The claimant installed cavity wall and loft insulation for the respondent which meant that he had to use a ladder with a safety harness and clip that harnessed onto the ladder. Failure to do this was classed as gross misconduct and dismissal was a possibility. The claimant was observed from afar by 2 managers, who just happened to be passing the property the claimant was working on, not to be clipped on and was dismissed, despite statements from a colleague and the home owner supporting the claimant’s case that he was clipped on. The Tribunal found, by a majority, that the claimant was unfairly dismissed because it was suspicious that the managers happened to be passing the property at the time and they could not honestly have formed the view they said they had. The respondent appealed.

The EAT reminded themselves of London Ambulance Service NHS Trust v Small and Fuller v London Borough of Brent, which considered the question of ‘substitution mindset’. The respondent submitted that the Tribunal had fallen into error by substituting its view for that of the respondent, effectively re-hearing the charges and acquitting the claimant of them. The EAT agreed. The majority at the Tribunal had formed the opinion that the managers could not honestly have formed the view they said they had: this was plainly the majority’s own findings and opinion. Their reasoning did not address the correct legal question which was: did the person who took the decision to dismiss the claimant consider that the managers honestly formed the view they said they had, and if so was it reasonable for him to form that conclusion?

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Appeal No. UKEAT/0007/11/SM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16 May 2011

Before

HIS HONOUR JUDGE RICHARDSON, MR B R GIBBS, MR B M WARMAN

EAGA PLC (APPELLANT)

MR A M TIDESWELL (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant
MR ASHLEY SERR (of Counsel)

Instructed by:
Watson Burton LLP Solicitors
1 St James Gate
Newcastle upon Tyne
NE99 1YQ

For the Respondent
MR A M TIDESWELL (The Respondent in Person)

**SUMMARY**

UNFAIR DISMISSAL – Reasonableness of dismissal

The Employment Tribunal's reasons show that the majority did not correctly apply section 98(4) of the Employment Rights Act 1996.

**London Ambulance Service NHS Trust v Small **[2009] IRLR 563 and **Fuller v London Borough of Brent **[2011] EWCA Civ 267 considered.**HIS HONOUR JUDGE RICHARDSON**

1. This is an appeal by EAGA plc ("the Company") against a judgment of the Employment Tribunal (Employment Judge Trayler presiding) dated 21 October 2010. By a majority the Employment Tribunal upheld a complaint of unfair dismissal brought by Mr Adam Tideswell.

**The background facts**

1. The Company carries on business in the installation of cavity wall and loft insulation. Mr Tideswell was employed by the Company as an installer between 18 February 2008 and 18 January 2010 when he was dismissed for alleged gross misconduct.

1. In 2009, following a fatal accident at work, the Company introduced a "zero tolerance" policy concerning certain safety measures. Under this policy it was classed as gross misconduct if an employee using a ladder failed to wear a safety harness and clip that harness onto the ladder.

1. On 15 December 2009 Mr Tideswell was installing cavity wall insulation at a property in Sheffield. He was working in the company of another employee, Mr Houlston. Unknown to them two of the Company's managers were in the area – Mr Corbally, a depot operations manager and Mr McFarlane, a health and safety manager.

1. It was the Company's case that Mr Corbally and Mr McFarlane saw Mr Tideswell working on a ladder without having his harness clipped to it. They also saw him walking on a sloping roof without any prescribed safety equipment, and noticed that he was not using ear protection or eye protection which the Company provided. They introduced themselves. They said Mr Tideswell had not been clipped on. He said he had. They allowed Mr Tideswell and Mr Houlston to finish the installation; but when Mr Tideswell returned to the depot he was suspended on full pay.

1. The Company obtained a report from Mr Corbally. In his report Mr Corbally used what might be thought to be rather guarded terms about the attachment of the harness. He said, speaking of different points during his observation, "it was not apparent that Adam had attached his harness to the ladder" and "I do not believe that Adam had hooked his harness onto the ladder". There was also a statement from Mr McFarlane that Mr Tideswell made no attempt to secure the hook to the ladder.

1. A disciplinary hearing took place starting on 8 January 2010, concluding after an adjournment on 18 January 2010. It was chaired by Mr Collings, an Operations Manager from a different depot. The charges were, in summary, failing to (1) clip on, (2) use a roof access system (on the sloping roof), (3) wear eye protection, (4) wear ear protection. The first two charges were identified as ones which would constitute gross misconduct. Mr Tideswell was given the material on which the Company relied in advance of the hearing.

1. At the hearing Mr Tideswell asserted that he had clipped on. During the course of the hearing he produced statements from his colleague Mr Houlston and from the home owner Mr Green supporting his case that he had clipped on. He also produced photographs of the property. He suggested that Mr Corbally and Mr McFarlane would not have had a sufficient view of him on the ladder to say with any certainty that he was not clipped on. He said that the way Mr Corbally described the matter in his report was non-committal and showed that he was not sure himself. Mr Corbally, however, said that he could see Mr Tideswell clearly; moreover when Mr Tideswell moved from the ladder to the roof he had not unhooked himself; he could not have been clipped on.

1. Mr Collings rejected one of the two serious charges. The roof was gently sloping; there was no clarity as to what slope of roof could be worked on without a roof access system; so no action would be taken on that charge. However he accepted that Mr Tideswell had not clipped on, found that this constituted gross misconduct and dismissed him. The lesser charges – relating to eye and ear protection – had been admitted but were not critical to the decision to dismiss.

1. An appeal took place on 4 February 2010. Mr Tideswell maintained that he was clipped on and that Mr Corbally and Mr McFarlane were mistaken. After time was taken for consideration the appeal was dismissed on 17 February 2010. Mr Stirling, the Regional Managing Director who took the appeal, wrote a careful letter giving his reasons.

**The Tribunal's hearing and reasons**

1. The Tribunal heard the case on 8 September 2010. Mr Tideswell represented himself; the Company was represented by a solicitor. It was common ground that Mr Tideswell was dismissed for misconduct and that, if he failed to clip on that would be misconduct for which it would be reasonable to dismiss him. He denied that he committed that misconduct. On the Company's side the Tribunal heard evidence from Mr Corbally, Mr Collings and Mr Stirling. It did not hear evidence from Mr McFarlane. Mr Tideswell gave evidence and called Mr Houlston and Mr Green.

1. In its reasons the Tribunal set out an accurate statement of the applicable law. It reached its decision by a majority, the Employment Judge dissenting. It is the reasoning of the majority with which we are primarily concerned. We will set it out.

"5.7. The majority of the Tribunal (Mrs Ennals and Mr Perks hereinafter referred to as "the majority") decided that the Respondent had not acted reasonably and that therefore the dismissal is unfair. Employment Judge Trayler (the minority) decided dismissal was fair as the Respondent had acted reasonably.

5.8. The decision of the majority as it prevails in this case is set out first. The majority decision is that the Respondent did not have sufficient evidence before it to reach the conclusions that it did neither did the Respondent carry out a fair investigation.

5.9. Firstly the Respondent did not have any justification for believing the evidence of Mr McFarlane and Mr Corbally in preference to that of Mr Tideswell, Mr Houlston and Mr Green. This is in relation to each of the ascends of the ladder (three in number).

5.10. Mr Corbally's explanation of being able to see the first two ascends of ladders from a garden some distance away with sufficient clarity as to determine whether Mr Tideswell had fastened his harness to the ladder was far fetched. The Tribunal majority disbelieve Mr Corbally and the Respondent in the person of Mr Collings and Mr Stirling should also have preferred Mr Tideswell's account. Mr Tideswell explained that Mr Corbally and Mr McFarlane were located in a cul-de-sac some three gardens away. The majority consider it suspicious that Mr Corbally and Mr McFarlane were "passing" the property and given the distance away, the poor light, the report of conifers blocking the view could not honestly formed the view that Mr Corbally said that they did. The majority believe that the explanation of Mr Corbally that Mr Tideswell's left hand had not left the ladder, the drill was in his right hand and the speed with which he started to descend the ladder should not have suggested to him that Mr Tideswell had not hooked onto the ladder. Both Mrs Ennals and Mr Perks take the view that the dexterity to be achieved by repetition of such tasks as these and Mr Perks from the point of view of his previous use of ladders and hook suggests that the hooking on would take such a short amount of time that it would not have been visible to Mr Corbally and Mr McFarlane from the distance they were. It does not in their view show that Mr Tideswell had failed to correctly fasten himself to the ladder. Mr Collings had confirmed in evidence that he was a former fitter himself and should have realised that this was the case.

5.11. So far as the third ascent is concerned Mr Corbally and Mr McFarlane did not give a persuasive explanation of seeing Mr Tideswell unattached to the ladder. Mr Collings and Mr Stirling should have accepted Mr Tideswell's explanation, backed up by Mr Houlston, that he had at all times fastened his harness to the ladder on the first two ascents and had only made the third ascent to access the sloping roof rather than drill. Mr Houlston had explained in his statement and in the Tribunal that he was in a position to see this at all times and was not engaged in work so as to be unable to notice what Mr Tideswell was doing.

5.12. The majority did not believe Mr Corbally and find that it was unreasonable for Mr Collings and Mr Stirling to reach a conclusion that they should. Mr Stirling should have realised that an exaggerated movement of fastening and unfastening the harness which he explained in the Tribunal as being given by Mr Tideswell could not have been performed by a worker on a ladder in that way and it was not reasonable to conclude therefore that Mr Corbally and Mr McFarlane would have seen it if it had happened.

5.13. The majority are critical of the Respondent in failing to obtain its own statement from Mr Houlston and Mr Green, failing to obtain its own photographs or make a site visit. The Respondent failed, in the majority view, to give sufficient weight to what was said by Mr Houlston and Mr Green. It should have formed a view that matters were not as serious as Mr Corbally and Mr McFarlane said because they had left the site for Mr Houlston and Mr Tideswell to complete the work unsupervised purely on the assurance of Mr Tideswell and Mr Houlston that they would work safely. There was also a difference in the way that the Respondent sought further information from Mr Corbally and Mr McFarlane at the time of the disciplinary and appeal hearings yet no further information was requested from Mr Houlston and Mr Green.

5.14. The majority view is that the Respondent took the easiest line and by accepting the version give by Mr Corbally and Mr McFarlane the "management view" was followed and the Respondent gave insufficient weight to the evidence of Mr Tideswell and Mr Houlston. In addition, given the previous safety record of Mr Tideswell of which Mr Collings and Mr Stirling had evidence from Mr Tideswell's colleagues, his previous site assessments and the comments by Mr Corbally in his investigation report should have doubted he had failed to do what was required on 15 December especially when Mr Tideswell and Mr Houlston had been left to conclude the work unsupervised on that date.

5.15. Although Mr Collings had rejected the allegation as to improper working on a sloped roof he had in effect been left with no option in that respect when it became clear that such practice was not unacceptable in practice at the Respondents."

**Submissions**

1. On behalf of the Company Mr Serr submitted that the majority of the Employment Tribunal fell into error by substituting its view for that of the Company, effectively re-hearing the charges and acquitting Mr Tideswell of them. He took us to recent decisions of the Court of Appeal relevant to this question: London Ambulance Service NHS Trust v Small [2009] IRLR 563, [Fuller v London of Brent]() [2011] EWCA Civ 267, and [Bowater v Northwest London Hospitals NHS Trust]() [2011] IRLR 331. He identified parts of the reasoning of the Employment Tribunal which, he said, indicated a "substitution mindset".

1. Mr Tideswell made submissions to us both by skeleton argument and in person. He re-iterated to us that he had been clipped on. He submitted that the majority of the Tribunal was entitled to reach the conclusions it reached. He submitted in particular that the Company had not taken any proper account of the statements of the key eye witnesses, Mr Green and Mr Houlston; the Company had not even obtained statements from them in its investigation; and even when he produced statements from them the Company did not question them, either within or outside the hearing and the appeal. He submitted that this was all the more unreasonable because they were close to the place where he was working at the relevant time, whereas Mr Corbally and Mr McFarlane were approaching from a cul de sac some distance away. He submitted that the fact that Mr Corbally and Mr McFarlane left them to finish working on the site was inconsistent with observation of a serious breach of safety requirements; and they gave statements which altered as the disciplinary procedure continued; so that even at the Tribunal hearing it appeared at one time that there were two observations and at another that there were three.

**Discussion and conclusions**

1. The legal principles are well established. An employment tribunal is required to consider whether the employer carried out a reasonable investigation and, at the time of dismissal, genuinely believed on reasonable grounds that the employee had committed misconduct. In many cases the Tribunal is also required to consider whether dismissal was a reasonable sanction for the misconduct; here, however, that was not disputed.

1. These principles follow from section 98(4) of the Employment Rights Act 1996, which provides as follows:

"98(4) In any other case 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 reason 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. At each stage of the enquiry therefore, the Tribunal is concerned to review the actions, reasons and decisions of the employer, applying the standard of reasonableness.

1. It follows the Tribunal must not reach its decision by making findings of its own and assessing the employer's actions in the light of its own findings. This would be an error because its task is to discover what the employer's findings were and decide whether they were reasonable. The Tribunal must always bear in mind that reasonable people can disagree about their findings. Nor must the Tribunal reach its decision by merely relying on what it would itself have done. This would be an error because its task is to consider why the employer acted and decided as it did and decide whether the employer was reasonable. The Tribunal must always bear in mind that reasonable people can disagree about (for example) how to investigate a case; or conduct a disciplinary procedure; or about what sanction should be imposed.

1. Although this is without doubt the Tribunal's task, it is not necessarily straightforward for a Tribunal to keep it in mind. In the London Ambulance case Mummery LJ explained why this may be:

"43. It is all too easy, even for an experienced ET, to slip into the substitution mindset. In conduct cases the claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer. He has lost his job in circumstances that may make it difficult for him to get another job. He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question – whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal."

1. Mummery LJ went on to emphasise the importance of keeping separate facts which are relevant (on the one hand) to the question whether the employer acted reasonably and (on the other hand) only to questions which the Tribunal must decide for itself, such as contributory fault: see paragraphs 44-46.

1. The role of the Appeal Tribunal (and of the Court of Appeal if there is any further appeal) is quite different. There is an appeal only on a question of law. The sole function of the appellate court is to ensure that the Tribunal has applied the law correctly. This again is not always straightforward. In Fuller Mummery LJ explained the pitfalls which can exist for an appellate court:

"28. Unfair dismissal appeals to this court on the ground that the ET has not correctly applied s.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 EAT members and the members in the constitutions of this court.

29. The appellate body, whether the EAT or this court, must be on its guard against making the very same legal error as the ET 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 ET without committing error of law or reaching a perverse decision on that point.

30. Other danger zones are present in most appeals against ET decisions. As an appeal lies only on a question of law, the difference between legal questions and findings 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.

31. 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 ET, but then overlooked or misapplied at the point of decision. The ET 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 ET 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; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid."

1. As Fuller demonstrates, it is not always easy to evaluate a Tribunal's decision on the question of unfair dismissal when it expresses, in the course of its reasoning, findings or views of its own. In that case the Tribunal's reasoning proceeded by at least in part by reference to its own findings of fact: see paragraph 40 of the judgment of Mummery LJ and paragraphs 59-60 of the judgment of Moore Bick LJ, who would for this reason have allowed the appeal. However, the Tribunal went on to state an answer to the correct question and this was, in the opinion of Mummery LJ, with whom Jackson LJ agreed, sufficient for the Appeal Tribunal to say that the decision was correct in law.

1. It seems to us that where a Tribunal states and answers the correct legal questions an appellate court must be cautious before concluding that its reasoning is vitiated because there is found, somewhere in the mix, reference to findings or opinions which are those of the Tribunal itself.

1. It is an error of law for a Tribunal to say "we think the employer was wrong and therefore the dismissal was unfair". It is not necessarily an error of law for a Tribunal to say both "we think the employer was wrong" and "we do not think the employer could reasonably come to the conclusion he did after the investigation he undertook and therefore the dismissal is unfair". In the latter case, however, it will be important to examine its reasoning lest the reasoning show that the Tribunal has proceeded on its own view rather than its review of the question whether the employer was unreasonable.

1. In summary, it is much better if the Tribunal does not put its own findings into the mix, for then it will be less likely to fall into error, or be accused of falling into error: this is the lesson which Mummery LJ sought to emphasise in the London Ambulance case. But even if the Tribunal does so the appellate court must pay careful attention to its reasoning as a whole to see whether there is, or is not, what Mummery LJ called a "substitution mindset".

1. Against that background we turn to the reasoning of the majority which we have quoted. We have reached the conclusion that the reasoning of the majority does indeed apply the wrong legal test and cannot stand.

1. This, we think is at its clearest where the majority stated its conclusions as to the honesty of the Company's witnesses.

1. The majority stated (paragraph 5.10) that it considered it to be suspicious that Mr Corbally and Mr McFarlane were "passing the property"; and further that they could not honestly have formed the view they said they had. These are plainly the majority's own findings and opinions.

1. This reasoning does not address the correct legal question, which is: did the person who took the decision to dismiss consider that Mr Corbally and Mr McFarlane honestly formed the view they said they had, and if so was it reasonable for him to form that conclusion?

1. We appreciate that in paragraph 5.12 the majority stated that it did not believe Mr Corbally and found that it was unreasonable for Mr Collings and Mr Stirling to do so. However this conclusion is reached by applying the majority's assessment of the honesty of the evidence it heard; and the majority did not address the question whether the person who took the decision to dismiss was reasonable in concluding that the witnesses were honest given the evidence he heard. There is, moreover, a world of difference between saying that Mr Corbally and Mr McFarlane could not honestly hold the view they said they had and saying that they were mistaken.

1. There are other features which point to a substitution mindset: the reliance of one member on his own previous use of ladders (paragraph 5.10); and the reliance on Mr Houlston's evidence to the Tribunal (paragraph 5.11). Whether these features on their own would have vitiated a decision which was in all other respects properly reasoned we doubt. Taken, however, with the majority's reliance on their view of the honesty of the Company's management, we have no doubt that they demonstrate the application of the wrong legal test.

1. For these reasons the appeal will be allowed. This is not a case where the Appeal Tribunal can properly substitute a decision of its own. The Appeal Tribunal deals with questions of law. It is the task of the Tribunal to decide whether the dismissal was fair or unfair, applying the test in section 98(4) of the 1996 Act. Mr Tideswell has arguable – indeed potentially powerful - points to make. The case will be remitted to a differently constituted Tribunal to consider entirely afresh.