United Kingdom Employment Appeal Tribunal

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Cite as: [2007] UKEAT 0069_06_2109, [2007] UKEAT 69_6_2109

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Appeal No. UKEATS/0069/06/MT

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On 21 September 2007

Before

THE HONOURABLE LADY SMITH

MISS S AYRE FIPM FBIM

MS A MARTIN

JABIL CIRCUIT LTD APPELLANTS (RESPONDENTS)

RICHARD FLEMMING RESPONDENT (CLAIMANT)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant

Mr A Hardman, Advocate,

Instructed by:

Messrs Davidson Chalmers LLP,

Solicitors,

12 Hope Street,

Edinburgh.

EH2 4DB

For the Respondent

Mr C MacKenzie, Advocate,

Messrs Sturrock & Armstrong Solicitor,

16 Young Street,

Edinburgh.

EH2 4JB

SUMMARY

Summary

Claimant dismissed for gross misconduct in connection with his use of a cash advance for a works night out. Tribunal found dismissal to be unfair. On appeal, Tribunal’s decision held to have been perverse; no reasonable tribunal would, as it did, conclude that there was no evidence to justify a finding of fraud, the tribunal’s conclusion as to the reason expressed for dismissal was based on only part of what they had found was that reason, it was not open to the tribunal on the facts found by it to conclude as it did that the claimant made no attempt to conceal how the money had been spent, the tribunal had erred in their criticism of the appeal procedure and it had evidently substituted its own view for that of the objective reasonable employer.

THE HONOURABLE LADY SMITH

Introduction
[1] This is an appeal from a judgment of an Employment Tribunal sitting at Edinburgh, Chairman Mr D J Walker, dated 27 June 2006, the hearing on evidence having been held on 10 and 11 March and 29 and 30 September 2005. The judgment of 27 June 2006 was issued without reasons and simply found that the claimant had been unfairly dismissed and entitled to £13,006.15 as compensation.

[2] Reasons were issued and registered on 27 October 2006.

[3] We propose to refer to parties as claimant and respondents.

Procedural History
[4] The procedural history of the appeal has given rise to challenges being raised on behalf of the claimant. We should outline that history by way of explanation.

[5] The relevant chronology is as follows:

30.9.05 – conclusion of Employment Tribunal hearing.

- Employment Tribunal issued judgment finding respondents liable but without reasons.

9.8.06 – notice of appeal served, founding on absence of reasons.

20.9.06 – Employment Appeal Tribunal issued notice of full hearing and fixed a hearing date subsequently, once parties had confirmed availability.

27.10.06 - written reasons issued by Employment Tribunal and registered.

7.12.06 – respondents’ solicitors (Davidson Chalmers) wrote attaching a notice of appeal which contained fresh grounds (i.e. within 42 days of the Tribunal having issued its reasons) and omitted the original grounds, saying they thought they had 2 options – withdraw existing appeal and lodge new appeal or amend the old one. They opted for the former indicating that they thought that would enable the claimant to lodge answers timeously.

11.12.06 - new grounds sent to claimant’s solicitors, Sturrock and Armstrong.

13.12.06 - Sturrock and Armstrong wrote to Employment Appeal Tribunal, asking what the period was for answers and assuming that hearing date previously fixed would still apply.

15.12.06 - Sturrock and Armstrong wrote to EAT saying they had been instructed to the effect that the appeal should be treated as a fresh appeal and a time bar point arose.

17.1.07 – EAT wrote to Davidson Chalmers saying it was not appropriate to lodge a new appeal as an appeal already existed – what was required was that they amend their notice of appeal.

24.1.07 - respondents lodged amended notice of appeal containing the grounds attached to letter of 7 December but also showing the ‘no reasons after 10 months delay’ grounds as having been deleted.

19.2.07 - Sturrock and Armstrong wrote inviting the EAT registrar to refuse to register the appeal because they were out of time, no extension had been applied for and there were no reasonable grounds.

26.3.07 - Registrar wrote to Sturrock and Armstrong saying that the time for appealing a decision was 42 days from promulgation of written reasons, that time was still running when the notice of appeal was submitted and so it was not late – the original notice was otiose; any challenge to this should have been within 5 days – EAT Rules, rule 21 and PD 1.8.04.

30.3.07 - Sturrock and Armstrong wrote to the EAT saying they were taking instructions regarding lodging a petition for Judicial Review since a delay had occurred between issue of judgment and 24 January that was more than 42 days.

16.4.07 - notice of full hearing issued with reference to the amended grounds of appeal .

30.4.07 – Sturrock and Armstrong wrote to the EAT saying counsel had asked them to advise that the respondent wishes to appeal against the decision to register the appeal. No application for leave to appeal sent at that time.

18.6.07 – Sturrock and Armstrong wrote to the EAT saying they were currently instructed to seek leave to appeal the decision to register the respondents’ appeal on the basis that the appeal was registered out of time (i.e. 63 days after the issuing of the notice of full hearing of 16 April).

6.7.07 - application for leave to appeal sent to the EAT running to 24 paragraphs.

20.8.07 – EAT wrote to Sturrock and Armstrong saying there was no procedure within the EAT to challenge the fact that an appeal is allowed forward to a full hearing, The order sealed on 16 April 2007 referred only to case management directions and not to any substantive decision in respect of an appeal. The sift operates only as a fetter upon the ability of an appeal to proceed to a full hearing. There is a presumption that all appeals do so unless the judge makes an order that they may not proceed, in whole or in part. Such orders are not appealable.

7.9.07 - letter to the EAT from Sturrock and Armstrong saying they were instructed to present a petition for Judicial Review.

13.9.07 - letter to the EAT applying for an adjournment on the basis that they were to be presenting a petition for Judicial Review.

17.9.07 - application refused but they were advised that they could renew their application by way of preliminary point at the hearing, if so advised.

18.9.07 - interlocutor of Lady Clark of Calton appointing petition for judicial review to be intimated and served.

20.9.07 – petition for judicial review served on the EAT, the prayer of which included an application to have the EAT’s ‘order’ of 16April 2007 set aside.

21.9.07 – full hearing before the EAT.

[6] At the hearing on 21 September 2007, no application to adjourn was made and the petition for judicial review was not referred to by counsel at all. The appeal hearing went ahead.

[7] We should, however, indicate our view of matters. It seems to us that the petition for judicial review is misconceived for several reasons. These reasons arise against the background of the terms of rules 3, 7, 20, and 21 of the Employment Appeal Tribunal Rules 1993 (SI 1993/2854).

[8] Rule 3(1) provides that every appeal is instituted by the appellant serving on this Tribunal certain documents including a notice of appeal.

Rule 3(3), insofar as relevant, provides that the period within which an appeal may be instituted is 42 days from the date that written reasons are sent to parties by the Employment Tribunal.

Rule 3(7), insofar as relevant, provides:

“Where it appears to a judge or the Registrar that a notice of appeal …

(a) discloses no reasonable grounds for bringing the appeal; or

(b) is an abuse of the Appeal Tribunal’s process or is otherwise likely to obstruct the just disposal of proceedings,

he shall notify the Appellant … accordingly informing him of the reasons for his opinion and, subject to paragraphs (8) and (10), no further action shall be taken on the notice of appeal …”

[9] Paragraphs (8) and (10) enable an appellant who has received notice under rule 3(7), if so advised, to serve a fresh notice of appeal within 28 days and rule 3(10) entitles him to request and be afforded a hearing before a judge who, having heard the appellant on the issue of whether there are reasonable grounds or whether the grounds represent an abuse of process, will make a direction as to whether there is to be any further action in respect of the notice of appeal.

[10] Rule 3(7), (8) and (10) are known as the “sift” procedure. Every appeal that has been instituted under rule 3(1) is considered at the sift (in Scotland usually, as a matter of practice, by the Scottish EAT judge). The fundamental principle is, however, that every appeal properly instituted under rule 3(1) will be allowed through to a full hearing unless sifted out under rule 3(7). It is also possible, at the sift, for individual grounds of appeal to be sifted out if they are not reasonable or constitute an abuse of process (EAT Practice Direction paragraph 9.6). As is explained in paragraph 9.5 of the EAT Practice Direction, notices of appeal are sifted so as to determine the most effective case management of the appeal. There is no provision whereby a respondent has a right to be heard on the issue of whether or not the appeal or any particular ground of appeal should be sifted out under rule 3(7).

[11] Further, paragraph 9.4 of the Practice Direction indicates that permission to amend an existing notice of appeal may be granted. That paragraph also provides that the application to amend must include the text of the original document with any changes clearly marked and identifiable.

[12] Rule 7 provides that the Registrar shall, as soon as practicable, give notice of the arrangements made for the hearing of the appeal. Such notices were issued in the present case on 20September 2006 and 16April 2007. The notice of 16April 2007 was not in respect of a fresh appeal but was issued by way of indication that the amended grounds lodged on 24January 2007, were not being sifted out in any respect.

[13] Rule 20 provides that every interim application is to be considered in the first place by the Registrar. Rule 21 provides that any party aggrieved by a Registrar’s decision may appeal to the judge in writing within five working days of that decision.

[14] The first reason why we consider that the application for Judicial Review is misconceived is that it is predicated on the view being that the notice of appeal lodged by the respondents on 24 January 2007 was a fresh notice of appeal. It was not. An appeal in this case had been instituted on 9 August 2006, by service of the original notice of appeal. That appeal remained instituted thereafter and it was that appeal which was heard at full hearing on 21 September 2007. What was lodged on 24 January 2007 was a set of amended grounds of appeal. It was in a form which complied with paragraph 9.4 of the Practice Direction whereas the notice lodged on 7 December 2006 was not, since it did not include the original grounds and show them as deleted. The new grounds were in identical terms to those lodged on 7 December 2006 so, even if the view were to be taken that the issuing by the Tribunal of its reasons gave rise to a fresh appeal, they were served on this Tribunal within the requisite 42 day period. This Tribunal did not, however, in fact treat those grounds as triggering a new appeal. The appeal has retained the same reference number and file since first instituted in August 2006. As is evident from the chronology, the EAT indicated to the respondents that the fresh grounds required to be contained in a document which also showed what grounds had been deleted. That was why the notice of appeal of 24 January 2007 was lodged. It was, however, identical in substance to that which had been lodged on 7 December 2006.

[15] Secondly, the petition for Judicial Review proceeds on the basis that the notice issued by this Tribunal on 16 April 2007, in accordance with the requirements of rule 7 of the EAT rules, was an appealable order, which it was not. It is, as is explicit in the rule, a notice indicating how the instituted appeal will be managed.

[16] Thirdly, even if the notice of 16 April 2007 was an appealable order, the claimant did not seek leave to appeal against it from the Court of Session, as it would have been open to him to do (Employment Tribunals Act 1996 s.37(2)(b)).

[17] Fourthly, no timeous application was made against the Registrar’s having declined to accede to the request contained in the claimant’s agents’ letter of 19 February 2007.

[18] In all these circumstances, it seemed to us that it was appropriate to proceed to hear the appeal in this case which involved events that occurred over three years ago and a Tribunal hearing that began some 2 ½ years ago and finished two years ago.

Background Facts
[19] The claimant was employed by the respondents as a support technician. He was dismissed on misconduct grounds on 28 June 2004, by which time he had been in the respondents’ employment for almost eight years.

[20] The circumstances in which he came to be dismissed related to a cash advance that had been made to him in respect of his department’s annual night out. The Tribunal found as fact that ten people were expected to attend and that the claimant was given a cash advance based on a per capita payment of £15. He was, accordingly, given £150.

[21] In fact, only two people attended the night out, one of whom was the claimant. Some £144 was spent: £105 on drinks, £17.98 on food and £22.22 said to be for taxis.

[22] The Monday after the night out, the claimant left an expenses form together with a bundle of receipts on the desk of his manager Mr Massie, when Mr Massie was not in his room. The form simply showed expenditure for the ‘ Test Support night out’ as being £144.

[23] At paragraph 9, the Tribunal then made the following finding:

“On the following Wednesday, the claimant spoke to the Test Support Team Leader, Andrew Yeardly, and told him that only 2 people had turned up at the night out. Mr Massie told him to investigate the matter. He spoke to the claimant in the company of Mr Porterfield, an HR Consultant.”

[24] The latter was a reference to an investigatory meeting at which the claimant confirmed he knew the cash advance was a per capita advance, that he did not remember being told that it was expected that he would return money if everyone did not turn up but at which he also, in answer to a question as to whether he had an expectation that if not all the people turned up he would have to return their money, he answered:

“Yes, if need be. I have no problem if Graeme knocked back the expenses.”

[25] Disciplinary proceedings followed. One of the things discussed at the disciplinary hearing and the subsequent hearing was the taxi receipts. One showed a date other than the date of the night out and one, whilst supposed to relate to a taxi taken by the second person who was there in fact related to a private arrangement between him and the claimant.

[26] At paragraph 13, the Tribunal makes findings as to the reason why the claimant was dismissed. They state:

“At the conclusion of the meeting Mr Yeardly advised that he had found there had been ‘misappropriation of company funds and the submission of a fraudulent expense claim’, and that this contributed (sic) gross misconduct. In evidence he said that he had decided to dismiss because the claimant had continued to drink after Mr Hook left, and because he had overspent, and had not reported in time that only 2 people had turned up, or offered to repay a proportion of the advance.”

[27] The claimant exercised his right of appeal but without success. In respect of the appeal hearing, the Tribunal found:

“Mr Massie had discussions with Andrew Yeardly during the appeal hearing, but not in the presence of the claimant or his representative. A Note of these discussions is Production R27.”

[28] The note of the appeal hearing records that at the point when the taxi receipts were being discussed, the claimant had asked whether the two that were being referred to were the only ones which the respondents were challenging as having been fraudulent, Mr Massie said he would adjourn the hearing (at 11.10am) and check that matter with Mr Yeardly. There is a note of the discussion that he then had with Mr Yeardly outwith the appeal hearing regarding the receipts appended to the note of the appeal hearing. That discussion was reported to the hearing, including the claimant and his representative, when the hearing resumed at 11.25am and it was confirmed that it was the two receipts referred to which were being looked at; one had the wrong date and the other one should not have been submitted as Mr Hook (the other person present at the night out) had had a personal arrangement with the claimant for his taxi fare and so the receipt should not have been submitted.

The Tribunal’s Judgment
[29] The Tribunal held that the dismissal was unfair. They appear to have had seven reasons for doing so, as contained in paragraphs 20 to 30.

[30] Firstly, they found that there was no evidence to justify the respondents inferring fraud. At paragraph 20, they state:

“… the Tribunal could find no evidence which justified a finding of fraud.”

[31] Secondly, that Mr Yeardly’s reasons for dismissal were only:

“… that excessive amounts were spent on drink and because the claimant had continued to drink after Mr Hook went home.” (paragraph 21)

[32] Thirdly, that the respondents’ procedures for dealing with cash advances:

“… appeared vague and unclear.” (paragraph 22)

and

“The general administration by the respondents in respect of cash advances and per capita expenditure was confused. The Tribunal’s view was that the condition of these advances being made should have been clearly expressed in writing so as to avoid situations such as this arising.” (paragraph 27)

[33] Fourthly, that the claimant had not concealed the events of the night out in respect of the number who had attended and the amount of money spent (paragraph 26). At paragraph 23, they had commented:

“It seems to the Tribunal most unlikely that the claimant thought that Mr Massie would not discover that only 2 people had attended the night out and indeed, within three days, he did.”

[34] Fifthly, that there was a problem with the appeal procedure. At paragraph 24, they state:

“The Tribunal was also not happy about the procedure at the appeal, when Mr Massie, unknown to the claimant, had a discussion with Andrew Yeardly and indeed seemed to take evidence from him. If this were to happen at all, at the very least it should have been in the presence of the claimant.”

[35] Sixthly, the Tribunal relied on the fact that the respondents made no attempt to seek repayment from the claimant of such sum as they considered he had overspent (paragraph 25).

[36] Seventhly, the Tribunal found that the decision to dismiss was not within the bounds of reasonableness. Their explanation for that appears to be that which is given at paragraph 25:

“The Tribunal unanimously finds that the decision to dismiss the claimant was not with (sic) the bounds of reasonableness. The respondents made no attempt to seek any payment from the claimant of such sum as they considered he had overspent. The claimant made no attempt to conceal the facts from the respondents. The Tribunal suspects that he expected to be asked to make a partial repayment. One of the reasons for dismissal was that the claimant had continued to drink after all others had left. It was not explained to the Tribunal why it was thought that this was a reason for dismissal and the Tribunal finds this not to within the bounds of reasonableness.”

[37] The Tribunal found that the claimant had contributed to his own dismissal to the extent of 20%.

The Relevant Law
[38] The relevant statutory provision is, of course, s.98 of the Employment Rights Act 1996. Dismissal is potentially fair if it relates to conduct (s.98(1)(a) and (b) and (2)(b)) and there was no dispute in this case that the dismissal related to the claimant’s conduct. The question at issue was whether in all the circumstances, the decision to dismiss in respect of it was fair or unfair. That involves the Tribunal applying the objective standard of the reasonable employer, often referred to in terms of there usually being a range of reasonable responses open to an employer when considering whether or not to dismiss.

[39] The Tribunal, at paragraphs 18 and 19, refer to the law:

“The Applicable Law
18. Misconduct by an employee is a potentially fair reason for dismissal (Employment Rights Act 1996 Section 98(2)(b)).

19. However, in dealing with such misconduct the employer is obliged to act within the band of reasonableness both in relation to a decision to dismiss and to the procedure by which the decision is reached (Sainsbury’s Supermarkets Ltd v Hill 2003 IRLR 23).”

[40] We are unsure why the Tribunal cited the Sainsbury’s case since the issue raised by the claimant in that case was whether or not the employers were entitled to entertain the belief they had that he had committed the misconduct founded on; the employee denied that he was responsible for the theft of a box of razor blades. The well known dicta in that case were to the effect that the ‘range of reasonable responses test’ applies as much to the question of whether an investigation into suspected misconduct as it does to the reasonableness of the decision to dismiss.

[41] The issue in the present case was not, however, of the type that was being considered in the Sainsbury case. Here, it was not disputed that the claimant had received the cash advance (on a per capita basis), had been responsible for it, had spent almost all of it on a night out for 2 people rather than 10, and had put the expenses form and receipts on Mr Massie’s desk (paperwork which did not specify how many people had attended) without telling him at that time that only 2 people had turned up. The issue between the parties was, plainly, whether or not it was, in all the circumstances, fair to dismiss, not whether the respondents were entitled to regard him as responsible for the foregoing conduct matters. The resolution of that question may, in an individual case, involve examining the procedures followed to check that they were not tainted by unfairness – to that extent the Tribunal was correct - but that is not for the purpose of reviewing whether the employer was entitled to entertain his belief that the employee in question committed the conduct in question that is the subject of the disciplinary proceedings in question.

[42] Then, when considering whether dismissal was a fair sanction, a Tribunal requires to remember that it is not for it to substitute its view for that of the objective reasonable employer. Their task is to identify the range within which the objectively reasonable employer could dismiss and then check to see whether in the case before it, the employer’s decision fell within that range. The case of Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, not referred to by the Tribunal, is often referred to in respect of this part of the test:

“... it is the function of the [employment tribunal] to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within that band, the dismissal is fair. If the dismissal falls outside the band it is unfair.”

The Appeal
[43] Mr Hardman submitted that the Tribunal’s decision was perverse. He dealt with each of the reasons for deciding as they did, in turn.

[44] As regards the first reason, it was perverse of the Tribunal to say that there was no evidence to justify a finding of fraud given its own finding that the claimant had received the cash advance on a per capita basis, that only 2 people had turned up of the 10 for which the advance was made, that the claimant claimed for £144, that he left the paperwork on Mr Massie’s desk when he was not in the room and that the claim included two taxi receipts regarding which there were the problems to which we have referred. In the circumstances it was clearly open to a reasonable employer to take the view that there had been deceit.

[45] He submitted that the second reason was perverse because it failed to take account of all the relevant facts. They had found that there was more to Mr Yeardly’s reasons for dismissal than referred to by them in their determination section. They appeared to have ignored the part of the finding in fact that the reasons included that there had been an overspend and that the claimant had nor reported timeously that only 2 people had turned up.

[46] He submitted that the third reason was irrelevant. It might point to a conclusion that the respondents were, to some extent, authors of their own misfortune but did not point to any absence of misconduct, as seemed to be suggested.

[47] He submitted that the fourth reason was not supported by the findings in fact. The claimant had made no attempt to disclose that there were only 2 people at the night out. Although he had done so on the Wednesday, paragraph 9 did not indicate that he had volunteered the information at that stage. The picture was one of misrepresentation by omission.

[48] He submitted that the fifth reason was not supported by the findings in fact.

[49] He submitted that the sixth reason was irrelevant.

[50] He submitted that the it was evident that the Tribunal had substituted its own view for that of the reasonable employer. The language: “not convinced”, at paragraph 20, ‘not happy’, at paragraph 24 and “The Tribunal’s view ..” at paragraph 27 all showed that its approach was that they were asking themselves the wrong question.

[51] For the claimant, Mr McKenzie made a number of submissions which appeared to be a rehearsal of what was or might have been the claimant’s case before the Tribunal. He accepted that there had been misconduct by the claimant and that the respondents were entitled to believe that he had been guilty of misconduct. They should not, however, have dismissed.

[52] He pointed out that the claimant had, on the Wednesday, said that only 2 people had turned up. He said that where there was misconduct such as this, which was stupid rather than dishonest and there was no previous misconduct to be considered, dismissal was not a reasonable response unless the employer had made it clear through a specific rule that the commission of such misconduct would involve a risk of dismissal. The reference to the absence of a such a rule was new. There is no indication of it having been an issue before the Tribunal and as the respondents’ disciplinary code was not before us we cannot say whether such a rule existed. It might have done.

[53] Mr McKenzie said that the taxi receipt matter was not a serious one. All in all, the respondents could have viewed a lesser sanction such as a warning and a financial penalty, as being sufficient. Again, the possibility of a lesser sanction was not, it seems, explored before the Tribunal

[54] Mr McKenzie did not make separate submissions in response to the very specific criticisms of the Tribunal’s reasons that were advanced by Mr Hardman.

Discussion and Decision
[55] We are satisfied that this appeal is well founded. This case is one of those rare ones where, unfortunately, the Tribunal has issued a judgment which, now that the reasons for it are known, is evidently perverse.

[56] We consider that all of the respondents criticisms are well made.

Fraud/Dishonesty
[57] Dishonest conduct may be achieved as much by omission as by commission. The cash advance was made to the claimant on the basis that it was a per capita advance at the rate of £15 per head in the expectation that 10 people would attend the night out. There was a finding in fact to that effect. The claimant was thus well aware of the basis on which he held that money; in effect, he held it in trust for that purpose. He, however, used almost all the money to pay for a night out for 2, not 10. When the claimant put the paperwork for the night out expenditure on Mr Massie’s desk on the Monday morning, there was nothing in it to show that only 2 people had turned up and the claimant did not tell him. The paperwork included taxi receipts which were questionable for the reasons discussed. In these circumstances, it cannot be said that there was ‘no evidence’ to justify a finding of fraud by the respondents.

The Respondents’ reasons for dismissal
[58] The Tribunal found as fact that there were four aspects to Mr Yeardly’s decision to dismiss. Those were set out in paragraph 13 from which we have already quoted. That being so, if the Tribunal considered that Mr Yeardly’s stated reasons were significant when considering whether or not the dismissal was fair, they were obliged to consider those reasons in their totality. It is, however, evident that they have only considered part of them, the part set out in the section of paragraph 21 to which we have referred.

The Respondents’ procedures for dealing with cash advances
[59] As was accepted on behalf of the claimant before us, it was not disputed that he had committed an act of misconduct. Whether or not the Respondents could have had better procedures for processing cash advances could not alter that. We agree that that matter was not relevant to the issue that the Tribunal had to consider.

The claimant “made no attempt to conceal”
[60] This point is very similar to that which arises in respect of the first of the Tribunal’s reasons. On the facts found by the Tribunal it was not until the Wednesday after the night out that the claimant told Mr Yeardly that only two people had attended (paragraph 9). The finding in fact at paragraph 9 is, unfortunately, lacking in detail and does not support the conclusion that the claimant made no attempt to conceal the truth. We would have expected, in the circumstances, the Tribunal to have made findings as to the precise circumstances in which the information was communicated. Was it in response to an enquiry by Mr Yeardly? If so, why was he making the enquiry? Against what background was it made? Further, we note that the Tribunal have not found that the information was volunteered by the claimant. The finding is restricted to the claimant telling Mr Yeardly that only 2 people had turned up to the night out. It is on that basis that the Tribunal appear to have regarded the claimant as not having made any attempt to conceal the truth. The whole facts found by them, however, plainly required them to consider whether the respondents were entitled to regard the claimant’s actions on the Monday as having amounted to an attempt to conceal the true position and they have not addressed that question at all.

The Appeal Procedure
[61] The findings in fact on which the Tribunal’s criticisms of the appeal procedure proceed are those contained in paragraph 16 to the effect that Mr Massie had discussions with Mr Yeardly “during the appeal hearing” but outwith the presence of the claimant or his representatives. The criticism advanced, at paragraph 24, is that he did so “unknown to the claimant”. As we have noted, however, Mr Massie made the claimant aware, at the time, that he was going to speak to Mr Yeardly and reported to him as to what had been said, when he returned, fifteen minutes later. The Tribunal’s criticism is, accordingly, based on an error as to the underlying facts.

No attempt by the respondents to recover the overspend
[62] We agree that this cannot, in the circumstances, be regarded as relevant to any consideration of the quality of the claimant’s misconduct or the overall fairness of the dismissal. There were no findings as to the reason why the respondents had not sought recovery of the money. That being so, it was a bare fact which did not point to fairness or unfairness.

Tribunal substituted its own view
[63] Tribunals are often charged with having decided the issue of fairness according to their own view as to how they would have reacted in a particular case rather than according to their assessment of what the objective reasonable employer would have done. The latter of course requires the Tribunal to bear in mind that it is usually of the essence of that objectivity that there is a range of responses which can be seen as reasonable. It is, accordingly, important that Tribunals make it plain in their judgments that they have that objectivity and that range in mind and that they have done more than pay lip service to it.

[64] Having considered the Tribunal’s judgment in this case, we note that its tenor is such as to indicate that they have fallen into the trap of asking themselves the wrong question. The tone is set by their opening to the passage dealing with determination of the issues, namely that they were “not convinced” that the respondents had dealt fairly with the claimant. Their comment that they were not happy about the appeal procedure is in similar vein as are their comments about what they think the respondents should have done about administration of cash advances. We are, in all the circumstances, satisfied that the criticism is well founded. The Tribunal do indeed appear to have substituted their view of how they would have responded for that of the objective reasonable employer.

[65] The Tribunal’s decision is, accordingly, wholly unsatisfactory. Being flawed in all the foregoing respects, we are persuaded that it is perverse. These errors may have arisen from the delay that occurred between the hearing on evidence in this case and the issuing of reasons, which is very unfortunate. It certainly underlines the need for the Employment Tribunal system to operate in such a way that it is possible for reasons to be issued expeditiously.

[66] Conscious of the time that has passed since the events that were concerned in this case we have given careful consideration to the question of whether it would be open to us to decide the case on the basis of the facts found by the Tribunal. We do not, however, feel able to do so. The decision is so flawed that we are not confident that all necessary facts have been found or that those which have been found contain all relevant details (such as the question of how it came about that the claimant told Mr Yeardly on the Wednesday that only 2 people had turned up).

Disposal
[67] We will accordingly pronounce an order upholding the appeal and remitting the case to a freshly constituted Employment Tribunal for a rehearing.