Appeal No. UKEATS/0047/11/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 21 March 2012

Before
THE HONOURABLE LADY SMITH
MR P PAGLIARI
MR R THOMSON

BAA LTD	APPELLANT

MR ALISTAIR DAVIES	RESPONDENT

JUDGMENT

	APPEARANCES

For the Appellant	MR P SHARP
(Solicitor)
McGrigors LLP
Johnstone House
52 – 54 Rose Street
Aberdeen
AB10 1UD	
For the Respondent	MR L G CUNNINGHAM
(Advocate)
Instructed by:
Adam Cochran Solicitors
6 Bon Accord Square
Aberdeen
AB11 6XU	

SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal

Unfair dismissal.  Remit to same Tribunal for a re-hearing where Employment Tribunal had 

failed to have regard to whole facts and circumstances and to the relevant law, particularly 

the guidance in Sainsbury’s v Hitt.

THE HONOURABLE LADY SMITH 
Introduction
1.	This is an employers’ appeal from a judgment of the Employment Tribunal sitting at Aberdeen, Employment Judge Mr A Bolland QC, registered on 7 July 2011.  The hearing took place in December 2009 and on two days in March and May 2010.

2.	We will, for convenience, continue referring to parties as Claimant and Respondent.

3.	The Claimant was represented by Mr L Cunningham, advocate, before the Tribunal and before us.  The Respondent was represented by Mr L Kerr, solicitor, before the Tribunal and by Mr Sharp, solicitor, before us.

Background
4.	The Claimant was employed as a fire fighter at Aberdeen airport.  He worked in a system involving watches which changed at 6 am and 1800 hours.  There was a fifteen minute handover period for the conveying of information from each outgoing fire fighter to his replacement at the end of each watch.  That information included which runway was in use, whether there were any engineering works ongoing on the alarms and any information written in the record book.  At the end and beginning of each watch fire fighters had to change out of and into uniform.  They could do so in the control room.

5.	On 27 March 2009, another fire fighter, David Cutress, went to the control room to change at the start of his shift.  He arrived there at 17.47 – 17.50.  He was to take over from the Claimant.  The Claimant was due at a kick boxing class at 18.00.  He told David Cutress there was nothing to report and started to go down the stairs.  David Cutress called him from the top of the stairs to come back up.

6.	Neil Fowler was appointed as investigating officer to carry out an investigation into the incident that ensued. He prepared a twenty eight page report of his findings. The account given to him by David Cutress was that when the Claimant told him there was nothing to report, he had replied by asking him if he looked like he was ready to take over.  When he heard the Claimant going down the stairs, he told him to get back up as he was not ready to take over.  The Claimant came back up and muttered something to which David Cuttress said “you what?” and the Claimant punched him in the face.  He crossed his hands in front of himself and pushed the Claimant back at which he stepped back and landed in a chair.  David Cutress then tried to calm him down but the Claimant grabbed him around the throat.  David Cutress again pushed himself away, picked up his bag and went down stairs; his face and throat were marked.  He went straight to the general office to see the Watch Manager (Richard Cox) and said that he wanted the Claimant “done for assault”.

7.	Richard Cox noticed that David Cutress had noticeable finger and hand marks on his face and throat and marks above his left eye, forehead and lip.  He photographed them.

8.	The Claimant was also interviewed by Neil Fowler.  He told the Claimant that he was investigating an allegation of assault.  The account given by the Claimant was that he gave David Cutress a brief handover, started downstairs and was called back.  David Cutress shouted in an aggressive and threatening manner.  He walked back up and asked “who do you think you’re talking to like that?” at which David Cutress pushed him back.  He tried to keep his distance, David Cutress shouted “do you want to have a go then?” and he, David Cutress then jumped across, grabbed his shirt causing a button to rip off, spun him round and he fell over the desk onto a chair.  He put his hands up to David Cutress’ throat to defend himself and keep him off.  Then the phone rang and David Cutress told him to answer it.  Neil Fowler asked him whether he, the Claimant, had any marks on him – he replied in the affirmative and indicated that he had a cut and bruise below his left eye and cuts to his hands and fingers.  He said that the police had seen that when he was at the police station.  Neil Fowler also asked him whether he should have arranged an earlier handover given that he had to be in town for his class at 6pm.

9.	Richard Cox asked the Fire Station Manager, Grant Colligan, to speak to the Claimant, which he did.  He asked the Claimant to write out a statement.  The Claimant said he had a bit of a sore head.  Grant Colligan looked at his face but saw no marks on it.  In his written statement, the Claimant gave an account of having been jumped at by David Cutress, as above, but made no mention of having put his hands up to David Cutress’ throat.  He said “during this scuffle I received a lump on my head and a knock to my left cheek.  I’m unsure if this was from Dave’s fist as it all happened so quick.”

10.	The matter was reported to the airport police.  The Claimant was taken to Queen Street police office and charged with assault.  Prosecution did not, however, ensue.  Both men were issued with warning letters by the police.

11.	The day after the incident, the Claimant called the fire station at the airport and said he wanted to lodge a “counter claim” against the assault allegation.

12.	The Claimant was invited to attend a disciplinary meeting, by letter of 21 April 2009, which advised him that the meeting was in respect of the alleged assault on 27 March 2009.  The hearing was to take place on 23 April 2009.  Given that, at the end of that meeting, in response to Mr O’Neill stating that under the Respondent’s code of conduct, the Claimant could lose his job, he responded “I know, I have been warned about it.” it is evident that he had been made aware, prior to attending the disciplinary hearing, that dismissal could be the outcome.

13.	The Claimant was accompanied by a representative from UNITE at the disciplinary hearing.  He was asked questions about the incident by both David O’Neill and Janice Tully, who was referred to as “HR Business Partner”.  He was asked whether he had a problem with David Cutress, whether there was friction about handovers and about timekeeping.  Regarding injuries, the Claimant could not account for the marks on David Cutress and denied having touched his face.  Regarding what he had said to Neil Fowler about marks on himself, he said that it was in his police statement – they had asked him how he got marks on his face.  He did not explain how he got them. He did not say what it was that was in his police statement.  Regarding the cuts that he had referred to when speaking to Neil Fowler, he did not know how he got them.

14.	David Cutress also attended a disciplinary hearing on the same day, one hour prior to the start of the Claimant’s hearing.  His hearing was also conducted by David O’Neill and Janice Tully, and the same UNITE representative attended for David Cutress as attended at the next hearing, for the Claimant.

15.	Janice Tully participated in the questioning of the Claimant.  The tribunal states that her questioning amounted to cross examination but most of what she asked, according to the note of the hearing, were open questions and does not read as cross examination.  The Claimant’s union representative did not take issue with the questions that were being asked or with him being asked questions by both David O’Neill and Janice Tully.

16.	The hearing was adjourned over the weekend so that David O’Neill could take time to think over his decision.

17.	On 27 April, the hearing reconvened and David O’Neill advised that he had nine points of concern:

“1. The photographic evidence shows Dave Cutress with marks to his face and neck.  You couldn’t explain how he got the marks to his face.
2. You stated that you had cuts to your hands and fingers, and a cut and bruise below your left eye, which you could not explain.
3. These marks were not visible to Grant Colligan when he spoke to you following the incident.
4. There is a difference in the two statements you provided to Grant Colligan and Neil Fowler, the Investigating Officer.  In the statement to Grant Colligan, you did not state that you had cuts to your hands and fingers, or a cut on your face. 
5. You telephoned the fire station at 16.12 the following day after the incident stating that you would like to lodge a counter claim against your assault allegation.  You stated that you hadn’t called earlier as you were embarrassed although you did call the station the night before at 21.32 hrs for Alistair Graham’s phone number.  You stated that you told the Police at 23.00 hrs on the night of the incident that you wanted to lodge a complaint.
6. I’m struggling to see why you thought someone was joking when they said they weren’t ready.  It shows a total lack of respect to leave before they are ready to carry on.
7. I’m unclear why Dave Cutress would call people to the Watch Room over the tannoy if he had assaulted you.
8. It is clear you have a time keeping issue with people, although you said you don’t.
9. I believe you were anxious because you were trying to get away and Dave’s voice and manner had antagonised you. Making you return to the Watch Room.”

18.	David O’ Neill told the Claimant that taking all of the above into account, he believed that he did assault David Cutress; that was gross misconduct.  The Claimant was then dismissed and the decision was confirmed by letter of the same date which repeated the list of nine concerns and that the conclusion that he had assaulted David Cutress was reached on the basis of all those factors.

19.	The Claimant appealed and the appeal was heard on 28 May 2009 by the Managing Director of BAA Aberdeen, Kevin Brown.  One of the matters founded on at the appeal by the Claimant’s union representative was that David Cutress had, he said, had previous problems with his temper - that ought, he said, to be taken into account.

20.	After the appeal hearing the Claimant wrote to Mr Brown stating that David Cutress had previously had altercations with five named individuals.  The appeal was rejected by letter dated 12 June 2009 in which Mr Brown responded to that ground of appeal by stating:

“As you will appreciate, historical evidence does not have a bearing on what did or didn’t actually happen at the time in question.  I feel David did take Dave’s history into account, however there was no historical evidence to suggest Dave had ever been violent in the workplace.”

21.	Another ground of appeal related to the watch room changeover procedure, concerns about its operation having been raised by the Claimant’s representative.  Mr Brown had Neil Fowler question other persons about that; he took statements for that purpose from the Station Manager and two Watch Managers, one of whom was one of the five people referred to by the Claimant in his letter of 5 June.  The statements were sent to the Claimant with the letter rejecting his appeal and showed that there were differences of opinion as to the normal changeover practice although all agreed that the outgoing fire fighter required to remain at post until the incoming one was ready to begin and there had been a handover.  There is no suggestion either in the notes of the appeal hearing or in the letter rejecting the appeal that Mr Brown undertook to investigate David Cutress’ prior conduct.

The Tribunal’s Judgment and Reasons
22.	The Tribunal heard oral evidence but their findings in fact are drawn principally from the documents, namely the investigation report by Neil Fowler, the disciplinary and dismissal letters to the Claimant, the notes of his and David Cutress’ disciplinary hearings, the notes of the appeal hearing and the letter rejecting the Claimant’s appeal.  The only matters in their findings in fact which are not covered by the documents are as follows.  First, a finding at paragraph 16 that one of the policemen involved, PC Broomfield, noticed that the Claimant had a fresh injury to the Claimant’s eye, that the skin was not broken, and that one of his shirt buttons had been ripped off, and that he would have been prepared to give evidence as part of the investigation if he had been asked, not that it was suggested that the Respondents had any awareness of what he had seen. PC Broomfield was a witness before the Tribunal.  There are no findings of him making any mention of a cut on the Claimant’s face or cuts to his hands and fingers.  Secondly, the Tribunal find, at paragraph 27, that on 27 April, David O’Neill told Janice Tully that he believed the Claimant had assaulted David Cutress because there were marks on him and none on the Claimant and that the Claimant could not explain how these marks had occurred.

23.	There are no findings in fact as to what, if anything, PC Broomfield could properly have disclosed if he had been asked to assist with the investigation.  In particular, there are no findings as to whether or not he would or could have disclosed the police statement on which the Claimant relied.  Any request for information would not have been a request by the defence to the procurator-fiscal in the context of a prosecution, where wide reaching obligations of disclosure are incumbent on the Crown.  Whilst it may be inferred that PC Broomfield could, given his evidence to the Tribunal, have spoken about what he saw, that lent no support to the Claimant’s claim that he had a cut below his eye or that he had cuts on his hands and fingers nor did it cast any light on what explanation of events he gave to the police, if any.

24.	There are also no findings about what effect, if any, a finding of gross misconduct or dismissal would have had on the Claimant’s reputation or his ability to work as a fire fighter.  That issue is not addressed in the findings in fact at all.

25.	Whilst satisfied that the reason for the Claimant’s dismissal was conduct, the Tribunal did not accept that David O’Neill had reasonable grounds for believing in the Claimant’s guilt.  Their reasons can be gleaned from paragraphs 60 and 61 of the judgment.  At paragraph 60, they rehearse the Claimant’s position regarding the injuries that he said he sustained and his having advised David O’Neil that a mark on his face had been mentioned in his police statement.  The whole injuries which the Claimant alleged he had sustained were, we note, a cut to his eye, a bruise below it and cuts to his hands and fingers, not solely a mark on his face.  In paragraph 61, the Tribunal state that:

“…it is clear that David O’Neill placed considerable emphasis on the marks on David Cutress and that none were seen on the claimant by Grant Collingwood. David O’Neill told Janice Tully that he believed the claimant had assaulted David Cutress because there were marks on him and none on the claimant.” 

The entirety of the Tribunal’s finding was in fact not only that marks were seen on David Cutress and not on the Claimant but also that the Claimant could not explain how the marks on David Cutress had occurred.

26.	The Tribunal continue:

“Despite the insistence of the claimant that he was injured, that the Police had asked about the injuries and the mention of injuries in the statement shortly after the incident there did not appear to have been any attempt to investigate this with the Police Officers.”

27.	And then give their view as to whether or not there had been a reasonable investigation:
“It seemed to the Tribunal that in carrying out as much investigation as was reasonable enquiry ought to have been (sic) of the Police – especially in view of the emphasis placed on whether or not the claimant had any injury and the Police involvement having ended.”

28.	The Tribunal rely, in support of that conclusion, on the case of A v B  and add:

“So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where the employee’s reputation or ability to work in his chosen field of employment is potentially apposite.”

29.	The Tribunal add that they were also “concerned” that at neither the investigation stage nor in the letter inviting the Claimant to the disciplinary hearing was he told that dismissal was a possible sanction.  They state that the first mention of dismissal was at the end of the disciplinary hearing.  They appear, however, to have failed to note that what is recorded there is the Claimant’s response that he knew he was at risk of dismissal as he had been warned about that.

30.	The Tribunal, further, found that the procedure at the disciplinary hearing was not fair; although the Respondent’s Code of Conduct and Disciplinary Procedure provided for a personnel representative to be present at a disciplinary hearing to advise and assist, Janice Tully went beyond her “proper function” because she intervened on approximately 34 occasions.  They state that her interventions amounted to cross examination and that the Claimant had, in effect two questioners; that breached the “consideration of overall fairness to the claimant”.  However, at paragraph 65, in clear contradiction of that conclusion, they state that Janice Tully’s investigations at the disciplinary hearing “were by way of clarification to enable her to offer advice.”

31.	The Tribunal is also critical of the appeal stage in paragraphs 64 and 66.  In the discussion section of their judgment they refer to Mr Brown having looked at David Cutress’ file and found no record of any incidents of assault – we assume that they meant this to be a finding in fact, although it is not stated as such.  That being so, they considered that fairness dictated further investigation “by way of taking statements” (they do not say from whom) because it “could have reflected on David Cutress’ credibility”.  They also, in the context of their criticism of the appeal stage, state that Janice Tully’s interventions at the disciplinary hearing had gone beyond clarification and constituted unfairness but without explaining what, if any, effect that could or did have on the appeal process.

32.	In summary therefore, the Tribunal found the dismissal unfair because (a) the Respondents had not made enquiry of the police; (b) because the Claimant was not told he was at risk of dismissal prior to the conclusion of the disciplinary hearing; (c) because two people questioned the Claimant at the disciplinary hearing with Janice Tully’s questioning involving 34 interventions and cross examination; and (e) because the Respondents did not, at appeal stage, obtain statements regarding David Cutress’ prior conduct.  The Respondents thus did not, according to the Tribunal, have a reasonable belief in the Claimant’s guilt.

Relevant Law
33.	The Tribunal required to apply section 98(4) of the Employment Rights Act 1996 and determine whether or not the dismissal was fair or unfair having regard to the reason shown by the employer and to all the circumstances including whether or not the Respondent acted reasonably or unreasonably in treating it as a sufficient reason for dismissal, all in accordance with equity and the substantial merits of the case.

34.	In BHS v Burchell, to which the Tribunal refers, Arnold J explained that when an employer forms his belief in an employee’s guilt of misconduct, he has to have carried out as much investigation into the matter as was reasonable in all the circumstances.

35.	Mr Sharp also relied on the later part of Arnold J’s explanation where he concluded:

“It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the Tribunal would itself have shared that view in those circumstances.  It is not relevant, as we think, for the Tribunal to examine the quality of the material which the employer had before him, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only on the basis of being ‘sure’ as it is now said more normally in a criminal context, or, to use the more old- fashioned term, such as to put the matter ‘ beyond reasonable doubt’.  The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstances be a reasonable conclusion.”

36.	The proper approach to the question of what investigation is to be expected of an employer was, however, explained in greater detail by the Court of Appeal in the case of J Sainsbury plc v Hitt, a case which was not referred to and does not appear to have been considered by the Tribunal.  Mummery LJ gave the leading judgment and was concerned to dispel confusion that appeared to have arisen around this issue.  The facts in that case concerned a suspected theft of razor blades from a warehouse at which Mr Hitt worked.  They were found in his locker.  He had had the opportunity to take them and put them there.  His position was that they had been planted there.  Sainsbury’s made enquiries and found that only one other employee (Mr Tucker) had a key that fitted Mr Hitt’s locker at the relevant time – a statement was taken from Mr Tucker.  Mr Hitt alleged that a number of other employees had keys which fitted his locker but they were not investigated.  The majority of the employment tribunal had found that the Sainsbury’s should have investigated all the employees in the store to see who had keys that fitted Mr Hitt’s locker and then ascertained who could have been in the warehouse at the relevant time.  They should also have made more investigations about the whereabouts of Mr Tucker at that time.  In these circumstances, the dismissal was, they considered, unfair.  The tribunal had thus found that because there were more investigatory steps that could have been taken by the employer, the dismissal was unfair.

37.	Mummery LJ was at pains to make it clear that their approach was wrong.  He referred to his own discussion in the case of Midland Bank plc v Madden:
“78. In my judgment no reasonable tribunal, properly applying the approach in British Home Stores Ltd v Burchell(Note) [1980} ICR 303 and Iceland Frozen Foods v Jones [1983] ICR 17 to the facts, could have concluded either (a) that the bank had failed to conduct such investigation into the matter as was reasonable in all the circumstances or (b) that dismissal for that reason was outside the range of reasonable responses. 
79. Instead of determining whether or not the bank had made a reasonable investigation into the matter and whether it had acted within the range of responses of a reasonable employer, the tribunal in effect decided that, had it been the employer, it would not have been satisfied by the evidence that Mr Madden was involved in the misappropriation of the debit cards or their fraudulent use and would not have dismissed him.  The tribunal focused on the insufficiency of the evidence to prove to its satisfaction that Mr Madden was guilty of misconduct rather than on whether the bank’s investigation into his alleged misconduct was a reasonable investigation.
80. This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an appeal against, the merits of the employer’s decision to dismiss.  The employer, not the tribunal, is the proper person to conduct the investigation into the alleged misconduct.  The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss in the light of the results of that investigation, is a reasonable response.”

38.	At paragraph 28 of the Sainsbury case, he noted that, rather than apply the test as explained by the Court of Appeal in Madden, the employment tribunal had applied the earlier, Employment Appeal Tribunal version of the case.  He then said:

“…Applying that test, the majority considered that the investigation was not reasonable.  They arrived at that conclusion by substituting their own opinion as to what was a reasonable and adequate investigation, instead of applying as was required by the Court of Appeal in the subsequent decision reversing the appeal tribunal’s decision in Madden’s case, the objective standard of the reasonable employer as to what was a reasonable investigation.”

39.	At paragraph 30 and 31, he said:
“30…The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason.
31. If the correct approach is taken to the application of the test laid down by the Court of Appeal to the facts of this case, the only conclusion which a reasonable tribunal could reach is that the investigation in this case was reasonable in all the circumstances.  The position is that the employment tribunal’s decision was legally flawed by the application of the wrong test.  If one looks at the findings in fact, the position is as stated by the Chairman in his dissenting conclusions.  The investigation carried out by Sainsburys was not for the purposes of determining, as one would in a court of law, whether Mr Hitt was guilty or not guilty of the theft of the razor blades.  The purpose of the investigation was to establish whether there were reasonable grounds for the belief that they had formed, from the circumstances in which the razor blades were found in his locker, that there had been misconduct on his part, to which a reasonable response was a decision to dismiss him.  The uncontested facts were that the missing razor blades were found in Mr Hitt’s locker and that he had had the opportunity to steal them in the periods of his absence from the bakery during the time they went missing.  Investigations were then made, both prior to and during the period of an adjournment of the disciplinary proceedings, into the question whether, as Mr Hitt alleged, someone else had planted the missing razor blades in his locker.  In my judgment, Sainsbury’s were reasonably entitled to conclude, on the basis of such an investigation, that Mr Hitt’s explanation was improbable.  The objective standard of the reasonable employer did not require them to carry out yet further investigations of the kind which the majority in the employment in their view considered ought to have been carried out.”

40.	The task for an employment tribunal is not, accordingly, a matter of asking itself whether there were any more investigations which an employer could have carried out.  Nor is an employer to be expected to proceed with the sort of investigation that would be required in relation to a court case.  The concern that employment tribunals are at risk of approaching matters erroneously as though employers are bound to investigate to the same depth as if preparing for proof in court reflect, interestingly, those outlined some 24 years earlier by Arnold J, in BHS v Burchell, as above noted. Tribunals require to consider first what an employer did carry out by way of investigation, then ask whether in all the circumstances, looking at matters objectively, that was a reasonable approach. Whilst that question may, in a particular case, be answered in the negative because it is, for some reason, clear that no reasonable employer would have failed to investigate some matter, the Sainsbury guidance demonstrates that it would be wrong to start by asking whether anything more could have been found out. Therein lies the risk of a tribunal falling into the substitution mindset.

41.	The Tribunal relied, as we note above, on the case of A v B in support of their conclusion that the Respondents did not carry out a reasonable investigation.  The facts of A v B were quite different from that of the present case; they involved a serious allegation that a residential social worker who worked in a children’s home had engaged in a wholly inappropriate and physical relationship with a 14 year old and had smoked marijuana with her.  The employee was facing the possibility of serious criminal charges as well as dismissal.  His future career was on the line.  It is not at all surprising that the President (Elias J, as he then was) sought to spell out the need for careful investigation in such cases.  His general observation regarding the need to consider the gravity of the charges and their potential effect on the employee seems to do no more than reflect the statutory direction to have regard to all the circumstances and does not in any way detract from the firm guidance given by Mummery LJ in the Sainsbury case on the assessment of whether or not an employer’s investigation was within a reasonable range.

42.	The Tribunal referred to no authority in relation to their criticism of two people questioning the Claimant at his disciplinary hearing or their criticism that the questioning was by way of cross examination. There is no authority to the effect that it is unreasonable for two employer representatives to question an employee at a disciplinary hearing or that it is unreasonable to test the employee’s account by asking questions which amount to cross examination.  It is not, of itself, unreasonable for an employer to do either.

43.	The Tribunal rely on the case of Boyd v Renfrewshire Council in support of their criticism that the Claimant was not told he was at risk of dismissal.  In that case, one of the matters founded on was that at the time of the disciplinary hearing, the claimant did not know that he was facing the risk of dismissal.  The letter inviting him to the hearing had not referred to it and the tribunal had found that he was not otherwise aware.  At paragraph 33, Lord Kingarth, in the opinion of the court stated:

“…we are not persuaded that it can be said that it was not reasonably open to the Tribunal to conclude …that the appellant did not know that he faced dismissal.  We do not consider there is anything in the disciplinary procedures which would necessarily have alerted him to the fact that he faced potential dismissal. Nor do we think it could be said that he must have known that because he had representation.”

44.	It follows that, had it been the case that notwithstanding the absence of an express warning in the disciplinary letter, the claimant in Boyd in fact knew he was facing the risk of dismissal, the Inner House would not have been concerned about the matter.  The point they make is that it is not a question of how a claimant knows of the risk but whether as a matter of fact he is aware of it.

The Appeal
Submissions for the Respondent
45.	There were four grounds of appeal.

46.	First, Mr Sharp submitted that the Tribunal had failed properly to apply the range of reasonable responses test; they had substituted their own view.

47.	On the issue of whether or not there had been a reasonable investigation, the Tribunal had, he submitted, found there had not because the employers’ investigation did not mimic what they would have done.  That was an erroneous approach: British Leyland UK Lt v Swift, Sainsbury plc v Hitt.  That was apparent from the language used in paragraph 61 – “It seemed to the Tribunal …” and from the substance of their approach.  They ought to have applied the range of reasonable responses test when considering the matter of investigation – Sainsbury plc v Hitt.  What constituted the range of reasonable options for investigation depended on the whole facts and circumstances.

48.	The Tribunal had fallen into error as follows: they had considered what they would have done as their starting point.  Because there were competing versions of the event given by the two men the Tribunal seemed to have considered it unreasonable for the employer to prefer the version given by one witness unless it had been conclusively established to be correct.  That was to go well beyond the objective standard of the reasonable employer.  The Tribunal were satisfied as to the genuineness of the employer’s belief as confirmed at paragraph 61.  It was, however, not open to them then to proceed on the basis that David O’Neill’s conclusion was based solely on the marks on Mr Cutress’ face as opposed to the absence of any marks being seen on the Claimant.  Mr O’Neill could be compared to a jury.  He had looked at all the available evidence which comprised nine factors as listed by him.  He did not place “considerable emphasis” on the marks, as stated by the Tribunal.  It was evident that the focus of his attention was whose version of events was to be preferred.  His first two concerns mentioned the marks but the point he made was that the Claimant had not been able to explain the matters referred to.  How could David O’Neill be expected to find the Claimant’s account reliable when he could not give these explanations? Further, those concerns were not the only matters relied on.

49.	The second ground of appeal was that the Tribunal were diverted by irrelevant issues.  They were diverted by the possibility of investigation of the police.  It was not clear what could have been ascertained.  It could not be said that the failure to make enquiry of them was unreasonable given that it related only to one issue in the list of 9 which concerned Mr O’Neill.  It was plain that the Tribunal were thinking not in terms of what was within the reasonable range but in terms of what they would have done.

50.	Regarding the Tribunal’s criticism of the failure to warn the Claimant about the risk of dismissal, Mr Sharp referred to the notes of the disciplinary hearing and the Claimant’s acknowledgement of having been warned about it, to which we have already referred.  The Tribunal had no basis in the evidence for their approach.  Their reliance on Boyd was misplaced, as was their reliance on the case of A v B.

51.	Regarding Janice Tully’s involvement, the Tribunal had also erred.  The fact of two questioners does not infer unfairness – indeed, the fact of two questioners could promote fairness.  There was nothing wrong in Janice Tully interpreting her role as advisor and assistant as properly involving asking questions.  Nor does the number of questions asked of an employee at a disciplinary hearing of itself constitute unfairness.  The Tribunal had not found that the manner of questioning was aggressive or inappropriate.  There was, in any event, nothing in the questioning, where Mr O’Neill sought to determine which version of events was correct, that was unreasonable.

52.	Regarding the criticism of investigation at the appeal stage, Mr Sharp submitted that the Tribunal had erred.  Their approach was, wrongly, to require of the Respondent that they conclusively establish which version of events was correct.  Further, whilst criticising the approach, they left matters at large as to how or why their preferred approach would have made a difference and been fair, particularly when any discovery of prior misconduct by David Cutress would not, on the face of matters, have had the potential to detract from the problem for the Claimant that he was unable to give any explanation of the man’s injuries or to explain why he had none when seen by Mr Colligan.

53.	The third ground of appeal was that the Tribunal failed to give adequate reasons.  This was particularly in relation to their criticism of failure to warn the Claimant of the risk of dismissal.  This ground was partly a repetition of the earlier argument that the Tribunal had no basis in the evidence for their conclusion on the matter but also, separately, a submission that it was not clear whether, in expressing that they were “concerned” about the matter, they were actually going as far as finding that there was unfairness.

54.	The fourth ground of appeal referred again to Janice Tully’s role.  Insofar as the Tribunal had found that there was unfairness in her participation in questioning, they had, Mr Sharp submitted, misconstrued the respondent’s Code of Conduct; in providing, as it did, that a personnel representative would be present at a disciplinary hearing to “advise and assist” it did not thereby constrain such a representative so as to prevent participation such as had been engaged in by Janice Tully.

55.	Overall, all three “Burchell boxes” were, Mr Sharp submitted, plainly ticked once the facts were taken into account.  The Tribunal’s finding of unfair dismissal should be reversed and a judgment substituted dismissing the claim.

Submissions for the Claimant 
56.	Mr Cunningham invited us to refuse the appeal and remit the claim for a remedies hearing.  He reminded us that an appeal lay only on a question of law: North West London Hospitals NHS Trust v Bowater.  It was, he submitted, for the Tribunal to make a decision as to whether or not there had been a fair dismissal.

57.	The Tribunal had, he submitted, applied the correct test – a test which was, he accepted, as explained in the Sainsbury case.  Although they made no reference to section 98(4) it was, he submitted, evident that they had had it in mind.  They had made reference to the “objective standard of the reasonable employer” in paragraph 61.  PC Broomfield would have given evidence to the Respondents if he had been asked.  That was objective evidence that would have assisted the Claimant.  Each employee had said the other had started the altercation.  The whole question of injuries was relevant to the reasonableness of the investigation.

58.	Mr Cunningham referred to the case of A v B and submitted that, likewise, the Claimant in this case was facing a grave charge.  The case was binding on the Employment Tribunal.  He also relied on the case of Boyd and submitted that it showed that there had been an unfair failure to warn the Claimant of the risk of dismissal – he did so under reference to an earlier passage in the note of the disciplinary hearing than that on which Mr Sharp relied.  The warning to which the Claimant referred could, he suggested, have occurred during a ten minute adjournment which took place close to the end of the disciplinary hearing.  He accepted, however, that no findings were made regarding what happened during that adjournment.

59.	Overall, he submitted that the appeal was essentially a perversity appeal.  That was a new ground of appeal and he would oppose it.

Discussion and Decision - Majority
60.	We do not propose to repeat, in this section, the observations we have already made in the ‘Relevant Law’ section above regarding the correct approach by an employment tribunal when considering whether or not an employer has carried out a reasonable investigation.  Having given careful consideration to parties’ submissions, we are satisfied that this Tribunal did not apply the correct approach but, rather, fell into error.

61.	On the evidence accepted by them (as recorded in the notes of the disciplinary hearing and the letter of dismissal dated 27 April) there were nine factors all of which, together, caused David O’Neill to conclude that the Claimant had instigated an assault on David Cutress.  Some of them had nothing to do with the matter of injuries – such as the fact that David Cutress put an immediate call out over the tannoy - and insofar as they did, he was concerned, as Mr Sharp submitted, about the Claimant’s lack of explanation.  That appears, however, to have been overlooked by the Employment Tribunal and their considerations regarding the issue of investigation at the disciplinary stage were confined to the issue of whether or not there was any sign of injury on the Claimant’s face.  Certainly, on their findings, PC Bloomfield would have been willing to give evidence to the Respondent but about what?  As we have already observed, there are no findings as to what, properly, he could have disclosed.  Even if it is to be assumed that he could have given evidence about what he saw, whilst that would have indicated what was showing on the Claimant’s face at an unspecified later time (there are no findings about what time of day or night the Claimant was seen by the policeman) that would not  necessarily have conflicted with Grant Colligan’s evidence that he saw no marks on the Claimant when he spoke to him shortly after the incident or, indeed, with Richard Cox’s evidence regarding David Cutress’ obvious injuries to his face, throat, area above his left eye, forehead and lip immediately after it occurred.  Nor, further, on the Tribunal’s findings in fact, would injury to the Claimant have, of itself, negatived the conclusion that he was the aggressor.

62.	Further, we agree with Mr Sharp, that the Tribunal’s statement that it “seemed to” them that there ought to have been enquiry of the police is characteristic of a substitution mindset and their later reference to the objective reasonable employer reads, rather, as the use of a mantra as opposed to showing that they did adopt the correct approach.

63.	The Tribunal has also fallen into error in relying on A v B as being authority for their proposition that there should have been enquiry of the police.  As explained above, the facts of A v B were rather different from those of the present case and, perhaps even more importantly, this Tribunal  made no findings about what effect, if any, dismissal would have on the Claimant’s reputation or ability to work in a chosen career.  Further, it is of particular significance that the Tribunal has not had regard to the guidance of the Court of Appeal in the Sainsbury case, which was directly in point.

64.	Regarding the issue of whether or not the Claimant was aware that he was at risk of dismissal before the disciplinary hearing, we agree with Mr Sharp that it does appear from the face of the notes of the disciplinary hearing (which were accepted by the Tribunal as accurate), that he was.  The Tribunal appear to have overlooked that matter; there is no basis for their statement in paragraph 61 that he did not know about it until the conclusion of the hearing.  Further, we agree that it is unclear whether, in being “concerned” about this matter, the Tribunal were going so far as to find that there was unfairness.

65.	Turning to the matter of Janice Tully’s involvement, there is no rule that only one person can question an employee at a disciplinary hearing and we do not see that “assist” as used in the Respondent’s Code of Conduct and Disciplinary Procedure requires to be read as preventing the personnel representative from asking questions.  We can see that the manager in charge of the hearing may well find it of assistance that the personnel representative does so.  Nor is there any rule that an employee may not be cross examined at such a hearing.  It may be necessary to do so.  In any event, as we have already observed, much of Janice Tully’s questioning did not amount to cross examination.  We accordingly accept that Mr Sharp’s criticism of this part of the Tribunal’s reasoning was also well founded.

66.	Turning to the matter of investigation at appeal stage, again we consider Mr Sharp’s criticisms to be well founded.  Not only are the Tribunal’s suggested investigations vague or, as Mr Sharp put it, “at large”, they are indicative of an approach which, we accept, has characterised the whole of the Tribunal’s reasoning, namely that the Respondent had an obligation to do all that was possible to seek to reach a conclusive decision..  That, however, is not what is required for the reasons so clearly explained in the Sainsbury case.

Disposal
67.	It follows that we are satisfied that the appeal should be upheld and the judgment of the Tribunal that the Claimant was unfairly dismissed, set aside.  We are, however, conscious of the fact that to some extent, our decision is the result of a failing by the Tribunal to have regard to the whole facts and circumstances, a failure to give reasons and a failure to have regard to the relevant law – particularly to the guidance in the Sainsbury case.  In these circumstances, we have decided that the appropriate order will be for a remit to the same Tribunal for a re-hearing of the case.

Minority Opinion
68.	Mr Thomson considered that the Tribunal had determined whether or not dismissal was within the range of reasonable responses and had found, for the reasons given by them, that it was not. It was not, he considered, a decision with which we should interfere, the appeal not being on perversity grounds.

69.	Mr Thomson considered that the Tribunal had determined whether or not dismissal was within the range of reasonable response and had found for the reasons given it was not. He was of the view that they reminded themselves of the relevant statute and case law. In particular they referred to the test of "the objective standards of the reasonable employer" as stated by LJ Mummery in Midland Bank plc v Madden. Mummery LJ also stated that “The function of the tribunal is to decide whether that investigation is reasonable in all the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response”.  The Tribunal on findings of fact and giving, he felt, adequate reasons, decided that the investigation was not reasonable.  It was not, he considered, a decision with which we should interfere, the appeal not being on perversity.