The EAT heard appeals against decisions in 3 cases, 2 where the claimants had been found to be unfairly dismissed, the third where the claimant was found to have been fairly dismissed. In 2 of the cases the issue was whether the ET had erred in law by substituting its own views on the fairness of the dismissal for those of the employer. The third case involved applying the correct test when deciding whether or not the respondent had carried out a reasonable investigation.

The EAT rejected all the appeals. In the first case, the ET had given themselves a clear and correct self-direction which they then applied. They did not substitute their view for that of the employer. In the second case, the ET was perfectly entitled by reason of the findings of fact that dismissal was too severe given the surrounding circumstances. In the third case, the ET had applied the correct test in concluding that the investigation carried out by the respondent fell within the band of reasonable responses, and so did the decision to dismiss the claimant.

_________________

Appeal No. UKEAT/0043/11/LA

UKEAT/0103/11/DA

UKEAT/0105/11/CEA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 22 November 2011

Judgment handed down on 22 December 2011

Before

THE HONOURABLE MR JUSTICE SUPPERSTONE, MR P GAMMON MBE, MR R LYONS

UKEAT/0043/11/LA

ARRIVA TRAINS WALES (APPELLANT)

MISS F CONANT (RESPONDENT)

UKEAT/0103/11/DA

YELLOW PAGES SALES LTD (APPELLANT)

MR R WALSH (RESPONDENT)

UKEAT/0105/11/CEA

MRS S HARBER (APPELLANT)

KELLY RESIDENTIAL LTD T/A PORTLAND NURSING HOME (RESPONDENT)

Transcript of Proceedings

JUDGMENT

UKEAT/0043/11/LA

For the Appellant
MR CHRISTOPHER HOWELLS (of Counsel)

Instructed by:
Eversheds LLP
1 Callaghan Square
Cardiff
CF10 5BT

For the Respondent
MR NICHOLAS SMITH (of Counsel)

Instructed by:
Leo Abse & Cohen Solicitors
40 Churchill Way
Cardiff
CF10 2SS

UKEAT/0103/11/DA

For the Appellant
MR SAM NEAMAN (of Counsel)

Instructed by:
Crossland Employment Solicitors
99 Milton Park
Abingdon
Oxon
OX14 4RY

For the Respondent
MR OLIVER ISAACS (of Counsel)

Instructed by:
William Graham Law Ltd Solicitors
24 Neptune Court
Ocean Way
Cardiff
CF24 5PJ

**UKEAT/0105/11/CEA
**For the Appellant
MR RICHARD POWELL (of Counsel)

Instructed by:
Wace Morgan Solicitors
2 Belmont
Shrewsbury
Shropshire
SY1 1TD

For the Respondent
MR CHARLES CROW (of Counsel)

Instructed by:
Bibby Consulting and Support
Brunswick Court
Brunswick Street
Newcastle-under-Lyme
Staffordshire
ST5 1HH

UNFAIR DISMISSAL – Reasonableness of dimissal

These three cases were heard together. In two of the cases (Arriva Trains Wales v Ms F Conant and Yellow Pages Sales Limited v Mr R Walsh) the issue is whether the Employment Tribunal erred in law by substituting its own views on the fairness of the dismissal for those of the employer. The majority decision of the Employment Tribunal in those cases was that the Claimant was unfairly dismissed. In the third case (Mrs S Harber v Kelly Residential Limited t/a Portland Nursing Home) the Claimant appealed against the decision of an Employment Tribunal that she was fairly dismissed.

The approach to be adopted by an Employment Tribunal and also by appellate bodies when reviewing the decision of an employer who has dismissed an employee for misconduct has been considered by the Court of Appeal on a number of occasions, most recently in [Brent London Borough Council v Fuller]() [2011] ICR 806.

Applying the principles set out in Fuller the appeals in these three cases all fail.

1. These are cases of summary dismissal for gross misconduct. They concern the application of s.98(4) of the Employment Rights Act 1996 ("the 1996 Act"). In two of the cases (Arriva Trains Wales v Miss F Conant and Yellow Pages Sales Limited v Mr R Walsh**) the issue is whether the Employment Tribunal (ET) erred in law by substituting its own views on the fairness of the dismissal for those of the employer. His Honour Judge McMullen QC directed that all three cases be heard together.

1. In Arriva Trains Wales v Miss F Conant Arriva Trains Wales ("Arriva Trains") appeals against the majority decision of an Employment Tribunal sitting at Cardiff, chaired by Employment Judge Beard, that the Claimant was unfairly dismissed. The hearing took place over two days in July 2010, Judgment was handed down on 8 October 2010 with written Reasons sent to the parties on 5 November 2010. Arriva Trains was represented before us by Mr Christopher Howells, and the Claimant by Mr Nicholas Smith, both of counsel. Mr Howells appeared for Arriva Trains before the Employment Tribunal but Mr Smith did not appear for the Claimant.

1. In Yellow Pages Sales Ltd v Mr R Walsh Yellow Pages Sales Ltd ("Yellow Pages") appeals against the majority decision of an Employment Tribunal sitting at Manchester, chaired by Employment Judge Sherratt, that the Claimant was unfairly dismissed. The hearing took place on 11 February 2010, and the Judgment and Reasons were sent to the parties on 7 May 2010. Yellow Pages were represented before us by Mr Sam Neaman, and the Claimant by Mr Oliver Isaacs, both of counsel. Neither Mr Neaman nor Mr Isaacs appeared before the Employment Tribunal.

1. In Mrs S Harber v Kelly Residential Ltd t/a Portland Nursing Home Mrs Harber appeals against the decision of an Employment Tribunal sitting at Shrewsbury, chaired by Employment Judge Warren, that she was fairly dismissed. The hearing took place over three days in June and August 2010, and the Judgment and Reasons were sent to the parties on 8 September 2010. Mrs Harber was represented before us by Mr Richard Powell, and the Respondent by Mr Charles Crow, both of counsel. Mr Powell appeared for Mrs Harber before the Employment Tribunal, but Mr Crow did not appear for the Respondent.

Arriva Trains Wales v Miss F Conant

1. The Claimant was employed by Arriva Trains as a booking office clerk from 6 February 2007 until her dismissal on 3 September 2009. Her role was to provide tickets for travel to members of the public, and to make the appropriate transactions in respect of that.

1. The Claimant was working at the ticket office in Cardiff Central Station on 19 July 2009. At the end of her shift at 10.00 p.m. she bagged her cash by completing the star shift documentation, and detailing a sum of £1,173.60 as cash. This was registered onto a slip with a unique number 599049, and placed in a cash bag with a unique number 201792945979. She then placed the bag in the drop safe. The cash was transported to Loomis, an external security firm, in a grey outer cash bag that contained a number of cash bags similar to the one deposited by the Claimant.

1. Loomis checked the bag on 23 July. The Loomis cashier noted that the bag was short of £460 in £20 notes. Arriva Trains was notified. Mr Howe, who was at the time station manager, carried out a preliminary investigation, but he took no further action. No-one spoke to the Claimant about these matters until Mr Cresswell, the assistant station manager, returned from holiday on 3 August 2009. Mr Howe then met with the Claimant on 3 August and asked her about the missing money. She indicated that she had no idea where the money was. She told him that she had sealed the bag appropriately and followed procedures. The Claimant was suspended.

1. On 12 August 2009 the Claimant attended an investigatory meeting, accompanied by her Trade Union representative. Others were interviewed on the same day: Julie Sanderson (one of the individuals who had filled the grey bag), Ken Gratton (who had released the grey bag to Loomis) and Sarah Pritchard (another sales advisor). At the conclusion of the interview of the Claimant Mr Cresswell informed her that he considered on the balance of probabilities, she was in breach of Arriva Trains rules, and that the matter would proceed to a formal disciplinary hearing and be treated as gross misconduct.

1. On 1 September 2009 the Claimant was given notice of a disciplinary hearing. The disciplinary hearing was held on 3 September 2009 and was conducted by Mr Peter Northcott. The Claimant attended, accompanied by her Trade Union representative.

1. At the conclusion of the hearing Mr Northcott said: "I still find it difficult to understand that the bag was sealed with correct money, and when it arrived at Loomis still sealed, it had a deficit of £460, with no evidence of it being tampered with." He said that there was no indication as far as he was concerned, that there was anyone else involved. He said there was no alternative but to terminate the Claimant's employment. A letter was written by Arriva Trains on 9 September 2009, setting out the reasons for dismissal.

1. The Claimant appealed against the decision. Between the dismissal and the appeal, she was arrested and interviewed by the police. Subsequently she received confirmation from the police that there would be no action taken in respect of her case, due to insufficient evidence.

1. The appeal hearing took place on 12 November 2009. It was conducted by Ms Lynne Milligan, head of human resources, and Mr Ian Bullock, a customer services director. The Claimant attended and was represented by Mr Brendan Kelly, a regional organiser with her union. Her appeal was dismissed. She was told that either she was grossly negligent or had stolen the money, whichever it was it amounted to gross misconduct, and therefore the decision to dismiss would be upheld.

Yellow Pages Sales Ltd v Mr R Walsh

1. Yellow Pages provide business information to consumers and to other businesses in the form of directories and they also provide this information online. The Claimant was a Telesales manager employed by Yellow Pages. His role was to manage the team of Telesales Consultants; he himself did not sell any products. He had to ensure that the Consultants were complying with Yellow Pages policies. The Claimant had ambitions to become an Area Sales Manager. During the period from May 2008 to March 2009 he had taken on additional responsibilities from an Area Sales Manager who had left the company with a view to impressing the Divisional Sales Manager and thereby increasing his chances of promotion. He had done this without being requested to do so but he had not been dissuaded from taking on the extra work. When doing the extra work he increased his working hours.

1. The average sale in telesales is around £300 per unit. The Claimant's team's sales in a quarter was around £450,000 which gives an average sale of £10,700 to £13,600 per month per consultant depending upon the number of consultants in the team at any one time. The Claimant said that his team consisted of 14 consultants. Yellow Pages said that he looked after a team averaging 11 full-time consultants in the relevant period. According to the Claimant the average sale of his team was in excess of £300. His team sold fewer adverts but for larger sums which was why they were successful and frequently near the top of the sales performance figures.

1. Because of the high number of bad debts in the Claimant's team over a 12-month period the Head of Compliance instructed Credit Control to scrutinise all orders placed by the Claimant's team. As a result of the scrutiny, Credit Control highlighted linked accounts, incorrect address details and high-risk adverts being sold into low-risk classifications. Credit Control or Customer Services raised queries and cancelled orders. Correspondence was copied to the Claimant and cancellations would have shown on his SAP system (a sophisticated management information system) and performance report. Yellow Pages said that he was given adequate time to implement changes or carry out further checks to ensure compliance but did not do so. As a result, he and the four team members believed to be operating outside of the policies were all suspended pending investigation. All four members of the Claimant's team were dismissed for gross misconduct. It was common ground that the actions of the four members of the Claimant's team amounted to fraud.

1. An investigatory meeting was held with the Claimant on 27 March 2009. That led to a disciplinary hearing that took place on 18 and 19 May and was reconvened on 27 May when the Claimant was dismissed. His dismissal was confirmed in a letter dated 3 June 2009. He appealed against that decision. The appeal was held on 23 June 2009 and was conducted by Ms Ann-Marie Rook, a Divisional Sales Manager. On 21 July 2009 his appeal was dismissed by Ms Rook on the basis that after careful consideration of all the evidence put before her she found that the decision to dismiss for gross misconduct fell within the range of disciplinary action a reasonable employer could take.

Mrs S Harber v Kelly Residential Limited

1. Mrs Harber, a state registered nurse, began work in the care industry in 2002. She commenced employment with the Respondent at Portland House on 11 April 2007. Portland House is a nursing home with 38 beds for the elderly. On 25 December 2008 she was working at the home when an incident occurred. The Claimant was the only qualified member of the nursing staff in the home on that day.

1. The Respondent decided to investigate the incident. A statement was taken from Ms Andrea Thomas, a care worker, as to what happened. Ms Thomas said that at about 7.30 in the evening she was caring for one of the clients in her private room when she found blood on the client's incontinence pad. She called for the assistance of the Claimant. She said that whilst the client was lying on her right-hand side the Claimant undertook a digital rectal examination followed by a digital vaginal examination, changing her gloves in between. Ms Thomas said the client "flickered" or "flinched" as this happened. She did not know that the Claimant had done anything wrong at all. The following day when she handed over to Jane Styles, she explained what she had seen. Jane Styles knew that what had happened was wrong and told Jane Ferriday, the manager of the Home.

1. The Claimant attended a meeting conducted by Miss Bould, the Respondent's compliance manager on 29 December. In the course of the meeting the Claimant admitted that she had examined the rectal area and then changed her gloves and examined the vaginal area. She denied carrying out a vaginal examination or any form of invasive examination at all. She admitted that she had failed to document what she had done. At the end of the meeting the Claimant was formally suspended on full pay.

1. On 30 December a statement was obtained from Pauline Edwards. She had not been working on 25 December but had worked an early shift on 26 December. She recalled discussing the incident that had occurred the day before with Mrs Harber, when Mrs Harber mentioned that she knew that the blood on the incontinence pad was not from a rectal bleed as she had performed a "PR" on the client. When Miss Ferriday was informed of what Mrs Harber said she decided that this was a disciplinary matter and reported it to Miss Bould who invited the Claimant to a disciplinary hearing.

1. The disciplinary hearing took place on 14 January 2009. The Claimant attended and was represented by Mr Chris Timmis, a full-time representative from the Royal College of Nursing. Miss Bould conducted the hearing. The Claimant said that she was aware of the policy regarding PR examinations. She said that you cannot do a PR examination, that it is barred ethically and it is legally wrong, that you need special instruction to carry it out and you have to get client consent and position correctly. Ms Bould described the allegation that the Claimant had undertaken a PR examination. She denied that she had done one, saying that she had only wiped round the area. She could not explain why Ms Edwards would say that she had admitted carrying out a PR examination. She denied undertaking the alleged PR and said she thought she had documented what she had done. Miss Bould concluded that the Claimant had completed a PR examination and had failed to document it. She considered both these matters to be gross misconduct for which the Claimant should be dismissed. The Claimant's conduct was also reported to POVA (The Protection of Vulnerable Adults) and to the police. The Claimant was advised of her dismissal in a letter dated 22 January 2009 in which Miss Bould set out her reasons.

1. On 26 January 2009 the Claimant indicated that she wished to appeal against the decision. On 11 February Mr Timmis, her representative, asked that the appeal hearing be postponed from 12 February as the solicitor representing Mrs Harber in relation to any criminal proceedings that might be initiated had advised her not to attend. A request was made that the appeal hearing be postponed until the police had concluded their investigation. As a result the Respondent postponed the case until 24 March but refused to postpone it indefinitely. The appeal hearing went ahead on that day in Mrs Harber's absence. On 25 March 2009 Miss Whitehouse, who heard the appeal, wrote to Mrs Harber informing her that she had concluded that the appeal should not be upheld. On 14 May 2009 Mrs Harber was charged with a criminal offence. The case was committed to the Crown Court where the Crown Prosecution Service offered no evidence and the case was dismissed.

1. Section 98 of the Employment Rights Act 1996 ("the 1996 Act") states, so far as relevant:

"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within sub-section (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it—

(b) relates to the conduct of the employee,

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reasons shown by the employer)—

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

1. In Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 (Browne-Wilkinson J (P)) this Tribunal considered that the authorities established that in law the correct approach for the industrial tribunal (now the ET) to adopt in answering the question posed by section 57(3) of the 1978 Act [the predecessor to section 98(4) of the 1996 Act] is as follows:

"(1) the starting point should always be the words of section 57(3) themselves:

(2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many (though not all) cases there is a 'band of reasonable responses' to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) the function of the industrial tribunal, as an industrial jury, is 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 the band the dismissal is far; if the dismissal falls outside the band it is unfair."

1. In Post Office v Foley [2000] IRLR 827 Mummery LJ at paragraph 53 commenting on the approach set out in Iceland Foods **for the ET to adopt, observed:

"…that process must always be conducted by reference to the objective standards of the hypothetical reasonable employer which are imported by the statutory references to 'reasonably or unreasonably' and not by reference to their own subjective views of what they would in fact have done as an employer in the same circumstances. In other words, although the members of the tribunal can substitute their decision for that of the employer, that decision must not be reached by a process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer, which they were not."

1. The hypothetical reasonable employer must be engaged in the same field as the employer (see Siraj-Eldin v Campbell, Middleton Burness and Dickson [1989] IRLR 208 (Court of Session, the Lord President) at para 6: in that case, the off-shore oil industry).

1. In [Dr Sarkar v West London Mental Health NHS Trust]() [2010] EWCA Civ 289 Mummery LJ at para 4 said:

"The landmark judgment in Iceland Frozen Foods Ltd v Jones [1983] ICR 17 (Browne-Wilkinson J) and later authorities binding on this court and on the tribunals identify the question for the ET in this way: was it within the range of reasonable responses for this employer to have dismissed this employee? The ET must answer the question without substituting themselves for the employer. Substitution happens when the members of the ET decide what they would have done if they had been the employer. That is an error of law. It ignores the fundamental fact that the ET are not the employer and that their function under the 1996 Act is to judge the fairness of the actions of the employer objectively. They must do that by applying to the circumstances of the particular case the test of the reasonable response of the hypothetical reasonable employer: Foley v Post Office [2000] ICR 1283 at 1293."

1. The approach to be adopted by an ET where an employee is dismissed on the ground that the employer had entertained a suspicion or belief of misconduct by the employee was explained by this Tribunal (Arnold J) in British Home Stores Ltd v Burchell [1978] IRLR 314:

"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case."

1. In A v B EAT/1167/01 this Tribunal (Elias J), when considering the standard of reasonableness, said at para 62 that "the relevant circumstances do in fact include a consideration of the gravity of the charges and their potential effect upon the employee". The judgment continued at paragraph 64:

"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."

1. In Sainsbury's Supermarkets Ltd v Mr P J Hitt [2002] EWCA Civ 1588 Mummery LJ made clear that it is necessary to apply the objective standards of the reasonable employer to all aspects of the question whether the employee had been fairly and reasonably dismissed (para 29). At paragraph 30 Mummery LJ stated:

"… the range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) apply as much to the question of 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." (See also para 34).

1. The approach to be adopted by an ET and also by appellate bodies when reviewing the decision of an employer who has dismissed an employee for misconduct has been considered by the Court of Appeal on a number of occasions, most recently in Brent London Borough Council v Fuller [2011] ICR 806. At paragraph 12 Mummery LJ said:

"A summary of the allocation of powers and responsibilities in unfair dismissal disputes bears repetition: it is for the employer to take the decision whether or not to dismiss an employee; for the tribunal to find the facts and decide whether, on an objective basis, the dismissal was fair or unfair; and for the Employment Appeal Tribunal (and the ordinary courts hearing employment appeals) to decide whether a question of law arises from the proceedings in the tribunal. As appellate tribunals and courts are confined to questions of law they must not, in the absence of an error of law (including perversity), take over the tribunal's role as an 'industrial jury' with a fund of relevant and diverse specialist expertise."

Mummery LJ continued:

"27. Unfair dismissal appeals to this court on the ground that the tribunal has not correctly applied section 98(4) can be quite unpredictable. The application of the objective test to the dismissal reduces the scope for divergent views, but does not eliminate the possibility of differing outcomes at different levels of decision. Sometimes there are even divergent views amongst appeal tribunal members and the members in the constitutions of this court.

28. The appellate body, whether the Employment Appeal Tribunal or this court, must be on its guard against making the very same legal error as the tribunal stands accused of making. An error will occur if the appellate body substitutes its own subjective response to the employee's conduct. The appellate body will slip into a similar sort of error if it substitutes its own view of the reasonable employer's response for the view formed by the tribunal without committing error of law or reaching a perverse decision on that point.

29. Other danger zones are present in most appeals against tribunal decisions. As an appeal lies only on a question of law, the difference between legal questions and finding of fact and inferences is crucial. Appellate bodies learn more from experience than from precept or instruction how to spot the difference between a real question of law and a challenge to primary findings of fact dressed up as law.

30. Another teaching of experience is that, as with other tribunals and courts, there are occasions when a correct self-direction of law is stated by the tribunal, but then overlooked or misapplied at the point of decision. The tribunal judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable. The reading of an employment tribunal decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written, focussing too much on particular passages or turns of phrase to the neglect of the decision read in the round: these are all appellate weaknesses to avoid."

1. Applying the principles set out in Fuller this Tribunal in [Secretary of State for Justice v McDonald Heaney]() (Underhill J (P)) UKEAT/0401/10 said at para 24:

"… The Tribunal was obliged to avoid 'substitution' – that is, to ask not whether it would itself have been content with the account given by Mr Kottler and Ms Gadd but whether it was reasonable for Mr Mulholland [the disciplinary officer] to be. But we likewise must avoid substituting our own view of what it was reasonable for Mr Mulholland to do as long as the Tribunal's view was a tenable one on the evidence before it. We are, however, entitled to look behind the fact that the Tribunal ostensibly directed itself directly, as this Tribunal did: as Mummery LJ observes in Fuller, at para. 30, it is not unknown for tribunals to state the correct approach but then overlook or misapply it at the point of decision."

At paragraph 26 the judgment continued:

"… In para. 15 of the Reasons, where the Tribunal discusses the evidence of Mr Kottler and Ms Gadd, it uses the tell-tale phrases 'unconvincing in our view' and 'in our view unconvincing'. We accept that those phrases are not necessarily evidence of substitution: even a tribunal doing its proper job has to form views about the evidence. But in this case we believe that they betray a lapse from the proper approach. It was for Mr Mulholland, who had the advantage of hearing Ms Gadd's evidence live, to decide whether it was suspiciously evasive. He did not think that it was, and for the reasons already given (see para. 22 above) we believe that that conclusion was (to put it no higher) reasonable."

1. In a case earlier this year the Court of Appeal in [Bowater v North West London Hospitals NHS Trust]() [2011] EWCA Civ 63 restored the decision of an ET that the dismissal of the employee for a lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case. Longmore LJ said:

"18. …The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come. But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer. The ET made it more than plain that that was the test which they were applying, see paras 7.5 and 8.3 of the ET decision. The EAT apparently did not believe that the ET decision were being true to their word, but there is just no evidence of that.

19. It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt sometimes, difficult and borderline decisions in relation to the fairness of dismissal. An appeal to the EAT only lies on a point of law and it goes without saying that the EAT must not, under the guise of a charge of perversity, substitute its own judgment for that of the ET."

(See also Stanley Burnton LJ at para 13, and Laws LJ, agreeing with both judgments, at para 20).

1. In another recent case, [Salford Royal NHS Foundation Trust v Roldan]() [2010] EWCA Civ 522 Elias LJ made the preliminary observation at paragraph 51:

"… It is not disputed that the Tribunal properly directed themselves in accordance with the principles established in Burchell v British Home Stores, as further explained in a case of this kind by A v B. In these circumstances, save at least where there is a proper basis for saying that the Tribunal simply failed to follow their own self-direction, the EAT should not interfere with that decision unless there is no proper evidential basis for it, or unless the conclusion is perverse. That is a very high hurdle. In Yeboah v Crofton [2002] IRLR 634 Mummery LJ said that this would require an 'overwhelming case' that the decision was one which no reasonable tribunal, properly appreciating the law and the evidence, could have made'."

Arriva Trains Wales v Ms F. Conant

1. Mr Howells submitted that the ET, by its majority decision, substituted its own views for those of the employer on the fairness of the dismissal.

1. In Mr Howells submission the case turns on the ET's analysis of the tampering issue. If the Claimant's cash bag had been tampered with then there would have to be an investigation of all persons who had come into contact with the cash bag. However if the cash bag had not been tampered with, then logically the only person on whom the investigation needed to focus was the Claimant. For the reasons given in the minority decision at paragraphs 36 and 37, Mr Howells submits, Arriva Trains "was entitled to come to the conclusion that the cash bag was sealed from the time of the Claimant's involvement with the bag" (para 38), and had not therefore been tampered with. In particular Arriva Trains was entitled to rely, Mr Howells submits, on the following matters:

i) the Claimant had told them that she had correctly sealed the cash bag;

ii) witnesses had told them that the cash bag was sealed on their handling of the bag;

iii) they had received no indication from Loomis that the cash bag had been tampered with in any way;

iv) the cash bag had some £20 notes wrapped in an elastic band; if the cash bag had been tampered with only some of the £20 notes had been removed and not all of those notes, and the elastic band had been replaced. Further the coins remained the same as recorded by the Claimant when the bag was opened which did not suggest that the £20 notes had inadvertently gone missing;

v) the discrepancies in the statements taken from witnesses were not of significance when considering whether the bag had been tampered with;

vi) the CCTV evidence does nothing to establish that the cash bag was tampered with.

1. We consider that the majority analysed the evidence with care. The Claimant's cash bag had been destroyed by Loomis. Little detail can be made out from the CCTV footage. There was, the majority concluded, therefore no evidence before the Respondent that the cash bag had not been tampered with. In the view of the majority the Respondent could not properly conclude, on the balance of probabilities, that no other person, who had been involved with dealing with the cash bag, had removed monies rather than the Claimant.

1. Against the background of the absence of the original cash bag and the limited view on the CCTV footage, and in the light of the discrepancies in the accounts given by Sarah Pritchard and Julie Sanderson, particularly in relation to sealing the outer bag, a reasonable employer would, Mr Smith submits, be put on notice that further investigation was necessary. At paragraph 32.6 of the judgment the view of the majority is stated in the following terms:

"The majority consider that a reasonable employer would have conducted further interviews with both Julie Sanderson and Sarah Pritchard, confronting Julie Sanderson with her own earlier account and that of Sarah Pritchard, and confronting Sarah Pritchard with both accounts of Julie Sanderson, in order to test the version of events that they had given."

1. The majority were concerned that "the Claimant was suspended when others were not suspended, and that was done on the basis of an assumption of the Claimant's guilt, and therefore that the investigation was unnecessarily narrowed and others were not suspended in the same process" (para 32.8). The majority noted that there had been an investigation on a previous occasion into lost money, involving two individuals. On that occasion the Respondent came to a conclusion that one or other had stolen the money, but could not establish which of them had done so. The Respondent chose in those circumstances, not to dismiss either. The majority considered that where there was doubt that the Claimant was the only person who could have access to the contents of the bag, on the basis of how the Respondent had proceeded on that earlier occasion, the Respondent could not reasonably dismiss the Claimant.

1. In support of this submission Mr Smith referred to the interview of Julie Sanderson where Mr Howe:

"…explained to Julie that she was not being suspended primarily because of evidence from Loomis which was not disclosed to her. This is due to Loomis destroying Fran Conant's revenue bag which could have been viewed to see if anything untoward had happened to it."

At the end of the interview Mr Howe "thanked [Julie Sanderson] for her honesty".

1. This interview with Julie Sanderson was before the Investigation Meeting hearing with the Claimant on 12 August 2009. The destruction of the Claimant's bag was given as the reason for not suspending one suspect, Julie Sanderson, but apparently it did not remove or diminish the suspicion from the Claimant.

1. There were in fact inconsistencies in what Julie Sanderson had said in her interviews. In the interview that took place before 12 August 2009 she said that Sarah Pritchard did not seal the grey bag, that is the outer Loomis bag, but that she did. This was in contrast to her account in the interview on 12 August 2009 where she indicated that she could not recall if she had remained in the office while Sarah Pritchard sealed the outer bag. This discrepancy was noted by the ET at para 14.1 of the Decision. The notes of the interview with Julie Sanderson on 12 August 2009 include the following explanation by her as to her movements on 19 July 2009:

"I booked on at 06.00 a.m. Sarah Pritchard arrived next and then Fran Connant about 20 minutes later. I emptied the first three TVM's then the safe. I got the accounts bags out of the safe. I put the data bags in a plastic bag for Maureen Mills ready for her to collect and take over to St. Mary's House. I put the bag ready by window 1 and 2 for her to collect at approximately 07.30 a.m.

There were three cash bags left. Mine, FC and Ceri Goode's from the Sunday Shift. I took the bags to the Supervisor's office with a Loomis outer bag. I was on my own in the office. All the cash bags were sealed. I checked that the amount of the yellow copy of the shift sheet matched the amount on the ladder list on the computer. Nothing was untoward. I put the bags in the outer Loomis bag. Sarah Pritchard took them all out again and double checked in front of me that they were all there. She put them all back in the bag and sealed it. [Emphasis added]. I cannot recall whether I stayed in the office while SP sealed the outer bag. …"

At the earlier interview Julie Sanderson had said:

"I …placed the revenue bags in the Loomis collection bag and sealed it using the rip-off seal." (Emphasis added).

1. A few minutes after Julie Sanderson was interviewed on 12 August 2009, Sarah Pritchard was interviewed. She was asked the same question with regard to her movements on 19 July 2009. Mr Wayne Cresswell, Assistant Station Manager, asked her:

"Did you see [Julie Sanderson] seal the outer bag?"

She replied:

"No. I did not see her put the bag in the transfer box."

This, Mr Smith suggests, and we agree, was a strange question as only a few minutes earlier Ms Sanderson had told Mr Cresswell that Sarah Pritchard had sealed the outer Loomis bag.

1. The Claimant had said that she had sealed her bag on 19 July 2009 and that the other two clear bags were sealed (see her letter dated 3 August 2009). Sarah Pritchard confirmed they were all sealed. However she did say that "the clear bags do not stick well".

1. In our judgment the majority gave themselves a clear and correct self-direction (paras 30 and 34 of its Decision) which they then applied. Having considered the evidence relating to the investigation as a whole the majority were, in our view, entitled to make the findings and reach the conclusions that they did. The reasoning of the majority is set out in detail in paragraphs 30-34 of the Decision. The majority were entitled to consider that:

"[Arriva Trains] could not properly conclude, on the basis of probabilities, that no other person, who had been involved in dealing with the cash bag, had removed monies rather than the Claimant." (Para 31.2); and

"there were sufficient important discrepancies in the accounts given by Julie Sanderson, in comparison with, both other accounts given by herself, and those given by Sarah Pritchard, as to the start of the Monday morning's work, so as to put a reasonable employer on notice that further investigation was necessary." (Para 32.3, and see paras 32.4-32.7).

1. We do not consider that the majority substituted their own views for those of the employer.

Yellow Pages Sales Ltd v Mr R Walsh

1. Following the Claimant's disciplinary hearing, Ms Michelle Johnson wrote to him on 3 June 2009 confirming his dismissal. She wrote, inter alia, as follows:

"In summary, I found that you have failed in your capacity as a Telesales Manager to exercise appropriate judgment, act responsibly and take all appropriate and reasonable steps to ensure compliance to the credit check policy and high risk policy.

Specifically, you have failed to

* Take appropriate action, based on information available to you, with regards to 21 accounts, passed to you via e-mail either from credit assessment or customer services teams.

* Take appropriate action with your consultants, specifically

* In the creation of either low risk classifications and booked into high risk classifications or

* Where consultants have booked customers into low risk classifications when advert copy dictated high risk classifications.

It is my belief that, on the balance of probability, you could not have failed to see an emerging pattern and that you chose not to have the necessary meetings with your consultants nor act upon the findings presented to you. As a result of this, you and your team would have or did gain both performance recognition and bonus payments against these accounts.

Your actions have meant that you have failed to protect the best interests of Yell, which is a serious breach of the Code of Practice and that you have been wilfully negligent in carrying out your work responsibilities which is a breach of the Code of Conduct.

It was therefore my decision that you were summarily dismissed for gross misconduct."

1. The Code of Conduct under the heading "Gross Misconduct" states, so far as relevant:

"Certain acts of misconduct may be so serious that they destroy the employment contract between Yell and the individual and make any further working relationship and trust impossible. When, at the end of the disciplinary process, the working relationship and trust has been adversely affected, the normal consequence will be Summary Dismissal (i.e. dismissal without notice) unless there are mitigating circumstances. The following are types of gross misconduct that Yell will not tolerate and which will result in summary dismissal (this list is not exhaustive):

* Gross negligence in carrying out work responsibilities"

1. Paragraph 47 of the Decision records:

"One of the members of the Tribunal asked Michelle Johnson whether she had considered alternative sanctions rather than dismissal for the Claimant? She said that she had considered the possibility of demoting him to a sales role but in her opinion he was knowingly and willingly negligent so this was not a retraining issue. He had ignored breaches of company policy."

The Code of Conduct makes no reference to "wilful negligence".

1. Before the Tribunal the two issues were, applying the correct test, whether:

i) the Claimant had been grossly negligent in carrying out his work responsibilities; and

ii) if he had, whether his dismissal was fair in all the circumstances.

1. The material parts of the Decision of the ET state:

"79. The dismissal letter finds the Claimant to have been 'wilfully' negligent in carrying out his work responsibilities. On the basis that 'wilful' requires an intention to act in a particular way, we take the view that the Claimant was not wilful and we do not find that there was any dishonest intention on his part.

80. The examples of gross misconduct in the Respondent's disciplinary procedure include 'gross negligence in carrying out work responsibilities'. The wing members of the Tribunal take the view that the Claimant was negligent but that he was not grossly negligent. Given the lack of a job description for the Claimant, the lack of any management training of the Claimant, the fact that matters were under investigation for 12 months with no opportunity given to the Claimant to rectify matters, taking into account the previous good record of the Claimant and the fact he was doing extra work in the interests of the company at the time in question lead the wing members to the conclusion that the employer could not have reached a reasonable belief that the Claimant was guilty of gross negligence in carrying out his work responsibilities. They therefore conclude that the dismissal was unfair on this basis. They would also conclude that even if the Claimant had been grossly negligent then for the reasons set out above the decision to dismiss was not within the band of reasonable responses. Dismissal was too severe given the surrounding circumstances and the Claimant's previous clean disciplinary record.

81. The Employment Judge takes the view that the dismissal was fair. Whilst agreeing with the members that the Claimant was not wilfully grossly negligent in carrying out his work responsibilities, the Judge takes the view that the Claimant did not have to be wilful. It is sufficient if he was grossly negligent. It is for the employer to come to a conclusion on this based upon the knowledge of the employer's disciplining managers as to what standards might reasonably be expected within the business. The Employment Judge takes the view that Michelle Johnson did have a genuine, if over-stated, belief of gross negligence in carrying out work responsibilities and that this followed a reasonable investigation where all relevant matters had been handed over to the Claimant for his perusal and consideration prior to a disciplinary hearing at which he had every opportunity to put forward his case.

82. Given that gross negligence comes within the examples of gross misconduct the Employment Judge takes the view that the decision to dismiss was in the circumstances reasonable and that the dismissal was fair."

1. First, the issue of gross negligence. Mr Neaman submits that the use of the words "we take the view" in paragraph 79 and "the wing members of the Tribunal take the view" in paragraph 80 are the clearest indication that the majority was substituting its own view for that of the employer. However in our judgment paragraph 80 must be read as a whole. The wing members conclude that "the employer could not have reached a reasonable belief that the Claimant was guilty of gross negligence in carrying out his work responsibilities". When those words are read together with the reference to "the band of reasonable responses" in the same paragraph, in relation to whether the dismissal was fair, we consider that the wing members did give themselves the correct self-direction.

1. The ET was unanimous that the Claimant was not wilfully grossly negligent in carrying out his work responsibilities. However as the Employment Judge observed, the issue was whether he was grossly negligent; he did not have to be wilful (para 81).

1. Mr Neaman submits that most if not all of the factors the majority took into account when deciding that no reasonable employer could have regarded the Claimant as grossly negligent were factors which they were simply not entitled to take into account. In summary Mr Neaman's submissions in relation to those factors were as follows:

i) Previous good record: conduct is either grossly negligent or not, based on an evaluation of that conduct against a standard set for the reasonable employee in the Claimant's position. What the Claimant had or had not done in the past is not relevant. A previous good record goes, if at all, to the question of whether dismissal is a reasonable sanction. **

ii) Doing extra work for the employer: the fact that the Claimant was doing extra work at the time may be an explanation for why the act of gross negligence occurred, but it is not relevant for the purposes of assessing the degree of negligence. Again, if at all, this factor is relevant to the question as to whether dismissal was too harsh a sanction.

iii) No opportunity given to rectify matters in a twelve-month period: the Claimant's case was not that he was not given an opportunity to rectify matters, but that he did what he considered was necessary. However what he did was manifestly not sufficient to solve the problem.

iv) and (v) Lack of job description and training: these factors on their own could not make a decision by an employer that a negligent employee was grossly negligent be one which was outside the bands of reasonableness. Whilst the tribunal accepted the Claimant's evidence that he did not undertake an intensive training course, the Claimant was employed as a Telesales Manager and the tribunal concluded "that it would be for a manager to manage which includes being aware of company policies, the work done by his team and their methods of working" (para 7); and he had considerable experience of management within the company.

1. Mr Isaacs attempted to support the position of the majority on the relevance of the five factors to the issue of gross negligence. The allegation of gross negligence involves the contention that the Claimant should have performed his work differently. Training assists in understanding how a job should properly be done; so does a job description. The lack of opportunity to rectify matters is also relevant. The Claimant did take action, but the criticism is that he did not do enough. If he had been told the precise nature of the problem, instead of just been copied in on e-mails, he would have been in a better position to rectify matters. His previous good record is relevant when considering whether he acted wilfully on the occasions under consideration. Finally the additional duties he was performing are again relevant when considering whether he was acting wilfully in failing to do that which he should have done.

1. We do not consider these factors are strictly relevant to the issue of how "gross" the negligence was. They do not, individually or cumulatively, have the effect of taking the decision of Yellow Pages that the Claimant had been grossly negligent outside the band of reasonable responses.

1. The factors identified are however in our judgment all relevant to the question whether it was reasonable to dismiss the Claimant for the conduct in question. It appears from the wording of the letter of dismissal (see para 47 above) that having decided the Claimant was "wilfully negligent" and that amounted to gross misconduct, it followed that he would be summarily dismissed. It does not appear that any mitigating factors were taken into account. That this was the approach adopted by Yellow Pages is confirmed by the evidence of Ms Johnson that because in her opinion he was "knowingly and willingly negligent", this was not a retraining issue and there was therefore no alternative sanction to dismissal.

1. The Employment Judge took the view that as "gross negligence comes within the examples of gross misconduct… the decision to dismiss was in the circumstances reasonable and that the dismissal was fair" (para 82 of the Decision). However the majority reached a different conclusion. In our judgment they performed the task that was required of them by s.98(4) of the 1996 Act and they reached the conclusion for the reasons they set out that the decision to dismiss was not within the band of reasonable responses. They were perfectly entitled by reason of the findings of fact made by the ET to reach the conclusion that "dismissal was too severe given the surrounding circumstances and the Claimant's previous clean disciplinary record" (para 80 of the Decision). There was no error of law made by the majority that in our judgment would justify interference with that conclusion by this Tribunal.

1. Mr Isaacs pointed to material findings of fact made by the ET that the majority were entitled to have regard to when considering "the surrounding circumstances" and reaching the conclusion that they did, that dismissal was outside the range of reasonable responses:

i) The Claimant did not undergo an intensive training course (para 6).

ii) He was not provided with any job description (para 7).

iii) Yellow Pages "Crystal Clear" policy states, "It remains the responsibility of our First Line Management team to ensure that this is effectively communicated to all staff and incorporated into the post-induction programme". The Claimant was a First Line Manager for the purposes of the policy. He had trained his team (and indeed the entire Manchester office) on the policy. However, it is the responsibility of the sales consultant to ensure that all orders processed meet the criteria and all customers have a verified intent to pay (para 12).

iv) The Claimant was copied into correspondence by Credit Control and where he needed to ask his consultants to get checks or contact customers he did so. The Claimant took the action he felt necessary by speaking to consultants (paras 15, 19, 24, 25, 29, 32, 34). For example

"The Claimant accepted that high-risk copy for [a customer] was sold into low-risk and that there was a pattern. The Claimant says he acknowledged there was an issue here and took action appropriately with the consultant and that this is clear from the notes. Looking at the notes the Claimant says he was aware of the activities and that he spoke to the consultant who said he had done something inadvertently. He told the consultant not to do it again. Had it not been the first time then the Claimant would have taken action but he did not because this had been an error. He thought his conversation with the consultant was appropriate and did not tell anyone about it because he had no-one directly to report to at that time." (Para 25, see also para 28).

v) The orders that were irregular form less than 1% of the total orders (para 31).

vi) There was no investigation into what actions the Claimant did or did not take (para 37).

vii) The Claimant had never been trained to perform quality checks (para 48).

Further Mr Isaacs observes there is no challenge in the appeal to the unanimous finding of the ET that the Claimant was not wilful.

1. Mr Neaman suggests that the words "for the reasons set out above" in para 80 of the Decision is a reference to the five factors identified by the majority as indicating there was no gross negligence, and that the decision of the majority on the reasonableness of the sanction was based exclusively on those factors. That submission overlooks the statement by the majority that the decision to dismiss was too severe both "for the reasons set out above" and "given the surrounding circumstances", the latter words include, in our view the findings of fact made by the ET referred to in para 59 above. Even if we are wrong about that we consider that on the basis of the five factors alone the ET was entitled to conclude that the decision to dismiss was outside the band of reasonable responses.

1. After the conclusion of the oral hearing we received further written submissions from Mr Neaman in a letter dated 24 November 2011 and a response from Mr Isaacs in a letter dated 29 November 2011. We note that understandably Mr Isaacs objects to us taking Mr Neaman's late submissions into account, in particular as the Appellant now wishes to raise a new argument that "special treatment by the ET in its reasoning" is required if (i) it decides a dismissal was outside the range of reasonable responses, (ii) that decision was based on information known to the employer but not referred to by the employee during the disciplinary process. In our judgment it is too late for Mr Neaman to raise a new point of law. We are satisfied that the five factors relied upon by the majority were known to the employer at the time they decided to dismiss, and the ET was entitled to take the view that a reasonable employer would have regard to them (whether or not they were specifically raised by the employee during the disciplinary process).

1. During the course of the oral hearing Mr Neaman withdrew the ground of appeal relating to the burden of proof (Ground 4) and Mr Isaacs withdrew the cross-appeal relating to the investigation.

1. For these reasons we conclude that the majority has not erred in law. We do not consider that the majority has substituted their own views for those of the employer.

Mrs S Harber v Kelly Residential Limited

1. The Notice of Appeal set out a number of grounds of appeal, but before us the principal point in issue was the reasonableness of the investigation (Ground 5). Paragraph 37 of the grounds of appeal states:

"The Appellant avers that … the tribunal failed to consider, or determine the alleged failure of the Respondent to investigate the possibility of an error of understanding based on an obscured observation by the eye witness or a mistake of interpretation/recollection by Ms Edwards."

1. The critical evidence is set out in paragraphs 8 and 9 of the Decision:

"8. Miss Bould concluded that the Claimant had completed a PR examination and had failed to document this. She considered both to be gross misconduct. The evidence on which she based her conclusions was set out in the witness statement of Andrea Thomas and Pauline Edwards. Andrea said that:

'On Thursday 25 December I was putting X to bed when I noticed there was blood on her pad. I rang the assistance bell to which one of the other carers came down to answer it. I asked her to get Suzanne for me and told her why. Suzanne came to X room to have a look. She put on some gloves, she put her finger up back passage to check if the blood was coming from there. When she pulled her finger out it was covered with poo. She said the blood wasn't from there so she put some clean gloves on and told X that she was going to examine her front passage which she then put her finger in her front passage. X flickered when this happened. Suzanne then took her finger out and said there were no clots and so keep an eye on it. I can't tell how much blood was on the pad because it was mixed with urine. Whilst this happened X was on her right side in the foetal position and I was in the room the whole time. I honestly didn't know at the time that what Suzanne did was wrong as she is a nurse and I believed that she knew what she was doing.'

9. Pauline Edwards statement read as follows:

'I was on duty with Suzanne Harber and we were discussing any problems that had arisen with residents whilst I hadn't been here. She mentioned that a carer had noticed blood on X pad and was not sure where it had come from. She then stated she had done a PR examination on X to make sure it was not a PR bleed.'

10. Jane Styles' statement read as follows:

'On December 26th 2008 I was on duty. At handover I was informed that a resident, X, had blood in her pad, could we keep an eye on her. Later on in the morning I was asked by a carer had I heard what the nurse Suzanne had done to X. No, I replied. I was then told that Suzanne had put her finger up X bottom to check for blood clots, then changed her gloves and put her finger up the front. I asked the carer has she informed anyone of this. No, she replied. I felt it was my duty to X that I report this incident so told Jane Ferriday, Deputy Matron when she came on duty on Saturday 27th December 2008.'

11. Miss Bould also took account of the fact that she was aware of the layout of the Home including the room and the position of the carer and the Claimant would have been in when concluding that she believed the carer's account… Miss Bould checked the cardex records and found that even on the Claimant's explanation for what she had done, the records were inadequate. She could see no reason for either the carer or Miss Edwards giving false information to her about the Claimant's behaviour and chose to believe the accounts that they had given. …"

1. Mr Powell submitted that the ET erred in concluding that the investigation conducted by the Respondent was reasonable.

1. It is not suggested that the tribunal did not apply the correct test.

1. In their conclusions at paragraph 17 of the Decision the tribunal state:

"17.2 …[the Respondent] clearly believed the misconduct had occurred. Did they have reasonable grounds on which to sustain that belief? As explained above, there was no reason for them to believe that Andrea Thomas was either mistaken or lying. The Claimant alleges she could not remember which carer had called her to the room that day and which carer had been present during the time she was with the service user. This does not suggest any level of animosity at all but rather indifference to each other's presence. The employer had the statements of the carer and Miss Edwards. They were challenged by Miss Whitehouse and neither changed their accounts in any way. The Respondent therefore had reasonable grounds upon which to sustain the belief that the Claimant had been guilty of misconduct.

17.3 Having formed the belief, had the employer carried out as much investigation into the matter as was reasonable in the circumstances of the case. This case is affected by the case of A v B referred to above. This is a serious allegation which could potentially be career ending and at its highest is alleging the abuse of a service user, vulnerable adult. Statements were taken from an eye witness and subsequently from a witness who came forward to explain a conversation she had had with the Claimant. The service user was too frail to be interviewed. Who else could the Respondents have asked? There were no other witnesses in the room at the time the incident occurred. The Respondent could have asked the handover nurse what the Claimant had said to her. There was no suggestion from the Claimant or others that the Claimant had done anything other than ask the handover nurse to keep an eye on the situation. The handover nurse had not been present when this incident occurred. All of the witnesses were re-tested by Miss Whitehouse at the appeal stage that she spoke to each of them and none changed their account. The tribunal has concluded that at the time that the Respondent formed the belief they had carried out as much investigation into the matter as was reasonable in all of the circumstances, allowing for the extraordinarily serious nature of these allegations."

1. Mr Crow submitted that the ET was entitled to reach the conclusion that it did with regard to the reasonableness of the investigation on the basis of the findings made by the tribunal and set out in the Decision:

i) Andrea Thomas was found to have given the same account to Jane Styles on 26 December 2008, to Jane Ferriday on 28 December 2008, and by written statement (paras 5 and 6);

ii) Ms Thomas's account included what she heard the Appellant say, as well as what she saw (para 8);

iii) Miss Edwards' statement about her conversation with the Appellant on 26 December 2008 was given on 30 December 2008 i.e. relatively contemporaneously (para 6);

iv) The eye-witness evidence was not just of the PR examination itself but the effect of it (faeces on the finger, flinching/flickering)(paras 8, 12 and 17.2);

v) Miss Bould took account of the layout of the room, the relative positions of the two carers and the client, the size of the client and the view that Miss Thomas would have had (para 11);

vi) The lack of antipathy on the part of Miss Thomas (para 11).

1. We reject the submission made by Mr Powell that when the Appellant alleged Miss Thomas was mistaken as to what she saw, the Respondent should have gone back to her and questioned her further.

1. In our judgment the ET did not err in law. Applying the correct test the tribunal concluded, as they were entitled to, that the investigation carried out by the Respondent fell within the band of reasonable responses; and so did the decision to dismiss the Appellant.

1. The other grounds of appeal we can deal with very shortly:

i) The Appellant complains that the Respondent failed to inform her in advance of the disciplinary hearing that a legal representative could attend on her behalf (ground 2). This ground of appeal arises from paragraph 17.4 of the Decision where it is stated that

"The Claimant at no stage asked if she could have a lawyer present and indeed both Miss Bould and Miss Whitehouse indicated that if she had asked to bring a lawyer along to either hearing that request would have been granted."

However that evidence was given in the course of cross-examination. There is nothing in the Decision to indicate that if the Respondent had been asked before the disciplinary hearing commenced they would have allowed a legal representative to attend.

ii) The Appellant complains that she did not have an opportunity to cross-examine Miss Edwards on her witness statement. (Ground 3). She was given the statement at the disciplinary hearing and did not ask for time to consider it or to cross-examine her. At paragraph 17.6 of the Decision the tribunal noted that an employer's refusal to allow an employee, at a disciplinary hearing in respect of charges of misconduct, to cross-examine the employees who had made the allegations against her did not render the employee's subsequent dismissal unfair. Although the employer must act fairly, fairness does not require a forensic or quasi-judicial investigation. The Claimant appealed and raised this as an issue at the appeal stage. However the Claimant did not attend the appeal on the advice of her solicitor. In the circumstances this ground of appeal cannot succeed.

iii) Finally the Appellant contends that the Respondent was unreasonable in refusing her application for a delay in the appeal to a date after the police investigation had been completed. The police inquiries were in fact concluded by 14 May 2009, but at the material time the Respondent could not have known that that would be the case. In any event the police inquiries led to the Claimant being charged, and she remained on bail for a substantial period of time until her case came before the Crown Court, where subsequently it was dropped. We agree with the ET that there was no reason for the Respondent to wait for the outcome of the criminal investigation and any trial before hearing the appeal. As the tribunal observed "the criminal investigation is different and dealing with different issues" (para 17.6).

1. Paragraph 17.6 of the Decision concludes as follows:

"… The tribunal is satisfied that the appeal was properly held regardless of her attendance. Miss Whitehouse undertook a thorough and detailed examination of the circumstances that had led to the Claimant's dismissal. She reached the same conclusion as Miss Bould and did so after undertaking a full independent review of the evidence that had been available to Miss Bould at the time, and by confirming that all of that evidence was accurate and right.

That being the case the tribunal has concluded firstly that the Respondent did have a genuinely held belief in the Claimant's misconduct such that justified summary dismissal and further that they reached that belief following a fair and thorough investigation. The procedure that was followed by the Respondent met the requirements of section 98(4) of the Employment Rights Act 1996 and fell firmly within the band of reasonable responses of a reasonable employer faced with these particular circumstances. …"

1. Shortly before the hearing before us commenced the challenge based on Article 6 of the European Convention on Human Rights was withdrawn (Ground 1). At the conclusion of the hearing Mr Crow made an application that the costs relating to this ground be paid by the Appellant to the Respondent. He limited his application to the period after [Regina (G) v Governors of X School (Secretary of State for the Home Department and another intervening)]() [2011] 3 WLR 237 was decided by the Supreme Court on 29 June 2001. We refuse the application. Those advising the Appellant should have appreciated within a reasonable time of the Supreme Court decision that this ground of challenge would not succeed. However it was not until Mr Crow's skeleton argument for this appeal was served that the Respondent took the point. In all the circumstances we have concluded that there has not been unreasonable delay or other unreasonable conduct by the Appellant that would warrant the making of a costs order.

1. In our judgment for the reasons we have given the appeals in these three cases all fail.