The claimant was the subject of disciplinary proceedings, the outcome of which resulted in a suspended dismissal, reduction in pay and downgrading in accordance with the respondent employer’s Conduct Code. He lost the internal appeal against the downgrading, although the length of the suspended dismissal was reduced. The claimant then lodged a grievance which took several months to be completed and was not upheld, by which time the claimant had issued proceedings in the Employment Tribunal claiming unlawful deduction from wages in respect of his downgraded salary. The matter was settled out of court. Just before the ET matter was due to be heard, the claimant was called to a further disciplinary hearing, and warned that he could be dismissed for refusing to accept the downgrade and reduction in pay. He was subsequently dismissed and his appeal was rejected. The claimant claimed that he had been dismissed as a consequence of bringing Employment Tribunal proceedings against the employer and not because he refused to accept the sanctions imposed on him. The ET disagreed and said since there was no evidence that the respondent knew about the ET proceedings before the disciplinary hearing, they were satisfied that neither a public interest nor assertion of statutory right was the reason for the dismissal. They added that the only logical reason for the dismissal was the refusal by the claimant to accept the sanctions, since if he had accepted them he would still be employed.

The EAT had to decide on the approach for dealing with competing reasons for dismissal and considered the burden of proof in discrimination and unfair dismissal claims. They concluded that the basic justification for shifting the burden in discrimination cases was not applicable to unfair dismissal for prohibited reasons. In unfair dismissal claims, the burden was on the employer, there being no need for the employee to set up sufficient facts for that burden to exist. In this case, the Tribunal was entitled to conclude that the employer had satisfied them as to the reason for dismissal. Appeal dismissed.
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Appeal No. UKEAT/0530/09/DM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 September 2010

Judgment handed down on 27 October 2010

Before

HIS HONOUR JUDGE ANSELL

MR M CLANCY

MR I EZEKIEL

MR C M NUNN (APPELLANT)

ROYAL MAIL GROUP LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR RICHARD O'DAIR (of Counsel)
Instructed by:
Messrs Hewetts Solicitors
55-57 London Street
Reading
RG1 4PS

For the Respondent
MR SIMON GORTON (of Counsel)
Instructed by:
Messrs Weightmans LLP
India Building
Water Street
Liverpool
L2 0GA

UNFAIR DISMISSAL – Reason for dismissal including substantial other reason

Consideration of how a Tribunal should approach competing reasons for dismissal.

1. This has been the hearing of an appeal from a decision of a Reading Employment Tribunal chaired by Employment Judge Davey, who following hearings in early September 2009 delivered a reserved judgment and reasons on 28 September 2009 dismissing claims for unfair dismissal, and also unfair dismissal in circumstances where the principal reason was either the assertion of the statutory right or because of the making of a protected disclosure contrary to sections 103A and 104 the Employment Rights Act 1996. This matter comes before us following a sift to a preliminary hearing by HHJ Birtles, and leave given at that preliminary hearing by the EAT chaired by HHJ Serota QC. At that preliminary hearing, grounds 2 and 3 of the Notice of Appeal were abandoned.

1. We take the facts from the Tribunal's decision. The Appellant was employed from 19 September 1989 until dismissal on 11 September 2008. At the time of his dismissal, he was employed as a late-shift manager at the Reading Mail Centre, having been promoted to that position in July 2006. At the time of his dismissal, subject to the dispute between the parties, he was earning £38,520 per annum gross.

1. Unconnected with his employment, on the morning of 16 November 2006, the Appellant's 18-month-old son, Joshua, was badly scalded with hot tea though fortunately the boy faired significantly better than originally suggested. The Tribunal accepted that, for the Appellant, it was a traumatic incident.

1. On 1 December 2006, on arrival at work, he was asked to see his manager, Mr Steele, who questioned him about his managers' leave levels, and he was told by Mr Steele that he was "incompetent". He was also questioned about some first-class postage items that had been found on the night shift the previous evening, about which the Appellant said he knew nothing, and was again told that he was incompetent. Mr Steele apparently said that he had lost confidence in the Appellant's ability to do his job, and suspended him, telling him not to attend again until he was contacted.

1. On 4 December, the Appellant received a telephone message requiring him to attend a meeting at 1.30pm, at which time he was presented with two letters, one inviting him to a fact-finding interview on 6 December and the other suspending him from his duties. On 5 December, the Appellant was signed off sick with stress by his general practitioner. The GP had apparently advised the Appellant that his stress level would increase unless his workplace problem was dealt with expeditiously but did advise Mr Nunn that he should attend the meeting notwithstanding that he had been signed off work. The fact-finding interview on 6 December went ahead, lasting some 2½ hours and Mr Steele making notes. Amongst matters dealt with at that meeting were the granting of leave to certain managers for whom the Appellant was responsible together with some more technical aspects of the mail, which had allegedly not been dealt with during the shift for which the Appellant was responsible, in particular the issue concerning PPI (posters page impression numbers), which the Appellant said he had not received. Mr Steele reported to Mr Willis, who at the material time was the head of processing for the Thames Valley and Gloucestershire area, who determined, upon reading Mr Steele's report, that there was no necessity for disciplinary action, and that the issues of managers' leave and PPI could be best dealt with by way of counselling. However, of concern to both Mr Steele and Mr Willis was the fact that, having taken statements from other people involved, it would appear that the answers given to Mr Steele by the Appellant appeared potentially to be dishonest and given with the intention of misleading Mr Steele. Mr Willis identified six particular sets of circumstances where it appeared that the Appellant had deliberately misled or deliberately and dishonestly misled Mr Steele at the fact-finding interview. There was a further fact-finding interview with the Appellant on 15 January, and, in consequence of that interview, a disciplinary meeting was held on 27 March at which time the Appellant attended supported by his trades union representative, Mr Wilkins.

1. As a result of that disciplinary meeting, Mr Willis produced a report on 1 May 2007 in which he found that five of the six charges against the Appellant were proved, three for misleading Mr Steele and two for dishonestly misleading Mr Steele. Under the terms of the Royal Mail code of conduct, Mr Willis decided that, in the light of the Appellant's dishonesty, there would be a penalty of suspended dismissal, to remain on his record for five years, accompanied by a downgrading, which would reduce his pay by approximately £7,000 per annum.

1. Before the Tribunal, the parties agreed (although we do not know on what basis) that the Royal Mail code of conduct did not form part of the Appellant's contract but the evidence before the Tribunal was that it was a document the terms of which had been negotiated by management with the two recognised trades unions within Royal Mail. The relevant portions of the code are as follows:

"Suspended dismissal - the period should be clearly specified in the range of 3 months to 2 years, with it clearly set out that any further serious breach of the Conduct Code during that time could automatically result in dismissal. The normal procedures would apply in establishing whether any further breach had occurred, and the individual would be given clear notice in the subsequent call to a discipline hearing that dismissal was a possibility.

Reduction in pay - this means reducing pay to its position before the most recent increment or annual review. Reduction in pay may lead to loss of earnings and pension entitlement and full account should be taken of any personal hardship before it is imposed.

Downgrading - this should be reserved for the most serious cases not involving dismissal."

1. The Appellant appealed the downgrading. The appeal was heard by Annie Rallison, who did not give evidence before the Tribunal. From her report, it appears that she directed her appeal specifically to the two more serious findings against Mr Nunn, which involved deliberately and dishonestly misleading a Royal Mail investigation, although her report in its conclusions appears to uphold all of Mr Willis' five findings. The appeal did result in a reduction in the length of the suspended dismissal to two years.

1. Having been unsuccessful in the appeal process, the Appellant then lodged a grievance, which was heard by Mr Wood. By this time, medical issues had become somewhat more specific, and an occupational health report dated 11 January 2007 had reported acute anxiety, poor concentration and sleep disturbance but contained little by way of recommendation. These matters were confirmed in a report from Dr Peter Rowan, a consultant psychiatrist, who did note some evidence of depression. A further occupational health report from Dr Goodall confirmed the diagnosis but stated that the Appellant was fit to attend interviews in respect of conduct and procedural matters. It was not until 20 March 2007 that a letter was received from Dr Cubitt in which he suggested that, because of the stress and anxiety, "it is perfectly understandable that he might not have total and immediate recall". The Tribunal noted that Mr Willis' interest in these medical reports seemed only to relate to his ability to attend interviews under disciplinary process. Ms Rallison was aware of Dr Cubitt's letter but discounted it because the events in question had occurred some four months previously and not at a time when any disability in terms of recall would have been relevant.

1. Unfortunately, the grievance report was not issued by Mr Wood until 5 June 2008. By this time, the Appellant had commenced proceedings in the Employment Tribunal claiming unlawful deduction from wages in respect of his downgraded salary. A pre-hearing review was listed for 12 June 2008. The matter was settled by negotiation on 11 June. Neither the Tribunal nor ourselves were informed of the outcome.

1. On 6 June, Mr Willis wrote to the Appellant asking him to come to a formal interview on 18 June. His letter started off in these terms:

"I am aware that Mr Alistair Wood has now concluded your grievance in relation to unlawful deduction of wages, breach of contract and discrimination, and that he has not upheld your grievance.

In the light of your grievance it is clear that you do not accept my disciplinary decision to downgrade you and reduce your pay following the Conduct Code case.

If you continue to refuse to accept the downgrade and reduction in pay, I will need to consider alternative disciplinary penalties under Royal Mail's Conduct Code.

In view of the seriousness of the Conduct Code case and the penalty, which constituted action just short of dismissal, you should be aware that if you continue to refuse to accept the downgrade and reduction in pay one possible outcome could be your dismissal."

1. The Appellant was invited to a formal interview on 18 June. At that interview, where the Appellant was represented by a union representative, Mr Wilkins, the Appellant made it clear that he did not accept the downgrading because he was innocent and because it was not lawful. He contended that the further disciplinary proceedings had been instituted because he had taken the Respondent to a Tribunal. Mr Willis again warned him that, if he refused to accept the downgrade, he would have to consider alternative penalties, one of which was dismissal. Indeed, at a further meeting, on 11 July, the Appellant was handed a letter dismissing him. Paragraph 16 of the Tribunal's decision reports as follows:

"Mr Nunn appealed and his appeal was heard by Mr Jenkins and rejected."

The Tribunal's conclusions in relation to the reasons for dismissal were set out in paragraphs 17 to 19 of the Tribunal decision as follows:

"17. There is one overriding factor which the Tribunal must determine and that is what was the reason for Mr Nunn's dismissal? It has already been mentioned above that the parties were offering different reason. Logically had Mr Nunn accepted the decision after the completion of the appeal process then in all probability he would still be employed by Royal Mail. The Tribunal is satisfied that logically the only reason for the dismissal was the failure of Mr Nunn to accept the sanction imposed by Mr Willis of demotion.

18. The reason for coming to this conclusion is firstly the logic as stated above but also because Mr Nunn had placed Mr Willis and the Respondent in an impossible situation. By consistently refusing to accept the sanction the only possible outcomes other than dismissal were that he should be reinstated, which was wholly unrealistic, or that he should continue to be found some kind of work which would justify paying him at his original pay rate which the Respondent's had to some extent done during the course of the appeal and grievance proceedings. The only direction in which Mr Willis could reasonably be expected to go was to dismissal.

19. There are claims under Section 103 and 104 of the Employment Rights Act arising out of the proceedings brought in the Employment Tribunal with regard to unlawful deduction from wages and it was argued forcibly on the part of the Claimant that it was the bringing of these proceedings which was the cause of the dismissal. The Claimant's representative prayed in aid the way in which the grievance hearing, which had stuttered along for at least five months, suddenly came to fruition when the pre-hearing review was imminent in the Employment Tribunal proceedings. Mr Willis was challenged as to his knowledge of what was happening in the Employment Tribunal and he told the Tribunal that he had no knowledge of these proceedings at all, nobody had discussed them with him and nobody had sought his advice. Mr O'Dair on behalf of the Claimant challenged that evidence and contended that there must be some documentation which would support his client's allegation which had not been produced by the Respondent. Apart from the delay and sudden completion of the grievance procedure there was, however, no evidence to contradict Mr Willis and in so far as additional documentation was concerned it did not appear that the Claimant's representatives had raised this with the Respondent during the disclosure process nor had pursued the lack of any documentation through the Tribunal procedures. In those circumstances the Tribunal must accept the evidence of Mr Willis that he had no knowledge and in those circumstances, supported by the inevitability of the situation which arose the Tribunal is satisfied that neither a public interest disclosure nor the assertion of statutory right was the reason or the principle reason for Mr Nunn's dismissal."

1. Having determined, therefore, that the reason for dismissal was the failure of the Appellant to accept the downgrading sanction, they then considered issues of fairness, and determined that it was appropriate for them to consider not only the immediate circumstances relating to the eventual dismissal but the circumstances leading to the downgrading. They examined in some detail the five allegations that Mr Willis had found proved, and concluded that, from their investigations, the matters were clearly made out, and also noted that, at the time Mr Willis made his decision, the only medical information was that reported by the Appellant in relation to his GP together with a report from Human Resources indicating that he was fit to be interviewed. The Tribunal's conclusions on this aspect were contained in paragraph 29 and 30 of their decision.

"29. Faced by a conclusion that Mr Nunn had not been honest and the necessity for managers to evince integrity in the course of their work Mr Willis took the view that a serious sanction was required and that dismissal would have been justified but for the Claimant's length of service and clean record. He therefore decided upon demotion.

The Tribunal considered whether this decision was so unreasonable as to irrevocably damage the procedure leading up to the eventual dismissal of the Claimant for some other substantial reason. The Tribunal found that if it were facing this decision in terms of a misconduct dismissal they would have found that, although severe, it fell within the band of reasonable responses.

30. The position therefore is, bearing in mind that it is not for the Tribunal to substitute its own decision where the course of action taken by the Respondent's representative both with regard to the disciplinary procedure and the sanction would fall within the band of reasonable responses the Tribunal cannot find the conduct of the Respondent in the course of the disciplinary procedure, including the appeal against the original misconduct finding, to be so fundamentally wrong that it should be brought into account in determining whether the final dismissal was fair and reasonable in all the circumstances. The Tribunal take the view that they would, had they been dealing with this as a misconduct matter have found it to be fair and therefore even allowing that the level of proof falling upon the Respondent may be lower in respect of the earlier proceedings where they are not doing more than contributing to the reason for dismissal the Tribunal is satisfied that the dismissal itself was fair and the claim is dismissed."

1. On behalf of the Appellant, Mr O'Dair complains firstly about the Tribunal's finding that dismissal occurred because of the refusal to accept sanctions rather than because of the Employment Tribunal proceedings and, in particular, what he contended was the Tribunal's failure to direct themselves in a manner similar to discrimination cases in the following terms: (i) That it is rare for there to be direct evidence of dismissal occurring on a count of there having been a protected disclosure; (ii) that the outcome of the case will usually depend on the inferences from the primary facts (which facts may include events occurring both before and after the event complained of); (iii) the Tribunal must make findings in relation to all the primary facts alleged by a claimant and consider the whole picture; (iv) that there may, however, be cases where the facts found such as to suggest action has been taken by reason of a protected disclosure; and (v) that in such a case a Tribunal will look to the employer for an explanation and if the explanation is inadequate or incomplete may find against the Respondent. This approach to discrimination cases can be seen in a number of cases such Anya v University of Oxford [2001] IRLR 377.

1. The court's approach in relation to how it should deal with competing reasons for dismissal such as misconduct and protected disclosure received guidance from the Court of Appeal in Kuzel v Roche Products Limited [2008] ICR 799, where Mummery LJ, giving the decision of the Court, said this:

"52. Thirdly, the unfair dismissal provisions, including the protected disclosure provisions, pre-suppose that, in order to establish unfair dismissal, it is necessary for the tribunal to identify only one reason or one principal reason for the dismissal.

53. Fourthly, the reason or principal reason for a dismissal is a question of fact for the tribunal. As such it is a matter of either direct evidence or of inference from primary facts established by evidence.

54. Fifthly, the reason for dismissal consists of a set of facts which operated on the mind of the employer when dismissing the employee. They are within the employer's knowledge.

55. Sixthly, the burden of proof issue must be kept in proper perspective. As was observed in Maund, when laying down the general approach to the burden of proof in the case of rival reasons for unfair dismissal, only a small number of cases will in practice turn on the burden of proof.

56. I turn from those general comments to the special provisions in Part X of the 1996 Act about who has to show the reason or principal reason for the dismissal. There is specific provision requiring the employer to show the reason or principal reason for dismissal. The employer knows better than anyone else in the world why he dismissed the complainant. Thus, it was clearly for Roche to show that it had a reason for the dismissal of Dr Kuzel; that the reason was, as it asserted, a potentially fair one, in this case either misconduct or some other substantial reason; and to show that it was not some other reason. When Dr Kuzel contested the reasons put forward by Roche, there was no burden on her to disprove them, let alone positively prove a different reason.

57. I agree that when an employee positively asserts that there was a different and inadmissible reason for his dismissal, he must produce some evidence supporting the positive case, such as making protected disclosures. This does not mean, however, that, in order to succeed in an unfair dismissal claim, the employee has to discharge the burden of proving that the dismissal was for that different reason. It is sufficient for the employee to challenge the evidence produced by the employer to show the reason advanced by him for the dismissal and to produce some evidence of a different reason.

58. Having heard the evidence of both sides relating to the reason for dismissal it will then be for the tribunal to consider the evidence as a whole and to make findings of primary fact on the basis of direct evidence or by reasonable inferences from primary facts established by the evidence or not contested in the evidence.

59. The tribunal must then decide what was the reason or principal reason for the dismissal of the claimant on the basis that it was for the employer to show what the reason was. If the employer does not show to the satisfaction of the tribunal that the reason was what he asserted it was, it is open to the tribunal to find that the reason was what the employee asserted it was. But it is not correct to say, either as a matter of law or logic, that the tribunal must find that, if the reason was not that asserted by the employer, then it must have been for the reason asserted by the employee. That may often be the outcome in practice, but it is not necessarily so.

60. As it is a matter of fact, the identification of the reason or principal reason turns on direct evidence and permissible inferences from it. It may be open to the tribunal to find that, on a consideration of all the evidence in the particular case, the true reason for dismissal was not that advanced by either side. In brief, an employer may fail in its case of fair dismissal for an admissible reason, but that does not mean that the employer fails in disputing the case advanced by the employee on the basis of an automatically unfair dismissal on the basis of a different reason."

1. Mr O'Dair submitted that a Tribunal should not look at the employer's reason for dismissal in isolation but had to balance it against what an employee was contending and what primary facts the employer was putting forward from which inferences might be drawn that could suggest that the employer's reason for dismissal was not correct. In particular, he contended the Tribunal on the facts of this case failed to apply that approach in a number of factors. (i) It did not seek from the Respondent an explanation of why, after a gap of some eight months, he was called to a disciplinary hearing only days before his claims for unlawful deduction of wages were due to be heard by the Tribunal; (ii) There were no findings by the Tribunal as to what steps Mr Jenkins, who heard the appeal against dismissal in June 2008, took in response to the Appellant's contention that he had been dismissed because he'd made a protected disclosure. From closer examination of the documents, it did appear that Mr Jenkins had spoken to Mr Willis and did appear to accept at face value what Mr Willis was saying as to the reason for dismissal; (iii) In his letter summoning the Appellant to a meeting in June 2008, Mr Willis indicated that he was aware of the grievance in relation to unlawful deduction of wages although in his witness statement he contended that all he was aware of was that the Appellant had complained about the decision to downgrade him. Mr O'Dair also complained about the Tribunal's comments in paragraph 17 of their decision, stating that, "Logically, the only reason for the dismissal was the failure of Mr Nunn to accept the sanction imposed by Mr Willis of demotion." He argued that this was looking at the picture through the employee's eyes rather than considering what was in the employer's mind at the time of dismissal.

1. In response, Mr Gorton argued that there was no necessity for the Tribunal to approach a contested protected disclosure claim along analogous lines to that it should adopt in a discrimination case. He referred to paragraph 48 of Mummery LJ's judgment in Kuzel,

"First, the protected disclosure provisions must be construed and applied in the overall context of unfair dismissal law in Part X of the 1996 Act into which section 103A was inserted. Part X includes sections 94 to 134. There was a suggestion in argument before the appeal tribunal, which was not pursued in this court, that the burden of proof in protected disclosure cases should be the same as that applied in equivalent provisions governing discrimination cases. In those cases the burden of proving the reason for less favourable treatment of the claimant shifts to the respondent. Mr Linden argued for a "strictly limited" role for discrimination law in protected disclosure cases. The thinking behind the association of protected disclosure and discrimination is that both causes of action involve acts or omissions for a prohibited reason. Unfair dismissal and discrimination on specific prohibited grounds are, however, different causes of action. The statutory structure of the unfair dismissal legislation is so different from that of the discrimination legislation that an attempt at cross fertilisation or legal transplants runs a risk of complicating rather than clarifying the legal concepts. As Mr Linden accepted there simply is no need to resort to the discrimination legislation in order to ascertain the operation of the burden of proof in unfair dismissal cases."

and made the obvious point of distinction between discrimination and unfair dismissal for a prohibited reason such as whistle-blowing in a discrimination case is that the burden of proving a reason which determines the claim rests with the employer throughout, and never shifts, and, therefore, the basic justification for shifting the burden in discrimination cases is not applicable to unfair dismissal for prohibited reasons. He submitted that, apart from the Tribunal making the point about the obvious logic and deriving from the history of the case, at the end of the day, the decision about the reasons very much turned on the evidence of Mr Willis, and, as the Tribunal stated in paragraph 19, his evidence was challenged in relation to the coincidences as to timing and conflicts as to his knowledge, which Mr O'Dair repeated before us. He submitted that, at the end of the day, it was open to the Tribunal to accept Mr Willis' evidence as to the reason for dismissal, and that that decision could not be challenged on the grounds of perversity. In particular, the Tribunal were entitled to come to the conclusion that Mr Willis was not aware of the Tribunal proceedings.

1. We agree with Mr Gorton's approach. In discrimination claims, there is clearly a necessity to exercise a degree of care in relation to the establishment of primary facts. In order to set up the shifting burden of proof, the court is urged to look carefully in relation to what inferences can be drawn from those facts particularly as the basic information will often be in the hands of the employer rather than the employee. However, in unfair dismissal claims, the burden is on the employers, there being no need for the employees to set up sufficient facts for that burden to exist. Obviously, a Tribunal, in assessing what reasons the employer is putting forward, will have in mind what the employee is saying about the reason, and will need to test the employer's witnesses in relation to those matters that point to a reason other than that that the employee is putting forward. But, at the end of the day, it is a matter for the Tribunal to come to a view as to whether, on the balance of probabilities, the employer has satisfied them as to the reason. In this particular case, the question very much turned on the credibility of Mr Willis. The Tribunal were in the best position to assess him and his state of knowledge in June 2008. We can see no criticism in the approach the Tribunal took.

1. The next issue for consideration is how far the Tribunal, in assessing the fairness of the dismissal, were obliged to look back at the events of the previous year when the suspended dismissal and demotion was imposed, and to assess those matters in relation to the 2008 dismissal as if it were a case of gross misconduct requiring a detailed analysis of the five allegations that Mr Willis had found proved together with a full analysis of the procedure used at that time including the appeal before Ms Rallison. As it happened, the Tribunal, in paragraph 21, chose to look at the history in determining fairness in accordance with section 98(4) of the Employment Rights Act 1996, which provides that:

"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. Indeed, in paragraph 30, the Tribunal seemed to be saying that, even if it had been a misconduct case, the employer's approach would have been fair although went on to say:

"…and therefore even allowing that the level of proof falling upon the Respondent may be lower in respect of the earlier proceedings where they are not doing more than contributing to the reason for dismissal the Tribunal is satisfied that the dismissal itself was fair and the claim is dismissed."

Mr O'Dair criticised this last passage in relation to the Tribunal's possibly adopting a less stringent approach in relation to fairness in connection with the earlier history and argued that, since there was no contractual power to demote for disciplinary misconduct, Mr Willis' decision to demote was, effectively, a decision to dismiss and offer re-engagement. Mr Gorton argued that it was not, in fact, necessary for the Tribunal to deal with the previous year's events in the way that they did. In particular, he contended that the Tribunal's jurisdiction to consider the circumstances in relation to the previous year did not arise since there was no dismissal, making clear that the issue of fairness or unfairness is in relation to the reasons shown by the employer. Secondly, he contended that paragraph 30 of the decision did not mean that they had applied a lesser test to the demotion process than they did to the dismissal process, and indeed found that the treatment of the Appellant was within the band of reasonable responses. He contended that all the Tribunal meant was, acknowledging that the demotion was not the dismissal, the Tribunal could not approach the case as if it were. Indeed, he argued that the Tribunal's role ought to have been confined to the issue of a fair reason and the genuineness of that fair reason, as was set out by the EAT in Harper v National Coal Board [1980] IRLR260:

"But, if the employer can show that he had a fair reason in his mind at the time when he decided on dismissal, and that he genuinely believed it to be fair, this would bring the case within the category of another substantial reason."

1. We agree with Mr Gorton's submissions. In his oral submissions, he suggested that the Tribunal were only obliged to apply a "light touch" as far as the previous year's events were considered. Unless there was a glaringly obvious reason why the demotion was unfair, such that the Appellant would be entitled to resist it, we cannot see that the Tribunal were required to examine in detail the precise allegations and the procedure involved. If the Appellant had believed that the Respondent was in breach of contract in the way that it had acted the previous year, he had his remedy in terms of a claim for constructive dismissal. No claim of this nature was made, the Appellant choosing to carry on as an employee albeit at the reduced level of remuneration. Nevertheless, the Tribunal chose to look into the allegations and the procedure, applying the correct range of reasonable responses test. We cannot see any error in their approach.

1. Mr O'Dair then raised a number of issues in relation to the findings that the Tribunal had made in relation to the five proven allegations leading to the demotion together with medical issues and Ms Rallison's appeal. Without meaning any disservice to him, nothing that he raised begins to reach the level required for a perversity appeal to succeed as set out in Yeboah v Crofton [2002] IRLR 634, where Mummery LJ said this:

"Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached."

For example, there is no evidence that the recall problems, which Dr Cubitt referred to in his letter of 20 March, affected the Appellant during the Steele interview on 6 December 2006. Secondly, that we are satisfied that Ms Rallison, in dealing with the appeal, had in mind the financial affect upon the Appellant and, indeed, reduced the period down to two years in line with the code of conduct. While she referred in particular to the two most serious allegations alleging dishonesty, it is clear from her report that she had in mind all five findings.

1. Finally, as far as the Jenkins appeal is concerned, whilst it is correct that the Tribunal dealt with the appeal in the very briefest of terms, it is clear from our perusal of the notes that Mr Jenkins spoke to Mr Willis. It is suggested that Mr Jenkins should have spoken to other employees so as to test whether Mr Willis' assertion as to the reason for dismissal could be challenged in terms of Mr Willis' knowledge concerning any possible proceedings. But we see no reason, however, why Mr Jenkins should have taken this course of action. In any event, at the end of the day, the Tribunal heard in detail from Mr Willis, and formed a clear view as to his credibility. Accordingly, we can find no grounds that made out, and the appeal is dismissed.