The claimant was found to have submitted falsified meal receipts with his expense claims, in particular, claiming to have purchased a Chinese takeaway on several occasions when in fact the takeaway was not open on that day of the week (Tuesday). He was also found to have used a template receipt, getting it signed by someone at the takeaway, instead of producing originals – in his defence he said that the takeaway did not provide receipts. At the disciplinary hearing, the respondent put forward evidence of the opening hours of the takeaway, and produced evidence that they did indeed provide receipts. The claimant was dismissed. He appealed and an appeal hearing was convened, at which the claimant produced a photograph showing the takeaway to be open on Tuesdays, but the appeal panel  took the view that one set of statements negated the other and that they could not make a definitive decision as to whether the restaurant was open on the Tuesday evenings in question. With regard to the issue of the meal receipts they were satisfied that these had been falsified and that this amounted to gross misconduct. The dismissal was upheld and the claimant took his complaint to the ET. The ET dismissed his claim, the appeal hearing becoming the focus of its attention. The ET concluded that the appeal had been fair to the claimant having considered both sides and having concluded that the end  result was a neutral position. The appeal panel were entitled to find upon the basis of the remaining evidence before it that that evidence was sufficient upon which to base a finding of gross misconduct. The claimant appealed, saying that there should have been a rehearing of all the evidence.

The EAT upheld his appeal. Had the Tribunal not had its attention diverted to the irrelevant issue of whether the internal appeal was a review or a rehearing, it may have been better placed to approach the matter in the way prescribed by the Court of Appeal in Taylor, but the outcome was that, by dealing with it in the way that it did, the Employment Tribunal erred in law in that particular respect.
_________________

Appeal No. UKEAT/0451/11/RN

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 22 May 2012

Before

THE HONOURABLE MR JUSTICE WILKIE, MR D EVANS CBE, MR T HAYWOOD

MR I SCOTT (APPELLANT)

NORTHUMBRIA PROBATION BOARD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant
MR MICHAEL FORD (of Counsel)

Instructed by:
Thompsons Solicitors
The St Nicholas Building
St Nicholas Street
Newcastle upon Tyne
NE1 1TH

For the Respondent
MR SIMON FORSHAW (of Counsel)

Instructed by:
Messrs Ward Hadaway Solicitors
Sandgate House
102 Quayside
Newcastle upon Tyne
NE1 3DX

**SUMMARY**

UNFAIR DISMISSAL – Reasonableness of dismissal

The Employment Tribunal failed properly to consider whether a decision by an internal appellate body, which rejected a major plank in the management case as argued before the disciplinary hearing, nonetheless to uphold the decision of the disciplinary body to dismiss the Appellant, was sufficient to make the dismissal fair.

**THE HONOURABLE MR JUSTICE WILKIE****Introduction**

1. This is the appeal of Mr Scott against the decision of the Employment Tribunal held at Newcastle upon Tyne on 6 and 7 July 2010 which decided to dismiss his claim of unfair dismissal against his erstwhile employer, the Northumbria Probation Board. He had been dismissed on grounds of gross misconduct and contended that the dismissal was both procedurally and substantively unfair.

**Background and Employment Tribunal Decision**

1. The Employment Tribunal in its reserved Reasons, sent to the parties on 20 September 2010, at paragraph 2 identified the issues as had been agreed between the parties, and, insofar as is relevant, they were as follows:

"2.1 Was the procedure followed by the respondent a fair procedure and did it comply with the ACAS Code?

2.2 Did the respondent hold a genuine belief in the claimant's guilt?

2.3 Was that belief reasonably held?

2.4 Was the dismissal a proportionate response to the findings in all the circumstances […]."

1. The Employment Tribunal at paragraph 3 of its decision set out the evidence and its findings of fact. The Claimant had commenced his employment with the Respondent in September 2002 and was employed as a probation officer until his dismissal on 25 September 2009. In 2008 the Probation Service, looking to reduce costs, introduced a new, rigorously applied, system of claiming expenses, including, in certain cases, the Claimant's entitlement to claim a subsistence or meal allowance. As from 1 May 2008 all such claims for expenses had to be supported with a receipt.

1. During the latter part of 2008 and the early part of 2009 the Claimant was working late on a regular basis, entitling him to claim a meal allowance. This he claimed regularly and frequently on the basis that he had eaten at a Chinese takeaway known as The Regent. He had claimed expenses in that respect on the basis of receipts that had been provided. In fact, in the instances to which we will refer, the receipts produced by him were not the original receipts from the takeaway but were in the form of photocopies of a template that had been constructed by him, from an original receipt from the restaurant, in August 2008. He said that he had used that photocopied receipt because, frequently, the takeaway ran out of receipts; he therefore produced the template, and asked the staff in the restaurant to fill in the amount claimed and sign the receipt.

1. In April 2009 the practice of producing such photocopied receipts became evident to the Respondent's finance department, which raised queries with the Claimant and he was asked to supply the originals of some of the receipts that he had supplied in support of his expenses claims. There was a meeting on 22 April which the Claimant attended with his union representative. At the end of that meeting he was suspended in order to facilitate further investigation. At that meeting, conducted by a Mr Strike, three issues were discussed: the receipts for meals from The Regent takeaway; making claims for parking expenses without producing a receipt; and having his expense claim forms signed off by someone who was not his line manager. Some criticism was made by the Claimant of the way in which that suspension meeting had been arranged and conducted, but the Tribunal rejected those procedural claims, were satisfied that the meeting had not been conducted in an unreasonable manner, and that the suspension, pending further investigation, was an appropriate step to take at that stage.

1. There was then a further series of meetings, one in particular, which took place on 18 May, with the investigating officer Elizabeth Kelly, who was accompanied by a human relations representative, Anita Dixon. Following that meeting and certain other enquiries made by Ms Kelly, she produced an investigation report on 25 June 2009. That report highlighted three possible bases for a finding of misconduct, relating, respectively, to receipts for The Regent takeaway, car parking expenses and the question of authorisation at management level of expenses claims. Ms Kelly's report stated that the enquiries that she had made resulted in her belief that The Regent takeaway did not open on a Tuesday, whereas the Claimant had submitted a number of expense claims during the period commencing 2 December 2008 until 3 March 2009, five of which were on Tuesdays, a day when The Regent was in fact shut. Obviously, this was a matter of some considerable significance in the context of that particular potential piece of misconduct.

1. A disciplinary meeting was arranged and eventually was held, starting on 19 August 2009, chaired by a Mr Hall. Part way through that meeting, Mr Hall adjourned it to provide the Claimant the opportunity of obtaining and putting forward additional evidence, particularly in regard to the Tuesday opening point. The meeting was reconvened on 18 September 2009. Ms Kelly produced further evidence in the form of her statement indicating that the restaurant did, in fact, produce receipts, and it appears that she produced a receipt that had been torn from a book of receipts which had been shown to her, or Ms Dixon, when they attended The Regent takeaway. That information, provided by Ms Kelly, it was said, indicated that the restaurant did provide receipts. She also said that they stamped the receipts and did not sign them, whereas the Claimant's receipts were all signed. She further said that the person to whom she had spoken at the restaurant purported not to recognise the signatures on the Claimant's receipts and had said that the restaurant had not opened on a Tuesday for some six years. The Claimant's response to that was that it was only to be expected that the restaurant manager or staff would say that, as they would not know the reason they were being asked these questions and might well have thought the enquiries were being made on behalf of Her Majesty's Revenue and Customs. In fact, he did not attend the reconvened hearing but was represented by his union representative. The adjournment had been granted in order to enable the Claimant to obtain further evidence on the Tuesday closure point, but he had not been able to obtain further information on that issue.

1. The Tribunal record that Mr Hall, having considered the evidence before him, concluded that Mr Scott was guilty of gross misconduct on two of the three issues: the first was the issue of the meal receipts, which he found had been falsified; the other was in respect of the car parking. Mr Hall had not found sufficient evidence against the Claimant in respect of the third allegation to found a conclusion of misconduct, but, in respect of the two pieces of misconduct that he found proved, he characterised them as gross misconduct, and he dismissed Mr Scott.

1. That decision to dismiss was confirmed in a dismissal letter dated 24 September 2009. It records the fact that there were three allegations made, the first of which was in respect of "claiming subsistence payments following the provision of fraudulent receipts". In respect of that complaint the letter reads as follows:

"In relation to allegation 1 above, it was clear to me that you had submitted fraudulent receipts for expenditure not actually incurred. Specifically, these included receipts for chinese [sic] take away meals on dates when I was satisfied that the take away was actually closed. The dates of these were 2, 9, 16 December 2008; 3, 10, 17, 24 February 2009 and 3 March 2009. These receipts alone totalled a value of approximately £86. You also confirmed that you had used an original receipt as a template for dates that the take away were unable to offer a receipt, however, I was satisfied that they are always able to supply a receipt. These 'copy' receipts you claimed were individually signed by the take away, however, the manager of that establishment was able to confirm that whilst receipts are stamped with a company stamp, they are not individually signed. These points clearly support my view that the validity of all of these receipts submitted are at question and whether any actual expenditure was incurred."

1. The letter goes on to deal with the allegation in respect of the car parking tickets, with which we are not primarily concerned in this appeal, for reasons that will become apparent. The conclusion of the letter was that these were matters of gross misconduct and that Mr Hall had no alternative but to dismiss Mr Scott summarily.

1. The Tribunal records that the Claimant appealed his dismissal and, eventually, the appeal against his dismissal, heard by an appeal panel comprising Lesley Bessant, Norman Gilberd and Pauline Williamson, took place on 12 February 2010. The Tribunal record that, in the interim, the Claimant offered some further evidence, which was sent to the appeal tribunal. The evidence comprised one photograph of the restaurant taken on Tuesday, 29 December 2009 showing lights on, but no people in the restaurant, and several statements written by the Claimant setting out evidence given to the Claimant by local shopkeepers or customers confirming that the restaurant was open on Tuesdays at the time in question. The Tribunal noted that that evidence had not been put before Mr Hall when he made his decision to dismiss the Claimant.

1. The documentation that is before us, and that was also before the Employment Tribunal, includes the notes of the appeal hearing, which are full and, it would appear, contemporaneous. They also include a letter dated 16 February setting out the outcome of the appeal in the following terms, in so far as is relevant:

"Following a full and detailed hearing, the Panel was satisfied that the process had been carried out correctly and appropriately and did not prejudice the outcome in any way.

In connection with the validity of the evidence, the Panel was satisfied, on the balance of probabilities, that you committed fraud in submitting photocopied receipts in the way that you did.

The Panel was satisfied that this fraud amounted to gross misconduct and therefore your dismissal was appropriate."

1. Also before the Employment Tribunal was a witness statement of Ms Bessant, who was at the time the Chair of Northumbria Probation Trust and who was part of the appeal panel. In so far as it is relevant to this appeal, her witness statement says as follows at paragraph 10:

"It was clear to us that the receipts had been falsified. We accepted that there had been argument put forward on behalf of Mr Scott that receipts had not been available and that despite the evidence produced to us to the contrary the take away restaurant had been open on Tuesdays. Whilst it was impossible to be absolutely certain of the position in these regards, our overall conclusion was that there was no reasonable explanation for producing falsified receipts to support expenses claims other than to claim for meals he had not had and that his actions in so doing had been fraudulent. Our ultimate conclusion was that this merited summary dismissal and we therefore dismissed the appeal."

1. This was the extent of the documentation that has been placed before us. In particular, no one has obtained an order for the reproduction of the Chairman's notes of the oral evidence, which, we surmise, must have been substantial and, in respect of the appeal hearing, highly significant. We say that because what then appears in the Employment Tribunal's decision at paragraph 3.15 is not reflected in the documentation that has been before us, but nonetheless it is accepted by all that paragraph 3.15 does reflect the evidence that was received by the Tribunal. That paragraph reads in full as follows:

"The appeal panel considered these statements and formed the view that as these statements were not signed by the makers and as the makers were not called to give evidence they should be treated in the same way as the statements relied upon by Mr Hall with regard to the Tuesday opening issue. In other words, they took the view that one set of statements negated the other and that they could not make a definitive decision as to whether the restaurant was open on the Tuesday evenings in question. They considered the issue of the lack of car parking receipts and found that there was insufficient evidence to uphold the decision of Mr Hall in this respect and allowed this aspect of the appeal overturning Mr Hall's decision. With regard to the issue of the meal receipts they were satisfied that these had been falsified and that this amounted to gross misconduct upholding this part of Mr Hall's decision."

1. That concludes what the Tribunal had to say in respect of the evidence and findings of fact. The Tribunal then went on to set out the law in paragraph 4 of its decision. It rehearsed the relevant statutory provisions: sections 94 and 98 of the Employment Rights Act 1996 (ERA). It then referred to the fact that it had been referred to British Home Stores Ltd v Burchell [1978] IRLR 379, and briefly and accurately set out the principles for which that well known case is the authority. The Tribunal then referred to certain other cases that had been drawn to its attention, namely [Salford Royal NHS Foundation Trust v Roldan]() [2010] EWCA Civ 522 (which referred to the case of A v B and the case of Sheffield Health & Social Care NHS Foundation Trust v Crabtree UKEAT/0331/09, as well as the Polkey v A E Dayton Services Ltd [1987] IRLR 503 case.

1. It is unfortunate, but nonetheless the case that, notwithstanding the fact that both parties to this Tribunal hearing were legally represented, the Employment Tribunal was not referred to the authority of Taylor v OCS Group Ltd [2006] ICR 1602 (neutral citation [2006] EWCA Civ 702), which has been at the heart of the argument before us. In that case the claimant was profoundly and pre lingually deaf. He had been suspended from duty by his employer for certain alleged misconduct in relation to confidential files. A disciplinary meeting was held at which the claimant found it particularly difficult to lip read the person conducting proceedings; no interpreter had been provided. At the end of that hearing the conclusion was that the claimant was guilty of misconduct and he was dismissed. He appealed against that dismissal and at the appeal hearing he was represented by his sister, who could communicate well with him and who took over as an interpreter when the interpreter who had been provided had to leave. The outcome of the appeal was to affirm the decision to dismiss. His claim of unfair dismissal was upheld by the Employment Tribunal, which concluded that, whilst the dismissal was for a potentially fair reason, it was unfair in that he had been unable to participate effectively in the disciplinary process. Since the procedure on the first hearing had been fundamentally flawed, and the appeal hearing had been a review and not a rehearing, the fundamental defect was not cured by the appeal hearing. The Employment Appeal Tribunal had dismissed an appeal by the employer against that decision. In the Court of Appeal the employer's appeal was allowed on the following basis, as set out in the headnote:

"[…] (1) that, where on claims of unfair dismissal, complaint was made about the employer's disciplinary procedure, the Employment Tribunal should focus on the statutory test in section 98(4) of the [ERA] and look at the substance of what had happened throughout the disciplinary process: that it was inappropriate for a Tribunal to attempt to categorise an internal appeal as either a 'rehearing' or 'a review', as there was no rule of law that only a rehearing was capable of curing earlier defects, and what mattered was whether the overall process was fair, notwithstanding any deficiencies, at an early stage."

1. Mr Ford, on behalf of the Appellant, has sought to rely on this particular authority, and, in particular, certain passages where the Court of Appeal has discouraged over conscientious consideration of the difference between a review and a rehearing by way of an appellate process; in particular, at paragraph 38 in the Judgment of Smith LJ, the following:

"Having said that, the use of the words 'review' and 'rehearing' […] do [sic] in our view create a temptation for a Tribunal to fall into the error of deciding whether an appeal hearing cured the earlier defects by categorising the appeal hearing either as a review or a rehearing rather than looking at its thoroughness and the open mindedness of the decision maker in considering whether the disciplinary process as a whole was fair. […]"

1. At paragraph 43:

"It seems to us that there is no real difference between what the Employment Appeal Tribunal said in Whitbread [v Mills [1988] ICR 776] and what it said in Adivhalli [v Exports Credits Guarantee Department UKEAT/0917/97]. Both were consistent with Sartor [v P & O European Ferries [1992] IRLR 271]. In both cases, the Appeal Tribunal recognised that the Employment Tribunal must focus on the statutory test in that in considering whether the dismissal was fair it must look at the substance of what had happened throughout the disciplinary process. To that extent, in our view, the Appeal Tribunal in the present case was right. However, in Whitbread v Mills the Appeal Tribunal used the words 'review' and 'rehearing' to illustrate the kind of hearing that would be thorough enough to cure earlier defects and one which would not. Unfortunately, this illustration has been understood by some to propound a rule of law that only a rehearing is capable of curing earlier defects and a mere review never is. There is no such rule of law."

1. And then, at paragraphs 46 47:

"46. […] [It was pointless to] seek to determine whether an internal appeal process was a rehearing or a review. In our view, it would be quite inappropriate for an ET to attempt such categorisation. What matters is not whether the internal appeal was technically a rehearing or a review but whether the disciplinary process as a whole was fair.

47. […] The use of the words 'rehearing' and 'review', albeit only intended by way of illustration, does create a risk that Employment Tribunals will fall into the trap of deciding whether the dismissal procedure was fair on unfair by reference to their view of whether an appeal hearing was a rehearing or a mere review. This error is avoided if Employment Tribunals realise that their task is to apply the statutory test. In doing that, they should consider the fairness of the whole of the disciplinary process. If they find that an early stage of the process was defective and unfair in some way, they will want to examine any subsequent proceeding with particular care. But their purpose in so doing will not be to determine whether it amounted to a rehearing or a review but to determine whether, due to the fairness or the unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open mindedness (or not) of the decision maker, the overall process was fair, notwithstanding any deficiencies at the early stage."

1. As we have indicated, the Employment Tribunal in this case referred to the Roldan case, but it did not identify for itself in its decision any particular passage or principle whose relevant principles are to be found in that case. In that decision of the Court of Appeal, in which the Judgment was given by Elias LJ, it is said, on behalf of the Respondent, that we should focus on paragraph 51, where the Employment Appeal Tribunal is reminded that, if an Employment Tribunal has properly directed itself in accordance with Burchell, as further explained in a case of this kind by A v B, save where there is a proper basis for saying that the Tribunal simply failed to follow their own self direction, the Appeal Tribunal should not interfere with that decision unless there is no proper evidential basis for it or unless the conclusion is perverse. The reference to A v B refers back to what Elias LJ said at paragraph 13 of his Judgment. He said as follows:

"Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances. In A v B […], the Employment Appeal Tribunal (Elias J presiding) held that the relevant circumstances include the gravity of the charges and their potential effect upon the employee, so it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee's reputation or ability to work in his or her chosen field of employment is potentially apposite. In A v B, the Appeal Tribunal said at paragraph 60:

'Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course, even in the most serious of cases it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary, and the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should, on the evidence, directed towards proving the charges against him.'"

1. Returning to the Employment Tribunal's decision in this case, it set out its conclusions at paragraph 5. On the question of the thoroughness of the investigation the Tribunal found nothing to criticise of any substance in the way in which the investigation had been conducted and placed before the relevant management level of the Respondent, and no criticism has been made in this hearing of that conclusion of the Employment Tribunal. Similarly, with regard to the disciplinary hearing, the Tribunal was satisfied that Mr Hall held a genuine belief in the Claimant's guilt based upon reasonable grounds, and it was not for the Tribunal to substitute its own decision for that of the employer in such circumstances. Once again, Mr Ford makes no complaint about the Employment Tribunal's conclusions in respect of the disciplinary hearing on the basis of the material that was then before Mr Hall. However, having regard to paragraph 3.15 of the decision, to which we have referred, the appeal hearing became much more the focus of the contentions between the parties. The Employment Tribunal dealt with that hearing in paragraph 5.4 in the following terms:

"Turning to the appeal hearing, it was submitted on behalf of the claimant that the appeal panel should have investigated further the new evidence about the restaurant opening on a Tuesday and that it was inappropriate for them to ignore this evidence. He suggested that this new evidence required the appeal to be treated as a re hearing and that the matter should have been remitted to Mr Hall to consider along with the other evidence. He also suggested that the claimant should have been given the benefit of the doubt because of the serious career and personal implications to the claimant. Mr Hodgson submitted that the appeal hearing was a review hearing not a re hearing and that the appeal panel were entitled to treat the new evidence as neutral upon the basis that they did the same with the respondent's evidence on the same point. The Tribunal preferred the argument put forward by Mr Hodgson finding that the appeal had been fair to the claimant having considered both sides and having concluded that the end result was a neutral position. The appeal panel were entitled to find upon the basis of the remaining evidence before it that that evidence was sufficient upon which to base a finding of gross misconduct. Accordingly the claimant's claim is dismissed."

**The Claimant's submissions**

1. Mr Ford's submissions are brief and to the point, and focus on paragraphs 3.15 and 5.4 and the cases of Taylor and Roldan. In particular, what he says is this. The Tribunal had found that one of the main planks of the conclusion of Mr Hall that Mr Scott was guilty of misconduct in respect of the claim for subsistence allowance for takeaway meals was the fact that Mr Hall was satisfied on the evidence before him that the takeaway had not been open on a Tuesday, whereas a number of the claims for expenses from Mr Scott had been claims for meals bought at that restaurant on a Tuesday. Plainly, if that remained the case, that would be an extremely important basis upon which a conclusion of gross misconduct could be founded. The appeal body, however, as recorded at paragraph 3.15, had concluded that, having regard to the new evidence that had been placed before them by Mr Scott, which had the same status as the evidence upon which Mr Hall relied, placed before him by management, the appeal body was not in a position to decide, one way or another, the vexed issue, whether the takeaway was always closed on a Tuesday or may have been open when Mr Scott claimed to have obtained food from there. On that basis, although the Employment Tribunal made no finding that Mr Hall's disciplinary hearing had been defective, this case, it was argued, is analogous to the case of Taylor because the conclusion of the disciplinary hearing has been called into question by an important matter upon the basis of which the decision of the disciplinary hearing could not be permitted to stand.

1. In those circumstances, therefore, Mr Ford argues, having regard to what was said in Taylor, particularly at paragraph 47, that the Employment Tribunal needed to examine any subsequent proceedings with particular care, with a view to determining whether, due to the fairness or unfairness of the procedures adopted, the thoroughness, or lack of it, of the process, and the open mindedness, or not, of the decision maker, the overall process was fair, notwithstanding any deficiencies at the early stage. Mr Ford argues that, if that approach applies by way of analogy to the present case, then the way in which the Tribunal has looked at the decision of the appeal body, as recorded in paragraphs 3.15 and 5.4, fails to engage with the Taylor approach, because all they do is assert, in a single sentence at paragraph 3.15, the fact that the appeal body were satisfied that the meal receipts had been falsified, and, at paragraph 5.4, the Employment Tribunal limits itself to saying that the appeal panel were entitled to find, upon the basis of the remaining evidence before it, that that evidence was sufficient upon which to base a finding of gross misconduct. He says that, no doubt because the Employment Tribunal was not referred to Taylor, it did seem to focus some of its attention on an irrelevant question namely, whether the appeal was by way of review or rehearing, and failed to approach its task in the way suggested by the Court of Appeal in Taylor.

1. Mr Ford goes on to contend that, as the allegations made against Mr Scott, a probation officer, were of financial dishonesty akin to criminal misbehaviour, which would plainly be a career threatening allegation, it was particularly important that employers take seriously their responsibilities to conduct a fair investigation. Such allegations must always be the subject of the most careful investigation as identified by Elias LJ, both as a Judge of the Court of Appeal in Roldan and as President of the EAT in the case of A v B. In that respect, the passages to which we have referred at paragraphs 3.15 and 5.4 of the Employment Tribunal's decision fail, according to Mr Ford, to engage with the enhanced level of care that is required where the Burchell test is being applied in circumstances where allegations of such a serious nature are being made against an employee in a position such as that held by Mr Scott.

**The Respondent's submissions**

1. Mr Forshaw, for the Respondent, says that it is misconceived for us to be referred to Taylor. He says that in Taylor the problem was that the first-instance decision of the employer was itself defective because of grave procedural faults and the Court of Appeal was considering the circumstances in which such grave procedural defects might be remedied by an appropriate appellate hearing, and was directing Employment Tribunals and appellate bodies not to focus on the difference between a review and a rehearing but to focus on the overall process and, if need be, to look very carefully at the end hearing that purported to remedy any prior defects. In that case, it was the absence of any consideration by the Employment Tribunal of what had happened at the appellate level that caused the decision of the Employment Tribunal to be overturned by the Court of Appeal.

1. Mr Forshaw says that the present case is not analogous to the Taylor case because no criticism has been made, or was made, by the Employment Tribunal of the first instance disciplinary hearing conducted by Mr Hall. Therefore, the question is not whether the appellate hearing in this case makes good any previous deficiency; what has happened is that the appellate body, properly and fairly, has excluded, as a factor in its conclusion, a factor that Mr Hall had found particularly weighty. But the appellate body went on to consider whether or not the misconduct had been proved to their reasonable satisfaction on the basis of the remaining evidence.

1. Mr Forshaw has, with great care, identified a series of pieces of circumstantial evidence on the basis of which, he says, the appellate body in this case could, and no doubt did, rely in order to conclude, as they did, that Mr Scott was guilty of presenting fraudulent receipts in order to obtain subsistence expenses, and that the Employment Tribunal, in the last sentence of paragraph 3.15 and in the last sentence of paragraph 5.4 , has done no more than give brief, but accurate, articulation of that particular approach.

**Discussion**

1. In our judgment, the contentions of Mr Ford in the particular circumstances of this case prevail. We have observed that the Employment Tribunal in this case was not referred to what seems to us to be the most relevant authority, namely Taylor, which, in our judgment, is by, analogy, applicable to the facts of this case. This was a case where the initial disciplinary decision taken by Mr Hall, though not subject to criticism in itself, was taken on a number of bases, one of the important ones of which was effectively ruled out of play by the appellate body as a result of further evidence obtained. That, necessarily, involved the appellate body going on to consider whether to uphold the appeal. It was, of necessity, putting itself in the position of being the principal decision maker on the issue whether the misconduct was proved and what the sanction should be. Its decision thereupon became the focus of the Burchell approach as explained in Roldan.

1. The reader of the Employment Tribunal decision is none the wiser as to the extent and nature of the care that the appellate body took in considering the remaining evidence and coming to their conclusion, because the Employment Tribunal does not indicate to the reader what the evidence was, in respect of that part of the appeal body's consideration. Nor does the Tribunal's decision reveal that it has examined the appellate hearing with particular care. The two sentences in paragraphs 3.15 and 5.4 to which we have referred amount to no more than bare assertions. Unfortunately, had the Tribunal not had its attention diverted to the irrelevant issue of whether the appeal was a review or a rehearing, it may have been better placed to approach the matter in the way prescribed by the Court of Appeal in Taylor, but the outcome is that, by dealing with it in the way that it did, in our judgment, the Employment Tribunal erred in law in that particular respect.

**Conclusion and disposal**

1. The consequence of that is, therefore, that Mr Scott's appeal must succeed, and the finding of the Employment Tribunal that he was not unfairly dismissed must be quashed. Both sides have agreed that the matter must be remitted to be considered afresh. There is a dispute as to whether it should be remitted to the same Employment Tribunal or to a different one. In our judgment, the issue that remains to be determined essentially focuses on the internal appeal. Accordingly, virtually all of the findings of fact and all of the evidence that has been received leading up to and including the decision of Mr Hall to dismiss remains untouched. As we have observed, it is highly likely that there was evidence from Ms Bessant that went significantly beyond the contents of her witness statement as to what happened at the appeal hearing and their thought processes.

1. In our judgment, having weighed the various factors to which we have been referred, and having considered those factors set out in Sinclair Roche & Temperley v Heard [2004] IRLR 763, the appropriate course is for us to remit this to the same Tribunal for them to address this issue properly, guided both by this decision and by the prescriptions of the Court of Appeal in Taylor. In our judgment, that would be a just and proportionate outcome. We are aware of the danger to which Mr Ford has referred of allowing the Tribunal "a second bite at the cherry"; however, we are confident that the Tribunal will take a professional approach and will approach the task that remains in a proper manner. It may or may not be the case that it will have to receive further evidence on the question of what, in fact, happened before the appeal body, how they approached their decision making and the matters to which they had regard. No doubt it will be necessary for them to be addressed further on the law and on the facts. In our judgment, the proportionate way of dealing with it is for the same Tribunal to consider this matter afresh, if it is practicable for them to be assembled. That is the order that we will make. It necessarily follows that there should be a transcript.

1. To that extent, this appeal is allowed.