United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR RICHARD BOULDING (The Appellant in Person)
For the Respondent	MS INGRID SIMLER (of Counsel) Instructed by: Messrs McDermott Will & Emery LLP Solicitors 7 Bishopsgate London EC2N 3AR


 


SUMMARY

Practice & Procedure: No case to Answer & Public Interest Disclosure:

The Employment Tribunal erred in acceding to a half-time submission of no case made in a whistle-blowing claim. Whistle-blowing is a form of discrimination claim (see Lucas v Chichester UKEAT/0713/04) and it should normally be heard in full: Logan v The Commissioners of Customs & Excise [2004] IRLR 63 (CA). The question under Employment Rights Act 1996 s43B of the likelihood of the employer not responding to the Claimant's allegation of wrongdoing and stopping uncertified electrical equipment being used did not depend solely on the Claimant's appreciation. The Employment Tribunal should have considered, by examining evidence from the Respondent, what its response was likely to be. Case remitted to same Employment Tribunal to continue the hearing. £10K costs order set aside.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about unfair dismissal for whistle-blowing and Employment Tribunal procedure in stopping a case without hearing the Respondent's evidence. The judgment represents the view of all three members.
2. Since we have decided to remit this case for further hearing to the same Employment Tribunal, we hope that we will be forgiven for our brief account. We will refer to the parties as Claimant and Respondent.
3. The Employment Tribunal painted a picture of the Claimant in a passage at the start of its judgment headed "The Claimant's Mental State". This is helpful. He has been clinically depressed and suicidal at the times relevant to this case. The Employment Tribunal made substantial adjustments in the hearing to take account of that condition. We also made the same offer. We bear that in mind, together with the approach to be taken in whistle-blowing cases as suggested by Mummery LJ in ALM v Bladon.[2002] IRLR 807 CA: the legislation is to be made to operate to protect those whose employers and colleagues may regard as eccentric and misguided in their response to an irregularity at work.

Introduction

4. It is an appeal by the Claimant in those proceedings against a judgment of an Employment Tribunal sitting over a week at London (Central), Chairman: Mrs S Pontac, registered with reasons on 13 October 2005. The Claimant was represented there by Counsel and today represents himself. The Respondent was represented there and here by Ms Ingrid Simler of Counsel. The Claimant claimed unfair dismissal for having blown the whistle on what he said was the Respondent's wrong doing. The Respondent contended that it did not dismiss him for that reason, but for his poor relationship and communications with his colleagues and its client, the BBC.

The issues

5. Having less than one year's continuous employment, there was no jurisdiction for him to claim unfair dismissal in the ordinary sense (see Employment Rights Act 1996 s108). The Claimant had to show dismissal for whistle-blowing under s103A. The essential issues, as defined by the Employment Tribunal, were set out as follow:

"12 …

i) Did the claimant made the statements or any of them set out in the agreed schedule?

ii) If he did, was any such statement a protected disclosure, in that –

a) the claimant reasonably believed that the information disclosed tended to show one or more of the matters set out in S43B(1)(a) through (f) save (e), and –

b) it was made in good faith to his employer, as claimed, in accordance with S43C(1)(a)?

iii) If so, was the respondent's reason or principal reason for dismissing the claimant that the claimant made the protected disclosure(s)?"

6. The sole factual issue now relevant is this.

"On 7 February 2005 the claimant told Rick Murphy that it would be a breach of the Consumer Protection (Electrical Equipment) Regulations to sell the relevant equipment without a CE certificate. The claimant discussed the problem of further breaches of health and safety, in particular the CDM Regulations".

That is a reference to an e-mail, the full terms of which are as follow:

"Please find attached the legal statute I referred to in our conversation.

Sorry its a bit long but you will no doubt see the need for serious contemplation on the implications.

As also discussed I went to the Institute of Directors of which I am a member and have been since 2000 to get the legal advise on my responsibilities (I am entitled to free advice from the 100).

The situation is that we LST can not accept anything that does not comply and neither can we sell it on (i.e. to World Service) without being in breach.

The synchroniser built and designed by IPT does not conform (that is not to say it would not work, but that it has not been tested and certified). As such IPT can pay the money and do the required testing to achieve this or we LST will have to reject it and purchase a proprietary unit which will conform.

Just to document my comments to both you and Tony IPT do not carry design liability Insurance nor does Gerard carry personal Liability or Directors indemnity Insurance. The limit on any claim against him in the event of a disaster would be his assets which may be substantial but possibly a long way short of the £ 10m held by most policy holders".

The judgment

7. The Employment Tribunal decided that he did not have the essential components for making a claim of whistle-blowing. It did so having heard evidence from the Claimant, without hearing evidence from the Respondent, for it acceded to a submission made by Counsel at half-time. It dismissed the claim and awarded £10,000 in costs, the maximum open to it without ordering a detailed assessment. It refused to allow an amendment for him to argue detriment (in addition to dismissal). The Claimant appeals and we have heard that part of the appeal which deals with liability. I gave directions on the sift of the Notice of Appeal sending this appeal to a full hearing, but holding under Rule 3 that his appeal on the detriment point had no reasonable prospect of success. That goes no further. I did the same on the costs point. There is no error in the Employment Tribunal's judgment on costs, but I did allow that to be revisited if the liability appeal succeeded.

The legislation

8. The relevant provisions of the legislation are referred to by the Employment Tribunal, but not set out. There is no issue on them. Employment Rights Act 1996 s103A protects from dismissal an employee who makes a relevant disclosure; in this case of wrong doing by his employer to that the employer (see s43C). The wrong doing here is set out in s43B(1).

"43B Disclosures qualifying for protection

(1) In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following".

The wrong doing is connected to the Supply of Machinery (Safety) Regulations 1992 SI No. 3073 of which regulation 12 provides.

"12 Requirements for supply of relevant machinery [or relevant safety components]

(1) The requirements of this regulation are that

(a) the relevant machinery [or relevant safety component] satisfies the relevant essential health and safety requirements;

(b) the appropriate conformity assessment procedure in respect of the relevant machinery [or relevant safety component] has been carried out by the responsible person in accordance with one of the procedures described in regulations 13, 14 and 15 below;

(c) the responsible person, at his election, has issued either

(i) an EC declaration of conformity in accordance with regulation 22 below; or

(ii) in the case of relevant machinery to which regulation 23 below applies, a declaration of incorporation in accordance with that regulation, in respect of the relevant machinery [or relevant safety component];

(d) except in the case of relevant machinery to which regulation 23 below applies, the [CE marking] has been properly affixed by the responsible person to the relevant machinery in accordance with regulation 25 below; and

(e) the relevant machinery [or relevant safety component] is in fact safe".

An exception to that provision is provided where machinery is incorporated and this is provided for by Regulation 23.

9. Pursuant to the same regime, regulations were published in 1994, known as the Electrical Equipment Safety Regulations 1994 SI 3260. These describe "supply" for the purposes of the 1992 Regulations in a very broad sense:

"Supply (except in reference to the electricity supply) includes offering to supply, agreeing to supply, exposing for supply and possessing for supply, and cognate expressions shall be construed accordingly".

These regulations deal with CE Markings, which is a measure relating to goods supplied for use in the European Union. A lesser measure, known as an EC declaration of conformity, is sometimes available and this is provided for by Regulation 10 which says the following:

"EC Declaration of Conformity

10. Subject to regulation 12, the manufacturer of electrical equipment or his authorised representative shall draw up in respect of all electrical equipment to which these Regulations apply a written declaration of conformity which shall comprise-

(a) he name and address of the manufacturer or his authorised representative;

(b) a description of the electrical equipment;

(c) a reference to the harmonised standards;

(d) where appropriate, references to the specifications with which conformity is declared;

(e) identification of the signatory who has been empowered to enter into commitments on behalf of the manufacturer or his authorised representative; and

(f) the last two digits of the year in which the CE marking was affixed".

The facts

10. The Tribunal made the following relevant findings.

"14. The respondent employed the claimant as a senior engineer from 9 August 2004 to 11 February 2005. The respondent is a subsidiary of a large property services firm, Land Securities Trillium Ltd (LST), and was established for the sole purpose of providing services to the BBC. At all times material to this claim, a large project of the respondent was to provide backup generators to the BBC Wor1d Service at Bush House, and the respondent's Construction Management Services department (CMS) had the task of delivering the project. CMS variously sub-contracted the work: -Capita were the designers; IPT were the builders; Mr Rob Fraser, seconded from Currie and Brown, was the project manager; GS Halls were to provide maintenance. The claimant's line-manager was Mr Rick Murphy, the respondent's general manager for Bush House. At the time the claimant was engaged, the project was over budget, so the claimant suggested changes that would bring it within budget, and those were adopted. It was not in dispute that he is a good engineer.

15 Of course, such a project must proceed according to the regulations in force: -building, health and safety, electricity, machinery, etc, are all covered by a multitude of technical regulations to do with processes, tests, lines of authority, permits to do particular work, specifications, procedures, and much more, and compliance must in every instance be recorded in accordance with the regulations. Thus an audit trail is created, and the project cannot legally be handed over to the customer until compliance with the regulations is complete and can be audited. Until handover, liability for failure of the project resides in the main contractor. Thus, in this case, liability for the generator project remained with the respondent until it was fully installed, commissioned, and handed over to the BBC in accordance with the regulations. That did not happen until after the claimant was dismissed.

16 The project consisted, insofar as is relevant, of three main components: -two generators to run in parallel, and a "synchroniser panel" to enable, inter alia, their parallel running. The generators were purchased off-the-shelf, and were delivered by the factory with the documentation to show compliance with the relevant regulations. The synchroniser panel was a bespoke design, and therefore compliance had to be documented by the designers and builders.

17 One of the claimant's significant duties was to monitor compliance with the regulations. He insisted to us that he had no responsibility whatsoever for instructing designers and builders to comply, or telling them how to comply. His responsibility was to monitor the work, and say whether or not the relevant documentation was in place. If it was not, he certainly had the responsibility, and apparently the power under the regulations, to order an operation, including any testing of the equipment, to cease for failure to comply. He told us that, as soon as he felt uncomfortable about an operation, he could stop it. The generator project was initially scheduled for testing in situ on 4 December 2004, but on that occasion the claimant directed that it should not go ahead, and it did not.

18 The testing was rescheduled for the weekend of 5/6 February 2005. In the meantime, the claimant was making enquiries about documentation required under regulations. Certain certificates, 'CE markings', that indicate safety compliance, were missing from some of the equipment; he had not seen a method statement, which instructs builders how to do their work so as to minimise risk; the risk assessment he had seen was inadequate; there was no evidence that the synchroniser panel had been tested in accordance with regulations; there was no design specification; he had not seen a construction and design management file nor a health and safety file; he had discovered that IPT, although it had substantial input into the design of the synchroniser panel, did not have the required design liability insurance.

19. He told us that, when he made these enquiries, he was advised that he would have all the documentation before the rescheduled testing, and that he never doubted that that would be the case".

11. The Claimant had reassurances as to the synchroniser panel. He remained confident right up to the end that the documentation he was seeking would be provided. On 4 February 2005, it was decided by Mr Bingham that testing should not go ahead. The Tribunal found that the Claimant's only concern was to protect his employer against risk.
12. There then followed a meeting with Mr Bingham. He cancelled the weekend's testing and agreed that the missing documentation would be provided before any work would be permitted. The Tribunal found this:

"22. … there was to be no further work on the generator project unless the claimant agreed that it could go ahead and the correct permits had been obtained. The claimant agreed in evidence that, once the test was cancelled, the risk of injury or damage was abated".

13. There was then an event which the Tribunal described as murky and which we need not deal with. The Claimant in due course was dismissed. The dismissal took place on 12 February when he had been removed from site for five days. The testing apparently continued after his dismissal.
14. The Tribunal concluded first that the disclosures were made in good faith to the Claimant's employer. As the Tribunal noted, it was, after all, his job to provide such information for the Respondent. However, the Tribunal held that he did not have reasonable belief that the failures set out in s43B(5) would occur.

"(5) In this Part "the relevant failure", in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1)"..

15. The Tribunal went on to consider the nature of the e-mail and said this:

"39 It appeared from the evidence, in particular the claimant's email to Mr Murphy of 7 February 2005, the information in which was founded on advice from the 100, that the relevant failures would occur if the respondent accepted the equipment without the documentation required by regulation, or if the generator project was handed over to the BBC without that documentation in place, ie, if it could not be shown that the equipment fully complied with regulations when either of those events occurred.

40 We could not agree with the submission of counsel for the claimant that the relevant failures occurred when the respondent took possession of the synchroniser panel; she submitted that the panel had been at that point 'supplied' in accordance with the Supply of Machinery (Safety) Regulations 1992. The breaches we were considering were breaches by the respondent, and the respondent did not .supp~ the equipment by taking possession of it. In any event, by taking possession the respondent did not accept the equipment, but could reject it, ie, could refuse to pay for it and return it, if it did not comply. We took the view most favourable to the claimant, that the soonest a relevant failure by the respondent could occur was when the commissioning process began with the testing of the equipment".

That is a construction of the relevant regulations against the background of what the Claimant reasonably believed was likely to occur. The next passage is important, for the Tribunal concluded as follows:

"41. However, the evidence showed that, from 4 February 2005, ie, from the cancellation of the testing schedule for 5/6 February 2005, no such failure was likely or even a possibility. We took into account in particular that no work could thereafter be done on the generator project unless and until the equipment fully complied with the regulations, and that the claimant himself had to agree that compliance was complete. Mr Fraser's email of 8 February is clear that commissioning cannot begin until the documentation to show compliance is all in place. Further, the respondent's employees and subcontrators were 'running around like headless chickens' to collect the documentation, ie, on the evidence, the respondent certainly intended to obtain it. Thus it was hardly arguable that, from 4 February, when the testing was cancelled, any relevant failures were likely. There was no risk of injury or damage arising from the switching on of the equipment, and there was no likelihood of any breach of regulation".

16. In addition, the Tribunal was influenced by the cancellation of the testing and it found that the Claimant's e-mail, as a matter of construction, did not anticipate any relevant failure or risk to the Respondent:

"43 The tribunal could only conclude, on the basis of the evidence above, that the claimant on 7 February 2005 could not have had a reasonable belief, in accordance with 8438(1), that any breaches of regulation were likely to occur. He could not have believed that the respondent was likely to accept the synchroniser panel, or to hand over the generator project, without the required documentation in place, and he knew there was no further risk of injury or damage. He could not have believed that the respondent was likely to commit fraud as alleged, because he refused to be party to it and, as senior engineer with duties under the regulations, he would have been a necessary component. In any event, he did not aver that he disclosed the alleged intent to commit fraud to anyone other than the tribunal".

Thus, the Tribunal concluded that the information could not amount to a protected disclosure.

The Claimant's case

17. The Claimant submitted that the Tribunal had not given him an opportunity to be heard, for it stopped the case at half-time without allowing him to cross-examine the Respondent's witness. He contended that the central issue which he presented to the Employment Tribunal was his concern that his employer would be in breach of the statutory regime, which we have described above, by supplying the synchroniser panel to the BBC without a CE certificate. There were other aspects of the Claimant's case, but his central submission, as he put to us, was based upon the e-mail.
18. Further, he contended that the supply regulations definitely applied in his case as a matter of construction and the declaration of conformity, which was not made known to him during the course of his employment and only became available on disclosure at the Employment Tribunal was not worth the paper it was written on. It did not connect to a CE certificate.
19. At an unsuccessful hearing for interim relief, a different Chairman, Mr Pearl, recorded in his judgment that opportunities would be given for the testing of evidence at the full hearing. So, the Tribunal was wrong to stop the case at half time having wrongly applied the judgment of the Court of Appeal in Logan v The Commissioners of Customs & Excise [2004] IRLR 63 (CA). The client/customer relationship had deteriorated and he was regarded as a nuisance. He had the ability to do the right thing and put his head above the parapet. He did just that and lost his job as a result. He had done the correct thing in going to the Institute of Directors so that he would be correct in law when he made his disclosure to his employers and provided them with the relevant information.
20. He sought a fresh hearing before a different Tribunal because this Tribunal had little understanding of the technical issues in the case.

The Respondent's case

21. On behalf of the Respondent, we were reminded in three preliminary observations by Ms Simler that great caution should be exercised when hearing to a litigant in person giving a submission based upon material which was not before the Employment Tribunal and consisted of evidence. Secondly, there was no connection between other disclosures which form part of the murky background and the issues in the case. Thirdly, it is accepted that had the reason for dismissal been relevant in the case, it would have of course have required the tendering by the Respondent of its witnesses.
22. The Tribunal had not erred in its approach to the relevant regulations since these relate to supply by the Respondent to the BBC and not every component within an engineering structure is required to have such a CE certificate. The evidence which the Claimant himself gave was that he had the power to stop the test. There was no evidence that the Respondent shied away from his concerns - it supported him and, indeed, acted upon them by cancelling the testing and responding to his e-mail. The Tribunal was entitled to hold that there was no reasonable belief by the Claimant that the Respondent would supply the machinery without proper testing. There was no need for examination of the Respondent's witnesses because this was an exercise based entirely upon the Claimant's understanding. The Tribunal had been acute to the approach of Employment Tribunals in not calling a halt at half time, for it had been referred to Logan above.
23. Case management is important in the modern Employment Tribunal and if an essential hurdle is not crossed, there is no reason for additional costs to be expended on a prolonged hearing. In short, the Claimant's address to us was his rewriting history.

The legal principles

24. The legal principles appear to us to be as follow. The approach in ALM v Bladon is one to be followed in whistle-blowing cases. That is, there is a certain generosity in the construction of the statute and in the treatment of the facts. Whistle-blowing is a form of discrimination claim (see Lucas v Chichester UKEAT/0713/04). As to any of the alleged failures, the burden of the proof is upon the Claimant to establish upon the balance of probabilities any of the following.

(a) there was in fact and as a matter of law, a legal obligation (or other relevant obligation) on the employer (or other relevant person) in each of the circumstances relied on.

(b) the information disclosed tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.

25. "Likely" is concisely summarised in the headnote to Kraus v Penna PIc [2004] IRLR 260 EAT Cox J and members:

In this respect "likely" requires more than a possibility or risk that the employer (or other person) might fail to comply with a relevant obligation. The information disclosed should, in the reasonable belief of the worker at the time it is disclosed, tend to show that it is probable, or more probable than not that the employer (or other person) will fail to comply with the relevant legal obligation. If the claimant's belief is limited to the possibility or risk of a breach of relevant legislation, this would not meet the statutory test of likely to fail to comply":".

26. As to when it is appropriate to accept a no case to answer submission, the correct approach is set out in Logan above which approved the summary of the law set out in Clarke v Watford Borough Council 4 May 2000 by the EAT in the following terms:

"(1) There is no inflexible rule of law and practice that a tribunal must always hear both sides, although that should normally be done.

(2) The power to stop a case at "half-time" must be exercised with caution. (3) It may be a complete waste of time to call upon the other party to give evidence in a hopeless case.

(4) Even where the onus of proof lies on the applicant, as in discrimination cases, it will only be in exceptional or frivolous cases that it would be right to take such a course.

(5) Where there is no burden of proof, as under s.98(4) of the Employment Rights Act, it will be difficult to envisage arguable cases where it is appropriate to terminate the proceedings at the end of the first party's case."

27. The regulations which we have cited impose an obligation upon those supplying. The supply in this case is by the Respondent to the BBC of, we hold, the synchroniser panel. It seems to us that the 1992 Regulations therefore apply, but it may be that an exception is provided by Regulation 23 where there is a declaration of incorporation. As will appear, it is not necessary for us to resolve this technical issue. It is common ground that if there were an obligation, it would be for a CE marking to be provided pursuant to the 1994 Regulations (Regulation 9) unless it could be proved that all of the issues relating to an EC declaration of conformity were in place.
28. A cautionary approach on appeal must be adopted where there is, as here, inequality of arms. There is a great temptation for a litigant who presents his own case to stray from the strict confines which apply to professional advocates when advancing questions of law which relate to matters already ventilated below. We should not interfere with findings of fact properly made by an Employment Tribunal unless they are perverse. An Employment Tribunal is obliged to apply the overriding objective which gives it strong case management powers.

Conclusions

29. We prefer the arguments of the Claimant. Findings by the Employment Tribunal as to the likelihood of an event and the Claimant's belief in them are matters of fact. A finding as to whether a party acted reasonably is one of fact. But whether a person's belief was reasonably held implies an objective standard applied to a finding of fact as to what was believed. In this case, the central question was: what did the Claimant believe? He believed that the Respondent would supply a synchroniser panel to the BBC. There never was a CE marking for it. He was never shown the declaration of conformity signed on 14 January 2005 which it appears the Respondent would rely on for the absence of a CE marking. The Claimant had, throughout, indicated that he required documentation. In paragraph 18 (cited at para 10 above), there is reference to a mass of documentation, but at the forefront is the CE marking and this was said to be missing from some of the equipment. If it was, there would arguably be a breach by the Respondent of the relevant regulations. We are told that that also may involve certain criminal liabilities. It is sufficient for us to hold that if someone complains of a lack of a CE marking, it is capable of being an allegation of wrong doing, pursuant to s43C.
30. Since the Respondent caused its employees to "run around like headless chickens" in seeking the documentation, the Claimant was confident that it would be obtained . This particular document was never obtained. None of the references in the Tribunal's reasons appears to focus upon the central complaint made by the Claimant in his e-mail (relied on as the protected disclosure) that there would be non-compliance by his employer with the statutory CE marking regime. He was at pains to tell us that the Tribunal was correct in holding that he had the power to stop testing on health and safety grounds, but when it came to the CE marking, that was a commercial matter over which he had no power.
31. Once one separates the risk assessments, schedules of testings and so on, set out in paragraph 18 over which the Claimant plainly did have power and authority, from CE markings over which he did not, his submission has considerable force. It was the matter on which he took advice from the IoD. He took the trouble of finding the relevant regulations and presented them to his manager. It would be strange indeed and out of step with the regime of protection for an employee in such a situation not to have the statutory protection, as he saw it, although steps were being taken to provide documentation. No one had assured him that a CE marking was forthcoming. Thus, we hold, that the Employment Tribunal in what is otherwise a very careful judgment has taken its eye of the central focus of the Claimant's complaint and has misdirected itself. The Tribunal had before it the components of a valid claim under s43C all of which should be tested through evidence from the Respondent.
32. The Claimant contended that there would be a breach by his employer if the synchroniser panel were introduced without the CE marking. Whether he is right about that, or whether Ms Simler is right that it forms part of an incorporated piece of machinery, does not matter at this stage. In our judgment, the legislation was there to protect him. The chronology is stark. From presenting the advice of the IoD, together with the relevant regulations, within a matter of days, he was removed from the site and was dismissed for difficulties in his relationships. That, it seems to us, throws up an issue to be tried. We also consider that the fact that the Claimant had control over some of the environment does not affect the likelihood of a breach occurring as a matter of logic. All an unscrupulous employer (not this one, as no finding has yet been made) has to do is to remove the gatekeeper, in which case it can carry on with such wrongdoing as was complained of.
33. The Tribunal wrongly decided to cut short this case at half time. The finding as to what was likely to be a failure by the Respondent cannot be determined simply upon the evidence of the Claimant. True it is that the history is relevant. What people have done in the past in response to the Claimant's earlier complaints will be relevant. But it is not the sole basis upon which it can be determined whether the Claimant had a reasonable belief in the likelihood of a failure. Put another way: "Having bent to his demands twice, why should we do it again?" could be a response of this employer. How would the Claimant know unless an opportunity were given at a full hearing for that issue to be canvassed? There is also force in his argument that following what was said at the interim relief hearing, he expected the sape of the full hearing to include evidence from the Respondent. It is only in an exceptional case that a half-time submission in what is effectively a discrimination matter should be acceded to. We have no doubt that proper submissions were made to it by Ms Simler; but with great respect, we consider that the Tribunal erred in failing to allow this case to take its course. That is what we will now order to occur.
34. We canvassed with both Ms Simler and Mr Boulding what the outcome would be. Given, as we have said, that the Claimant's objection to going back to the same employment is one which he describes as personal, based on the lack of understanding of technology, we dismiss that reason. The Tribunal has already invested a good deal of time, has heard half of the case and explained the technology adequately.
35. The direction we have given it as to the law enables it now to move swiftly to the second part of the case on the assumption therefore that the Claimant has raised an issue to be tried as to whether there was a valid disclosure. The finding that he had not proved it is set aside and it is now for the Tribunal to decide it. The central issue now which will be tested through the evidence of the Respondent (as Ms Simler acknowledged), is that and also what was the reason for the dismissal. There is no issue of detriment. We cannot say that either we or the parties have lost confidence in this Tribunal just because it committed that error. It is cost-effective and in accordance with the over-riding objective that it be remitted to the same Employment Tribunal.
36. At the outset of this case, we considered what we should do about costs. The costs order is set aside. It will be open to the Tribunal to consider any fresh application for costs at the end of the full hearing when, of course, it will have a different approach and should not rely on its reasons unless it considers them still to be valid.
37. Ms Simler has made an application for permission to appeal to the Court of Appeal. Our view is that this case should go down rather than up at this stage. Her clients may yet succeed, but there is no real prospect of success at this stage before the Court of Appeal and no compelling reason why the case should otherwise be heard by it.