United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANDREW BYLES (Of Counsel) Free Representation Unit 6th Floor 289-293 High Holborn London WC1V 7HZ
For the Respondent	THE RESPONDENT WAS NOT REPRESENTED

SUMMARY

The issues were (i) whether the employment tribunal misdirected itself in concluding that the dismissal was unfair on merely procedural grounds, (ii) whether it misdirected itself in concluding that, had a fair procedure been adopted, the appellant would have been fairly dismissed anyway, and (iii) whether it misdirected itself in concluding that the appellant caused or contributed to her dismissal to the extent of 100%.


 


THE HONOURABLE MR JUSTICE RIMER

1. This appeal is against the decision of an employment tribunal sitting at Brighton over two days in July 2004 and chaired by Mr J Simpson. The extended reasons were sent to the parties on 2 August, when the decision was entered in the register. The applicant was Mrs Gloria Foster, who complained of wrongful and unfair dismissal and, if she succeeded on the latter, asked in her originating application to be reinstated in her job although we are told that she no longer seeks reinstatement. The respondent was her former employer, Brighton and Hove City Council ('the Council'). The tribunal held that Mrs Foster had been unfairly dismissed because of procedural shortcomings on the part of the Council and directed the holding of a remedy hearing. They also held that Mrs Foster was 100% to blame for her dismissal and the scope of the remedy hearing was limited to the determination of her lost earnings for a period from 4 March 2003 (the date of dismissal) to 30 June 2003. The reason for that award was that the tribunal had found that, had the Council adopted a fair disciplinary process in relation to Mrs Foster's dismissal, her employment would have continued for this further period, during which a fair disciplinary process could have been implemented, but they also found that she would have been fairly dismissed at its expiry.
2. Mrs Foster appeals against the decision. She challenges as perverse the tribunal's conclusions (i) that had a fair procedure been adopted she would have been dismissed anyway; (ii) that she brought about her dismissal by her own conduct; and (iii) that her contributory fault was as much as 100%. Mr Byles appeared for Mrs Foster before us, as he did before the employment tribunal. The Council cross-appeals against the award of compensation but otherwise seeks to uphold the tribunal's decision. Mr Yonge, a solicitor employed by the Council, represented the Council before the tribunal but before us he has confined himself to submitting written submissions. He has not appeared in person.

The tribunal's findings of fact and conclusions

3. Mrs Foster worked for the Council as a Night Community Support Worker from October 1988 until she was dismissed on 4 March 2003. She was dismissed for gross misconduct. Her employment involved her in assisting elderly and vulnerable people with their personal care needs.
4. Mrs Foster is married. In April 2001, the Council received an anonymous tip off that her husband was illegally receiving benefits to which he was not entitled. They allegedly included council tax benefits on the basis that he was a single parent living alone at 10 Fairfield Gardens, Portslade (an address which we will refer to simply as “Portslade”).
5. The Council suspected that Mrs Foster lived with her husband at Portslade and resolved to institute an investigation to establish whether she did and whether she was either actively or passively involved in his alleged frauds. The Council's initial investigation caused it to believe that she did live at Portslade and it called her to an interview on 13 December 2001. That interview was adjourned after 30 minutes so that she could take advice. It was resumed on 23 January 2002.
6. On 30 April 2002, Mrs Foster was interviewed by her line manager. On this occasion she was accompanied by her UNISON representative. She explained at that interview that from 1993 to February 2002 she and her husband were estranged and that she had not lived at Portslade but had merely used it as a postal address. She claimed to have had no permanent or regular home during this period and that she had been living with either a colleague or relatives. She admitted that she had visited Portslade frequently during this period in order to see her children and that she would rest there during the day and occasionally stay overnight. She said she was unaware that her husband was claiming benefits and was not privy to his financial arrangements.
7. The colleague Mrs Foster claimed she stayed with was Lesley Rankin, who made a statement on 14 February 2002 consistent with Mrs Foster's account, namely that Mrs Foster did not live at Portslade and often stayed at Mrs Rankin's house, for which she had her own key. In May 2002, however, Mrs Rankin withdrew that statement and made a revised one dated 8 May. She said that some of the information in her first statement was false and that Mrs Foster had asked her “to assist her in a minor problem”. Mrs Rankin had since learned of the seriousness of the matter in question and wished to make her revised statement. That statement was to the effect that she believed Mrs Foster did live at Portslade and had done so since she had known her, which the statement suggests was since about the beginning of 2000; that she, Mrs Rankin, had been to Portslade “half a dozen times” and had met Mrs Foster's husband; that Mrs Foster was not estranged from her husband; and that she holidayed with him and their children. The Council also obtained statements from other of Mrs Foster's colleagues, also to the effect that during the nine-year period Portslade was her home.
8. The outcome of that further intelligence was that Mrs Foster's line manager re-interviewed her on 21 May. She stuck to her story. But the Council had also obtained a considerable collection of other material which they regarded as providing overwhelming support for the view that she was lying and that she had been living with her husband at Portslade during the nine-year period. The tribunal identified this material in 17 sub-paragraphs.
9. On 8 August, Mrs Foster was served with a summons containing five counts of false accounting relating to her husband's benefit claims. The Council was the prosecutor. She was also handed a letter informally suspending her from duty and inviting her to a meeting on 15 August. The tribunal pointed out in their reasons that the Council had a code of conduct which applied to Mrs Foster and which provided that:

“… you are accountable to the public for your behaviour, actions and decisions. You must not only behave properly, you should also be seen to behave in a way that is beyond question.”

The meeting on 15 August was conducted by Mr Sharma, who had started working for the Council the same month, having had previous local authority experience and having conducted many disciplinary procedures. Following that meeting, Mrs Foster was formally suspended from duty, which was confirmed to her in a letter of 19 August. The letter said that the reason for her suspension was:

“to allow investigations to take place into allegations that you allegedly committed Council Tax fraud which could potentially amount to gross misconduct.”

10. On 17 October, Mrs Foster's line manager wrote to her requiring her to attend a disciplinary hearing on 5 November. The allegation which was to be inquired into at the hearing was:

“that you aided and abetted in council tax fraud, which amounts to gross misconduct..”

Because of a question over Mrs Foster's health, the hearing did not proceed on 5 November but was postponed to 4 March 2003. On 22 January 2003, her solicitors informed the Council they had advised her not to attend any disciplinary proceedings prior to her criminal trial since to do so might prejudice her in that trial. That did not impress the Council, which responded on 6 February that it intended to proceed with the disciplinary hearing. By February, it was known that the criminal trial was fixed for 9 June at the Lewes Crown Court and on 19 February Mrs Foster's solicitors wrote again to the Council saying that both they and Mrs Foster's counsel had advised her not to attend the disciplinary hearing, again for the reason that to do so might prejudice her in the criminal trial. The solicitors added that they had instructions to represent her in both the criminal and disciplinary proceedings. The Council interpreted this letter as an application for a postponement of the disciplinary hearing fixed for 4 March. They refused it, taking the view that the issues and burden of proof in the criminal trial and the disciplinary hearing were different. They explained this to the solicitors in a letter of 25 February, also pointing out to them that they had no right of audience for Mrs Foster at the disciplinary hearing. They said that she could, however, be accompanied by a union representative or a colleague.

11. Mrs Foster did not attend the disciplinary hearing on 4 March, as her solicitors had made clear she would not. Two union representatives did, however, attend on her behalf. They apparently asked for a postponement, relying on what the tribunal referred to as “Article 6 of the Human Rights Act 1998”. Whether reliance was placed on Section 6 of that Act or on Article 6 of the Convention is therefore obscure, but we presume that the point being made was that to proceed with the disciplinary hearing would or might prejudice Mrs Foster's right to a fair criminal trial in June. The two union representatives were apparently unaware that Mrs Foster's solicitors had claimed to be acting for her in the disciplinary proceedings. On being shown the letter of 19 February, which showed this, they decided to withdraw from the disciplinary hearing. When Mrs Foster later learned of that she was apparently so incensed that she complained to her MP.
12. The position was, therefore, that Mr Sharma, who was conducting the disciplinary hearing, was all ready to proceed with it, but Mrs Foster was not there and her union representatives had decided to make an early departure. Her solicitors had of course explained why they considered that the hearing should be deferred until after the criminal trial but Mr Sharma decided to press on with it. He took the view that Mrs Foster knew all about the hearing and knew it had not been postponed and had no good reason not to be there. Present before him were the makers of the various statements whose evidence suggested that Mrs Foster had lived at Portslade during the period when she said she had not but there was of course no-one there to cross-examine them. Mr Sharma also had statements from three relatives of Mrs Foster who confirmed that she had separated from Mr Foster in 1993 and had not resumed occupation at Portslade until early 2002.
13. Mr Sharma accepted at the hearing that there may have been marital difficulties in the Foster household and that there may have been times when Mrs Foster stayed away from Portslade. However, according to the tribunal, he concluded that a consideration of the evidence “holistically” led overwhelmingly to the inference that Portslade was Mrs Foster's home from 1993 to 2002 and he rejected her case that she had had an itinerant existence during that period. We are unclear from the tribunal's reasons whether it was Mr Sharma who claims to have approached the evidence “holistically” or whether that was the tribunal's description of what they understood him to have done. The adverb derives from “holism”, a theory originally propounded by Jan Christian Smuts, the South African soldier, statesman and philosopher, one which embraces the concept that the whole is sometimes greater than, and different in kind from, the sum of its parts. We doubt if it can have any safe role to play in the assessment of evidence in a quasi-forensic setting. We suspect that the adverb has been incorrectly used either by the tribunal or Mr Sharma as synonymous with “as a whole”. The tribunal went on to say in paragraph 3.32:

“3.22 There was evidence before Mr Sharma based on her own admissions that [Mrs Foster] made substantial financial contributions towards her family during this 9 year period; that it must have been apparent to her that her husband was not gainfully employed and it was inconceivable to Mr Sharma that [Mrs Foster] would not have discussed her husband's financial income during this time in view of her own contributions especially if they were separated.”

14. The tribunal found that Mr Sharma concluded, and reasonably believed, that Mrs Foster lived with her husband at Portslade from 1993 to 2002; that, on the balance of probabilities, she must have known he was making fraudulent claims for benefit; that she colluded with him in making them or knew of them and took no steps to prevent them, but that either way she behaved dishonestly; that her explanation had been a tissue of lies that “exacerbated” her dishonesty; and that all this meant she had been guilty of gross misconduct which was incompatible with her continuing to work for the Council in a position of trust involved with vulnerable persons.
15. The result was that Mr Sharma decided to dismiss Mrs Foster summarily. The decision was communicated to her by a letter of 7 March. This told her that her reason for dismissal was:

“because we have a reasonable belief that you fundamentally breached the Council code of conduct and betrayed the trust and confidence placed [in] you, as an employee of the Council working with vulnerable adults in the Mental Health Service for Older People.”

16. Mrs Foster was informed of her right of appeal, which she exercised. Any appeal would be heard by three councillors. As the council elections intervened in May 2003, the Council was unable to empanel three councillors with any reasonable promptness and so the appeal did not take place until 20 November 2003. In the meantime, the criminal proceedings against Mrs Foster were discontinued. The Council offered no evidence against her at the trial on 11 June and formal not guilty verdicts were entered. We are also told that Mrs Foster's husband was acquitted of all charges against him.
17. Mrs Foster argued at the appeal hearing that the disciplinary hearing on 4 March should not have been held but should have been postponed until after the trial. The panel rejected this on the ground that no evidence was produced that any prejudice had been caused by the refusal to postpone it. She argued next that the conclusion that she had lived at Portslade during the relevant period had been an unreasonable one. This was rejected too on the ground that the evidence at the hearing had entitled management to reach that conclusion and that the evidence given at the appeal made no difference to the reasonableness of that conclusion. Finally, she argued that it was unreasonable for management to have concluded that she was aware of her husband's benefit claims. The panel rejected this too, saying that:

“…Bearing in mind [her] close involvement with the family and its finances over several years, we conclude that it is reasonable to make such an assumption.”

18. The tribunal then came to their conclusions on Mrs Foster's unfair dismissal application. They referred first to Scottish Special Housing Association v Linnen [1979] IRLR 265, a decision of this appeal tribunal, with the judgment being delivered by Lord McDonald. The relevant paragraph is paragraph 4, which reads:

“When an employee is found in possession of goods which are suspected to have been stolen from his employer and the police are interested in the case, the position of the employer is a delicate one. He must take care on the one hand to act fairly so far as the employee is concerned, but he must be equally careful to do nothing which might cause prejudice in any subsequent criminal proceedings (Carr v Alexander Russell Ltd [1975] IRLR 220). Each case must turn on its individual circumstances. Where an employee reasonably appears to have been caught red-handed, dismissal without further investigation may be appropriate. In other cases where the probability of guilt is less apparent the safer course may be to suspend pending the outcome of any criminal proceedings.”

It is the last sentence which is of relevance for present purposes, the point being that this was not a case in which it could reasonably be said that Mrs Foster had been caught red-handed. She was facing a prosecution in circumstances in which the probability of her guilt was not obviously apparent and the point being made to the tribunal was that the Council should have adopted “the safer course” of deferring the disciplinary hearing until after the criminal proceedings.

19. The tribunal referred next to British Home Stores v Burchell [1979] IRLR 379. That illustrates that in dismissals for misconduct the fairness of the dismissal will depend on proof of (i) the employer's belief in the employee's guilt, (ii) that he had reasonable grounds for his belief, and (iii) that at the stage he had formed that belief he had carried out a reasonable investigation into the matter. They referred to section 98 of the Employment Rights Act 1996. They reminded themselves that when considering whether the employer's actions fall within a band of reasonable responses they “must not substitute their own preferred remedy but must ask whether the actions of the employer fall inside or outside the band of reasonable responses of any reasonable employer”.
20. The tribunal then said, in paragraph 8, that they were satisfied that Mr Sharma genuinely believed that Mrs Foster resided at Portslade between 1992 and 2003, knew that her husband had made fraudulent benefit claims over that period and had dishonestly colluded with him either actively or passively. He had concluded that her participation was greater than merely turning a blind eye to his actions. He had rejected her exculpatory explanations as untrue and fabricated. That finding by the tribunal met the first limb of the Burchell principles.
21. The tribunal said next, in paragraph 9, that they were satisfied that:

“… on the evidence before him Mr Sharma was entitled to reach that conclusion following his investigation.”

That finding met the second limb of the Burchell principles. The tribunal made no finding in that paragraph that the investigation had been a reasonable one and so made no finding meeting the third limb of the Burchell principles.

22. The tribunal said next, in paragraph 10, that the reason or principal reason for the dismissal was Mr Sharma's conclusion that Mrs Foster's dishonesty was incompatible with her responsibilities for dealing with vulnerable persons and that the potential risk to those persons was such that the Council could not countenance any continued involvement by her with them.
23. In paragraph 11, the tribunal said that in deciding upon a penalty Mr Sharma had taken into account Mrs Foster's 14½ years service and that she had never been disciplined before. Despite that, he considered that her breach of trust was so serious that the only appropriate penalty was dismissal.
24. Having arrived at those findings the tribunal then held that the dismissal was procedurally unfair, for which it gave seven reasons. First, there was “inordinate delay” before suspending Mrs Foster. The investigation had started before December 2001, the Council had their suspicions of Mrs Foster by December 2001 but the suspension was not made until August 2002. Second, the dismissal was for a reason different from that for the disciplinary hearing which was in turn different from that for the suspension (we have referred to the grounds for each before and will not repeat them). The tribunal recognised that there was “some linkage” between the three reasons but said that the dismissal reason (that is, for breach of the code of conduct and breach of trust) was essentially different from dismissal for past transgressions in relation to benefit frauds even though it arose from the same past conduct. The tribunal said that Mrs Foster was never given advance warning of the case which was in fact the basis for her dismissal and found that “her actions might have been different had she been properly informed” of it. Third, the Council's refusal to postpone the disciplinary hearing fundamentally undermined the disciplinary procedure. As the Council was also the prosecutor in the criminal proceedings, participation by Mrs Foster in the disciplinary proceedings might have prejudiced the fairness of her trial. The hearing had already been postponed from November 2002 and a further postponement from 4 March 2003 until after 9 June would not have occasioned a material prejudice to the Council, whereas a refusal to postpone it would be prejudicial to Mrs Foster. Fourth, Mr Sharma was unlikely to have been truly independent in the manner in which he conducted the disciplinary hearing:

“and was likely to be under some pressure from [the Council] to reach a conclusion which would not be inconsistent with [the Council's] position as prosecutor in the criminal proceedings due for hearing some 3 months later. He must have been aware and potentially influenced by the fact that if the disciplinary hearing concluded it was not satisfied with [Mrs Foster's] complicity in the alleged dishonesty [the Council's] position as prosecutor in the criminal proceedings would become untenable.”

Fifth, the Council must have been aware of the potential problem that Mrs Foster's union representatives would face in continuing to represent her at the hearing once they learned that her solicitors were also claiming to represent her in that matter. Once the problem of representation became apparent at the disciplinary hearing and the union representatives withdrew, Mr Sharma should have adjourned the hearing at least for a few days so that the difficulty could be communicated to Mrs Foster who would have the opportunity of considering her position. Sixth, this was a case in which, following the guidance in the Linnen case, the disciplinary hearing should have been adjourned until after the criminal trial. The tribunal said of this that:

“The circumstances of [Mrs Foster] cannot in any way be equated with being “caught red handed” and her potential guilt, when viewed using the state of knowledge existing in March 2003, must have been more uncertain with the result that the “the safer course” would have been to suspend the disciplinary proceedings pending the outcome of the criminal trial.”

Seventh, the Council's inordinate delay in arranging the appeal hearing led to further unfairness. The tribunal said that the Council's explanations for the delay were “completely unacceptable” and that the delay dimmed memories and made it more difficult for the appeal panel to decide issues of fact where there was conflicting evidence.

25. Having concluded that the disciplinary process suffered from these several deficiencies, the tribunal then said that not every procedural defect so vitiates a dismissal decision as to make what would otherwise be a fair dismissal an unfair one. They said that the key to whether it was depended on the considerations in section 98(4) of the Employment Rights Act 1996. They said, correctly, that their task was not to decide whether Mrs Foster was guilty of the alleged dishonesty but to review the Council's actions and decide:

“whether the Council held a genuine belief on reasonable grounds following a reasonable investigation about [Mrs Foster's] misconduct and whether [the Council] adopted a fair dismissal procedure. This also invokes the principal of whether dismissal falls within the band of reasonable responses of a reasonable employer.”

26. The tribunal then expressed its satisfaction that the Council acting through Mr Sharma, genuinely believed on the available evidence that Mrs Foster was implicated directly or indirectly in her husband's dishonest conduct. The Council had also concluded that Mrs Foster had acted dishonestly in putting up a sham defence whereby she tried to cover up her involvement. The tribunal concluded that dismissal fell within the band of reasonable responses open to a reasonable employer. Once again, the tribunal made no express finding that Mr Sharma's genuine belief was arrived at after a reasonable investigation. They made no comment on the quality of the investigation save to the extent of the heavy criticism they had levelled at the conduct (or misconduct) of the disciplinary hearing and save only that they said in paragraph 16 of their decision:

“16. However, for the reasons already set out the Tribunal finds that either the investigative process was defective or put another way that the dismissal procedure fell lamentably short of the required standard and therefore fails the 'reasonableness test' required in s.98(4) of the Employment Rights Act 1996 especially when taking into account the 'size and administrative resources' of [the Council].”

27. The tribunal went on to find that because of the procedural deficiencies they had enumerated the dismissal failed the reasonableness test of s.98(4). They therefore reached the conclusion that the dismissal was unfair. Having done so, they then considered whether the outcome would have been different if the Council had adopted a fair procedure. This would have involved postponing the disciplinary proceedings until after the criminal trial and the tribunal assessed, no doubt reasonably, that the postponed hearing could have been held by 30 June 2003. The tribunal's view was that, had this happened, the outcome would have been the same. Mrs Foster would still have been dismissed. Their reasons were expressed as follows in paragraph 18:

“18. [Mrs Foster's] position is unlikely to have changed from that already put forward (which has remained her position before this tribunal). The basic facts confronting Mr Sharma are unlikely to have been different. He may have had the advantage of hearing [Mrs Foster] give evidence and she may have called her family as witnesses but he would still have been confronted with the various matters set out in paragraph 3.15 above [those are the 17 matters ostensibly corroborating the Council's belief in the untruthfulness of Mrs Foster's assertion that she lived away from Portslade from 1993 to 2002 to which we have earlier referred] and in particular the evidence of Mrs Rankin. The Tribunal concludes on the balance of probabilities the result would have remained the same and there is no reasonable chance of [Mrs Foster] not being summarily dismissed. Had a fair procedure been adopted the Tribunal concludes [Mrs Foster's] dismissal would have been fair and unchallengeable. The Tribunal is also satisfied that [Mrs Foster] brought about her dismissal by her own conduct and her contribution is 100 per cent.”

28. Save that the tribunal then awarded Mrs Foster compensation for her lost wages for the period 4 March to 30 June 2003 (a period during which she would have continued in paid employment had the Council conducted a fair dismissal procedure), they found that it would be just and equitable to make no basic or compensatory award and they referred in that context to s.122(2) and 123(6) of the Employment Rights Act 1996.

The appeal to this tribunal

29. Mr Byles, for Mrs Foster, levelled an attack on several grounds against the tribunal's decision, which he said was perverse.
30. First, he said that, in giving their sixth reason for criticising the handling of the disciplinary hearing, the tribunal had recognised that on 4 March 2003 Mrs Foster's guilt in her alleged involvement in her husband's alleged dishonesty “must have been more uncertain”. Mr Byles said that, if her guilt was or ought to have been recognised as uncertain then, it must have become even more uncertain as a result of her acquittal of the criminal charges. It was, therefore, perverse for the tribunal, he submitted, to conclude in paragraph 18 that her acquittal from the criminal charges against her would not have affected the outcome of the disciplinary hearing had a fair procedure been adopted, to which we would add that as we have already mentioned, we were told that her husband had also been acquitted of the charges against him.
31. Secondly, Mr Byles said it was also perverse for the tribunal to conclude, at least by implication, that her acquittal would have made no difference to the outcome of a disciplinary hearing on 30 June. The Council had gathered all the material on the basis which it ultimately decided to dismiss her by May 2002, yet it allowed her to continue working until 8 August 2002, when it suspended her. That decision coincided with the service on her of the Council's summons for false accounting. Mr Byles submitted that it is therefore apparent that the Council did not believe that the evidence it had gathered by May 2002 was sufficient to justify her suspension and that it was the decision to prosecute her which made all the difference. That being so, her subsequent acquittal of the charges would be likely to have been of high relevance at a subsequent disciplinary hearing.
32. Thirdly, Mr Byles submitted that by the time the matter came before Mr Sharma on 4 March, Mr Sharma knew of what Mrs Foster had been charged but apparently indicated that he was unfamiliar with the nature of the offence of false accounting. Mr Byles submitted that, in effect, this made Mr Sharma an unsatisfactory tribunal to consider the question of the disciplinary charges brought against Mrs Foster.
33. Fourthly, Mr Byles said that it was perverse of the tribunal to hold that the outcome of the disciplinary hearing would have been the same even if there had been evidence from Mrs Foster. The tribunal's main point about this was that Mr Sharma would still have had the evidence of Mrs Rankin and the other material that the Council had gathered pointing towards the untruthfulness of what Mrs Foster had asserted. Mr Byles pointed out that Mr Sharma had said in cross-examination at the tribunal hearing that he had regarded Mrs Rankin to be an unreliable witness and had discounted her paper evidence almost to the extent of dismissing it.
34. Fifthly, Mr Byles said that the tribunal understated the nature of the evidence that Mrs Foster would have adduced at any adjourned disciplinary hearing. It would not just have comprised evidence from her, her parents and brother but would also have included evidence from her priest, Father Jerry O'Brien. His statement, one dated 23 November 2003, was provided to the tribunal and supported Mrs Foster's case that she had left Mr Foster in Portslade in 1993 and returned there in 2002. The tribunal made no mention of this in their reasons.
35. Mr Yonge's written argument for the Council amounted to an assertion that the tribunal's decision was correct for the reasons the tribunal gave. In support of the cross-appeal against the award of compensation for the period 4 March to 30 June 2003, he said it was perverse. Mr Yonge's point was that there was nothing wrong with the Council's adopted procedure. No criticism could be made of the decision to proceed with the disciplinary hearing on 4 March 2003 and it was Mrs Foster's own decision, based on her lawyers' advice, not to attend that hearing. He asked us to reverse that decision and hold that Mrs Foster should not be entitled to recover a penny of compensation.

Our decision

36. We regard the tribunal's overall conclusion as unsatisfactory. Our major concern is with regard to the tribunal's reasoning in paragraph 18, which we have quoted in full. As to that, we respectfully agree with the tribunal that the procedure favoured by the Council was flawed and unfair. It appears to us obvious that, whilst the Council's criminal prosecution against Mrs Foster was pending, it was unfair of the Council to expect her to submit to a disciplinary hearing. The Council's assertion that the issues in the criminal proceedings and disciplinary hearings were different was correct but missed the point. The point was that it was unfair to expect Mrs Foster to give evidence, and be cross-examined, about the same matters as those which were the subject of the criminal proceedings in disciplinary proceedings which were being brought against her by those who were also prosecuting her. The point is recognised in the Linnen case and one might have hoped that the Council would have understood its weight when Mrs Foster's solicitors asked in February 2003 for a postponement. The Council's refusal to agree to an adjournment appears to have been a somewhat arrogant manifestation of its omission to appreciate a really rather basic concept of fairness.
37. That omission was made further manifest at the hearing of 4 March. It was attended by union representatives for Mrs Foster, attending on her instructions. Exactly what those instructions amounted to, we do not know, but we do know the circumstances in which the representatives departed, which were understandable. They had belatedly learned that Mrs Foster's solicitors were representing her in the disciplinary proceedings and no doubt felt some embarrassment as to what role, if any, they ought to have been playing at the hearing. The result was that they left and Mr Sharma proceeded with the hearing. The tribunal made the fair point that Mr Sharma should at least have adjourned for a few days so that Mrs Foster could consider the position with regard to her union representation. We agree with that but the real complaint is that Mr Sharma thought it right to proceed with the hearing at all. For reasons we have given, we regard his decision to do so as inherently unfair. He should not have been holding the hearing at that stage. The tribunal's view was that the Council's decision to proceed with the disciplinary hearing on 4 March was unfair. We agree and we reject Mr Yonge's arguments to the contrary.
38. Having held that Mr Sharma should not have proceeded with the matter on 4 March, the tribunal nevertheless found on the facts that, at the end of the disciplinary hearing, he genuinely believed that Mrs Foster resided at Portslade from 1993 to 2002, that she knew that her husband was making fraudulent benefit claims and that she had engaged in a degree of positive participation in his fraud. We comment that, whilst the tribunal referred to the existence of a good deal of evidence that, contrary to her case, Mrs Foster was resident at Portslade during this period, we do not know what, if any, evidence there was that justified Mr Sharma's further conclusion that she had both known of and positively participated in her husband's alleged fraud. On the face of it, that appeared to have involved the making of a fairly big further leap. We note, however, that the tribunal was also satisfied that, on the evidence before him, Mr Sharma was entitled to reach the decision he did although they do not identify what that evidence was – if, that is, it went any further than the evidence as to where Mrs Foster was living between 1993 and 2002, which we understand from Mr Byles it did not.
39. What the tribunal nowhere did, however, although they should have done, was to make a clear finding as to whether Mr Sharma's genuine and reasonable belief as to Mrs Foster's guilt was arrived at after a reasonable investigation, although we have referred to the passage in paragraph 16 of their reasons suggesting that they were not satisfied that there was a reasonable investigation. If it was not, then the decision to dismiss would not only have been unfair for the procedural reasons the tribunal identified, it would also have been unfair on substantive grounds. The tribunal say nothing in terms about this, although in paragraph 14 they had reminded themselves that this is one the trio of requirements established by Burchell. In our view, that omission - that is, the omission to make a finding that the decision had been preceded by a reasonable investigation - itself makes the tribunal's decision an unsafe one.
40. There is however, also this further difficulty about the tribunal's findings as to Mr Sharma's genuine belief on reasonable grounds. The fourth of the tribunal's seven reasons for criticising the procedural fairness of the hearing on 4 March was that Mr Sharma must be presumed to have been biased. The tribunal found in terms that he was “unlikely to be truly independent” and was “likely to be under pressure from within [the Council]” to reach a conclusion in the Council's favour. This was because he would have been influenced by the fact that a finding by him adverse to the Council would have prejudiced its criminal proceedings against Mrs Foster. It appears to us that, having made that finding as to Mr Sharma's ability to conduct a fair hearing, it was simply not open to the tribunal to make the finding they did as to the genuineness of his belief as to its reasonableness. Their point was that, in the circumstances, neither he nor presumably any other Council officer could conduct the disciplinary hearing objectively. Given that finding, we do not understand how the tribunal could also make the finding they did as to his genuine belief. Once they had found that he was presumed to be biased, they could not place any safe reliance on his findings since they must necessarily have been tainted with the presumption of bias that the tribunal had found. Consistently with that finding, they should have regarded Mr Sharma's views on the merits of the issues raised at the disciplinary hearing as worthless.
41. Coming then to the tribunal's conclusion in paragraph 18, we consider it espouses views which reflect a material self misdirection. The tribunal were there addressing the question of whether a disciplinary hearing convened after Mrs Foster's acquittal on 9 June, and indeed after her husband's acquittal, would have reached a decision different from that reached by Mr Sharma. First, the tribunal started from the fallacious premise that Mr Sharma's decision was one to which they could attach any weight at all. For the reason the tribunal themselves gave, namely that he was presumed to be biased, they could not attach any weight to it. It followed, therefore, that they could not presume that, but for the presumed bias, the decision of 4 March would have been the same as in fact it was.
42. Secondly, for the tribunal to conclude that, even, if Mrs Foster and her witnesses had given evidence, it could have made no difference to the outcome of the disciplinary hearing represented a dangerous, and wholly unjustified, attempt by the tribunal to prejudge the outcome of an evidential conflict. The statements which we have seen show there was an apparently genuine conflict of fact as to where Mrs Foster was resident during the period from 1993 to 2002. She and her supporting witnesses were, we presume, ready to be cross-examined on that topic. Mrs Foster was also entitled to cross-examine the Council's witnesses. None of that had happened at the hearing of 4 March. In the meantime of course both Mr and Mrs Foster had been acquitted of the charges against them. In our view, the tribunal was simply not entitled to assume that the outcome of all that would produce a result the same as that favoured by, so the tribunal presumed, the biased Mr Sharma. That is tantamount to saying that the evidence against an accused is so overwhelming that there is no need for a trial. The only proper view for the tribunal to arrive at was that, had a fair hearing been conducted on 30 June, it is possible that the same result would have been arrived at. They could not, however, properly find that that is what would have happened or even that it would be likely to have happened. That is because the tribunal did not have a crystal ball enabling them to foresee the impression that the oral evidence at that hearing would make upon an unbiased tribunal. The tribunal's finding as to the outcome of such further hearing was not, we consider, a finding of fact which it is not open to this appeal tribunal to question. It was the product of a material misdirection which ignored the considerations (a) that they had presumed the hearing of 4 March to be a biased one and (b) they had failed to take into account they were simply not in a position to predict how a post-9 June disciplinary hearing would have gone. They did not have the critical material which might have enabled them to make that prediction, namely a foresight as to how the oral evidence would turn out at any such hearing.
43. In our view, therefore, the tribunal's decision was fundamentally flawed. They made findings as to Mrs Sharma's genuine belief on reasonable grounds which were vitiated by their findings as to his presumed bias. They made no finding that his belief was arrived at after a reasonable investigation. If anything, they appear to have been of the view that there was no reasonable investigation. Their finding that the outcome of a disciplinary hearing after 9 June would have been the same as that of the hearing of 4 March ignored their finding as to the bias infecting the former hearing and ignored the fact they could not properly make any prediction as to the outcome of the hearing at which oral evidence would be given.
44. What is the result of all this? In our view, the outcome is that Mrs Foster's dismissal on 4 March 2003 was not only procedurally but was also substantively unfair and that the tribunal were wrong in their decision that she would anyway have been dismissed had a proper and fair hearing been held. We consider that it also follows that the factual basis on which the tribunal arrived at its finding that Mr Foster was responsible for contributory fault to the extent of 100% was necessarily an unfounded one. We consider the correct course is for us (i) to affirm the finding that her dismissal was unfair; (ii) to set aside the finding that her contributory fault was 100% and (iii) to remit to a freshly constituted tribunal the question of remedy. We had understood that reinstatement was the primary remedy Mrs Foster was seeking but, as we have mentioned earlier, she apparently no longer seeks that but asks for compensation. We make clear that we are not finding that Mrs Foster was not guilty of any contributory fault. The extent of such (if any) fault on her part is to be a matter for the consideration of the tribunal at the remedy hearing. We dismiss the cross-appeal.