The two claimants were prison officers in a Youth Offending Institution. They had been trained in control and restraint techniques (C&R). They were both dismissed following an incident where they restrained a prisoner who was then found to have suffered two fractured wrists. The respondent concluded that the claimants had failed in their professional duty by using unnecessary force; that the use of that force was deliberate, undermining the necessary trust and confidence which must be reposed in prison officers; and that dismissal was the appropriate sanction.  Their internal appeals against dismissal were rejected but the ET found that they had been unfairly dismissed (having rejected their whistleblowing claims). The Tribunal found that the reason for dismissal was conduct, a potentially fair reason and that it was reasonable for the respondent to conclude that the injury was caused as a result of C&R in the cell. Crucially however, the Tribunal said that it “could not see the evidence which permits the conclusion that this was deliberate use of force”; that there was a “measure of pre-determination as to the seriousness of the allegation”; that “in the absence of CCTV evidence this conclusion was unreasonable”; and that, for the use of unnecessary force, where that use was not deliberate, dismissal was not within the band of reasonable responses, since “a reasonable employer would look to this as a training issue”.  The respondent appealed.

The EAT allowed the appeal. They expected to see a consideration of the reasons the respondent gave for the dismissals and a discussion as to whether those reasons were reasonable ones for them to hold, and if not, why not. That process was absent from the Tribunal’s reasons. The Tribunal was content to set out its own view that it “did not see the evidence”.  That was the wrong approach.  The question was not whether the Tribunal could see the evidence.  The question was whether the employer’s conclusions about the evidence were reasonable.

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Appeal No. UKEAT/0638/11/SM

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 29 August 2012

Before

HIS HONOUR JUDGE DAVID RICHARDSON

MR B BEYNON

MR S YEBOAH

SECRETARY OF STATE FOR JUSTICE (APPELLANT)

(1) MR N J BENNETT

(2) MR M CRANMER (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR KEITH MORTON (One of Her Majesty's Counsel)
Instructed by:
Treasury Solicitors Office
One Kemble Street
London
WC2B 4TS

For the Respondents
MS LOUISE PRICE (of Counsel)
Instructed by:
Thompsons Solicitors
The St Nicholas Building
St Nicholas Street
Newcastle-upon-Tyne
NE1 1TH

UNFAIR DISMISSAL

Reason for dismissal including substantial other reason

Reasonableness of dismissal

The Tribunal did not apply section 98(4) correctly. It should have reviewed the employer's grounds for reaching the factual conclusions which the employer reached, and asked whether by the objective standards of the reasonable employer the employer had reasonable grounds for its conclusions. The Tribunal did not engage in that exercise: it said only that "it could not see the evidence" for the employer's conclusions, notwithstanding that the employer had given detailed and careful reasons for those conclusions.

1. This is an appeal by the Secretary of State for Justice against part of a judgment of the Employment Tribunal sitting in Newcastle (Employment Judge Pitt presiding) dated 12 September 2011. Mr Bennett and Mr Cranmer had brought claims alleging that they were (1) subjected to detriment for "whistleblowing" (section 47B of the Employment Rights Act 1996), (2) unfairly dismissed contrary to section 103A of the 1996 Act for "whistleblowing" and (3), in any event, unfairly dismissed by reference to the provisions of section 98 of the 1996 Act. The Tribunal rejected the first two claims, but upheld the last.

1. Mr Bennett and Mr Cranmer were employed at HMPYOI Castington – an institution for young offenders up to the age of 21 for which the Secretary of State bears responsibility. Mr Bennett was a senior prison officer, Mr Cranmer a prison officer. They were trained in control and restraint techniques ("C&R"). Specifically, they were trained in a technique whereby a prisoner's arms are held close to his body and his hands flexed out from the body so that, if necessary, pain can be applied to restrain him.

1. On 10 March 2007 Mr Bennett and Mr Cranmer together with a third officer were involved in an incident concerning a prisoner. The prisoner was detained in his cell: he was not allowed association. Within the cell there was an altercation as a result of which Mr Bennett and Mr Cranmer restrained the prisoner by his hands while their colleague held his head. He was taken away to the Segregation and Care Unit.

1. It was the prisoner's complaint that Mr Bennett and Mr Cranmer used excessive force upon him. He complained that very day that he wanted the police to be called, though the relevant governor, Governor Thorne, did not do so. He was taken by ambulance to hospital. He was found to have fractures of both wrists.

1. There was no CCTV inside the prisoner's cell. There was, however, CCTV which should have shown the cell door and the route which the prisoner would have taken after he was restrained and led away. The footage was not preserved as it should have been.

1. On 15 March an investigation began. At some point, however, the police became involved. They started their own investigation. The prison's investigation was suspended. On 22 November 2007 the Claimants were charged with causing grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861. Their trial was listed for 6 January 2009. However the judge in the criminal proceedings stayed the proceedings by reason of the failure to retain the CCTV. This in effect meant that the criminal proceedings were at an end.

1. On 20 January 2009 an investigation was again instituted, carried out by Mr Allen. On 12 June 2009 he reported. He concluded that the injuries were sustained by the prisoner during the C&R incident; and that there was overwhelming evidence that Mr Bennett and Mr Cranmer had used unauthorised, excessive and unlawful force on the prisoner.

1. On 17 July 2009 they were charged with "use of unnecessary force on a prisoner on 10 March 2007 which led to him suffering injuries". This charge derived from rule 50 of the Young Offenders Institution Rules 2000. There was a second charge with which we are not concerned, since it was subsequently dismissed.

1. The disciplinary hearing took place on 16-20 November 2009. It was conducted by a governor, Mr Tallentire.

1. It is in our judgment important to keep in mind the nature of the case put forward by Mr Bennett and Mr Cranmer. They denied that the prisoner suffered any injury, or appeared to suffer any injury, when he was in the cell. They said his injuries must have been caused either before or after he was in the cell. Moreover they said that they were only disciplined by the prison because they refused to lie to the governor who investigated initially and take part in a conspiracy to cover up issues relating to C&R. They said they made disclosures in the public interest and were disciplined because they did so. This became their "whistleblowing" case at the Tribunal.

1. Although this was their primary case, it was also argued on their behalf that C&R injuries could occur by accident and that this incident was an accident rather than a deliberate action.

1. Mr Tallentire took time to consider his decision. He announced it at a reconvened hearing on 27 November. He concluded that the charge was made out. He concluded, in particular, that the injuries occurred in the prisoner's cell; that Mr Bennett and Mr Cranmer failed in their professional duty by using unnecessary force; that the use of that force was deliberate, undermining the necessary trust and confidence which must be reposed in prison officers; and that dismissal was the appropriate sanction. So he dismissed the two officers.

1. Mr Tallentire gave detailed reasons for his conclusion. Transcribed, they run to some 20 pages. He specifically addressed the question whether "the injuries could have been sustained by accident whilst [the prisoner] was being restrained". We think it is important to quote what he said.

"The medical evidence indicated that a wrist lock was the mechanism that had caused the injury. I therefore considered whether the injuries could have been sustained by accident whilst [the prisoner] was being restrained.

I heard that injuries were uncommon but had been known to occur whilst restraining prisoners. The evidence of the C&R specialist recorded that this was normally caused by the prisoner offering excessive violence or resistance to officers while being restrained. However, such a scenario was not supported by the evidence. Both officers referred to 'placing' [the prisoner] on the bed during the incident and stated that he had not struggled, offered excessive violence or resistance to the officers at any time. That is corroborated by [the prisoner] and the statements of other staff involved. I also took account of the evidence of the C&R specialist that he had not known of an incident resulting in both wrists being injured. That was borne out by my own experience.

I therefore considered it improbable that the injuries that had been caused accidentally as a result of the restraint."

1. He went on to consider whether "there had been deliberate intent to cause harm". The passage in which he set out his reasoning on this issue runs for some four pages. It gives detailed consideration to the issue. It is sufficient to quote two paragraphs.

"Having concluded that unnecessary force had been applied during the incident in his cell, the evidence surrounding the context of the application of force gave me doubt as to the rationale for its use. Given that [the prisoner] offered no resistance then any application of force would have been unnecessary. However the medical evidence indicated that the force used must have been considerable. I also took account of the rationale as to why one medical practitioner believed that it was unlikely that officers applying wrist locks could have caused the injury. That was not because it would have been impossible to do so, but because the pain to the prisoner would have been so severe that he believed officers acting properly would have been aware of it and not have proceeded further. The fact that injuries had been sustained indicated that officers had not been acting appropriately and that lended weight to [the prisoner's] evidence that he had been told to be quiet.

Taking all of this into account I concluded that such an amount of force must have been deliberate, and having reached that conclusion then I doubt the accounts of the officers concerned."

1. Mr Bennett and Mr Cranmer both appealed. Their appeals were heard on 20 April 2010 by Ms Amy Rice. Mr Cranmer's appeal was heard in the morning: he produced a 75 page document in support of it. Mr Bennett's appeal was heard in the afternoon. He produced a 210 page document in support of it. Ms Rice adjourned on each occasion to read the document before resuming the appeal. She adjourned both appeals. She sent a letter to Mr Tallentire asking for responses in relation to some six issues. She dismissed the appeals, setting out her conclusions in a letter dated 30 April 2010. The appeal should have been determined within 7 days; it took ten. A further appeal to the Civil Service Appeal Board was dismissed.

1. The Tribunal rejected the case put forward by Mr Bennett and Mr Cranmer concerning "whistleblowing". The Tribunal concluded that the governor who investigated initially did not ask them to cover anything up; that there was no conspiracy to cover up; that the disclosures they made were made in order to further their own cause and were not made in good faith as that concept is used in public interest disclosure law; and that some did not really amount to disclosures at all.

1. Turning to what is generally called "ordinary unfair dismissal", the Tribunal referred appropriately to section 98 of the Employment Rights Act 1996, to the principles in British Home Stores v Burchell [1980] ICR 303, and to the "range of reasonable responses" test which it ought to apply.

1. The Tribunal then discussed various aspects of the case in paragraph 25 of its reasons, before turning to conclusions which it expressed in paragraphs 25-31. We will summarise key points, but there is no substitute for setting out this part of the Tribunal's reasoning, and we will do so, despite its relative length.

1. Firstly, the Tribunal found that the reason for dismissal was conduct, a potentially fair reason. It did not accept that there was any other or ulterior motive for dismissal.

1. Secondly, the Tribunal found that it was reasonable for Mr Tallentire to conclude that the injury was caused as a result of C&R in the cell: see paragraph 29.3, building upon paragraph 16.2.3 earlier in its findings.

1. Thirdly, however, the Tribunal said that it "could not see the evidence which permits the conclusion that this was deliberate use of force"; that there was a "measure of pre-determination as to the seriousness of the allegation"; that "in the absence of CCTV evidence this conclusion was unreasonable"; and that, for the use of unnecessary force, where that use was not deliberate, dismissal was not within the band of reasonable responses, since "a reasonable employer would look to this as a training issue".

1. Fourthly, the Tribunal was critical of the process used. It found that the process took too long; that the appeal "appears to have been a rubber stamp of Mr Tallentire's decision" because Ms Rice assimilated the new papers and made her decision in a short period of time; and that she consulted with Mr Tallentire on a number of crucial issues without referring to Mr Bennett, Mr Cranmer or their representatives.

1. The Tribunal's reasons, which we have just summarised, were as follows.

"26.1.1 Whilst the Tribunal can accept there was sufficient evidence to uphold a charge of unnecessary use of force, the Tribunal cannot see the evidence which permits the conclusion that this was deliberate use of force. Unnecessary use of force is misconduct, it is the deliberate aspect of the case which account for Mr Tallentire's conclusion this was gross misconduct. The deliberate act means the trust is gone and merits dismissal.

26.1.2 In his witness statement at paragraph 31 Mr Tallentire sets out his view on the charge and the seriousness which he attributed to them; the claimants were not dismissed for causing the injury rather that because they had 'deliberately' caused the injury the implied contractual term of mutual trust and confidence had been broken. Mr Tallentire at the outset of the proceedings did not inform the claimants as to how serious he considered this to be.

26.1.3 In this regard it is important to consider the CCTV evidence: Mr Tallentire concluded that the claimants had gone to the prisoners cell with the deliberate intent to injury him, it seems to this Tribunal that that is somewhat different to the allegation they claimants believed they faced. On the account the claimants grace on escorting another prisoner back to his cell, Mr Tallentire concluded this was untrue. The CCTV may have conclusively dealt with this one way or another. The initial failures to follow the correct procedures by ceasing the CCTV evidence and reporting the matter to the police, have caused enormous problems not only for this Tribunal but also for the police investigation which ultimately could not proceed because of them.

26.1.4 The Tribunal concluded that Mr Tallentire did have a pre judged mind-set that the claimants were guilty not of misconduct but of Gross Misconduct before the hearing he says it was because of the serious nature of the injury sustained and this must cast doubt on his decision. The Tribunal in particular note that in his witness statement at paragraph 31 he states:

'Given that injuries had been sustained by a prisoner as a potential result of the unnecessary use of force by the claimants it seemed to me that gross misconduct was the most fitting charge…'

27 As indicated above the decision to carry out a further and extended investigation did cause delay and this may allow a Tribunal to conclude that this was unfair, that is not a view this Tribunal takes, in particular as the frequent change in terms of reference and addition of charges was a major factor in that delay. There was however a protracted before the disciplinary hearing which the Tribunal considered to be unnecessary and unreasonable in view of the potential consequences of the hearing.

28.1 The Tribunal were surprised by Mr Tallentire's comments that he considered the appeal to be 'quality control' to ensure he'd done his job and whilst the Tribunal acknowledge that there were changes in the hierarchy, so Miss Rice who was the same level as Mr Tallentire chaired the appeal, for a person to appoint the person to chair an appeal seems strange in this complex case.

28.2 The appeal appears to have been a rubber stamp of Mr Tallentire's decision, in particular the Tribunal note that although substantial papers were handed to Ms Rice at the hearing she was able to assimilate them and write to Mr Tallentire and make a decision in very short period of time. This is in contrast to the length of time between the completion of the Allen Report and the subsequent disciplinary hearing. Further Ms Rice consulted with Mr Tallentire on a number of crucial issues without referring to the claimants or their representative.

CONCLUSIONS

29.1 The Tribunal concluded that the reason for the dismissal was conduct; it was not persuaded by any of the evidence that there was any other motive for it. It is therefore a potentially fair reason.

29.2. Applying the Burchell test: did the respondent, Mr Tallentire, have a genuine belief in the guilt of the claimants? On the evidence before us Mr Tallentire did believe that the claimants had caused the injury in fact he went further and concluded that they set out to cause the injury. The Tribunal also concluded that there was a measure of pre-determination by Mr Tallentire as to the seriousness of the allegation which was not conveyed to the claimants and that leads the Tribunal to conclude a measure of pre determination in the claimants guilt.

29.3 Were there reasonable grounds for that belief? Whilst the Tribunal can accept the conclusion that the injury was caused as a result of C&R it finds no evidence of the deliberate nature of the injury and concludes, especially in the absence of the CCTV evidence that that conclusion was unreasonable.

29.4 Was the investigation reasonable? Whilst the Tribunal acknowledge the serious nature of the allegation involved in this case which required a thorough investigation the respondent seem to have gone to the other extreme. Looking to the totality of the process the Tribunal concluded it was too long, even taking account of the serious nature of the charges and the changes in the terms of reference because of the claimants complaints; it took nearly as long to discipline the Claimants as it did for the matter to proceed to a Crown Court trial.

30 Turning to whether the sanction of dismissal fell within the band of reasonable responses; the evidence of Mr Tallentire was that they were dismissed for gross misconduct, however on the basis of the charge of 'unnecessary' use of force the Tribunal concluded that a reasonable employer, would look to this as a training issue; taking account of the lengthy collective service and quality of that service; the Tribunal had heard evidence of recognition and awards to the claimants; therefore dismissal did not fall within the band of reasonable responses.

31 Accordingly the dismissal was unfair."

1. There is no challenge on either side for the purposes of this appeal to the Tribunal's conclusion's that the reason for dismissal was misconduct. It will suffice to set out section 98(4) of the Employment Rights Act 1996, which provides that:

"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. On behalf of the Secretary of State Mr Keith Morton QC made submissions which followed his grounds of appeal.

1. First and foremost he attacked the Tribunal's conclusion that Mr Tallentire had no proper basis for concluding that Mr Bennett and Mr Cranmer had acted deliberately. He pointed to the medical evidence; the evidence of the C&R trainer; and the evidence of the prisoner himself, all of which the Tribunal had mentioned earlier in its reasons. He pointed out that it was not the case for Mr Bennett and Mr Cranmer that the injuries had been accidentally inflicted – their stance was rather to say that nothing untoward at all had occurred, and they had been "set up". He submitted that the Tribunal had not reviewed and evaluated Mr Tallentire's own reasons for concluding that the injuries were deliberately inflicted. This tended to show that the Tribunal was substituting its own view for that of Mr Tallentire, impermissibly, when it should have applied a "band of reasonable responses" test. Likewise the reference to a reasonable employer treating the matter as one of training suggested the application of the wrong test. If this was not the Tribunal's approach then, he submitted, its conclusions were perverse.

1. Mr Morton made a number of ancillary submissions, mostly on the grounds that findings of the Tribunal were perverse. The finding that Mr Tallentire had a "pre-judged mindset" was perverse (Ground 3). The finding that "Mr Tallentire at the outset of the proceedings did not inform the claimants as to how serious he considered this to be" (paragraph 26.1.2) was perverse (Ground 4). The finding that Mr Tallentire had "concluded that the Claimants had gone to the prisoner's cell with the deliberate intent to injure him" was perverse: Mr Tallentire never expressed this view – the charge and finding related to what happened in the cell (Ground 5). The finding that the missing CCTV evidence was relevant to the issue whether the injuries were inflicted deliberately was perverse. This, he submitted, was plainly wrong, since the CCTV did not show what happened in the cell. It might have been relevant to the question whether the prisoner was already injured when he left the cell, but even in the absence of the CCTV the Tribunal had accepted that it was reasonable to reach the conclusion that he was (Ground 6). The finding that the appeal was a "rubber stamp" was perverse (Ground 7).

1. On behalf of Mr Bennett and Mr Cranmer, Ms Louise Price (who did not appear below) made the following submissions.

1. Firstly, she pointed out that for the most part Mr Morton's argument was put on grounds of perversity. She reminded us that the threshold for such an argument is extremely high and submitted that a case on grounds of perversity was not made out. She took us to Stewart v Cleveland Guest (Engineering) Limited [1994] IRLR 440 at 443 (Mummery J).

1. Secondly, she submitted that the Tribunal's reasons were not indicative of a "substitution mindset". Although the Tribunal's reasons, in paragraph 30, appeared to apply the wrong test, these must be read against the reasons as a whole. Taken as a whole, the reasons showed that the Tribunal was well aware that it was not enough to show that a reasonable employer would have looked on the matter as a training issue. The Tribunal was aware that it must find the decision to be outside the parameters of a reasonable decision; and it did so. She submitted that the Tribunal's decision ought to be respected. She took us to Aslef v Brady [2006] IRLR 576 (para 55) and [Fuller v London Borough of Brent ]()[2011] IRLR 414 (para 30).

1. Both counsel took us through passages in witness statements and evidence in support of submissions concerning the grounds of appeal relating to perversity. Without repeating all these submissions, we will draw on them in reaching our conclusions.

1. There is an appeal to the Employment Appeal Tribunal only on a question of law. The role of an appellate court, where this is the question, is therefore limited. In the context of appeals concerning section 98(4) of the Employment Rights Act 1996 the correct approach was discussed by Mummery LJ in Fuller v London Borough of Brent [2011] IRLR 414 at paragraphs 27-30:

"27. 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.

28. 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.

29. 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.

30. Another teaching of experience is that, as with other tribunals and courts, there are occasions when a correct self-direction of law is stated by the 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. The role of an Employment Tribunal, applying section 98(4) of the 1996 Act, is well known. Once it has found the employer's reason for dismissal, its task is to review the employer's reasoning and ask whether the employer acted reasonably in dismissing. The touchstone is the objective standard of the reasonable employer. The question for the Tribunal is whether the employer's actions were unreasonable – that is to say, whether they lay outside the range open to a reasonable employer. In a conduct case the Tribunal will ask whether the employer investigated reasonably, operated reasonable disciplinary procedures, reached reasonable conclusions as to the employee's conduct, and acted reasonably in imposing the sanction of dismissal.

1. In this case, as we have seen, Mr Tallentire set out with some care and in considerable detail his reasons for concluding that the injuries were not sustained by accident and that there was a deliberate intent to cause harm. Factors upon which he relied included the medical evidence, the evidence of the training officer, and the evidence of the prisoner himself, which he assessed in some detail.

1. We would therefore expect to see, in the Tribunal's reasons, a consideration of the reasons which Mr Tallentire gave and a discussion as to whether those reasons were reasonable ones for him to hold, and if not, why not. This process is absent from the Tribunal's reasons. The Tribunal states that "it cannot see the evidence which permits the conclusion that this was deliberate use of force", without going through the process of considering how Mr Tallentire reached his conclusions, and without asking whether he was reasonable in reaching those conclusions.

1. To our mind, it was essential, if the Tribunal was applying section 98(4) correctly, to examine and review Mr Tallentire's conclusions. The Tribunal did not ask itself whether Mr Tallentire could reasonably accept the evidence of the prisoner, as he did; or whether he could reasonably draw the conclusions he drew from the medical evidence; or whether he could reasonably place reliance on the evidence of an experienced trainer as part of his conclusions. The Tribunal was content to set out its own view that it "did not see the evidence". This is the wrong approach. The question is not whether the Tribunal could see the evidence. The question is whether the employer's conclusions about the evidence were reasonable.

1. It follows that on this central question the Tribunal's reasoning cannot stand. It did not apply section 98(4) correctly. We would add that the Tribunal's reference, in paragraph 30 to its finding that a reasonable employer would have considered the matter to be a training issue, applies the wrong test: the true question was whether it was unreasonable not to consider the matter a training issue. If this mistake had stood alone we might have disregarded it as an infelicity of language. But it contributes overall to our conclusion that the Tribunal did not apply section 98(4) correctly.

1. If the Tribunal intended to say that it was impossible for Mr Tallentire to reach the conclusion that there was a deliberate intent to use harm, then we consider that this was a perverse conclusion. The Tribunal was required to engage with his reasoning and decide whether, in the circumstances, he had reasonable grounds for his conclusions.

1. We consider that there are other respects in which the reasoning of the Tribunal cannot stand.

1. Firstly, we can see no basis for the Tribunal's remark to the effect that Mr Tallentire believed that the prison officers "had gone to the prisoner's cell with the deliberate intent to injure him". It is one thing to say that, following an altercation in the cell, the officers formed an intention to harm him; another altogether to say that they went to the cell with the intent to injure him. Neither counsel was able to point us to any evidence, either in the written material or the oral evidence of Mr Tallentire, which suggested that he found the latter to be the case. Ms Price submitted that the Tribunal's remark – and apparent misunderstanding - was of no real significance. We think, however, that it may well, in part at least, have coloured the Tribunal's conclusion that there was no evidence of deliberate causing of harm, and perhaps also as to the relevance of CCTV evidence.

1. Secondly, we can see no basis for the Tribunal's conclusion that Mr Tallentire had a "pre-judged mindset". The Tribunal appears to have relied on paragraph 31 of his witness statement for this conclusion. But this paragraph deals only with the question why, in Mr Tallentire's opinion, it was appropriate to charge gross misconduct. It does not suggest that he pre-judged the issue. The Tribunal quoted part only of paragraph 31. Mr Tallentire expressly said that gross misconduct was the most fitting charge because "if proven" it would cast doubt on the prison officers' fitness to work at all in a prison environment.

1. Mr Morton submitted that the Appeal Tribunal could and should substitute its own decision for that of the Tribunal. He submitted that this course was permissible given the cogency of Mr Tallentire's reasoning and the strength of the underlying evidence. But it is for the Tribunal to assess such matters as these. The Appeal Tribunal can only substitute its own decision if it is plain what the result must be. We do not think we can go so far. We think that the matter must be remitted for the Tribunal to apply section 98(4) properly. We think, notwithstanding Ms Price's submission to the contrary, that the appeal should be to a freshly constituted tribunal.

1. We would add that we have significant doubts about other elements of the Tribunal's reasoning. We find it difficult to suppose that Mr Bennett and Mr Cranmer were in any doubt as to the seriousness of the charge they faced, or that they thought that it only encompassed accidental infliction of injury. We point out, as regards CCTV, that the issue is why Mr Tallentire thought it was appropriate to reach the conclusions he did in the absence of CCTV, and whether he acted reasonably in that regard. We find it difficult to see from the material in our papers why the Tribunal considered that the appeal was a "rubber stamp" exercise. In the end, however, the conclusions we have already expressed are sufficient to show that the Tribunal's decision cannot stand. It is sufficient for us to say, on these other matters, that the freshly constituted tribunal must consider the matter of ordinary unfair dismissal entirely afresh and reach conclusions of its own.

1. The Tribunal's findings in respect of "whistleblowing" were not challenged on appeal and will stand. The Tribunal went on to consider remedy and contributory fault. Those decisions fall with the liability decision.