SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal failed properly to consider whether a
decision by an internal appellate body, which rejected a major plank in the
management case as argued before the disciplinary hearing, nonetheless to
uphold the decision of the disciplinary body to dismiss the Appellant, was
sufficient to make the dismissal fair.
THE HONOURABLE MR
JUSTICE WILKIE
Introduction
1.
This is the appeal of Mr Scott against the decision of the
Employment Tribunal held at Newcastle upon Tyne on
6 and 7 July 2010 which decided to dismiss his claim of
unfair dismissal against his erstwhile employer, the Northumbria Probation
Board. He had been dismissed on grounds of gross misconduct and contended that
the dismissal was both procedurally and substantively unfair.
Background and Employment Tribunal Decision
2.
The Employment Tribunal in its reserved Reasons, sent to the parties on
20 September 2010, at paragraph 2 identified the issues as had been
agreed between the parties, and, insofar as is relevant, they were as follows:
“2.1 Was the procedure followed by the respondent a fair
procedure and did it comply with the ACAS Code?
2.2 Did the respondent hold a genuine belief in the claimant’s
guilt?
2.3 Was that belief reasonably held?
2.4 Was the dismissal a proportionate response to the findings
in all the circumstances […].”
3.
The Employment Tribunal at paragraph 3 of its decision set out the
evidence and its findings of fact. The Claimant had commenced his employment
with the Respondent in September 2002 and was employed as a probation
officer until his dismissal on 25 September 2009. In 2008 the
Probation Service, looking to reduce costs, introduced a new, rigorously
applied, system of claiming expenses, including, in certain cases, the
Claimant’s entitlement to claim a subsistence or meal allowance. As from
1 May 2008 all such claims for expenses had to be supported with a
receipt.
4.
During the latter part of 2008 and the early part of 2009 the Claimant
was working late on a regular basis, entitling him to claim a meal allowance.
This he claimed regularly and frequently on the basis that he had eaten at a
Chinese takeaway known as The Regent. He had claimed expenses in that respect
on the basis of receipts that had been provided. In fact, in the instances to
which we will refer, the receipts produced by him were not the original
receipts from the takeaway but were in the form of photocopies of a template
that had been constructed by him, from an original receipt from the restaurant,
in August 2008. He said that he had used that photocopied receipt because,
frequently, the takeaway ran out of receipts; he therefore produced the
template, and asked the staff in the restaurant to fill in the amount claimed
and sign the receipt.
5.
In April 2009 the practice of producing such photocopied receipts
became evident to the Respondent’s finance department, which raised queries
with the Claimant and he was asked to supply the originals of some of the
receipts that he had supplied in support of his expenses claims. There was a
meeting on 22 April which the Claimant attended with his union
representative. At the end of that meeting he was suspended in order to
facilitate further investigation. At that meeting, conducted by a
Mr Strike, three issues were discussed: the receipts for meals from The
Regent takeaway; making claims for parking expenses without producing a
receipt; and having his expense claim forms signed off by someone who was not
his line manager. Some criticism was made by the Claimant of the way in which
that suspension meeting had been arranged and conducted, but the Tribunal
rejected those procedural claims, were satisfied that the meeting had not been
conducted in an unreasonable manner, and that the suspension, pending further
investigation, was an appropriate step to take at that stage.
6.
There was then a further series of meetings, one in particular, which
took place on 18 May, with the investigating officer Elizabeth Kelly,
who was accompanied by a human relations representative, Anita Dixon.
Following that meeting and certain other enquiries made by Ms Kelly, she
produced an investigation report on 25 June 2009. That report
highlighted three possible bases for a finding of misconduct, relating,
respectively, to receipts for The Regent takeaway, car parking expenses and the
question of authorisation at management level of expenses claims.
Ms Kelly’s report stated that the enquiries that she had made resulted in
her belief that The Regent takeaway did not open on a Tuesday, whereas the
Claimant had submitted a number of expense claims during the period commencing
2 December 2008 until 3 March 2009, five of which were on
Tuesdays, a day when The Regent was in fact shut. Obviously, this was a matter
of some considerable significance in the context of that particular potential
piece of misconduct.
7.
A disciplinary meeting was arranged and eventually was held, starting on
19 August 2009, chaired by a Mr Hall. Part way through that
meeting, Mr Hall adjourned it to provide the Claimant the opportunity of
obtaining and putting forward additional evidence, particularly in regard to
the Tuesday opening point. The meeting was reconvened on
18 September 2009. Ms Kelly produced further evidence in the
form of her statement indicating that the restaurant did, in fact, produce
receipts, and it appears that she produced a receipt that had been torn from a
book of receipts which had been shown to her, or Ms Dixon, when they
attended The Regent takeaway. That information, provided by Ms Kelly, it
was said, indicated that the restaurant did provide receipts. She also said that
they stamped the receipts and did not sign them, whereas the Claimant’s
receipts were all signed. She further said that the person to whom she had
spoken at the restaurant purported not to recognise the signatures on the
Claimant’s receipts and had said that the restaurant had not opened on a
Tuesday for some six years. The Claimant’s response to that was that it was
only to be expected that the restaurant manager or staff would say that, as
they would not know the reason they were being asked these questions and might
well have thought the enquiries were being made on behalf of Her Majesty’s
Revenue and Customs. In fact, he did not attend the reconvened hearing but was
represented by his union representative. The adjournment had been granted in
order to enable the Claimant to obtain further evidence on the Tuesday closure
point, but he had not been able to obtain further information on that issue.
8.
The Tribunal record that Mr Hall, having considered the evidence
before him, concluded that Mr Scott was guilty of gross misconduct on two of
the three issues: the first was the issue of the meal receipts, which he found
had been falsified; the other was in respect of the car parking. Mr Hall
had not found sufficient evidence against the Claimant in respect of the third
allegation to found a conclusion of misconduct, but, in respect of the two
pieces of misconduct that he found proved, he characterised them as gross
misconduct, and he dismissed Mr Scott.
9.
That decision to dismiss was confirmed in a dismissal letter dated
24 September 2009. It records the fact that there were three
allegations made, the first of which was in respect of “claiming subsistence
payments following the provision of fraudulent receipts”. In respect of that
complaint the letter reads as follows:
“In relation to allegation 1 above, it was clear to me that
you had submitted fraudulent receipts for expenditure not actually incurred.
Specifically, these included receipts for chinese [sic] take away meals on
dates when I was satisfied that the take away was actually closed. The dates
of these were 2, 9, 16 December 2008;
3, 10, 17, 24 February 2009 and
3 March 2009. These receipts alone totalled a value of approximately
£86. You also confirmed that you had used an original receipt as a template
for dates that the take away were unable to offer a receipt, however, I was
satisfied that they are always able to supply a receipt. These ‘copy’ receipts
you claimed were individually signed by the take away, however, the manager of
that establishment was able to confirm that whilst receipts are stamped with a
company stamp, they are not individually signed. These points clearly support
my view that the validity of all of these receipts submitted are at question
and whether any actual expenditure was incurred.”
10.
The letter goes on to deal with the allegation in respect of the car
parking tickets, with which we are not primarily concerned in this appeal, for
reasons that will become apparent. The conclusion of the letter was that these
were matters of gross misconduct and that Mr Hall had no alternative but
to dismiss Mr Scott summarily.
11.
The Tribunal records that the Claimant appealed his dismissal and,
eventually, the appeal against his dismissal, heard by an appeal panel
comprising Lesley Bessant, Norman Gilberd and Pauline Williamson,
took place on 12 February 2010. The Tribunal record that, in the
interim, the Claimant offered some further evidence, which was sent to the
appeal tribunal. The evidence comprised one photograph of the restaurant taken
on Tuesday, 29 December 2009 showing lights on, but no people in
the restaurant, and several statements written by the Claimant setting out
evidence given to the Claimant by local shopkeepers or customers confirming that
the restaurant was open on Tuesdays at the time in question. The Tribunal
noted that that evidence had not been put before Mr Hall when he made his
decision to dismiss the Claimant.
12.
The documentation that is before us, and that was also before the
Employment Tribunal, includes the notes of the appeal hearing, which are full
and, it would appear, contemporaneous. They also include a letter dated
16 February setting out the outcome of the appeal in the following terms,
in so far as is relevant:
“Following a full and detailed hearing, the Panel was satisfied
that the process had been carried out correctly and appropriately and did not
prejudice the outcome in any way.
In connection with the validity of the evidence, the Panel was
satisfied, on the balance of probabilities, that you committed fraud in
submitting photocopied receipts in the way that you did.
The Panel was satisfied that this fraud amounted to gross
misconduct and therefore your dismissal was appropriate.”
13.
Also before the Employment Tribunal was a witness statement of
Ms Bessant, who was at the time the Chair of Northumbria Probation Trust
and who was part of the appeal panel. In so far as it is relevant to this
appeal, her witness statement says as follows at paragraph 10:
“It was clear to us that the receipts had been falsified. We
accepted that there had been argument put forward on behalf of Mr Scott
that receipts had not been available and that despite the evidence produced to
us to the contrary the take‑away restaurant had been open on Tuesdays.
Whilst it was impossible to be absolutely certain of the position in these
regards, our overall conclusion was that there was no reasonable explanation
for producing falsified receipts to support expenses claims other than to claim
for meals he had not had and that his actions in so doing had been fraudulent.
Our ultimate conclusion was that this merited summary dismissal and we
therefore dismissed the appeal.”
14.
This was the extent of the documentation that has been placed before
us. In particular, no one has obtained an order for the reproduction of the
Chairman’s notes of the oral evidence, which, we surmise, must have been
substantial and, in respect of the appeal hearing, highly significant. We say
that because what then appears in the Employment Tribunal’s decision at
paragraph 3.15 is not reflected in the documentation that has been before
us, but nonetheless it is accepted by all that paragraph 3.15 does reflect
the evidence that was received by the Tribunal. That paragraph reads in full
as follows:
“The appeal panel considered these statements and formed the
view that as these statements were not signed by the makers and as the makers
were not called to give evidence they should be treated in the same way as the
statements relied upon by Mr Hall with regard to the Tuesday opening
issue. In other words, they took the view that one set of statements negated
the other and that they could not make a definitive decision as to whether the
restaurant was open on the Tuesday evenings in question. They considered the issue
of the lack of car parking receipts and found that there was insufficient
evidence to uphold the decision of Mr Hall in this respect and allowed
this aspect of the appeal overturning Mr Hall’s decision. With regard to
the issue of the meal receipts they were satisfied that these had been
falsified and that this amounted to gross misconduct upholding this part of
Mr Hall’s decision.”
15.
That concludes what the Tribunal had to say in respect of the evidence
and findings of fact. The Tribunal then went on to set out the law in
paragraph 4 of its decision. It rehearsed the relevant statutory
provisions: sections 94 and 98 of the Employment Rights Act 1996 (ERA).
It then referred to the fact that it had been referred to British Home
Stores Ltd v Burchell [1978] IRLR 379, and briefly and accurately set
out the principles for which that well‑known case is the authority. The
Tribunal then referred to certain other cases that had been drawn to its
attention, namely Salford Royal NHS Foundation Trust v Roldan
[2010] EWCA Civ 522 (which referred to the case of A v B
[2003] IRLR 405) and the case of Sheffield Health & Social Care
NHS Foundation Trust v Crabtree UKEAT/0331/09, as
well as the Polkey v A E Dayton Services Ltd
[1987] IRLR 503 case.
16.
It is unfortunate, but nonetheless the case that, notwithstanding the
fact that both parties to this Tribunal hearing were legally represented, the
Employment Tribunal was not referred to the authority of Taylor v OCS Group Ltd
[2006] ICR 1602 (neutral citation [2006] EWCA Civ 702), which has been at the
heart of the argument before us. In that case the claimant was profoundly and
pre‑lingually deaf. He had been suspended from duty by his employer for
certain alleged misconduct in relation to confidential files. A disciplinary
meeting was held at which the claimant found it particularly difficult to lip‑read
the person conducting proceedings; no interpreter had been provided. At the
end of that hearing the conclusion was that the claimant was guilty of
misconduct and he was dismissed. He appealed against that dismissal and at the
appeal hearing he was represented by his sister, who could communicate well
with him and who took over as an interpreter when the interpreter who had been
provided had to leave. The outcome of the appeal was to affirm the decision to
dismiss. His claim of unfair dismissal was upheld by the Employment Tribunal,
which concluded that, whilst the dismissal was for a potentially fair reason,
it was unfair in that he had been unable to participate effectively in the
disciplinary process. Since the procedure on the first hearing had been
fundamentally flawed, and the appeal hearing had been a review and not a
rehearing, the fundamental defect was not cured by the appeal hearing. The
Employment Appeal Tribunal had dismissed an appeal by the employer against that
decision. In the Court of Appeal the employer’s appeal was allowed on the
following basis, as set out in the headnote:
“[…] (1) that, where on claims of unfair dismissal, complaint
was made about the employer’s disciplinary procedure, the Employment Tribunal
should focus on the statutory test in section 98(4) of the [ERA] and look
at the substance of what had happened throughout the disciplinary process: that
it was inappropriate for a Tribunal to attempt to categorise an internal appeal
as either a ‘rehearing’ or ‘a review’, as there was no rule of law that only a
rehearing was capable of curing earlier defects, and what mattered was whether
the overall process was fair, notwithstanding any deficiencies, at an early
stage.”
17.
Mr Ford, on behalf of the Appellant, has sought to rely on this
particular authority, and, in particular, certain passages where the Court of
Appeal has discouraged over‑conscientious consideration of the difference
between a review and a rehearing by way of an appellate process; in particular,
at paragraph 38 in the Judgment of Smith LJ, the following:
“Having said that, the use of the words ‘review’ and ‘rehearing’
[…] do [sic] in our view create a temptation for a Tribunal to fall into the
error of deciding whether an appeal hearing cured the earlier defects by
categorising the appeal hearing either as a review or a rehearing rather than
looking at its thoroughness and the open‑mindedness of the decision‑maker
in considering whether the disciplinary process as a whole was fair. […]”
18.
At paragraph 43:
“It seems to us that there is no real difference between what
the Employment Appeal Tribunal said in Whitbread [v Mills [1988] ICR
776] and what it said in Adivhalli [v Exports Credits Guarantee Department
UKEAT/0917/97]. Both were consistent with Sartor [v P & O European
Ferries [1992] IRLR 271]. In both cases, the Appeal Tribunal recognised
that the Employment Tribunal must focus on the statutory test in that in
considering whether the dismissal was fair it must look at the substance of
what had happened throughout the disciplinary process. To that extent, in our
view, the Appeal Tribunal in the present case was right. However, in Whitbread v Mills
the Appeal Tribunal used the words ‘review’ and ‘rehearing’ to illustrate the
kind of hearing that would be thorough enough to cure earlier defects and one
which would not. Unfortunately, this illustration has been understood by some
to propound a rule of law that only a rehearing is capable of curing earlier
defects and a mere review never is. There is no such rule of law.”
19.
And then, at paragraphs 46‑47:
“46. […] [It was pointless to] seek to determine whether an
internal appeal process was a rehearing or a review. In our view, it would be
quite inappropriate for an ET to attempt such categorisation. What matters is
not whether the internal appeal was technically a rehearing or a review but
whether the disciplinary process as a whole was fair.
47. […] The use of the words ‘rehearing’ and ‘review’, albeit
only intended by way of illustration, does create a risk that Employment
Tribunals will fall into the trap of deciding whether the dismissal procedure
was fair on unfair by reference to their view of whether an appeal hearing was
a rehearing or a mere review. This error is avoided if Employment Tribunals
realise that their task is to apply the statutory test. In doing that, they
should consider the fairness of the whole of the disciplinary process. If they
find that an early stage of the process was defective and unfair in some way,
they will want to examine any subsequent proceeding with particular care. But
their purpose in so doing will not be to determine whether it amounted to a
rehearing or a review but to determine whether, due to the fairness or the
unfairness of the procedures adopted, the thoroughness or lack of it of the process
and the open‑mindedness (or not) of the decision‑maker, the overall
process was fair, notwithstanding any deficiencies at the early stage.”
20.
As we have indicated, the Employment Tribunal in this case referred to
the Roldan case, but it did not identify for itself in its
decision any particular passage or principle whose relevant principles are to
be found in that case. In that decision of the Court of Appeal, in which the
Judgment was given by Elias LJ, it is said, on behalf of the Respondent,
that we should focus on paragraph 51, where the Employment Appeal Tribunal
is reminded that, if an Employment Tribunal has properly directed itself in
accordance with Burchell, as further explained in a case of this
kind by A v B, save where there is a proper basis for
saying that the Tribunal simply failed to follow their own self‑direction,
the Appeal Tribunal should not interfere with that decision unless there is no
proper evidential basis for it or unless the conclusion is perverse. The
reference to A v B refers back to what Elias LJ
said at paragraph 13 of his Judgment. He said as follows:
“Section 98(4) focuses on the need for an employer to act
reasonably in all the circumstances. In A v B […], the
Employment Appeal Tribunal (Elias J presiding) held that the relevant
circumstances include the gravity of the charges and their potential effect
upon the employee, so it is particularly important that employers take
seriously their responsibilities to conduct a fair investigation where, as on
the facts of that case, the employee’s reputation or ability to work in his or
her chosen field of employment is potentially apposite. In A v B,
the Appeal Tribunal said at paragraph 60:
‘Serious allegations of criminal misbehaviour, at least
where disputed, must always be the subject of the most careful investigation,
always bearing in mind that the investigation is usually being conducted by
laymen and not lawyers. Of course, even in the most serious of cases it is
unrealistic and quite inappropriate to require the safeguards of a criminal
trial, but a careful and conscientious investigation of the facts is necessary,
and the investigator charged with carrying out the inquiries should focus no
less on any potential evidence that may exculpate or at least point towards the
innocence of the employee as he should, on the evidence, directed towards
proving the charges against him.’”
21.
Returning to the Employment Tribunal’s decision in this case, it set out
its conclusions at paragraph 5. On the question of the thoroughness of
the investigation the Tribunal found nothing to criticise of any substance in
the way in which the investigation had been conducted and placed before the
relevant management level of the Respondent, and no criticism has been made in
this hearing of that conclusion of the Employment Tribunal. Similarly, with
regard to the disciplinary hearing, the Tribunal was satisfied that Mr Hall
held a genuine belief in the Claimant’s guilt based upon reasonable grounds,
and it was not for the Tribunal to substitute its own decision for that of the
employer in such circumstances. Once again, Mr Ford makes no complaint
about the Employment Tribunal’s conclusions in respect of the disciplinary
hearing on the basis of the material that was then before Mr Hall.
However, having regard to paragraph 3.15 of the decision, to which we have
referred, the appeal hearing became much more the focus of the contentions between
the parties. The Employment Tribunal dealt with that hearing in
paragraph 5.4 in the following terms:
“Turning to the appeal hearing, it was submitted on behalf of
the claimant that the appeal panel should have investigated further the new
evidence about the restaurant opening on a Tuesday and that it was
inappropriate for them to ignore this evidence. He suggested that this new
evidence required the appeal to be treated as a re‑hearing and that the
matter should have been remitted to Mr Hall to consider along with the
other evidence. He also suggested that the claimant should have been given the
benefit of the doubt because of the serious career and personal implications to
the claimant. Mr Hodgson submitted that the appeal hearing was a review
hearing not a re‑hearing and that the appeal panel were entitled to treat
the new evidence as neutral upon the basis that they did the same with the
respondent’s evidence on the same point. The Tribunal preferred the argument
put forward by Mr Hodgson finding that the appeal had been fair to the
claimant having considered both sides and having concluded that the end result
was a neutral position. The appeal panel were entitled to find upon the basis
of the remaining evidence before it that that evidence was sufficient upon
which to base a finding of gross misconduct. Accordingly the claimant’s claim
is dismissed.”
The Claimant’s submissions
22.
Mr Ford’s submissions are brief and to the point, and focus on
paragraphs 3.15 and 5.4 and the cases of Taylor and Roldan.
In particular, what he says is this. The Tribunal had found that one of the
main planks of the conclusion of Mr Hall that Mr Scott was guilty of
misconduct in respect of the claim for subsistence allowance for takeaway meals
was the fact that Mr Hall was satisfied on the evidence before him that
the takeaway had not been open on a Tuesday, whereas a number of the claims for
expenses from Mr Scott had been claims for meals bought at that restaurant
on a Tuesday. Plainly, if that remained the case, that would be an extremely
important basis upon which a conclusion of gross misconduct could be founded.
The appeal body, however, as recorded at paragraph 3.15, had concluded
that, having regard to the new evidence that had been placed before them by Mr Scott,
which had the same status as the evidence upon which Mr Hall relied,
placed before him by management, the appeal body was not in a position to
decide, one way or another, the vexed issue, whether the takeaway was always
closed on a Tuesday or may have been open when Mr Scott claimed to have
obtained food from there. On that basis, although the Employment Tribunal made
no finding that Mr Hall’s disciplinary hearing had been defective, this
case, it was argued, is analogous to the case of Taylor because
the conclusion of the disciplinary hearing has been called into question by an
important matter upon the basis of which the decision of the disciplinary
hearing could not be permitted to stand.
23.
In those circumstances, therefore, Mr Ford argues, having regard to
what was said in Taylor, particularly at paragraph 47, that
the Employment Tribunal needed to examine any subsequent proceedings with
particular care, with a view to determining whether, due to the fairness or
unfairness of the procedures adopted, the thoroughness, or lack of it, of the
process, and the open‑mindedness, or not, of the decision‑maker,
the overall process was fair, notwithstanding any deficiencies at the early
stage. Mr Ford argues that, if that approach applies by way of analogy to the
present case, then the way in which the Tribunal has looked at the decision of
the appeal body, as recorded in paragraphs 3.15 and 5.4, fails
to engage with the Taylor approach, because all they do is assert,
in a single sentence at paragraph 3.15, the fact that the appeal body were
satisfied that the meal receipts had been falsified, and, at
paragraph 5.4, the Employment Tribunal limits itself to saying that the
appeal panel were entitled to find, upon the basis of the remaining evidence
before it, that that evidence was sufficient upon which to base a finding of
gross misconduct. He says that, no doubt because the Employment Tribunal was
not referred to Taylor, it did seem to focus some of its attention
on an irrelevant question namely, whether the appeal was by way of review or
rehearing, and failed to approach its task in the way suggested by the Court of
Appeal in Taylor.
24.
Mr Ford goes on to contend that, as the allegations made against
Mr Scott, a probation officer, were of financial dishonesty akin to
criminal misbehaviour, which would plainly be a career‑threatening allegation,
it was particularly important that employers take seriously their
responsibilities to conduct a fair investigation. Such allegations must always
be the subject of the most careful investigation as identified by Elias LJ,
both as a Judge of the Court of Appeal in Roldan and as President
of the EAT in the case of A v B. In that respect, the
passages to which we have referred at paragraphs 3.15 and 5.4 of the
Employment Tribunal’s decision fail, according to Mr Ford, to engage with
the enhanced level of care that is required where the Burchell
test is being applied in circumstances where allegations of such a serious
nature are being made against an employee in a position such as that held by
Mr Scott.
The Respondent’s submissions
25.
Mr Forshaw, for the Respondent, says that it is misconceived for us
to be referred to Taylor. He says that in Taylor
the problem was that the first-instance decision of the employer was itself defective
because of grave procedural faults and the Court of Appeal was considering the
circumstances in which such grave procedural defects might be remedied by an
appropriate appellate hearing, and was directing Employment Tribunals and
appellate bodies not to focus on the difference between a review and a
rehearing but to focus on the overall process and, if need be, to look very
carefully at the end hearing that purported to remedy any prior defects. In
that case, it was the absence of any consideration by the Employment Tribunal
of what had happened at the appellate level that caused the decision of the
Employment Tribunal to be overturned by the Court of Appeal.
26.
Mr Forshaw says that the present case is not analogous to the Taylor case because no criticism has been made, or was made, by the
Employment Tribunal of the first‑instance disciplinary hearing conducted
by Mr Hall. Therefore, the question is not whether the appellate hearing
in this case makes good any previous deficiency; what has happened is that the
appellate body, properly and fairly, has excluded, as a factor in its
conclusion, a factor that Mr Hall had found particularly weighty. But the
appellate body went on to consider whether or not the misconduct had been
proved to their reasonable satisfaction on the basis of the remaining evidence.
27.
Mr Forshaw has, with great care, identified a series of pieces of
circumstantial evidence on the basis of which, he says, the appellate body in
this case could, and no doubt did, rely in order to conclude, as they did, that
Mr Scott was guilty of presenting fraudulent receipts in order to obtain
subsistence expenses, and that the Employment Tribunal, in the last sentence
of paragraph 3.15 and in the last sentence of paragraph 5.4 , has done no
more than give brief, but accurate, articulation of that particular approach.
Discussion
28.
In our judgment, the contentions of Mr Ford in the particular
circumstances of this case prevail. We have observed that the Employment
Tribunal in this case was not referred to what seems to us to be the most
relevant authority, namely Taylor, which, in our judgment, is by,
analogy, applicable to the facts of this case. This was a case where the
initial disciplinary decision taken by Mr Hall, though not subject to
criticism in itself, was taken on a number of bases, one of the important ones
of which was effectively ruled out of play by the appellate body as a result of
further evidence obtained. That, necessarily, involved the appellate body
going on to consider whether to uphold the appeal. It was, of necessity,
putting itself in the position of being the principal decision‑maker on
the issue whether the misconduct was proved and what the sanction should be.
Its decision thereupon became the focus of the Burchell approach
as explained in Roldan.
29.
The reader of the Employment Tribunal decision is none the wiser as to
the extent and nature of the care that the appellate body took in considering
the remaining evidence and coming to their conclusion, because the Employment
Tribunal does not indicate to the reader what the evidence was, in respect of
that part of the appeal body’s consideration. Nor does the Tribunal’s decision
reveal that it has examined the appellate hearing with particular care. The
two sentences in paragraphs 3.15 and 5.4 to which we have referred
amount to no more than bare assertions. Unfortunately, had the Tribunal not
had its attention diverted to the irrelevant issue of whether the appeal was a
review or a rehearing, it may have been better placed to approach the matter in
the way prescribed by the Court of Appeal in Taylor, but the
outcome is that, by dealing with it in the way that it did, in our judgment,
the Employment Tribunal erred in law in that particular respect.
Conclusion and disposal
30.
The consequence of that is, therefore, that Mr Scott’s appeal must
succeed, and the finding of the Employment Tribunal that he was not unfairly
dismissed must be quashed. Both sides have agreed that the matter must be
remitted to be considered afresh. There is a dispute as to whether it should
be remitted to the same Employment Tribunal or to a different one. In our judgment,
the issue that remains to be determined essentially focuses on the internal
appeal. Accordingly, virtually all of the findings of fact and all of the
evidence that has been received leading up to and including the decision of
Mr Hall to dismiss remains untouched. As we have observed, it is highly
likely that there was evidence from Ms Bessant that went significantly
beyond the contents of her witness statement as to what happened at the appeal
hearing and their thought processes.
31.
In our judgment, having weighed the various factors to which we have
been referred, and having considered those factors set out in Sinclair Roche & Temperley v Heard
[2004] IRLR 763, the appropriate course is for us to remit this to the same
Tribunal for them to address this issue properly, guided both by this decision
and by the prescriptions of the Court of Appeal in Taylor. In
our judgment, that would be a just and proportionate outcome. We are aware of
the danger to which Mr Ford has referred of allowing the Tribunal “a
second bite at the cherry”; however, we are confident that the Tribunal will
take a professional approach and will approach the task that remains in a
proper manner. It may or may not be the case that it will have to receive
further evidence on the question of what, in fact, happened before the appeal
body, how they approached their decision‑making and the matters to which
they had regard. No doubt it will be necessary for them to be addressed
further on the law and on the facts. In our judgment, the proportionate way of
dealing with it is for the same Tribunal to consider this matter afresh, if it
is practicable for them to be assembled. That is the order that we will make.
It necessarily follows that there should be a transcript.
32.
To that extent, this appeal is allowed.
