United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CYRIL ADJEI (of Counsel) Instructed By: Messrs Prettys Solicitors Elm House 25 Elm Street Ipswich Suffolk IP1 2AD
For the Respondent	MR PAUL MITCHELL (of Counsel) Instructed By: Law For All PO Box 230 Brentford Middx TW8 9FL


 


MR JUSTICE BURTON (PRESIDENT):

1. This is an appeal against the decision of an Employment Tribunal sitting at Bury St Edmunds by P & O Trans European Limited, the employers, against the finding of the Employment Tribunal with regard to a claim against them by Mr Vidal, whom we shall call the employee, that he was unfairly dismissed.
2. The employee had brought applications also in respect of victimisation and race discrimination, but the former claim was dismissed on withdrawal and the latter was dismissed by the Tribunal, and it is only in relation to the successful claim of unfair dismissal that we have had to consider arguments on this appeal which was previously dealt with on a preliminary hearing, by the Employment Appeal Tribunal, in a different constitution, which gave permission for this appeal to proceed.
3. The employee was dismissed because of an incident on 12 July 2001 between him and a Mr Edwards. Mr Edwards was also dismissed. As the Tribunal found, in paragraph 3 of its reasons, there was a history of antagonism between Mr Edwards and the employee, and the Tribunal refer to a statement of Susan Jones, a fellow employee of theirs, which she gave apparently in the course of the disciplinary investigation on 13 August 2001, in which she had spoken of an earlier incident, in which the employee was the alleged aggressor. In particular, however, and more significantly, there had been an earlier incident, as between Mr Edwards and the employee on 22 May 2001, when Mr Edwards had admitted writing offensive words in respect of the employee on a tape gun, which was found by the employers, and Mr Edwards, admitting it, had said to the employers that it was intended as a joke and nothing more. The employers had believed what Mr Edwards told him, and given him a written warning in respect of misuse of property on the basis that it was not intended as a direct threat to the employee.
4. That was the background to the incident of 12 July, or part of it, because there are also allegations, which are not recorded by the Tribunal in its Decision, that the employee had made previous complaints against Mr Edwards before 22 May, when he was his superior.
5. So far as 12 July is concerned, this was not specifically witnessed by an independent party. However, a Mr Grealish, who was the superior of both the employee and Mr Edwards, came up at the end of the incident, and, according to Mr Grealish's statement made to the disciplinary hearing, overheard the employee asking Mr Edwards what he had just said, and Mr Edwards then asking the employee "What does that mean, you getting someone to visit my house?", and the employee saying, "What did you just say before?"; i.e. when Mr Grealish came up they were both recriminating each other in respect of what each was alleging the other had just said. This was more fully explored in the course of the disciplinary investigation which the employers held, and which was complimented by the Tribunal as having been thorough; and it was clear that, in the course of the separate disciplinary hearings into the conduct of Mr Edwards and the employee, each was making allegations against the other. Mr Edwards was alleging that the employee had said to him "You will get a little visit round your house one night" to which he had allegedly replied, "Stay away from my family", and he was denying having threatened the employee; whereas the employee was alleging that Mr Edwards had said, "Come over here and I'll cut your fucking throat" and he was denying having threatened Mr Edwards.
6. The employers, after a full hearing against both, and an appeal in respect of the case of the employee, came to the conclusion that it should dismiss both. The verdict in general terms of the Tribunal, as to an employer in such a situation, is set out in paragraph 23 of its Decision, which is the central paragraph; that in relation to which most attention has been paid in the course of this hearing as follows:

"It is commercially sensible and not outside the realm of good industrial relations practice for an employer to dismiss both parties to a confrontation which is threatening or which has led to a fight. We do not for one moment resile from that proposition."

7. The Tribunal had also rightly set out, at the end of paragraph 22, the effect of section 98(4) of the Employment Rights Act 1996 as follows:

"Where an employer dismisses for a reason relating to conduct then it must have carried out a sufficient investigation, disclosing credible facts, in which it did in fact believe, and that the sanction of dismissal was appropriate. We further go on to remind ourselves that it is quite wrong of us to impose our own decision as to what sanction was appropriate; if a sanction is within the bands of reasonable responses open to a reasonable employer on the facts of the case, then it is not for us to say that we would have imposed a different sanction. Indeed, to do so would be perverse."

8. The conclusions of the Tribunal, which it had already anticipated in relation to its recital of its conclusions with regard to the discrimination part of the case, in paragraph 18(vi) of the Decision was, however, that that nostrum did not apply in this case, and the basis on which it appears that it did not apply was their conclusion that the employee was "undoubtedly" the victim and that if he was "undoubtedly" the victim, then no reasonable employer would have dismissed him. There is thus rolled up in the paragraphs 23 and 24, which we shall recite in a moment, two conclusions.

(1) that the employee was the victim and clearly the victim and

(2) that it was therefore not a reasonable response, or within the range of reasonable responses, for an employer to sack him, because he was undoubtedly the victim.

9. This is, effectively, equivalated to a situation in which there is a clear aggressor and a clear victim in an incident in which no reasonable employer could have come to any other conclusion. Mr Adjei, who has argued the matter ably on behalf of the Appellant, refers to the relevant parts of paragraphs 23 and 24 to support that proposition. Paragraph 23 begins:

"In this case we do feel the dismissal was unfair. The starting point is that the applicant undoubtedly was the victim of Mr Edwards's comments. Mr Edwards is not here to defend himself but on the papers we have seen, Mr Edwards has never denied the allegation."

There is then the nostrum, to which we have referred, and the Tribunal then continues:

"However, the only evidence that was against the applicant in the Edwards confrontation of 12 July was the allegation by Mr Edwards himself that the applicant warned him that he could expect somebody to be round his house, obviously suggesting some sort of threat of physical violence and the untested evidence of Miss Jones ranging over a series of other incidents showing ill will between the applicant and Mr Edwards. In our view the respondent failed to give sufficient weight to the fact that Mr Edwards and Miss Jones might have been in collusion, it is indeed the applicant's case that they were, and had motives other than the interests of justice in saying what they said in regard to him. The only overt act which could be alleged against him was walking towards Mr Edwards, or at least in the same direction as Mr Edwards, when the applicant's case is that he was going to the manager's office to report the incident."

Then there is a reference to the May incident, when he had made a written report about what had occurred, and the Tribunal concludes:

"It seems to us that a reasonable employer faced with that evidence is very hard put to it in coming to the conclusion that the applicant had been guilty of industrial misconduct, far less industrial misconduct which justified dismissal."

And, in paragraph 24, they say:

"In the circumstances we therefore find the dismissal to be unfair. We cannot see that the applicant has been guilty of industrial misconduct contributing to the dismissal."

10. If paragraph 24 stood alone, as we believe was effectively conceded by Mr Michell, who has equally ably argued the matter on behalf of the employee, it would not be a sufficient finding because, of course, it is neither sufficient or indeed appropriate for the Tribunal to come to its own conclusion as to whether the employee was guilty of misconduct. What the Tribunal needs to do is to decide whether it was reasonable for the employer to reach the view it did. But Mr Michell submits and we agree, that one must read the last sentence of paragraph 23 together with paragraph 24 and, although, therefore, there is no separate conclusion on reasonableness and, although the last sentence of paragraph 23 is not as clear as one would have liked and suffers to an extent from the English failing of litotes, what it seems to us the Tribunal found is that because it was so clear to the Tribunal that the employee was the victim, therefore the response of the employer was not within the reasonable band of responses, because effectively no reasonable employee could have come to any other conclusion than that the employee was the victim.
11. The grounds of appeal put before us today were largely two, although a third in circumstances to which we shall refer has been added. In addition to that there was some attack on the Tribunal's conclusions in respect of Miss Jones with which we shall briefly deal first. Mr Adjei criticises the part of paragraph 23, which we have recited, where it deals with the evidence of Miss Jones. Mr Adjei's complaint about that is that it was never suggested below that Mr Edwards and Miss Jones were in collusion; that it was not suggested below that Mr Edwards and Miss Jones had motives other than the interests of justice and that, in any event, it was not suggested below that the evidence of Miss Jones was part of the case against the employee for the purposes of his dismissal. The highest that it could be said, in respect of Miss Jones' evidence, was in respect of the finding which the Tribunal had already itself correctly made, which we have cited, in paragraph 23.
12. We are of the view that the passage relating to Miss Jones is not an important part of the Tribunal's decision and, indeed, that both sides are right, because Mr Michell associates himself with Mr Adjei in this regard, in saying that in fact the evidence of Miss Jones was not significant below, certainly not in terms of being a reason for dismissal, and should not have been set out as being any part of the reason for dismissal, because it was not. We do not consider that it can be said to be much of a criticism of the Tribunal that they set out the matters in relation to Miss Jones that they did, except insofar as it was being suggested by the Tribunal that that was an argument that had been run before them. It appears to us much more to be a question of hypotheses which are being speculated upon by the Tribunal; but the significance is that both sides are agreed that Miss Jones' evidence is background, at best, and consequently, that that chunk of paragraph 23 should be disregarded, in relation to looking for the conclusions of the Tribunal, and that is what we were persuaded to do, as indeed we conclude is right, and, therefore, the Tribunal's decision must be seen and considered without the peripheral aspects of Miss Jones to which we have referred.
13. We then turn to the arguments of Mr Adjei. His first submission is that, insofar as there was a finding by the Tribunal that the employee was undoubtedly the victim, which alone would justify a conclusion that the employer did not act reasonably, that any such conclusion was perverse. He had a fallback argument, secondly, that the Tribunal did not apply the correct test within BHS v Burchell, notwithstanding that they said they were doing so. It appears to us that those two arguments stand or fall together. If, in fact, the employee was undoubtedly the victim, then there is an implicit conclusion that no reasonable employer could have concluded otherwise, such that although, therefore, there was not, perhaps, the fullest reasoning that one would wish from the Tribunal, the decision can be read to that intent, so the test would have been applied in the way that one would wish it to be. But that all depends upon the correctness of the decision that the employee was so undoubtedly the victim that no reasonable employer could have concluded otherwise. It would be a case of the Tribunal substituting its own conclusion for that reached by the employers but if his status of victim was indeed undoubtedly the case then it would perhaps be one of those rare circumstances in which a Tribunal, looking at the matter subsequently, could say that no reasonable employer could have reached the conclusion it did, not a question of a Tribunal impermissibly giving its own view, though without its going on to say, as it strictly should have done, that the employer's view was not one that it could reasonably have held.
14. One then turns to look to see what the basis is for the Tribunal's conclusion that the employee was undoubtedly the victim, and was so clearly the victim, that any decision to the contrary by the employer, such as to bring it within what we have called "the nostrum", would be unreasonable.
15. Mr Adjei, in his Skeleton Argument and in his Notice of Appeal, latched on to only two or possibly three bases upon which the Tribunal could have reached that decision, and he submitted that all those three bases were false and, consequently, that the decision was perverse. He put his case on the basis of no evidence to support the findings, but on analysis he accepted that in fact what he was saying is that there was 100% of the evidence the other way and, consequently, I think he accepts that within the very, very, restricted area with which this Employment Appeal Tribunal can possibly come to a conclusion of perversity, then if in fact all the evidence was to the contrary, and thus the decision of the Tribunal was simply plainly wrong, that that would amount to perversity.
16. The first matter he referred to was that appearing in the first three lines of paragraph 23. Although we have already recited the bulk of it, we repeat again the relevant sentences:

"The starting point is that the applicant undoubtedly was the victim of Mr Edwards's comments. Mr Edwards is not here to defend himself but on the papers we have seen, Mr Edwards has never denied the allegation."

That is, says Mr Adjei, the allegation that he threatened the employee, and Mr Adjei submitted that that is plainly wrong. Mr Edwards did deny the allegation right from the beginning. He denied that he had threatened the employee. He did not say "I did threaten the employee but I was doing so in self-defence" which is the implication. He denied the allegation entirely. Mr Michell has agreed that indeed that is the case, and so we have not had to wade through the evidence to show that that was the case. Mr Edwards continued to deny the allegation. So, says Mr Adjei, that was a false premise upon which the Tribunal based itself, namely the allegation that Mr Edwards accepted that he had threatened the employee (but perhaps doing so in some act of self-defence).

17. Secondly, and concomitant with that, there is the apparent conclusion by the Tribunal, by reference to paragraph 9 of the decision, which reads as follows:

"In the course of the investigation, Mr Edwards made an allegation against the applicant. He cited Susan Jones as being a witness to several incidents involving the applicant's threatening behaviour, as it was seen, towards Mr Edwards, and, at page 53 of the bundle, we see the details not only of that but of the latest incident surrounding the suspensions when Mr Edwards says the applicant approached him and said 'You will get a little visit round your house one night', and that was taken to be a threat to his family. The Police were involved in response to a report made by Mr Edwards in this regard."

18. That allegation is then repeated, as we shall see, in paragraph 23 of the decision which we have already recited. Mr Adjei says that it is quite wrong to suggest that the allegation made against the Applicant of the threat was made in the course of the investigation. It was made right at the outset, as was made clear not only in Mr Grealish's original notes but also in his witness statement, and his evidence that he gave at the Tribunal that the allegation of a threat was made right from the beginning, and not just in a contemporaneous complaint, but as overheard by Mr Grealish in mutual recrimination between Mr Edwards and the employee.
19. Mr Adjei submits that paragraph 9 completely plays down the impact of the allegation which remained the case, albeit he did not come to the Tribunal to support it, of Mr Edwards right up to his own dismissal. It was not an allegation made in the course of the investigation, any rate not only so made, and that the whole of the paragraph, by putting the earlier background matters relating to Susan Jones into the same context, plays down the important question of the allegation against the employee. It is therefore, he submits, a material false premise that the allegation against the employer by Mr Edwards was a late invention, or a late development. Coupled with that he referred to the way in which the same allegation was then dealt with in paragraph 23. We have already recited paragraph 23 in its totality. I have subsequently indicated that we have concluded, as indeed both parties submitted, that the matters in relation to Miss Jones should be seen as only of very indirect relevance. Therefore, I propose to cite, as was done in the course of argument, paragraph 23, omitting the reference in the middle of it to Miss Jones, which is immaterial in that regard.

"However, the only evidence that was against the applicant in the Edwards confrontation of 12 July was the allegation by Mr Edwards himself that the applicant warned him that he could expect somebody to be round his house, obviously suggesting some sort of threat of physical violence. The only overt act which could be alleged against him was walking towards Mr Edwards, or at least in the same direction as Mr Edwards, when the applicant's case is that he was going to the manager's office to report the incident."

20. Mr Adjei submits, for the purposes of this submission, that the third plank, if plank it was, of the finding by the Tribunal was that the only overt act which could be alleged against the employee was walking towards Mr Edwards, when, in fact, as the Tribunal had recited only a few lines earlier, there was the allegation by Mr Edwards, albeit one which had been apparently discounted by the Tribunal on the grounds set out in paragraph 9; and thus, he submits, it was perverse of the Tribunal to conclude, as they did, that the employee was the undoubted victim, when in fact he was, at the highest, an alleged victim, and no grounds are therefore available for the conclusion of the Tribunal that as he was the undoubted victim, therefore it could not have been reasonable for the employer to reach any other conclusion. Perversity remains his primary case, but he has sought leave to amend in the alternative to allege a no reasons case, in the following circumstances:
21. First, although the skeleton argument previously served by the counsel intended to represent the Respondent, though in the end he has been ably replaced by Mr Michell, gave certain explanations of the two relevant points in paragraph 23 and paragraph 9, to which we have referred, an inadequate explanation, as it seems to us, was given in relation to the first three lines of paragraph 23. There appears to have been some reference in the skeleton to an assertion that what was said by the Tribunal, by reference to Mr Edwards never denying the allegation, was not wrong because the words were clarified or limited by the words "on the papers we have seen"; but that can clearly be no answer, if in fact the statement was, as would appear to be the case, wrong. There were also some other submissions made in the skeleton by reference, for example, to the fact that the employers themselves must have concluded that Mr Edwards' allegation was wrong by the simple fact that they dismissed Mr Edwards. That is not, of course, what the Tribunal was saying and does not appear to us in any event to follow. The employers, if they were acting in accordance with the nostrum ratified by the Tribunal, could still be entitled to dismiss both, either on the basis that they believed both, or that they believed neither.
22. It is only today that a new explanation has been put forward ingeniously by Mr Michell, on behalf of the Respondent, of the first three lines of paragraph 23. His submission is that in fact, although there is no mention at all of the 22 May incident, the first three lines are intended to be a reference to the 22 May incident. He submits that that is the "starting point" which is referred to, and that the comments that are referred to are the words painted on the gun by Mr Edwards in May.
23. The second matter that has arisen, to which this amendment is a response, is that an explanation was given by counsel in the skeleton, delivered only very recently, of paragraph 9. What was there asserted was that "in the course of the investigation" must be taken not to be limited to the investigation itself, but to the incident which led to the investigation, and that, in some way, it can be said that what was overheard by Mr Grealish should be regarded as part of the investigation.
24. Thirdly, again today in the course of his submissions, Mr Michell has accepted that paragraph 23 was unclear and, as far as explicit statement was concerned, insufficient, and has accepted also that the passage in the middle of it relating to Miss Jones would be irrelevant to the logical drive of the argument; and he has sought to say that there should be some implicit justification of the conclusions of the Tribunal, by reference to an importation into paragraph 23 of what is not there, namely a conclusion by the Tribunal that they did not accept the Edwards allegation because of what had happened on 12 May and/or because of the complaints, unrecorded and unreported by the Tribunal in its Decision, previously made against Mr Edwards by the employee.
25. If those explanations, or any of them, be right and be sufficient to avoid an allegation of perversity, says Mr Adjei, then in the alternative he should be entitled to run a case of no reasons, because if in fact the explanation of paragraph 9 is that "in the course of the investigation" should be so read and any discounting by reference to late invention thus be excluded and, if the first three lines of paragraph 23 are to refer to 22 May, and thus the conclusion that the Applicant was undoubtedly the victim was only intended to refer to 22 May and not to 12 July, then those props disappear as justification of the conclusion of the Tribunal and without those props then there are no reasons, except possibly for the implicit ones which Mr Michell has sought to argue. Thus, he sought leave to amend his Notice of Appeal.
26. Mr Michell argued against that, on the basis that it would be unfair if he lost an appeal, which he might otherwise have won, simply on the basis of an amendment. That is not ordinarily regarded as sufficient of itself, at any rate to be a ground of opposition. We have looked in particular to see whether there is either any prejudice, on the one hand, or any justification for delay on the other, and we are satisfied that the amendment should be granted.
27. So far as justification for delay is concerned, as is plain from the explanation which we have given, the need for the alternative case only arose as a result of a very, and in some cases a very, very, recent submission made by the employee. So far as prejudice is concerned, we are satisfied that there is none. Mr Michell has been able to put forward extremely able arguments before us today. He was plainly unprejudiced by this alternative argument and, indeed, has himself accepted that there are lacunae in the Decision, but he has sought to fill them, as we have indicated, with implicit reasons, and has done so with great aplomb. We have no doubt at all that no prejudice has been suffered.
28. We turn then to our conclusion in respect of Mr Adjei's appeal as so amended. We are of the view that this appeal should succeed. The three props to which reference has been made, by Mr Adjei, are indeed the only props which hold up the apparent conclusion that the employee was "undoubtedly the victim", and without that conclusion then the further conclusion that the employer was unreasonable in not so concluding falls away, or at least is at certain risk of being challenged on the basis that it is the substitution of the Tribunal's view for that of the employer, which itself is impermissible within the BHS v Burchell test.
29. It is plain to us that Mr Edwards did, at all times, deny the allegation that he had made the threat, contrary to what is apparently said in the first line of paragraph 23. It is equally plain to us that Mr Edwards did make, right at the beginning, an allegation that in fact the incident was begun by the employee, so much so that he made the Police report to which reference has been made, and that this was not, by any stretch of the imagination, something that can be said to have been a recent invention, or indeed something that was put together in the course of the investigation.
30. As for the bulk of paragraph 23, we at the moment find that it is extremely difficult, notwithstanding Mr Michell's able arguments, to understand paragraph 23, whether one ignores the reference to Miss Jones or otherwise. The Tribunal correctly recites that the only evidence there was against the Applicant as to the Edwards confrontation of 12 July was Mr Edwards' allegation of a prior threat, on that very occasion, of an unpleasant variety by the Appellant to him. The Tribunal sets that out and then, perhaps because they had been diverted by the Miss Jones allegation, as to which they make certain hypothetical suggestions, the existence of that allegation is completely ignored when they go on to say "The only overt act which could be alleged against the Appellant was the fact that he was walking towards Mr Edwards". If this is therefore a finding of fact that the only allegation was his walking towards Mr Edwards, then that is a prop which is perverse, because it is not the only allegation, as they themselves have just recorded. Thus in relation to the three facts which are said to support the conclusion that he was an undoubted victim, all three are 100 percent against the weight of the evidence, and not just against the weight of the evidence, 100 percent against the whole of the evidence.
31. However, Mr Michell has put forward, as we have indicated, explanations. We are unconvinced by the explanation at paragraph 9, which we have set out, which seeks to reinterpret the words "In the course of the investigation" and, as Mr Michell himself accepts, the implicit suggestions as to why the Tribunal may have disbelieved Mr Edwards are not there, by their very definition in that they are said to be implicit. But, as to the third of the explanations put forward by Mr Michell, he may be right. We are not convinced by it, but he may be right. He submits, as we have indicated, that the first three lines of paragraph 23 are said to refer to the earlier incident, thus said to be the "starting point". We point out that there is reference to the Applicant being the victim of Mr Edwards' "comments", and "comments" appear to us to be more likely to apply to what is said orally, and thus to what was said on 12 July, rather than what was said in writing on the gun. It is not a particularly apt word to describe either the oral or the written threats, if threats they were, but it is more apt to relate to the oral threats than the written ones. It is plain that what the Tribunal are addressing, in paragraph 23, is the fairness or otherwise of the dismissal, which was wholly based on the incident of 12 July, and there is no reference in that part of the paragraph to 22 May at all. But, assuming that the first three sentences are only intended to set the background, and are only a reference to 22 May, then that means that the statement by the Tribunal that the Applicant was undoubtedly the victim of Mr Edwards' comments is not intended to refer to 12 July, but to refer only to 22 May, and thus disappears out of the picture, even on Mr Michell's submissions, as a conclusion in respect of the incident of 12 July, and without it there is no justification for the conclusion. Thus, without those three props there is perversity. But if they are explained away in the way that Mr Michell seeks to do, as not in fact being false, then there is in our judgment, no reason given as to why the Tribunal has come to the conclusion it did. It does not in terms say, except in the earlier part of the Decision, that the employee was a victim, it has certainly not said, if Mr Michell be right, that he was undoubtedly the victim, on 12 July. It has not explained why the allegation against the employee by Mr Edwards, which would, at the very least, have justified a reasonable view by the employer that Mr Edwards was the victim, was being rejected.
32. As we have indicated, Mr Michell has put forward certain suggestions which, he says, were implicit, but none of those are put forward as reasons. The fact that Mr Edwards should, for some reason, be disbelieved, is simply not said by the Tribunal. Unless the Tribunal was prepared to say, not only that they disbelieved Mr Edwards allegation, but also that the employer should have discounted it and why, then a conclusion that no reasonable employer would have had any other belief than that the Edwards allegations were false, and that the employee was an undoubted victim, is wholly without any reasoning at all, contrary to the case of Meek v City of Birmingham [1987] IRLR 250 In our view this is a case which must succeed, either on the basis of perversity or, if Mr Michell's argument be right, then on the basis of impermissible substitution or of no reasons. We do not need to decide which it is, because we are satisfied on either basis this appeal must succeed.
33. The question then arises as to what should be done. Mr Adjei submits that, given the nostrum to which we have referred, the conclusion must be automatic. Once there was no conclusion by the Tribunal that no reasonable employer could have decided anything other than the fact that the employee was the victim, then that puts him in the category of alleged victim, or alleged aggressor, just as Mr Edwards was, and thus the employer was entitled to dismiss both.
34. If we were satisfied that, despite the errors of law which we have found, the Tribunal's decision was right, i.e. that there was unfair dismissal, or alternatively that no other conclusion could follow on a re-hearing but that there was a fair dismissal, then we would agree with Mr Adjei that no re-hearing was appropriate, and certainly no Employment Appeal Tribunal willingly consigns the parties to a re-hearing of an issue, particularly where not an enormous sum of money is at stake. However, we are persuaded by Mr Michell that this is a case in which, on a re-hearing in front of a different Tribunal, other matters might weigh with the Tribunal and there might be a finding of fair dismissal, there might be a finding of unfair dismissal, there might be a finding of unfair dismissal with a substantial contribution. The issues to which Mr Michell adverts are that, on a consideration by a Tribunal asking itself the correct question, as to what a reasonable employer would have done, faced with these counter-allegations by Mr Edwards and by the employee, they might take into account the following matters, which he lists and I propose to repeat, without necessarily endorsing their appropriateness one way or the other:

(1) The context of the 12 July incident including the background of the 22 May incident.

(2) The context including the earlier complaints made by the employee against Mr Edwards.

(3) The fact that Mr Edwards had a relatively recent written warning on his record while the employee had none.

(4) The fact that Mr Edwards had not pursued his appeal and had abandoned it prior to the appeal being heard by the employee.

(5) That there was no actual violence in the incident.

(6) A possible argument that, contrary to the conclusions of the Tribunal, the investigation was fair and thorough.

35. Some of those arguments were not run on the first occasion by the employee's advisers. It may be some of them will not necessarily be capable of being run, but it appears to us there is sufficient question as to what the result would be on a re-hearing to render it appropriate for us to say that, while allowing the appeal and setting aside the decision, unless the parties can in the meanwhile resolve their differences, which it may be that they can, there must be a re-hearing in front of a different Tribunal.