United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS CLAIRE McCANN (of Counsel) Instructed by: Messrs Wilkinson Woodward Solicitors 11 Fountain Street Halifax HX1 1LU
For the Respondent	MR DAVID JONES (of Counsel) Instructed by: Messrs Stachiw Bashir Green Solicitors 1a Oastler Road Saltaire West Yorks BD18 4SE

SUMMARY

Unfair Dismissal

Employment Tribunal dismissed claim for unfair dismissal. In part as a result of wrongly ruling out relevant evidence, but in any event, the Employment Tribunal failed to address central issues: as to the alleged gross misconduct of the Applicant (whether she honestly and reasonably believed she was entitled to do what she did: what precisely occurred taking into account eye-witness accounts), as to the reasonable belief and reasonable inquiries of the Respondent and as to whether dismissal was a reasonable sanction.


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This has been the hearing of an appeal by the Applicant, Ms Ethna Kilduff, against the unanimous Decision of the Employment Tribunal at Leeds, after a hearing over two days on 26 and 27 February 2004, in Reasons delivered to the parties on 27 April 2004, that she was not unfairly dismissed by the Respondent, Mind in Bradford.
2. The Respondent is a registered charity which assists people with mental health difficulties, and operated a drop-in centre for its clients (called the "service-users"). The Applicant was employed by the Respondent, with an entirely satisfactory and clean disciplinary record, as co-ordinator of the drop-in centre, and had been employed by the Respondent for six years prior to her dismissal in 2003, as a result of an incident which occurred on 6 April 2003.
3. We are entirely satisfied that there are a number of very unfortunate aspects of the way in which this tribunal hearing was conducted, none of which reflect badly, in any way, on the Respondent, or indeed the Applicant. The Applicant was unrepresented before the Tribunal, although (at any rate on the first of the two days) she had a trade union representative with her, a Mr Redgate, who did in fact give evidence on her behalf, because he had been her representative at the investigatory inquiries, carried out by the Respondent at the time; but she did not have any legal representation on either day of the hearing. The Respondent was represented by Mr Green, a solicitor, who has been extremely helpful to this Appeal Tribunal by producing not only two affidavits, which we have read, but in addition his hand-written notes of evidence in relation to what occurred on those two days, which notes have not only been legible (which are more so than is usually the case, certainly in our experience and by reference to my own practice at the bar), but also very clear.
4. We shall set out the concerns we have about the procedure first; but we wish to make it clear that we are not deciding this appeal on the basis of bias or misconduct on the part of the Chairman or members; we are simply indicating that the very inadequate and unsatisfactory way in which the hearing was conducted, in the respects to which we will refer, contributed to, if not caused, the substantive defects in the Tribunal Decision, to which we will refer.

The Procedural Defects

5. The first matter is that the Applicant, who was unrepresented, as we have indicated, arrived intending to call, and having served, witness statements for, not only herself (a matter to which we will return), but, in addition, four other witnesses: Mr Redgate, to whom we have referred, Mr Ramsay (a committee member of the Respondent at the material time, who had been present at the centre on 6 April), and two other witnesses, a Mr Simpson and Mr Relton. The Tribunal Chairman appears to have formed the view that it was necessary to complete this hearing in two days, and to have dedicated all his aims to ensuring that. That is not always possible, even in relation to a case which looks straightforward, but which, of course, has resulted in the termination of employment, after six years, of a senior employee, who clearly felt strongly about that fact. Case management of a Tribunal is necessary and essential. It is easier to carry out if both parties are represented; it is still possible to carry it out, even with genuine consent on the part of the parties, if it is done fairly and sensibly. However, if it is to be carried out with the result of ruling out evidence, it is a necessary part of such case management that the decision must not rule out relevant evidence, and should only be taken after full consideration of the impact of any such decision. It is one thing to try to curtail evidence to keep it within reasonable bounds; it is another positively to rule out relevant evidence.
6. The Applicant has, pursuant to the Order of this Appeal Tribunal, in accordance with paragraph 11 of the Employment Appeal Tribunal Practice Direction, sworn a lengthy affidavit, together with an addendum, setting out her complaints about the way in which this Tribunal was handled, and, in particular, identified specific respects in which she was, as she believes, prejudiced. In her support, there are also affidavits sworn by Mr Ramsay and Mr Relton, to whom we have already made reference, and who were present at the hearing, and give their own evidence as to what occurred. Pursuant to the requirements of paragraph 11, the Order stated that the Chairman and members were requested to give their comments. It is unfortunate that the affidavits of Mr Relton and Mr Ramsay were not supplied to the Employment Tribunal for their comments, and so neither have there been comments by the Chairman and members on the contents of those affidavits, nor, perhaps, has it been appreciated by the Chairman that in a number of respects the affidavit of the Applicant was corroborated by other people. But the affidavit of the Applicant, a lengthy affidavit, and her addendum were supplied to the Tribunal for the purpose of comment by the Chairman and the lay members.
7. The Chairman has given comments. It is clearly a difficult task for any Chairman to address, with the best will in the world, a lengthy affidavit of the kind here served by the Applicant; but nevertheless there were important aspects of the complaints by the Applicant, to which we will refer, to which the Chairman made no apparent response. Although there was a request for the lay members also to comment, only one of the two lay members has given comments; Mr Lunn gave three short comments, giving general support to the Chairman, and asserting that, whilst effective case management was a consideration of the Tribunal, it did not impinge on the Applicant's ability fully to present facts that were relevant to her case. There was no response by the other lay member, Mrs Cryer.
8. In relation to the matter we are now addressing, which is how it came about that Mr Relton and Mr Simpson were not called, notwithstanding their witness statements having been served, the Chairman, in his comments, said on three occasions, in his lengthy response to the affidavit, that the Tribunal did not prevent the Applicant from calling any witnesses. That is said at page 263 of the bundle, at page 265 of the bundle it is repeated, and, in strong terms, at page 269, the Chairman, Mr Whittaker, says:

"As I have said now on many occasions the Tribunal did not prevent the Applicant from calling witnesses."

9. There is thus, on the face of it, no explanation as to how it comes about that Mr Relton and Mr Simpson were not called, the Applicant saying that she was not allowed to call those two witnesses, albeit that she wished to do so. It is here that we have considerable help from Mr Green. Mr Green, in his affidavit, says this:

"As this was a case that was listed for 2 days it does not seem to me to be unreasonable for the Tribunal to only wish to hear evidence which was relevant to the issues in the case."

That appears to us clearly to be an implicit acceptance that (contrary to the express statement by the Chairman) it was indeed the Chairman who ruled out the two witnesses, on the basis that they were allegedly not relevant and that is what in our judgment occurred. It is not clear, at all, whether, before doing so, the Tribunal had read those statements. It looks as though the Tribunal had plainly not read the evidence, because (and here we come to the other respects in which Mr Green's note is so helpful) he has recorded, immediately after a break for lunch on day one, the following:

"Comment from Chair

not going to hear from the 4 witnesses. Just her evidence."

10. We have been told by Mr Jones, who has appeared before us as Counsel for the Respondent, (who did not appear below) – and Ms McCann who has appeared, very ably, on behalf of Ms Kilduff, as she did at the preliminary hearing before the Employment Appeal Tribunal, has not differed from this – that what appears to have happened was that the Tribunal allowed the Applicant, in addition to herself, to call, in the end, two witnesses; although the initial reaction of the Chairman was only to allow one extra witness, the Chairman appears to have been prevailed upon to allow a second. But it is clear to us that the two further witnesses were simply not permitted; and whether that was as a result of a formal ruling by the Chairman, or whether it was as a result of a firm statement, with which the unrepresented Applicant, inevitably, acquiesced, does not, for our purposes, matter. What does matter is that, as will be seen, the evidence of Mr Relton and Mr Simpson, whose statements we have seen, would, in our judgment, have been relevant to issues with which, as we shall see, the Tribunal did not adequately or at all grapple.
11. The second matter which has concerned us very much is the position of Ms Naden. Ms Naden was, potentially, a significant witness. She, it seems, was actually present on 6 April 2003 at the incident, to which we will refer, but it does not look as though any inquiries were made of her by the Respondent at the time, and that is part of the complaint made by the Applicant, with which, also, this Tribunal does not grapple in its Decision, that inadequate inquiries were made by the Respondent prior to dismissal of the Applicant. But she was, in addition, a member of the internal appeal panel, hearing the Applicant's appeal against the decision to dismiss her; and she had served a witness statement, and indeed went into the witness box, in order to give evidence in accordance with her witness statement, and be cross-examined.
12. Ms Kilduff, in her affidavit, indicates what she said occurred, namely that Estella Naden was in the course of cross-examination when she was effectively removed, and the evidence of a Mr Stephen Tyson, who was not intended to be called, and had not served a witness statement, substituted in her place. She deals with this at three places in her affidavit, first of all at page 166, and then, more fully, at pages 178-180 of the bundle.

"When asked a simple question about whether she agreed with the decision to sack me, Estella said she thought it could all have been sorted out by the people concerned going into a room and talking about it."

And she then deals with other matters which, she said, Ms Naden dealt with in evidence which would have been supportive of her case; and she then continues:

"The Chairman then made the decision to remove Estella from the stand, saying it was obvious she would agree with the last person who spoke to her, although I had asked open-ended questions allowing her to give her own opinion."

13. In the accompanying affidavits, with which, as we have indicated, unfortunately, the Chairman was not given the opportunity to deal, both Mr Ramsay and Mr Relton, who were present at the Tribunal hearing, indicate their similar account of what happened. Mr Relton says, at paragraph 22(f):

"Estella Naden, a member of the appeal panel, gave evidence to the Tribunal and said that she felt the incident should have been dealt with by Ethna's manager getting all parties together to sort out the dispute, rather than Ethna being dismissed. At this point, the Chairman of the Tribunal halted the proceedings, and (after consulting his colleagues) said that Estella was clearly not competent to give evidence and should stand down. She was replaced by the other member of the appeal panel present, Stephen Tyson."

And in Mr Ramsay's affidavit a similar account is given.

14. Notwithstanding that this was dealt with in the affidavit which was supplied to the Chairman, namely that of the Applicant, he does not address this at all in his comments in response.
15. In the Tribunal's Decision, there is a reference to Ms Naden twice. The first is in paragraph 3, where the Decision says:

"The witnesses for the Respondent were, Sue Dodsworth, who was the chair of the disciplinary panel who dismissed the Applicant, and Miss Estella Naden and Mr Stephen Tyson who were representatives of the appeal panel who rejected the appeal against dismissal which was lodged by the Applicant. They gave evidence and were cross examined during the course of the first day of the hearing."

And at paragraph 6(h), the Tribunal says, in its Decision:

"The Chairman of the Appeal panel was not available to give evidence to the Tribunal [due] to long term illness. The Tribunal heard evidence from two other members of the appeal panel, Miss Estella Naden and Mr Stephen Tyson. After considering their evidence and after considering representations from the Applicant, the Tribunal found that the appeal hearing was fair and reasonable."

16. Without help from Mr Green, we would have had nothing at all as a response to the powerful and persuasive account of the Applicant, supported by Mr Ramsay and Mr Relton. What Mr Green says, however, actually corroborates what they say. He says as follows, in his second affidavit:

"Estelle Naden then gave her evidence. Estelle Naden is a user of the Respondent's service. Although at the time she gave her witness statement to me she seemed more than competent to give evidence before the Employment Tribunal on the day of the hearing it became clear to all present that she was struggling to understand and therefore, answer questions and the Tribunal Chairman took the view that it would be in the in the best interests of all parties if the Tribunal was to hear from another member of the appeal panel."

That, of course, does not support entirely what the Applicant has said, in the sense that it puts a slightly different impression of what occurred; but the nub of what occurred is quite clear – namely that Ms Naden's evidence was, unusually, interrupted by the Chairman in the way that he describes, and consistently with the evidence produced by the Applicant. That is an experience unknown to either Counsel before us, or indeed to me or the fellow members of this Tribunal. It is to say the least unusual for the chairman of a tribunal to conclude that a witness, who has already given evidence and been cross-examined, should be replaced because it would be "in the best interests of all parties", and because she was "struggling to understand". But what is utterly clear is that in such a circumstance, there should have been mention of that fact in the Tribunal's Decision. But as it is, as we have already quoted the Tribunal's Decision, particularly at paragraph 6(h), the Tribunal simply says "After considering their evidence", that is including Ms Estella Naden's evidence. If Ms Estella Naden's evidence was not to be discounted by the Tribunal, then what she said has to have been of relevance; and, indeed, the Tribunal effectively say that her evidence was accepted, in paragraph 6(h). But according to the Applicant and her witnesses, her evidence was, at least in substantial part, favourable to the Applicant, and explanation was thus required from the Tribunal as to why it was rejected, if it was rejected. Once again we do not only have the word of the Applicant and her supporters by way of witnesses (both of whom were present at the hearing) in this, but the helpful note of Mr Green, who includes an abbreviated note of what it is that Estella Naden said, at the end of a cross-examination which had taken more than a page of his notes, which in total only run for the whole hearing, including the Decision, to nine pages. The fact, therefore, that she was not able to understand what she was saying must have taken some time to become appreciated, if such was indeed the case; and the note of what she said just before apparently being asked to stand down (although there is no note of that occurrence in Mr Green's notes) includes the following words "Sat down and tried to sort it out", "Should have sorted it soon after", which would certainly support the proposition that the Applicant has put forward as to what it is that she was saying. We remind ourselves that she was someone who had actually been there on the day of 6 April, although not apparently questioned at the time by the Respondent's Ms Dodsworth or Ms Hills, who carried out the original inquiries, and was a party to an appeal panel which upheld a decision to dismiss. We are satisfied that the Chairman should not have dealt as he did with Ms Naden or her evidence.

17. The third matter to which we refer is, again, a matter of substance and of concern; and it relates to the position of Mr Ramsay. Mr Ramsay was one of those witnesses on the Applicant's behalf who got through the eye of the needle, and was permitted to be called, but, it seems, only after a considerable discussion as to why it was that the Chairman concluded that he should not be permitted to give all the evidence that was contained in his witness statement which had been served. He had served a witness statement which only ran to 22 paragraphs and just over seven pages. But not all those paragraphs were permitted to be admitted by the Chairman, and, in particular, it is common ground that the following paragraphs were not permitted: 9, 11, 19, 20, 21 and 22. It can only be that those paragraphs were ruled out on the basis of some kind of conclusion by the Chairman that they were not relevant. However, they went to what, as will be seen when we consider the substantive aspect of this appeal, was, in our judgment, very relevant – namely as to the belief by the Applicant, shared by Mr Ramsay (and indeed by Mr Relton) that what she was doing was, in fact, not only appropriate, but required, in circumstances to which we will refer; because Mr Ramsay referred in those excluded paragraphs to the form which, as will appear, the Applicant was seeking to have a service-user (whom we shall call "Tom") sign, and at a time when her belief was that such form was required to be filled in. Mr Ramsay, who was a committee member, as we have said, confirms that in his belief it was indeed so required. The ruling out of that evidence is not only, in those circumstances, unfortunate, but is indicative of the failure by the Tribunal to consider what we conclude to be a central aspect of this case.
18. The fourth matter, to which we turn, relates to the fact that, whereas Mr Tyson was called for the Respondent, in the circumstances to which we have referred, without having served a witness statement, the Applicant had served a witness statement, but told the Tribunal, at the opening of the hearing, that she had discovered that her solicitors had served the wrong statement; it was shorter, and did not contain all the matters that she wished to deal with and had dealt with in an earlier statement. This earlier statement she had, in fact, served additionally upon the Respondent's solicitors, two days prior to the hearing, when she had dispensed with the services of those previous solicitors. The Respondent objected to her relying on that statement, served two days before, and the Chairman upheld that objection. It is clear from the Chairman's comments that that occurred in circumstances in which there was apparent, and reluctant, acquiescence by the Applicant, rather than a firm order by the Chairman; but when the Applicant is unrepresented, as she was, and had explained the circumstances in which the second statement had been put in, a firm view expressed by the Chairman, with which there was reluctant acquiescence by the Applicant, really amounts to much the same thing as an order ruling the statement out, which is, in practice, what occurred.
19. There was no attempt by the Chairman to compare the respects in which the first and second statement differed, so as to analyse whether in fact there was any prejudice to the Respondent by its only having had two days to consider the 20 page statement, whereas it had had longer to consider the earlier 25 page statement (but because it was double-spaced, slightly shorter in fact).
20. On analysis, there are matters in the earlier statement – the one that the Applicant wanted to have served – which are not dealt with in the later statement, and which she was thereby prevented from putting forward; and we will refer briefly to them later, when we come to consider the substantive aspects. Clearly this is the kind of matter where case management is required by a chairman, and there was, on this occasion, unlike some of the others, objection by the Respondent, with which the Chairman had to deal; and clearly this aspect, alone, would not in any way have been determinative. But it falls to be taken together with two aspects; one is the fact, as we have indicated, that Mr Tyson was permitted to give evidence for the Respondent without having served a witness statement, and, secondly, the fact that matters raised in the earlier statement, which were, and would have been, relevant, were simply consequentially ruled out; and thus an unrepresented litigant was unable to put such matters before the Tribunal without consideration of them. Quite plainly, if the earlier statement had been put in, it would have been open to the Respondent to have cross-examined the Applicant upon the differences between the two, and, therefore, insofar as she relies, as she does, on the fact that the earlier statement, in some respects, puts her case more convincingly than the later one, or even differently from the later one, then that is not a very persuasive point on her part, because it would have been capable of being made much of in cross-examination by the Respondent by comparing the two statements; and that itself, one understands, would have been something which the Chairman would have been anxious to discourage in the interests of saving time. On the other hand, if and insofar as there are matters which are not dealt with at all (as there are) in the later statement which are dealt with in the earlier, then there was here again no adequate consideration by the Tribunal of whether the matters which it was thus ruling out were in fact not relevant, just as occurred in the case of ruling out of the Ramsay evidence, and of the Relton and Simpson statements in their entirety.
21. Fifthly, there is the matter that the Respondent had served the evidence of Ms Hills, who had carried out the original investigation, and with, it seems, the acquiescence of the Respondent, but certainly not at their initiative, the Chairman ruled out Ms Hills, in the sense of saying that it did not appear necessary for the Respondent to rely on Ms Hills, or call her. The Applicant, unrepresented as she was, had come prepared to cross-examine Ms Hills, and had prepared a number of questions, which she said that she wanted to ask. It appears that the Chairman said that she would be able to ask those questions, instead, of Ms Dodsworth, who was the person who chaired the disciplinary hearing. Whether that would have been sufficient in the event, given that she wanted to ask questions of the person who had done the investigation, and, as will appear, the inadequacy of the investigation is one of the issues which we are satisfied ought to have been explored by this Tribunal, and apparently was not adequately or at all addressed by it, might remain in question. But in fact the Applicant has said, in her affidavit, that she never was permitted to ask those questions of Ms Dodsworth either.
22. Once again, there is no response by the Chairman to this point in the Appellant's affidavit. Once again, of itself, that would plainly not be sufficient to amount to a valid criticism of the fairness of this hearing; but it falls to be taken together with the other matters, which appear to us to be of considerable significance.

The Substantive Defects

23. It is against that background that we turn to the decision that the Tribunal did, in those circumstances, make on the evidence, which it had trammelled in the way which we have described.
24. The incident on 6 April, to which we have referred, occurred when the service-user (to whom we have referred as "Tom" – not his real name), who had been attending the centre for a considerable time – we think at least a year – and had developed, it seems from the evidence, quite a reasonable relationship with the Applicant as co-ordinator of the drop-in centre, was asked by her as co-ordinator to sign, on this occasion, a form, which we have in our bundle. That form is headed up "PHOENIX DROP-IN CLUB MEMBERSHIP FORM", and it says this:

"Anyone may become a member of Mind in Bradford, but to attend the Drop-in, they must also become members of the Phoenix Club."

The Applicant gave evidence to the Tribunal that this was a form which was, as far as she was concerned, compulsorily required to be filled out by all those who attended, and that she had, on this occasion, some spare time, and concluded that it was appropriate, notwithstanding that, or indeed because, he had not filled it out previously, to ask Tom to fill out this form, as was required.

25. It is plain from the form that not every paragraph of it is compulsory. Questions 2, 3, 4, 5, 9, 10, 11 and 12 expressly say that the signer does not have to answer those question if he or she does not want to. However, questions 1, 6, 7, and 8 do not have that rubric, and, on the face of it therefore, are required to be signed, unlike the other questions, which are said to be voluntary. There is a document, which was in the bundle, called the "Mind in Bradford Confidentiality Policy", which said this, at paragraph 2.3:

"Mind in Bradford respects and supports the right of the individual, whether service users, committee members, volunteers or paid workers, to decide for themselves whether to disclose their mental health problems. Except in the case of the Drop-In Co-ordinator [that of course is, or was, the Applicant] who will need to establish that individuals fit the criteria for using the Drop-In; ie that they or their partner/carer suffer from mental distress. This information will be contained in the Drop-In Phoenix Club membership form and kept strictly confidential."

And at paragraph 4.3, the policy says:

"The names, addresses and personal details relating to service users will be kept only by the service co-ordinator e.g. the Drop-In Co-ordinator who will keep records of Phoenix Club members, and so on. Access to these will only be allowed to a) named deputy (ies) in the absence of the service co-ordinator or in the case of an emergency."

26. It was that form which the Applicant sought to get Tom to sign on 6 April, and the Tribunal records as follows, in paragraph 6(b):

"…the Applicant approached [Tom]… seeking to persuade him to provide her with his personal details, sufficient to enable the Applicant to complete a membership form of the Drop-In-Centre…. The conduct of the Applicant towards the member, [Tom], was witnessed by Miss Naria Debski [who appears to be called "Mia"] who was also an employee of the Respondent and who was also working at the Drop-In-Centre on 6 April 2003. Miss Debski was so alarmed by the conduct of the Applicant towards [Tom], that she wrote a letter of complaint about the conduct of the Applicant to the service coordinator of the Respondent charity…"

It was that complaint which led to the investigation by Ms Hills, and the disciplinary decision by Ms Dodsworth to dismiss, upheld by the appeals panel. She had, as we have explained, been employed for six years, with an unblemished record.

27. The issues which the Tribunal were required to consider were, it seems to us in those circumstances, plain. The first question, not, in our judgment, in any way crucial, but one which the Tribunal asked itself, was was the document in fact a compulsory document? (or was the form compulsory?, as the Tribunal described it). The Tribunal concluded, as we shall indicate, that the form was not compulsory. Ms McCann has criticised that finding, by reference to the document itself, to which we have referred, and to the existence of the confidential policy, to which we have also referred. It does appear to be a conclusion, somewhat inconsistent with those documents; but it was nevertheless a finding of fact by the Tribunal, which it would ordinarily be difficult to characterise as perverse.
28. But the second and much more significant question, in our judgment, would be whether when the Applicant did what she did, she did so in the belief that, as Service Co-ordinator, she was required to have the form filled in by Tom, ie did she believe it was compulsory; did she have that belief honestly would be a relevant question; and did she had that belief reasonably would be another question, though of course the two would be very much tied together: and in our judgment before an employer could form the reasonable belief that there had been gross misconduct, it would be necessary, in analysing what took place, for any reasonable employer to reach a conclusion to those questions.
29. The third issue then would be whether there was gross misconduct by the Applicant. If, in fact, her treatment of Tom was, on any basis, appalling if she had hit him, if she had used wholly abusive language towards him, or some kind of conduct which could not, on any basis, be excused, then that would be one factor. Included in such questions would be whether she shouted at him or not. But then there would be the further factor, which would be, on the assumption that the conduct was not of that kind, but was of a kind which did still amount to verbal harassment, and which was capable of prima facie criticism, by Mia or otherwise, the issue would still remain – was that conduct justified, or was an employer reasonably able to conclude that it was not justified, by a belief, held by the Applicant, honest or honest and reasonable, that the completion of the form by Tom was required? If Tom had walked in, was minding his own business, and the Applicant had unreasonably, and without belief that such form was required, bullied or harassed him, that might be one thing. If, however, she honestly, and/or honestly and reasonably, believed that the form was required, and her harassment of him consisted of an attempt to get him to sign, then such conduct might still amount to gross misconduct, for example if she was shouting. But, inevitably, her belief that it was necessary to get him to sign it must be a factor in the consideration of the grossness or otherwise of such misconduct.
30. The fourth issue, in those circumstances, is whether the employer carried out reasonable inquiries in order to establish what had occurred, in order reasonably to be in a position to conclude that there had been gross misconduct. And the final issue would be whether, after the carrying out of reasonable inquiries, and a reasonable conclusion and belief that the Applicant was guilty of gross misconduct, dismissal of the Applicant was in the circumstances reasonably within the range of reasonable responses of an employer.
31. It is quite apparent that there was not, at any rate according to the Decision of the Employment Tribunal, evidence to show a number of significant matters, which would be part and parcel of that analysis.
32. First, the question as to whether the Applicant had a reasonable belief that the form was compulsory. The paragraphs in Mr Ramsay's witness statement, to which we referred, which would have supported her in this regard, were excluded; and the evidence of Mr Relton, which would also have supported her in this regard, was excluded.
33. Secondly, in order to decide precisely what happened, the employers would need to have carried out reasonable inquiries, and the Tribunal would need to have been satisfied that reasonable inquiries were carried out. There is no addressing, by the Tribunal, of the evidence of Mr Ramsay, who was, on any basis, in earshot – apparently in the next room, but with the door open, and, on his account able to hear, and, to an extent, see what occurred. He is referred to very briefly in the Employment Tribunal's decision, in paragraph 3, as having "been in the vicinity of the incident of misconduct". But there is no addressing by the Tribunal, of the issue as to whether the Respondent, at the time, reasonably considered his evidence, which was supportive of the Applicant, at all. There were also other people present on this occasion; Ms Naden, to whom we have referred, and a Mr Fisher, and a lady called Pam. There was, it seems, no evidence before the Tribunal (certainly none appearing in its Decision) as to whether the employers considered exploring with those people whether they were in a position to give eye-witness evidence, or considered any such evidence if they gave it. When it comes to the Tribunal's Decision, as we shall indicate, that point is not addressed.
34. Thirdly, when considering the question of the band of reasonable responses, and of dismissal, there were matters which the Applicant was seeking to put before the Tribunal to indicate that, even if there was misconduct, either it was not, in the circumstances, gross, or certainly should not have merited a dismissal. Those matters included the following:

(i) Evidence of disparity of treatment between her and others, dealt with in her earlier witness statement, which was ruled out by the Tribunal (as described), and dealt with in the statement of Mr Relton, which was also ruled out by the Tribunal (as described).

(ii) There was her account of matters leading up to the incident of 6 April, and subsequent to it, from which she argued that, given that the incident of 6 April could not possibly have justified dismissal in the circumstances, there must have been some other motive for the Respondent to dismiss her, and which she sought to explore. Those matters too were contained in the longer witness statement, which she was not permitted to put in, and in the evidence of Mr Simpson and Mr Relton, which too was not admitted, as we have indicated. Mr Simpson in particular would have spoken as to the good conduct and success of the Appellant in her job, which would appear to have been a matter which the Respondent ought plainly to have taken into account, even if they did not have other motives for dismissing her.

35. There were other matters too, which the Applicant sought to explore before the Tribunal, such as whether it was fair for Ms Dodsworth to have been on the disciplinary panel (and apparently made the decision to dismiss), given what she would have described in the longer statement (and only briefly adverted to in her shorter statement) as the difficult relationship between them.
36. Insofar as there is any reference to any of these matters in the Tribunal Decision, it is put under the pejorative heading of a "conspiracy theory". In paragraph 6(e), the Tribunal record as follows:

"The Applicant alleged that Miss Debski had in some way conspired with the Respondent to produce her letter of complaint and done so dishonestly. The Tribunal found no evidence whatsoever to substantiate this allegation of conspiracy."

That is plainly a separate issue, and one which the Tribunal was perfectly entitled to reject. But then, at paragraph 7, the Tribunal records this:

"The Applicant had alleged that the Respondent had not been honest in its belief of her conduct on 6 April 2003. In support of this submission she relied upon a conspiracy theory for which she was unable to produce any evidence in support whatsoever. She furthermore, in support of this conspiracy theory, relied upon the opinions and observations of her representative and her witness Mr Trevor [Ramsay]. The Tribunal however dismissed these views as they amounted to nothing more than opinion and conjecture, and they were not supported in any way by any evidence."

Of course, the evidence which would have supported those comments was substantially ruled out, in the respects to which we have referred.

37. But in any event, it is, in our judgment, not sufficient to refer to them in that way. When put less pejoratively, they are all issues going to the question as to whether this Respondent reasonably believed both that there had been gross misconduct, and that it was sufficient to justify immediate dismissal of a long-standing, successful and highly valued employee, arising out of one single incident.
38. Against that background of issues which we agree could have been resolved by the Tribunal satisfactorily and straightforwardly (we do not suggest that this is a difficult conduct case), we turn to the way in which the Tribunal did deal with it. In paragraph 6(c), the Tribunal sets out what it describes as the two central issues for the Tribunal to decide, as follows:

"The first was whether or not it was the policy of the Respondent to require any users/visitors to the Drop-In-Centre to provide details to representatives of the Respondent to enable them to complete the membership form to which we have referred above. The Applicant vehemently suggested to the Tribunal in her evidence that the form was compulsory, and the Respondent equally firmly argued that it was not. The second issue for the Tribunal to decide was whether or not, during the course of her contact with the user, [Tom], the Applicant had been guilty of verbal harassment of [Tom] in the manner alleged by Miss Debski in her letter of complaint, again to which we have referred above."

39. We are entirely satisfied that that was a wholly inadequate way to address the central issues in this case, which we have described. Mr Jones, while accepting that, in certain respects, he cannot support the conduct of the Tribunal in this case, particularly the way in which it dealt with the evidence of Ms Naden, has supported the Tribunal's Decision, upon the basis that it was entitled to set out those issues, and if there are other issues, which other tribunals, as he puts it, might have addressed, then the fact that they were not set out by this Tribunal is simply indicative of the fact that it was not asked to address those issues in that way. However, as he accepted in the course of argument, that is not a satisfactory answer, for two reasons:

(i) The fact that an Applicant is unrepresented, and is not in a position to formulate issues in the correct way, is no justification for their not being properly formulated by a Chairman.

(ii) The question for the Tribunal to decide is one of unfair dismissal. It is not difficult. The principles of British Home Stores Ltd v Burchell [1978] IRLR 379, and Post Office v Foley [2000] ICR 1283, and Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, and Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23, are well established and understood; and to summarise the case in the way it did is not adequate, in the light of those authorities.

40. It is quite plain that in addressing the question as to whether there was gross misconduct by the employee, the fact as to whether the form in fact was obligatory was only the starting point. Of course, if this employee had gone on a frolic of her own, and attacked or bullied, without any excuse, a vulnerable service-user, that would have been likely to be concluded to be gross misconduct without more. But those were not these facts, not least because it is apparent that Tom himself spoke with some fondness of the Applicant.
41. Further, and in any event, in deciding whether the Applicant was, as the Tribunal put it, guilty of verbal harassment, it is, as we have sought to explain, vital for the Tribunal to be satisfied that the Respondent had taken reasonable steps to examine what exactly had happened, and why the Applicant behaved as she did, if, in fact, dismissal was going to be one of the potential remedies.
42. In paragraph 6(d), the Tribunal, in a way which Ms McCann contends to be unsatisfactory, as we have summarised, but with which are not dealing specifically now, came to the unanimous conclusion that the completion of the membership form was not compulsory; and it concluded paragraph 6(d) with the following words "… and that the Applicant had therefore been mistaken in that view." The Tribunal does not take that central finding any further. It does not address the question as to whether that was an honest mistake – it is almost implicit that it was – or a reasonable mistake. Both those factors must be relevant when considering the question as to what conduct took place, and how criticisable that conduct was.
43. The Tribunal then turns, in paragraph 6(e), to address the conduct, and it makes no findings in relation to a number of important matters. First, precisely of what that conduct consisted: it does not address the issue, for example, as to whether the Applicant was shouting. Mia, in her written complaint, did not say that she was shouting; in a subsequent statement, Mia said that the Applicant had been shouting. Tom, himself, did not suggest that the Applicant had shouted, and Mr Ramsay, who was within earshot, supported the case for the Applicant in this regard. That issue is not even addressed, never mind resolved, by the Tribunal. Indeed the Tribunal does not resolve either what happened precisely, or, more importantly, whether the Respondent took reasonable steps to reach a conclusion as to what had happened, and in particular whether the Respondent considered the evidence of others who were present, as we have indicated above. So far as the Tribunal is concerned, without making reference to the evidence that Mr Ramsay had in fact given before it, it says as follows:

"The Applicant had claimed that there were witnesses for herself who could dispute that she had behaved in this way, or that [Tom] had reacted in this way. [That is a somewhat strange way to refer to Mr Ramsay, who in fact had given evidence, both to the Respondent, and at the Tribunal.] The Respondent indicated that it had additional witnesses upon whom it could rely in order to substantiate these allegations. [Once again there is no reference to whether the Respondent had considered that evidence at the time.] The Tribunal did not attach any great weight to any of this evidence, either for the Applicant or the Respondent, but in making its findings of fact as to the conduct of the Applicant, it relied, as stated above, upon the evidence of the Applicant herself and upon the written statement of Miss Debski."

That may be appropriate for a Tribunal, but it may not be appropriate for an employer, and the Tribunal did not address the question as to whether the Respondent had come to reasonable conclusions on the basis of the evidence available before it, or had made all the available, and necessary, and reasonable inquiries, in order to satisfy itself as to what did happen, before dismissing this Applicant.

44. In those circumstances, the conclusion that there had been verbal harassment by the Tribunal, was, in our judgment, wholly insufficient without addressing whether the Respondent was entitled, reasonably, to come to that conclusion, taking into account the fact, if such was the fact, that the Applicant was under an honest, and perhaps reasonable, mistake, and taking into account the evidence of other eye-witnesses there nearby.
45. Mr Jones has referred to the conclusory paragraphs, in paragraphs 9 and 10 of the Decision, and it is right to say that the Tribunal records that it was unanimously satisfied that the Respondent had reasonable grounds for concluding that the Applicant had behaved in such a way that it amounted to serious, verbal harassment of Tom; and that it came to the conclusion, in paragraph 8, that the Respondent had made all proper inquiries into the alleged gross misconduct of the Applicant. But we are satisfied that those are simply conclusory statements, and that, when it made those statements, there were central issues which the Tribunal did not consider, set out by us in this judgment, and indeed had disabled itself from considering, by its approach that large numbers of clearly relevant matters were not relevant, and consequentially that, in order to get through the case in two days, the right course was to rule out witnesses who would have given that relevant evidence.
46. In those circumstances, we are satisfied that this Decision cannot stand, and that the Tribunal erred in law in failing to consider the question as to whether this employer reasonably believed that there had been gross misconduct by the Applicant, having made appropriate inquiries of what that misconduct consisted, and acted within the reasonable band of responses of an employer in treating that misconduct as sufficient to dismiss. This is not simply a case of perversity, in the sense that there was no evidence upon which a Tribunal could possibly have reached such a conclusion, but that it approached the matter wholly inappropriately in law, and disabled itself in doing so, in ruling out central evidence.
47. We do not deal with a number of other matters, which the Applicant raised, such as its suggestion that the Tribunal was not qualified to form a view about the Applicant, as it does in paragraph 10(f) of its Decision; nor, as we have indicated, do we consider that this is a case where we need to consider the question of bias by the Tribunal. We are satisfied that the Tribunal hearing was in fact unfair, but it was unfair because the Tribunal ruled out evidence, which in fact disabled the Tribunal from asking the correct questions. We allow this appeal on the basis that the Tribunal did not ask or answer the correct questions in law.
48. We are not asked to substitute our conclusions, very properly, by Ms McCann; she accepts that if her appeal is allowed, the matter must be remitted, and plainly there can be no doubt whatever that this must be remitted to a different Tribunal. We do, however, end by asking the parties, rather than launch into another hearing, with all the inconvenience and cost that may be incurred by that, to attempt to settle this case in respect of this long-standing employee. The services of ACAS are available for that purpose, and we shall incorporate in our Order a requirement that both parties consider a reference to ACAS to endeavour to secure a conciliated result.