United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR B JAFFEY (of Counsel) Instructed By: Messrs Mills & Reeve Francis House 3-7 Redwell Street Norwich NR2 4TJ
For the Respondent	MR D McCARTHY (of Counsel) Instructed By: Messrs Ward Gethin Solicitors 8-12 Tuesday Market Place King's Lynn Norfolk PE30 1JT


 


MR JUSTICE NELSON:

1. This is an appeal from two decisions of the Employment Tribunal at Norwich, the first of 28.2.01 finding that the Respondent had been unfairly dismissed, and the second of 24.5.01 awarding the Respondent £21,068.45p monetary award for unfair dismissal and £323.07p arrears of holiday pay.
2. The Appellant company is a registered charity providing support, information and training to hostel providers and other related agencies in East Anglia. It has a management committee consisting of some 15 people and at the material time some 9 employees including the Respondent. The Respondent commenced her work for the Appellant in January 1993 as a co-ordinator. Her job description was changed to director in 1997 and to Chief Executive in July 1999. She was, additionally, secretary to the board of trustees who were largely nominees from other charities served by the Appellant. She was dismissed on 2 March 2000.
3. The Respondent was dismissed for two reasons, gross professional misconduct in relation to a breach of the Appellant's equal opportunities policy and for bullying and harassment. The Appellant contended at the hearing before the Employment Tribunal that there was in addition "some other substantial reason" for dismissing her, namely that the staff had totally lost confidence in her.
4. The Tribunal found that the dismissal was unfair on procedural and substantive grounds, and rejected the contention that there was "some other substantial reason" for terminating her employment.

The background facts.

5. Matters had arisen as a result of the discovery by a member of the staff, Sharon Overton, of a handwritten note prepared by the Respondent containing comments on eight members of staff. It was a confidential document left in or on the Respondent's desk but the precise circumstances of its discovery were not clear. It was found by the Appellant's disciplinary committee that the Respondent could not be criticised for "failing to keep the document under lock and key".
6. The document contained a frank appraisal of the members of staff including, in relation to some of them, remarks which could clearly be regarded as derogatory. For example, the document included the following comments "her interest is gossiping and eating ... she chooses what she likes to do ... a passenger ... no ideas ... self obsessed ... a drain on the energy ... a nerd ... does what she likes and sod the rest ... no ideas ... loose cannon ... moans a lot ...".
7. The handwritten note which the Employment Tribunal referred to as the "document" caused outrage. Ms Overton showed it to other members of staff who signed a statement of complaint against the Respondent about it, and made allegations of bullying and harassment against her. Seven out the eight members of staff signed the complaint. Ms Overton, who discovered the note about 30 November 1999, went to see Gary Barnes, the chairman of the board, on about 6 December 1999. She showed him the Respondent's handwritten note, told him that she had discussed the matter with members of staff, and said that the signed statement of complaint by members of staff was to be circulated to the whole board, and to other persons outside the Appellant company but within the voluntary sector in Norwich. She told him that the Respondent had been guilty of bullying and harassment.
8. On 13 December 1999 a meeting was convened by two trustees, Lorraine Bliss and Peter Scott, both vice-chairmen of the Appellant. Mrs Bliss' husband, Alan Bliss, also attended the meeting. Five present and past employees were interviewed. They took exception to the manner in which the meeting was conducted, and complained that it had not been sanctioned by the board. This investigation was later the subject of a complaint which, we have been informed, was upheld.
9. On 14 December 1999 the board appointed a grievance panel. The panel was advised by Ruth Percival, an Employment Industrial Relations Professional. On 18 January 2000 the grievance panel reported to the board and the Respondent was suspended pending further investigation of the allegations made against her. A second grievance panel was set up with Ruth Percival continuing to act as advisor. A copy of the material against the Respondent was forwarded to her and a meeting convened on 11 February 2000 to hear her response to the allegations. The board then considered the matter including a strong recommendation from Miss Percival that the applicant should be dismissed, and made that recommendation. Mrs Bliss, who had conducted the meeting of 13 December 1999 was outraged by the decision and resigned over what she regarded as unfair treatment of the Respondent.
10. The Respondent was advised on 17 February 2000 that a disciplinary meeting would be convened on 2 March. She was sent the notes of the investigative panel and all statements which the Appellant had been acting on were submitted to her by 25 February 2000. The charges against her had been set out in a letter of 24 February 2000.
11. At the disciplinary hearing on 2 March 2000 the Respondent was represented by the chairman of the Norwich YMCA. She had been given the supporting statements in relation to the allegations of bullying and harassment made by twelve individuals together with statements from other persons whose evidence was to be taken into account at the disciplinary enquiry.
12. After hearing the complaints against the Respondent the disciplinary panel concluded that two of the six allegations were substantiated and amounted to gross misconduct. Allegations of bullying relating to one particular individual, Margaret Cross, were dismissed but the panel concluded:-

"Twelve individuals, including both present and former members of staff, have stated that they have been bullied and harassed by Pat. This has been the reason cited by the former members of staff for their leaving, and several have cited stress, anxiety and psychological illnesses which they attribute directly to Pat's behaviour towards them .... The panel concluded that whilst some of the complaints made in the statements were trivial and did not constitute bullying, they were significant evidence that Pat had bullied and harassed other members of staff .... The panel .. found that she had bullied and harassed many members of staff over a significant period of time."

13. The panel reported that the Respondent should be dismissed for gross professional misconduct in relation to the breach of the recruitment and equal opportunities policies, and for bullying and harassment. The Respondent was dismissed and appealed against that decision on 8 March 2000. The appeal was conducted on 28 March but the decision to dismiss upheld. Unlike the disciplinary panel of the 2 March which did not hear any evidence relating to the meeting of 13 December 1999, the appeal hearing admitted as evidence the statements given by members of staff at the meeting on that date. At the appeal hearing the Respondent was again represented by the chairman of the Norwich YMCA and made oral and written representations.

The Tribunal's findings.

14. The Employment Tribunal issued summary reasons on 28 February 2001. They recorded that they had decided that the dismissal was unfair, and that the principal reason for that unfairness was the fact that the procedure adopted by the Respondent in arriving at its decision was flawed. A sufficient enquiry had not taken place particularly as the minutes of the meeting of 13 December 1999 were excluded, and the chairman of the disciplinary committee "had been too closely involved in the staff complaints that led to the grievance and disciplinary procedure" so that he was unable to demonstrate sufficient impartiality in that function. The Tribunal further found that Miss Percival's contribution was partisan in her recommendations. They rejected the submission that the discovery and broadcast of the confidential memorandum containing disparaging remarks about staff constituted 'some other substantial reason' for terminating the Respondent's employment.
15. In their extended reasons of 4 April 2001 the Employment Tribunal described the handwritten note as "the key to a Pandora's box". They said that it undoubtedly "prompted the outrage of a person who found it but it seemed to us remarkable that nobody has ever thought to inquire why that person chose to broadcast the document to all and sundry, including many people outside the respondent's organisation, rather than take it to the Chairman of the Board, to express her concern, and to ask for his intervention and assistance. A meeting with the applicant in an atmosphere of mediation and constructive discussion could, we have thought, soon have resolved the matters to everybody's satisfaction."
16. The Tribunal considered that Mr Barnes, the chairman, had "opened the criticism in that plainly Ms Overton came to him with the document and the accompanying memorandum on 6 December". They added that "we think a person in Mr Barnes' position should have given firm and, if we may say so, wise, advice to Ms Overton then and there to hand over all the papers to him so that he could conduct a discrete enquiry along the lines we have indicated. However, the Pandora's box was open and the grievance flowed from it."
17. They rejected the contention that the Respondent was guilty of misconduct in relation to the equal opportunities policy and found that the bullying and harassment allegations had been dealt with in far too broad a manner with a "grapeshot" approach. The flaw, in the view of the Tribunal, was that the Appellant had failed to identify the allegations precisely so that the Respondent did not know which of the allegations, by which of the twelve individuals, were believed in and relied upon by the Appellant.
18. The Tribunal also found no procedural error in relation to the meeting on 13 December stating that Mrs Bliss and Mr Scott were faced with an urgent situation and there was nothing wrong with what they did. They noted that the staff at that meeting had found it intimidating but "that was not reflected in the notes nor in their subsequent evidence". They said that the appeal process should have given "far more weight" to the 13 December investigation and that there should have been a rehearing so that the Respondent could have questioned the persons interviewed on 13 December. The Respondent had had no opportunity of facing her accusers.
19. The evidence of Ruth Percival was found to be a disconcerting influence and the Tribunal noted that Mr Barnes had said in evidence to them that the board regarded her evidence as out of order. She was nevertheless instructed to continue to play a part in both the dismissal and the appeal process. It was noted that the trustees were acting independently but they were looking to her for professional advice and that advice was strong and prejudicial, in the Tribunal's view, to the outcome.
20. The Tribunal also considered that there was "insufficient weight" given by the Appellant to the allegations of collusion made by Mrs Bliss, that the response of the staff to the discovery of the document was "slightly hysterical", that its subsequent publication was indicative of "something of a palace revolution" and that a reasonable employer would have given 'far more weight' to the possibility that staff were merely airing old grievances. They therefore concluded that the investigation was flawed as it was insufficient to satisfy the Burchell tests and was procedurally and substantively unfair.
21. In relation to "some other substantial reason" the Tribunal found that the Respondent could not be blamed for the wide circulation of the document by her staff and if there was no blame attached to her for the failure to keep the document under lock and key, it was difficult to see how the circumstances of the document being found and circulated could conceivably amount to a reason for her being dismissed.

The Appellant's affirmation 11.6.01.

22. The Appellant alleged that two serious procedural errors had occurred at the merits hearing before the Employment Tribunal at Norwich. Both related to the Employment Tribunal informing the Respondent's representative that a point lacked merit and should not be pursued, resulting in the points not being further argued by the Appellant at the hearing. Nevertheless in each case the Appellant alleges, the Employment Tribunal found against the Appellant on these very points without giving either party the opportunity to make submissions or adduce further evidence.
23. In an affirmation dated 11.6.01 the Appellant set out details of these alleged procedural errors. The first related to the finding in the summary reasons that the chairman of the disciplinary panel had been "too closely involved in the staff complaints" to be sufficiently impartial to carry out his functions fairly. Paragraph 11 of the affirmation specifically relates this finding to the meeting between Sharon Overton and Mr Barnes prior to the formal grievance being raised. Ms Overton had told Mr Barnes at that meeting that a complaint would be made by her and other staff about the Respondent. The chairman intervened in cross-examination to say that as the Appellant was a small organisation where everyone knew everyone the point regarding the meeting with Ms Overton was not worth pursuing and indeed did not have to be declared. The second alleged procedural error related to the finding that Mr Barnes should have attempted to give firm and "wise advice" to Ms Overton to hand over all the papers to him so that he could conduct a discrete inquiry. Once again the chairman indicated that he thought the point was irrelevant during cross-examination with the consequence it was not pursued by either party in evidence or submissions.
24. The affirmation alleged that as a consequence the Appellant had been prevented from submitting that when Ms Overton met Mr Barnes the decision to complain had already been made and was therefore presented to him as a fait accompli. Secondly carrying out a quiet informal inquiry rather than following the written grievance procedure was not realistic, sensible or fair in the face of a complaint of bullying, harassment and improper behaviour by a large majority of the Respondent's staff. Those points could not be made.
25. On 28.6.01 the Appellant was informed that the chairman did not challenge the facts rehearsed within the affidavit.

The Remedies hearing.

26. At the conclusion of its extended reasons on the merits the Employment Tribunal said that the matter of contributory fault and a Polkey test remained to be considered at a remedy hearing. After the merits hearing, the Appellant's solicitors wrote to the chairman on 2.3.01 requesting him to confirm amongst other things that the question of whether the Respondent contributed to her own dismissal and whether it would be just and equitable to award compensation to her was still to be heard at the remedies hearing. The chairman confirmed that all the points raised were for decision on the 14 March which was to be the remedy hearing.
27. When the hearing took place these matters were fully argued before the Employment Tribunal but when it came to makes its decision on 24.5.01 (summary reasons) and 20.6.01 (extended reasons), no reference whatsoever is made to these points. There was however a finding in favour of the Respondent entitling her to the additional £323.07p, a sum in excess of the maximum claim she herself had put forward.

The Submissions.

28. The Grounds of Appeal assert numerous errors by the Tribunal. Before us the Appellant restricted itself to five grounds where it contended that there were clear and obvious errors, though it was contended that major errors had been made across the board. On any basis, it was submitted, it was inevitable that there would have to be a full rehearing of the matter.
29. The procedural errors at the merits hearing when findings were made against the Appellant without the opportunity properly being given for it to deal with the matter in argument, were fundamental errors. The affirmation was not in any way challenged by the chairman and had to be taken as correct. The finding that Mr Barnes had been too closely involved in the staff complaints so as to be unable to demonstrate sufficient impartiality in dealing with the grievance and disciplinary procedure was in effect a finding that the Appellant's procedure was flawed. It could not be regarded as anything other than an important finding and as the Appellant had been deprived of presenting proper argument upon it, fairness had not been achieved between the parties. It should be noted that the extended reasons does not expressly deal with Mr Barnes' lack of partiality nor explain the basis upon which that finding was made. The references to Mr Barnes in paragraphs 23(1) and (2) of the decision do not repeat lack of impartiality or explain that statement.
30. The criticisms made of Mr Barnes in not dealing with the matter discretely and failing to defuse the situation by conducting his own discrete inquiry, ignored the fact that the decision to complain had already been made by Ms Overton and the other six employees and was therefore a fait accompli, and in the face of such serious allegations could not have been dealt with simply by discrete inquiry. As the Appellant was prevented from putting these arguments it is not known what effect they would have had. It is however clear, the Appellant submits, that the Employment Tribunal's findings in relation to Mr Barnes form an important part of their decision.
31. The procedural error in relation to the remedies hearing was even more remarkable as it simply failed to deal with Polkey and contributory fault even though these were central to the issues which they had to decide and had been argued at length.
32. The finding that the appeal process should have been a rehearing with the opportunity being given to the Respondent to question her accusers failed to take account of the fact that the Respondent did not call any evidence, and was an experienced and qualified employee who did not ask for the right to cross-examine. More importantly however the finding was contrary to the decision in Ulsterbus-v-Henderson [1989] IRLR 251 where it was held that a quasi-judicial investigation with a confrontation of witnesses and cross-examination did not have to take place in order for an employer to demonstrate that a reasonable investigation had been carried out. It could not be said that an employer who failed to carry out a quasi-judicial investigation and permit cross-examination was acting outside the appropriate band of reasonableness.
33. The Employment Tribunal had applied completely the wrong test in assessing whether or not there was "some other substantial reason" for dismissing the Respondent. They appeared to consider that if no blame attached to the Respondent for the circulation of the document, the finding and circulation of that document could not amount to a reason for her being dismissed. They should not have looked at the question of blame but at whether the evidence indicated that the relationship between the Respondent and the rest of the staff had broken down to such an extent that it was irremediable. In Turner-v-Vestric Limited [1981] IRLR 23 it was found that before dismissing in such circumstances an employer must take reasonable steps to try and improve the relationship so that it can be said that not only is there a breakdown but that the relationship is irremediable. Such was clearly the case here and had the Employment Tribunal applied the proper test they would have been bound to have concluded that there was "some other substantial reason" for dismissing the Respondent.
34. Finally, there were numerous examples of the Employment Tribunal ignoring the Appellant's case or applying the wrong test. In particular they sought to impose their own view of the facts rather than ask themselves, as they should have done in accordance with British Home Stores-v-Burchell [1979] IRLR 379, whether the employer believed in the employee's guilt and had in his mind reasonable grounds upon which to sustain that belief. Nor did they ask themselves whether what the employers did was within the 'band or range of reasonable responses' in accordance with Post Office-v-Foley, HSBC Bank plc-v- Madden [2000] IRLR 827.
35. For example, the Appellant submits, the finding that the Appellant used a "grapeshot" approach to the allegation of bullying and harassment, overlooked the fact that the Respondent had not chosen to answer the statements from those who had made the complaints of bullying and harassment individually, but alleged collusion, and that Mr Barnes had given evidence that the Appellant had considered the matter and had not thought that there was a conspiracy. In the circumstances of the case their approach was entirely within the reasonable band of responses for an employer, but the Employment Tribunal had not considered that question. In finding that the disciplinary hearing should have considered the evidence before the meeting of the 13^th December, the Employment Tribunal failed to take into account the fact that the grievance procedure had not been followed and in stating that the staff had complained that the meeting was intimidating but that that did not appear in their notes or subsequent evidence, had completely failed to take into account the written statements from two of the witnesses both of whom had said that they found the meeting very intimidating (Linda Watling) and that the attitude of Mr Bliss was "so dismissive he was practically laughing".
36. The Respondent submits that the entirety of the Appellant's Grounds of Appeal are no more than an invitation to this Tribunal to address the facts for a second time. The decision which they made was perfectly proper and permissible on the evidence.
37. The Employment Tribunal reached clear findings of fact of procedural unfairness. In their Summary Reasons they found firstly that there had been no sufficient enquiry and in particular no proper investigation of the minutes of the 13 December meeting, secondly that the chairman was too closely involved, thirdly that Ruth Percival was partisan in both her contributions and her presence, and fourthly there was no other substantial reason for dismissal. The finding in relation to Miss Percival alone would be sufficient to justify their decision even if there were problems in relation to their finding on Mr Barnes' role. It was a freestanding point and was in itself such a serious procedural error as to justify a finding of unfair dismissal. When looked at broadly and fairly in accordance with Stewart-v-Cleveland Guest (Engineering) Ltd [1994] IRLR 440 there is no ground for interfering with the Tribunal's decision.
38. As to the procedural points the Respondent does not accept that there are two instances where the Tribunal made findings without hearing full argument upon them. Whilst the chairman agreed that the affirmation was correct, he did so fairly briefly in general terms and it is not clear that he accepted the assertion in paragraph 11 of that affirmation. The words "too closely involved" in the Summary Reasons, do not on their face refer to improper contact between Mr Barnes and Ms Overton. Their criticism of Mr Barnes being too closely involved in staff complaints probably refers to paragraph 23(2) of the Extended Reasons when the Tribunal said that they thought that Mr Barnes had "opened the criticism" by failing to take over all the papers and conduct a discrete inquiry rather than permit "Pandora's box" to be opened. The Employment Tribunal were therefore criticising Mr Barnes' failure to act impartially or as a facilitator. It is difficult to understand precisely what 'open the criticism' meant when Ms Overton had brought a signed complaint to Mr Barnes, but the Employment Tribunal had the advantage of seeing the witnesses before considering the issue. No proper complaint can be made of their finding which was permissible on the facts.
39. Even if the finding in relation to Mr Barnes was not justified and no proper opportunity was given to the Appellant to deal with it, the failure in respect of Miss Percival remains so great that the Tribunal were entitled to conclude on that ground alone that the dismissal was unfair.
40. In this context the Respondent submitted that the principal reason for the finding of procedural unfairness was the lack of a sufficient enquiry rather than the finding that Mr Barnes was too closely involved with the staff and lacked impartiality.
41. It should be noted that the Appellant did not pursue the ground of appeal relating to the finding in respect of Miss Percival, but nevertheless submit that the finding by the Employment Tribunal that the board took a robust view as to her advice and acted independently, diminishes the effect of the criticism as to her involvement.
42. The Respondent submitted in relation to the alleged procedural irregularity at the Remedies Hearing that the fact that no express findings were made upon matters which had been argued and were relevant for decision, did not mean that an incorrect approach had been adopted.
43. As to the errors of law alleged in relation to the Merits Hearing the Respondent submitted that there was no error in the finding that the Appellant had failed to give the Respondent the opportunity to cross-examine at the appeal hearing firstly because the case of Ulsterbus could be distinguished on its facts as the hearing in that case was "careful" and involved a "meticulous review" whereas here there was no proper investigation of the allegations, and secondly because even if the Tribunal had made an error it could not impinge upon their central finding of unfair dismissal based upon an inadequate inquiry and Ruth Percival's partial advice and interventions.
44. The Respondent submitted that the Employment Tribunal had applied the correct test in relation to "some other substantial reason". Paragraph 23(1) of the decision shows that they had properly applied the test in Turner-v-Vestric in finding a failure to conduct a proper mediation, even if they had not expressed their decision on the issue clearly. It was not the employee's fault that the handwritten note had been discovered and the employer did not seek to mediate or find if there were a route to reconciliation. Their finding was therefore unchallengeable.
45. As to the allegation in relation to bullying and harassment the Employment Tribunal had heard the evidence and their findings could not possibly be challenged. None of their findings were impermissible options.

Decision.

46. We have formed the clear unanimous view that this decision cannot stand and that the matter must be referred to another Tribunal for a full rehearing.
47. The finding that the chairman of the disciplinary committee had been too closely involved in the staff complaints that led to the grievance and disciplinary procedure, so as to be unable to demonstrate sufficient impartiality in that function, was made in spite of the fact that the issue had been declared irrelevant by the chairman and hence no argument was heard from either party upon the matter. By accepting the facts rehearsed in the affirmation the chairman must be taken to have accepted that the allegation that Mr Barnes had been too closely involved in the staff complaints to be sufficiently impartial related to the short meeting between Sharon Overton and Mr Barnes. This is clearly set out in paragraphs 10 and 11 of the affirmation and therefore constitutes part of the facts agreed. The second ground in paragraphs 16 and 17 relating to Mr Barnes' failure to carry out a "discrete inquiry" is also agreed by the chairman. We are not in a position to judge the precise extent of the agreement intended but have to take what is recorded as the chairman's comments in the letter of 28.6.01 at face value.
48. The finding that the chairman lacked impartiality in one or other or both of these respects is fundamental and goes to the heart of the inquiry conducted by the Appellant. It is not possible to state its importance relative to the other findings in paragraph 4 of the Summary of Reasons, but it cannot have been anything other than important, and may have been of great significance on the minds of the Employment Tribunal. To make such a finding without hearing argument on it from the party against whom it is made, is a grave error. If the Employment Tribunal had heard proper argument upon the matter from the Appellant it could be that the finding of lack of impartiality would not have been made and the whole decision could have been viewed in a different light. This, in our view is a real, not a fanciful possibility.
49. We do not consider that the finding in respect of Miss Percival's role is in itself sufficient to justify the finding of unfair dismissal as the Respondent submits. It is simply not possible to know how it rates in importance compared with a lack of impartiality on the part of the chairman. Furthermore the Employment Tribunal found that the board demonstrated their independence of Miss Percival in that they regarded her advice on reporting back from the grievance process that the Applicant should be dismissed as wholly wrong and out of order. The Employment Tribunal also found that the trustees were acting independently. When the finding that the presence of Ruth Percival was a disconcerting influence on the whole process is considered within the context of how the trustees regarded and acted upon her advice, it is not possible safely to conclude that such a finding by itself could justify the finding of unfair dismissal.
50. We also note that a principal reason for finding that the Appellant had not conducted a sufficient enquiry, was the failure to take into consideration the minutes of the meeting of 13 December 1999. The Employment Tribunal state that Mr Barnes thought that the meeting was out of order as it had not been authorised by the board, but do not appear to have appreciated that the complaints by staff that the meeting was intimidating were, contrary to the Employment Tribunal's finding, reflected in their statements. We were told at the hearing before us that the meeting of 13 December 1999 was subject to a formal complaint which was upheld.
51. There are therefore problems about this particular finding: firstly it is in error in so far as it finds that the staff who complained that the meeting was intimidating did not reflect that in their notes or their subsequent evidence when two of them did, and secondly in that the chairman who was said to lack impartiality had criticised the meeting. Had the Appellant been able to address the Tribunal on Mr Barnes' role in relation to his meeting with Ms Overton, and his failure, when presented with a signed complaint by seven out of eight members of staff, to conduct a discrete enquiry, the Employment Tribunal might have formed a different view as to the force of Mr Barnes' criticism of the meeting of 13 December 1999.
52. Again, it is impossible to know how this might have affected the outcome. What can be said is that there is a substantial risk that the manner in which the Tribunal dealt with the question of Mr Barnes' impartiality could have undermined the whole of their findings.
53. As to the failure to allow the Respondent the opportunity to cross-examine at the appeal process we are satisfied that this finding is contrary to the decision in Ulsterbus and amounts to an error. It could not be said that in the circumstances the Appellant acted unreasonably in failing to provide her with an opportunity to cross-examine witnesses when neither she nor her representative had asked for the opportunity to do so.
54. We accept the Appellant's submission that the Employment Tribunal applied the wrong test in assessing whether or not there was 'some other substantial reason' for dismissing the Respondent. They approached it as if the question to be determined was blame, when they should have asked themselves whether the relationship between the Respondent and the rest of the staff had broken down to such an extent that it was irremediable. They had considered the question of mediation in paragraph 23(1) of their decision, but not in the context of "some other substantial reason". Their approach to this issue was again an error in law.
55. When considering the question of bullying and harassment the Employment Tribunal stated that the Appellant gave "insufficient weight" to allegations of collusion by Mrs Bliss, and that a reasonable employer would have given "far more weight" to the possibility that staff were merely airing old grievances. They also stated that the appeal process should have given "far more weight" to the 13 December investigation. These passages demonstrate that the Employment Tribunal was putting itself in the position of the employer rather than asking whether what the employer did was within the "band or range of reasonable responses". They did not apply the correct test as set out in Burchell. Their approach to the Appellant's conduct was therefore in error.
56. We are satisfied that this is not a case where it can be said that in spite of the Tribunal's errors in the Merits Hearing their decision was plainly and unarguably right. (Bache-v-Essex County Council [2000] IRLR 251). On the contrary the errors undermine their decision.
57. Finally, as to the Remedies Hearing the failure to make findings on Polkey and contributory fault, is very difficult to understand given the fact that the matters were specifically raised as relevant issues before the hearing, and were argued at the hearing itself. The Employment Tribunal made no reference to them but then found an additional sum of money was due to the Respondent when that point was not included in the Respondent's claim.
58. The errors made in relation to the Merits Hearing strike at the heart of the Employment Tribunal's decision. We are satisfied that it cannot stand. The Remedies Hearing must also be set aside.
59. The appeal is therefore allowed and a full rehearing on the merits by a fresh Tribunal is ordered.