care to be taken when allowing child carers to continue working with children who have made allegations against them did not, in Mr Cadney's submission bear the interpretation placed upon them by the Appellant. He submitted that the Tribunal recognised the public concern about the protection of children, but held it should not be allowed to "overshadow" the duty owed by every employer to every employee, namely to "treat that employee fairly and only to dismiss where it is a reasonable and proportionate response to the facts as shown by a thorough and fair minded investigation" (Reasons paragraph 14) Once again, Mr. Cadney argued, this did not involve the Tribunal substituting its own view for that of the Appellant, but correctly recognising that child care workers do not have fewer employment rights than other employees.
62. As to the fact that the Appellant had not put the driving allegations relating to AC at the time, Mr Cadney argued that the Tribunal's finding was not that the Appellant had acted unreasonably in not putting the allegation to Mr McIntosh sooner; rather, it found that because of the delay and the failure to investigate it properly, Mr McIntosh was put at a substantial disadvantage in answering it, which disadvantage the Appellant did not take into account in considering whether or not the allegation was proved.
63. Mr Cadney argued that there was no inconsistency in the Tribunal finding that the Appellant had not undertaken a proper investigation, despite its further finding that the Appellant had recalled AC for further interview in order to investigate the allegations further. That, Mr Cadney argued, was a finding of fact the Tribunal was entitled to make.
64. Finally, in relation to the "blackmail" incident, Mr Cadney argued that what the Tribunal had concluded was that no reasonable employer would have found that Mr McIntosh's conduct was: "a deliberate attempt to extort money which should be visited with this sort of disciplinary sanction". It followed that either the Appellant failed to take the circumstances into account, or if it took them into account it came to a conclusion that was outside the range of reasonable responses open to an employer. Mr Cadney argued that the reference in the dismissal letter to "substantial amounts of stress" was not inconsistent with the Tribunal's finding.

Analysis

65. We have found this an extremely difficult case, and it is for that reason that we have set out the law, the Tribunal's Reasons and the arguments of Counsel in such detail. It seems to us, in these circumstances, that we need to go back to first principles.
66. There is no doubt, as the Tribunal found, that the Appellant was able show that the reason for Mr McIntosh's dismissal related to his conduct. Sections 98(1) and 98(2)(b) were, accordingly, plainly satisfied. The determination of the question whether the dismissal was fair or unfair thus depended on whether in the circumstances the Appellant acted reasonably or unreasonably in treating Mr McIntosh's conduct as a sufficient reason for dismissing him (section 98(4)(a)). That question had to be determined in accordance with equity and the substantial merits of the case (section 98(4)(b).
67. We begin our assessment by looking at the tripartite test enunciated by Arnold J in British Homes Stores -v- Burchell. We are in no doubt - and it was not argued to the contrary - that the Appellant entertained a reasonable suspicion amounting to a belief in the guilt of Mr McIntosh of the misconduct alleged. The first of the three tests is thus easily passed.
68. The second question posed by the Burchell test is whether the Appellant in this case had reasonable grounds upon which to sustain its belief that Mr McIntosh was guilty of the allegations made against him. Thirdly, at the final stage at which the Appellant formed his belief on the grounds stated, had it carried out as much investigation into the matter as was reasonable in all the circumstances of the case? Finally, applying the Iceland Foods test, was the decision to dismiss within the range of reasonable responses for an employer to take?
69. We propose to deal, firstly, with the "blackmailing" allegation, as this seems to us the clearest. Here, there can in our judgment be little doubt that all three Burchell tests are satisfied. Mr Thomas plainly had reasonable grounds on which to sustain his belief that Mr McIntosh had behaved in the manner alleged. Indeed, the Tribunal recognised as much when it found, in paragraph 29 of its Reasons, that "it was obviously reasonable for Mr Thomas to accept that the conversations took place broadly as Mr Branchflower outlined". Equally, it seems to us that there can be no criticism here of the Appellant's investigation of this incident, and no suggestion that Mr. McIntosh was denied the opportunity to explain his conduct in this respect in the context of the overall allegations made against him and the investigations made into them by the Appellant.
70. The question, accordingly, which arises in this instance is whether or not the Appellant's reaction in dismissing Mr McIntosh for gross misconduct relating to this issue came within "the band or range of reasonable responses" approach to the issue of reasonableness or unreasonableness of a dismissal as expounded by Mr Justice Browne-Wilkinson in the Iceland Frozen Foods -v Jones and by the Court of Appeal in Post Office -v- Foley. It is, we think sensible to remind ourselves of the precise terms of Mr. Paul Thomas'

letter of dismissal: -

"Eddy McIntosh admits to make threats to JB which were substantiated by statement from JB. Whilst it is accepted that Eddy was suffering substantial amounts of stress at this time, his concerns should have been directed at appropriate agencies such as child protection or the police, not the press. This is gross misconduct"

71. However we look at this particular reason for dismissal, we are driven to the conclusion that the Tribunal has fallen into error in relation to it. Its decision on this point, in our judgment, can only be seen as a classic example of the Tribunal substituting its view for that of the employer on the issue of disciplinary sanction. Mr McIntosh's conduct in making the threats plainly fell within section 98(2)(b). The investigation by the Appellant cannot be criticised in this respect. The three Burchell tests are satisfied. Furthermore, the Appellant, in the context of its decision to dismiss Mr McIntosh clearly takes into account that he was "suffering substantial amounts of stress at the time". In these circumstances and with great respect to the Tribunal, we find it impossible to agree with its conclusion that:

"any reasonable employer faced with an employee in such circumstances, doing what the applicant was doing, would have made substantial allowances for the strain he was under, and would not have found it to be a deliberate attempt to extort money which should be visited with this sort of disciplinary sanction".

72. In our judgment, there is considerable force in Mr. Barnett's submission that what the Tribunal is doing here is confusing the Iceland Frozen Foods test with the third limb of the Burchell test. Alternatively, the Tribunal is seeking to import into the "reasonable investigation" test a finding that no employer would have reached the conclusion reached by the Appellant on this point on the evidence available to it. Either way, in our judgment, the approach is flawed. If this incident is approached by firstly applying the Burchell tests and then asking whether the Appellant's decision to dismiss was "within the band of reasonable responses, there is, we think, only one conclusion possible.
73. It is possible that one employer's response may have been the conclusion which the Tribunal posits, and which we have set out in paragraph 71. It was not the response of this employer, and in our view it is quite impossible to argue that the Appellant's response was "outside the band or range of reasonable responses". It is, we think necessary to repeat the salient facts, which are not in dispute. This was an employer engaged in the provision of care, education and therapy for children and young persons. One of its employees, acknowledged by the Appellant to be suffering "substantial amounts of stress" at the time, threatens to sue his employer, to sell his story to the newspapers, and specifically threatens, unless he obtains a settlement from the Appellant, to go to the press with allegations of sexual abuse by a former employee against a child in the Appellant's care, in circumstances in which both the police and the appropriate child protection agency had investigated the matter and decided to take no action. That threat is accompanied by a further threat, in terms to close the Appellant's business down.
74. In our judgment, dismissal for gross misconduct must be within the band of reasonable decision for an employer in the circumstances set out in the preceding paragraph, and the Tribunal's decision to the contrary is, in our judgment, simply wrong in law.
75. Our conclusion in relation to this one incident is sufficient, in our judgment, to dispose of the appeal. In fairness to the parties, however, and because we heard argument on them, we propose to examine the remaining incidents. We do not find them quite so straightforward. Nonetheless, we are satisfied in relation to both limbs of the JS incident that the three Burchell tests are satisfied, and that what the Tribunal has done is to substitute its view for that of the Appellant on the question of disciplinary sanction under the guise of criticisms of the Appellant's disciplinary investigation. In other words, as Mr. Barnett argued, it has not applied the three limbs of the Burchell test as to the level of investigation required and then applied the Iceland Frozen Food test as to disciplinary sanction. When one separates out the tests, the error is, we think, exposed. Applying the Iceland Frozen Foods test, one employer might consider this incident, as the Tribunal found:

"a substantial error of judgment on the Applicant's part in mishandling a situation which blew up suddenly and which warranted a sanction which incorporated a large element of guidance or training rather than simple punishment":

76. That, however, was not the Appellant's approach. Once again, it seems to us that the Appellant's reliance on this incident as a reason for dismissal cannot be said to be "outside the band", and that the Tribunal has, once again, substituted its view for that of the Appellant.
77. In relation to the JS incident, the Tribunal criticises both aspects of the Appellant's investigation and Mr Thomas's approach to the evidence in the disciplinary hearings. In our view, the conclusions reached by Mr Thomas in paragraphs 2 and 3 of the letter of dismissal dated 5 May 2000 (which we have set out in paragraphs 9 and 10 of this judgment) are limited and restrained In our judgment, they were conclusions which were open to Mr Thomas on the evidence he heard.
78. The criticism by the Tribunal that Mr Paul Thomas approached the matter with a closed mind does not seem to us to be borne out in Mr. Thomas's findings. The "very clear impression that the whole exercise was posited on the basis that what the children said was true even though there had been an acquittal on the assault charge" is contradicted by Mr. Thomas' inability to find whether JS was assaulted in the way he alleged. In our judgment he was entitled to find on the evidence that "it was reasonably safe to conclude that the restraint was aggressive in nature and that JS was emotionally and physically affected by it". On Mr McIntosh's own admission, JS had been "cheeky" to him; he had followed JS up to his room to remonstrate with him; JS had then become sufficiently angry and disturbed for him to restrain JS by clasping hold of him and "sweeping" his feet from under him before "lowering him gently to the ground". Mr McIntosh also agreed that there were subsequent disagreements with JS when he wanted to use his bicycle and wanted to get into the office; on both occasions Mr McIntosh stopped him because he was afraid of what the young man would do.
79. As far as Mr McIntosh swearing at JS is concerned, we take the same view. We have set out the terms of Mr. Paul Thomas' findings in paragraph 10 of this judgment. Mr. Thomas specifically accepts that "swearing occurs in daily life". However, he goes on to find unacceptable "specific sexualised swearing directed at a young person", which he classified as "emotional abuse". In our view, the three Burchell tests are satisfied. On disciplinary sanction, one employer might take the view that swearing of a kind which could be casually heard in use whenever young persons talk amongst themselves was insufficient to warrant dismissal. This employer did not. It is, we think, pertinent to remember that Mr. McIntosh was a care worker, and that the Appellant specialises in the provision of care, education and therapy for children and young persons. An employer who, on the facts of this case, takes the view that "specific, sexualised swearing at a young person" is unacceptable and dismisses an employee for it, cannot, we think, be said to be acting outside the band of reasonable decisions available for an employer to take.
80. We find more difficult the incident involving AC, although we think it important to note that Mr Thomas found the complaint of speeding in his car and the inappropriate use of company time made out on the balance of probabilities, based on AC's complaint and the proposition that it was:

"extremely unlikely that a young person would make up such a detailed complaint. Also that he would then continue to substantiate this complaint whilst out of the care of the Appellant."

It also followed, in Mr Thomas's view that if the first complaint was accepted, then the further allegation of inappropriate use of company time was substantiated.

81. Once again, on balance, we are of the opinion that those were views which Mr Thomas was entitled to form on the evidence available to him, and that it was not the function of the Tribunal, in the words of Arnold J:

"to examine the quality of the material which the employer had before him, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion of the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being "sure"."

82. We note that AC had been interviewed a second time prior to the disciplinary hearing, and it seems to us that the Appellant's decision not to put the allegations to Mr. McIntosh at an earlier point is reasonable, given the police advice. We understand, however, the difficulty faced by Mr McIntosh in dealing with this allegation. Had this incident stood alone, it might have given us more concern. However, it does not, and on the basis that the second and third limbs of the Burchell are satisfied, it seems to us that in all the circumstances of this case, the Appellant was entitled to take the view that driving a car carrying a young person in its care at speed and recklessly in company time constituted gross misconduct and warranted dismissal.
83. It follows, in our view, for all the reasons set out above, that the Tribunal's Decision that Mr McIntosh was unfairly dismissed is wrong in law and cannot stand. The Tribunal's Order must be set aside and Mr McIntosh's claim dismissed. We do not, in the circumstances, find it necessary to express any opinion on Mr. Barnett's criticisms of the Tribunal's requirement for an investigation to be "thorough and fair minded", as set out in paragraph 49 of this judgment.