Appeal No. UKEAT/0175/09/DM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 October 2009

Before

HIS HONOUR JUDGE HAND QC

MS K BILGAN

MRS R CHAPMAN

SNOWS MOTOR GROUP LTD (APPELLANT)

MR J PALMERINO (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MISS K MOSS (of Counsel)

Instructed by:
Messrs Blake Lapthorn Tarlo Lyons Solicitors
New Kings Court Tollgate
Chandler's Ford
Eastleigh
SO53 3LG

For the Respondent
MRS S HENSTOCK-TURNER (of Counsel)

Instructed by:
Messrs Lawdit Solicitors
No 1 Brunswick Place
Southampton
SO15 2AN

UNFAIR DISMISSAL:

Reasonableness of Dismissal

The employer only bears the burden of proving the reason for dismissal and employment tribunals should take care when considering the judgment of Arnold J in British Home Stores v Burchell to distinguish between considerations as to whether the employer had a genuine belief as to the reason for dismissal, as to which the employer does near the burden of proof, and questions as to the reasonableness of investigations and disciplinary hearings and as to the reasonableness of a sanction of dismissal, as to which the employer does not have to discharge any burden. Here the employment tribunal had erred by not keeping these considerations separate and thus appearing to consider that it was for the employer to prove that it had acted reasonably throughout.

1. This is an appeal from the judgment of an Employment Tribunal comprising Employment Judge Scott and two lay members sitting at Southampton on 10 July 2008 and 24 July 2008, the latter day being a deliberation day, whereby it was held that the Appellant, the employer, had unfairly dismissed the Respondent and that the Appellant had failed to comply with the statutory dismissal procedure of section 31 of the Employment Act 2002 so that any award would be increased by 35 per cent.

1. The Appellant is a Volvo dealer for whom the Respondent worked as a mechanic in the Service Department from May 1999 until his summary dismissal for alleged gross misconduct on 16 November 2007. On 1 November 2007 another mechanic, a man called Mr Rudd, was in the course of an interview about selection for redundancy. It was being made clear to him that he was liable to be selected for redundancy. At that point he made an allegation about the Respondent. He said that he, the Respondent, was not fitting pollen filters during routine servicing and was falsifying service records to say that he had. In fact, the following day, 2 November, a Friday, the Respondent was on holiday. In his absence a search was made in that part of the workshop where he habitually worked and under his toolbox were found 12 pollen filters. These are filters fitted to Volvo motor cars as part of routine servicing.

1. On Monday, 5 November when the Respondent returned to work he was challenged about not fitting the filters and he replied, "What can I say?" The manager who asked him about this was Mr Joss. He reported back to other managers that the Respondent had admitted misconduct.

1. The Respondent was called to a disciplinary meeting on 8 November 2007. The letter calling him to that meeting is at page 65 of the bundle. The second paragraph states the purpose of the meeting is:

"... to discuss the fact that 12 pollen filters, which should have been fitted to various customer vehicles, were found under your toolbox on Friday 2 November and, upon discussing this with you this morning, your admission [sic] to not fitting them as required. As you are aware, the fitment of these items is a requirement of Volvo's schedule of servicing and, as such, is something that we routinely charge customers for.

Whilst no decision on the outcome will be taken until after the meeting, it is only right to advise you that formal action may well be taken which, on this occasion, may include dismissal for gross misconduct."

1. At the disciplinary hearing the Respondent denied failing to fit filters and denied any admission. He said that there had been no filters in his bay when he left to go on holiday and asked for the evidence about the filters. Mr Joss, the manager who had asked him about these matters on 5 November, was at this meeting and, according to a witness at the Employment Tribunal, Mr Duhig, who was the Human Resources Director, Mr Joss appeared shocked by this turn of events. As was made clear by the Employment Tribunal, it seems that Mr Joss occupied the role of investigator, prosecutor and decision-maker, there being no active role taken by Mr Duhig so far as we can discern from the material that has been placed before us.

1. Over the next few days Mr Joss looked at the records and found a motor car registered number HN06VLB, which, according to the records considered by Mr Joss, had recently been serviced by the Respondent. According to those records the pollen filter had been changed. The car, which belonged to the father of a manager at the Appellant, was brought in and inspected. According to Mr Joss, the pollen filter had not been changed. The Respondent was therefore sent a second letter summoning him to a resumed disciplinary hearing. This letter is at page 66 of the bundle; it is dated 12 November 2007 and is short enough to quote in full so far as the main part of the letter is concerned. It is headed "Reconvened Disciplinary Hearing"

and reads as follows:

"Following the adjournment of your disciplinary hearing, we request that you attend a reconvened meeting on Friday 16 November at 9.00am. The meeting will continue to take place in the SMG Training Room.

Having carried out some further investigation into the matter in hand we would advise you of our intention to refer to the following items on Friday.

* The job card, invoice and service checklists for the recent service carried out on Mr McCue's Volvo C70, registration number HN06VLB.

* The pollen filter fitted to said vehicle."

1. There had been some notes made at the first disciplinary hearing on 8 November 2007. These appear at pages 62 and overleaf to page 63 of the bundle. It seems at least possible that they did not exist in that form at the time that the letter was written to the Respondent. We say that because the notes continue at page 63 with notes of the reconvened hearing on 16 November and it seems possible that these notes are a typed-up version of earlier notes. Be that as it may, no notes were sent to the Respondent during the period of the adjournment.

1. At the resumed hearing on 16 November 2007 the documents that have been referred to in the letter of 12 November (page 66) were produced, as was the filter. As we understand it the filter had the word "Visteon" stamped on it. Mr Joss asserted that all replacement filters would be stamped with the word "Volvo". The Respondent's answer to this was to dispute it and complain of a witch hunt. According to Mr Duhig, who gave evidence at the Employment Tribunal, Mr Joss regarded this as a lack of explanation and decided to dismiss.

1. The letter of dismissal is at pages 68 and 69 of the bundle which is dated 16 November. The first paragraph reads as follows:

"Following your recent disciplinary hearing we are writing, regretfully, to confirm our decision to dismiss you from your position at Kings Volvo Southampton on the grounds of gross misconduct and, more specifically, for knowingly failing to fit a pollen filter, as part of Volvo's standard service requirements, to Mr McCue's Volvo C70, HN06VLB. As you are aware, this particular example was presented as evidence during your meeting which, in itself, resulted from 12 such filters being found in your workbay during a recent inspection of the Workshop. As a direct consequence, we would confirm that your employment with the Snows Motor Group is to be terminated with immediate effect."

1. The Employment Tribunal quotes part of that first paragraph at paragraph 16 of the judgment. The letter goes on to refer to an appeal, but before we turn to that it is worth noting that paragraph 17 of the Employment Tribunal's judgment refers to the Appellant's case as set out in its ET3 form. There is quoted in paragraph 17 what appeared as the last paragraph in section 5 of the response at page 13 of the bundle. This reads:

"Mr Joss concluded that the claimant had deliberately and systematically failed to fit pollen filters as required, as evidenced by HN06VLB and the other 12 found, and the claimant was subsequently dismissed for gross misconduct and this was confirmed in a letter to him dated 16 November 2007."

1. It will be observed that the terms of the letter which we have just quoted and which the Employment Tribunal referred to at paragraph 16, and the scope of the Respondent's case as set out in that part of the Form ET3 and as quoted at paragraph 17 of the Employment Tribunal's judgment, are not exactly the same. The letter is narrower in scope than the ET3.

1. Turning then to the appeal, this was heard by a Mr Gatrell on 20 December 2007 and he rejected the appeal. His rejection was set out in a letter that is referred to by the Employment Tribunal but which is not part of our bundle and we know nothing more of the appeal than is set out at paragraph 18 of the judgment.

1. The Employment Tribunal directed themselves to approach this case by applying what they describe as the "three-fold test" referred to in British Home Stores Ltd v Burchell [1980] ICR 303.

1. At paragraph 20 they set out in subparagraphs 20.1, 20.2 and 20.3 what they understand to be the components of that test. They have plainly taken that from paragraph 2 of the judgment of Arnold J (as he then was) in the case of Burchell. They have not exactly quoted what was said by Arnold J. His statement is:

"First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case."

1. In fact, Arnold J goes on to say in an equally famous passage that having done that the employer must not "be examined further". The issue on this case has been partly one of substitution by the Employment Tribunal of its own judgment for that of the employer, and it is perhaps unfortunate that the Employment Tribunal did not go on to consider what was said by the learned judge in the rest of paragraph 2 of the judgment.

1. Armed with that self-direction, the Employment Tribunal then launched into an identification of what it described as "flaws in the Respondent's case". This is to be found at paragraph 21 of the Employment Tribunal's judgment. When Arnold J, in his locus classicus at paragraph 2 of the case of British Home Stores Ltd v Burchell, identified the three factors, the law relating to unfair dismissal placed the burden upon the employer in relation to both identifying the reason for dismissal and treating that as a sufficient reason in all the circumstances of the case, having regard to equity and the substantial merits as reasonably entitling the employer to dismiss.

1. Shortly after the judgment in Burchell the law was changed so as to remove the burden in relation to what is now section 98(4) of showing that it was a fair dismissal from the employer and ever since that matter has to be decided without reference to any party bearing a burden of proof but simply on the evidence that is available.

1. The Tribunal at paragraph 21 start an examination of what they described as "flaws in the Respondent's case" by saying that these flaws had been identified during the course of the Tribunal "determining whether the Respondent has satisfied that test". It therefore seems clear that what follows in paragraph 21 is the Employment Tribunal looking at the matter from the point of view of the Respondent employer, the Appellant in this appeal, bearing a burden of proof.

1. Paragraph 21 goes on to enumerate the flaws. These are set out under ten headings. Firstly, there was no first-hand evidence as to what Mr Joss believed or what was in his mind. Secondly, there were no notes made by Mr Joss or by Mr MacGillivray who had found the filters under the toolbox. Thirdly, no statement had ever been taken from Mr Rudd. Fourthly, no part of the investigation had been directed to the fact that Mr Rudd worked at the other end of the workshop and that being so, how would he know about this misconduct? Fifthly, there was no evidence of whether Mr Rudd's allegation was in good faith or he had an ulterior motive, namely saving his own job. Sixthly, there was no consideration as to whether the evidence had been planted or as to the inherent unlikelihood of a guilty person leaving the evidence lying around whilst absent on holiday. Seventhly, Mr Joss never considered what the Respondent had meant by, "What can I say?" and had assumed that to be an admission. Eighthly, there was no paper trail or audit trail following up through the stores, the parts that had been issued to the Respondent and checking the paperwork to see if the filters had indeed been issued to him. Ninthly, the Employment Tribunal say that the letter of dismissal clearly suggests that the Claimant had been found culpable in respect of all 12 filters found in his work bay, whereas the result of the investigation was that only one instance had been established.

1. We pause to observe, that seems to us not to be an entirely correct reading of the letter of dismissal and perhaps what the Tribunal had in mind was that the terms of the letter of dismissal varied from the cases set out in the Respondent's answer in the Form ET3. This is the matter we have already referred to in relation to paragraphs 17 and 18 of the Employment Tribunal's judgment. Be that as it may, the tenth conclusion was that the Appellant had never proved that the Visteon filter had come from Mr McCue's car, or at least had never dealt with the Claimant's objection that that had not been proved.

1. Having found those "flaws" the Employment Tribunal reached its conclusions at paragraph 22. In paragraph 22.1 the Employment Tribunal says:

"In the absence of any evidence from Mr Joss, and in view of the failure of the Respondent to produce any contemporaneous notes relating either to his investigation or his conclusions, the Tribunal is unable to find that the Respondent has shown that the grounds for dismissal of the Claimant have been shown to be based on Mr Joss's genuine belief."

1. Then paragraph 22.2 seems to proceed on an alternative basis. It is worded as follows:

"Even if the Tribunal had been satisfied as to such genuine belief, it would have found that Mr Joss could not have had in his mind reasonable grounds to sustain such belief, since the investigation which he himself had carried out was so manifestly flawed and inadequate."

1. It goes on to state why it takes the view that the investigation was in fact flawed and inadequate. This can be summarised under three headings. Firstly, only one vehicle was investigated, secondly, that was not an adequate investigation and, thirdly, there had been no investigation as to the reliability of Mr Rudd or his motives.

1. The Tribunal then at paragraph 23 reaches its conclusion that the dismissal was substantively unfair because the Respondent had failed to show that misconduct was the reason for dismissal. At paragraph 24 the Tribunal went on to reach the conclusion that in any event the dismissal was procedurally unfair, having regard to section 98(4) of the 1996 Act. This was based on what at one point it is said to be considerations of the "rules of natural justice". It is divided by the Tribunal into four matters. Firstly, that Mr Joss was investigator, prosecutor and decision-maker and in a company the size of the Appellant that was, to quote the Tribunal, "serious and irregular". Secondly, there was an immediate conclusion arrived at by the decision-maker, Mr Joss, to dismiss the Respondent with no pause for reflection, and that was evidence that "strongly suggests that the outcome of the hearing had been determined in Mr Joss's mind even before the hearing commenced".

1. Thirdly, that the evidence had not been supplied in advance of the resumed disciplinary hearing is said to have inhibited the Claimant who "did not know in advance what case he would have to defend". It was said that he did not know the basis of the allegations he faced, that he had not seen the documents, that he had no opportunity to prepare his response and that such a situation was "contrary to the rules of natural justice and rendered the hearing unfair".

1. Finally, on the question of procedure it was said that Mr Gatrell on the appeal did not address the various irregularities. That is a difficult matter to penetrate, given the lack of material before us as to the nature and content of the appeal.

1. As a discrete point different to but allied to their conclusions in relation to section 98(4) the Employment Tribunal found the dismissal to have been automatically unfair because of a failure to follow the procedure prescribed by Part 1 of Schedule 2 of the Employment Act 2002. This relates to paragraph 2(2) of the Schedule and is dealing with "Step 2". It was said by the Tribunal that the Appellant had never informed the Respondent of the grounds and the Respondent did not have a reasonable opportunity to consider the response as required by the paragraph. Schedule 2, Part 1, Chapter 1 deals with the standard procedure; paragraph 2 of Part 1, Chapter 2 deals with the meeting and the paragraph reads as follows:

"2

(1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

(2) The meeting must not take place unless -

(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and

(b) the employee has had a reasonable opportunity to consider his response to that information."

1. This is plainly what the Tribunal have in mind and they quote it at paragraph 25. At paragraph 26 of the judgment they reach this conclusion:

"In this case, the Respondent's letter to the Claimant dated 12 November 2007 referred to the documents and evidence to which reference would be made at the reconvened disciplinary hearing on 16 November 2007 but failed to provide copies of the documents to the Claimant in advance, or to afford him a site of the pollen filter upon which it relied (both of which would have been perfectly feasible) and fails to explain the grounds upon which it proposed to pursue its allegations. In the result, the Claimant was prevented from having a reasonable opportunity, in advance of the hearing, to consider the information upon which the Respondent would rely or his response to it."

At paragraph 27 in a consequence of that the Employment Tribunal increased the award by 35 per cent.

1. Miss Moss, of Counsel, who appears on behalf of the Appellant, has made four submissions. She submits that here the Employment Tribunal have erred in respect of the burden of proof. In essence what has happened is that the Employment Tribunal, having referred itself at paragraph 20 to British Home Stores Ltd v Burchell, has partly addressed itself to the issue under section 98(1) of the 1996 Act. This was something that the Employment Tribunal had directed itself perfectly correctly about by the third sentence of paragraph 20 when they had said:

"It is for the Respondent to show that this was the reason for dismissal (section 98(1) of the 1996 Act)."

1. What the Tribunal have failed to appreciate is that the so-called tripartite test in British Home Stores Ltd v Burchell deals not simply with the reason for dismissal but also deals with matters that need to be considered under section 98(4), namely whether in treating that reason as a sufficient reason as to justify dismissal the Tribunal has acted reasonably. Where the Tribunal has erred, submits Miss Moss, is in the following sentence of paragraph 20 because what the Tribunal have done is to have applied the test not only to section 98(1) but also to section 98(4). In the fourth sentence at paragraph 20 the Tribunal say this:

"In determining whether the Respondent has done so [i.e. shown what the reason for dismissal was] the Tribunal has applied the three-fold test referred to in British Home Stores Ltd v Burchell [1980] ICR 303 which requires the employer to show that ..."

and then the three steps which Arnold J suggested should be taken are set out.

1. So, submits Miss Moss, when one comes to paragraph 21 one can see from the first sentence of paragraph 21 that the Tribunal are approaching this from the point of view of the Appellant bearing the burden of proof in relation to the matters that it then sets out. Moreover, if one looks at paragraph 22.1 the fact that the Tribunal are thinking in terms of the Appellant bearing the burden of proof is clearly corroborated by the wording of paragraph 22.1, which we have set out above. Equally, when the Tribunal go on at paragraph 22.2 it is clear that they are proceeding in the alternative to look at matters beyond the question of a genuine belief that misconduct was the reason for dismissal and are straying into the investigation and making criticisms of the way the investigation was carried out.

1. It is true, accepts Miss Moss, that at paragraph 23 the Employment Tribunal make a decision that relates to the reason for dismissal. Her submission is that that is too late to confine this matter simply to the reason for dismissal and that the Tribunal in paragraphs 21 and 22 have hopelessly mixed matters that relate to the reason for dismissal and matters that relate to the investigation and, for that matter, to the sanction applied as a result of the conclusion reached following the investigation.

1. Mrs Henstock-Turner submits that one should take this Tribunal's judgment at face value. Paragraph 23 states that this is what the Tribunal have found and paragraph 20 indicates that that is what they intended to address. She submits that Arnold J in Burchell plainly intended the tripartite test to be applicable equally to the questions as to what the reasons for dismissal were as to other issues under section 98(4) so that the fact that he expressed himself in terms of the employer bearing the burden of proof is really irrelevant. The employer does bear the burden of proof under section 98(1), that is what the Tribunal have confined themselves to and no error arises as a result.

1. It cannot be doubted that this is a difficult matter. British Home Stores Ltd v Burchell was a case heard in July 1978 and reported in that year's Industrial Relations Law Reports. It was not in fact reported by the Incorporated Council of Law Reporting until 1980. The reason for the delay is that the significance of the judgment of Arnold J only gradually became apparent as can be appreciated from the fact that the report takes the form of a note appended to another case.

1. In the 31 years that have passed since, the way in which industrial and now employment tribunals should approach this question as to how to deal with allegations of serious misconduct and their investigation has provoked a number of authorities. In particular, in the last decade or so the matter has been looked at by the Court of Appeal on a number of occasions. We have been referred to several of the authorities. In particular, we have been referred to the conjoined appeals of Post Office v Foley and HSBC Bank plc (formerly Midland Bank plc) v Madden [2000] IRLR 827, Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23 and the latest word on the matter in London Ambulance Service NHS Trust v Small [2009] IRLR 563. Spirited attempts have been made in those cases, particularly in Foley and Madden, to suggest that the approach in Burchell may not be correct. That has been roundly rejected by the Court of Appeal and in particular by Mummery LJ who has given the main judgments in each of the cases.

1. At paragraph 3 of his judgment in the case of Small he summarises the matter as follows:

"The parties agree that the legal principles on conduct dismissals are those set out by the EAT 30 years ago in its judgment in British Home Stores Ltd v Burchell [1978] IRLR 379 and affirmed by this court in Post Office v Foley [2000] ICR 1283. The essential terms of inquiry for the ET were whether, in all the circumstances, the Trust carried out a reasonable investigation and, at the time of dismissal, genuinely believed on reasonable grounds that Mr Small was guilty of misconduct. If satisfied of the Trust's fair conduct of the dismissal in those respects, the ET then had to decide whether the dismissal of Mr Small was a reasonable response to the misconduct."

1. This puts the matter in a slightly different way, indeed in a slightly different order, to the way it was put by Arnold J 31 years ago. Nevertheless, the ingredients are broadly the same but the way that the learned judge expresses it to our mind shows that this is a matter that is not without difficulty so far as an Employment Tribunal is concerned. The reason for dismissal is usually to be found in the letter of dismissal. It may be necessary, of course, to consider the allegations that have led to the letter of dismissal. It may be necessary to compare and contrast how those allegations started and finished and what, if any, significance might be attached to any change in the allegations.

1. Mummery LJ compresses the issue under section 98(1) into the phrase "genuinely believed on reasonable grounds that Mr Small was guilty of misconduct". It seems to us clear that in many cases it will be difficult for employment tribunals to absolutely divorce issues that relate to whether or not there was a genuine and honest belief in the reason for dismissal from issues as to the nature and reasonableness of the investigation, the procedure adopted, the evidence scrutinised and the conclusions come to.

1. It may be very difficult if there is a challenge to the genuineness and honesty of the employer's reason as set out in the dismissal letter to avoid considering the history of the allegation and its transformation through the investigation and hearing process into the reason for dismissal. It may be impossible in looking at that from the point of view of honesty and genuineness to ignore various aspects of what might be called reasonableness. After all, in many situations in many courts, that which is genuine and honest is often tested by whether it appears to be a reasonable contention. Often in the criminal courts the question as to whether somebody has acted honestly or dishonestly is looked at from the point of view of their subjective state of mind, but their credibility as to that is tested by looking at the reasonableness of the propositions that are advanced. That is so not simply in criminal cases, but also in all sorts of civil litigation and it may be impossible, therefore, for Employment Tribunals to absolutely compartmentalise the various decisions that have to be made, one from another.

1. Therefore, we have some sympathy for the Employment Tribunal in this case. It was no doubt doing its best to arrive at what it saw as a proper conclusion within the statutory framework by looking at the matter from a variety of standpoints. But it seems to us that this Tribunal did mix up section 98(1) and section 98(4). We accept the submissions of Miss Moss that when one looks at the wording used by the Tribunal in paragraph 21 and in paragraphs 22.1 and 22.2 there can be no doubt that the Tribunal were not simply in their mind confining themselves to the issue of dismissal. This seems to us to be particularly illustrated by paragraph 22.2. The wording adopted by the Employment Tribunal can only have the meaning that the Tribunal was proceeding on the basis that there was a genuine belief for dismissal and if it was proceeding on that basis, what else was it going to look at? It must have been going to look at the issues under section 98(4).

1. So it seems to us that the point made by Miss Moss that there has been a mixing together of the concepts in this case is well founded. Where does that take us? Miss Moss submits in the most rigorous iteration of her submissions that one should keep these two concepts apart. As we have endeavoured to explain, it may not always be possible to keep these matters absolutely separate. The case of Small, of course, is a case about keeping evidential findings separate, one from another, and the Employment Tribunal are enjoined by the Court of Appeal to be very careful about making one set of findings and keeping them separate from another set of findings that may involve entirely different considerations.

1. In relation to unfair dismissal it is necessary to consider the genuineness and honesty of the reason for dismissal, the reasonableness of the investigation and the procedure and the reasonableness of the sanction. However, when it comes to discrimination or wrongful dismissal, or for that matter, contributory conduct which may arise out of the same factual matrix, the Court of Appeal in the judgment of Mummery LJ explains how important it is for Employment Tribunals to make sure that they keep one set of considerations and factual materials separate from another.

1. It may be that that sort of approach ought to be adopted in relation to deciding what the reason for dismissal was as opposed to considering whether it was a fair reason for dismissal in the context of misconduct dismissals. That is something that this Tribunal did not do but as we have already indicated, it may be entirely understandable as to why they did not do it. This was a decision made before the Court of Appeal's decision in the case of Small and, of course, the case of Small relates to somewhat different considerations. But the fact remains that the two matters are mixed and Miss Moss submits that that being so, what the Tribunal have done is applied the wrong burden of proof because they have started from the proposition that the burden of proof is on the employer in relation to all three aspects of what Arnold J enunciated in the Burchell case.

1. Mrs Henstock-Turner submits that there would be nothing wrong with that if the Tribunal has confined itself, as it says it has, in effect in paragraph 23 of the judgment, to the issue of the reason for dismissal because the burden is plainly in terms of the statutory rubric cast upon the employer in that respect.

1. We have reached the conclusion that whilst that may have been right if it could be sustained on the judgment of the Employment Tribunal here, when one looks at the judgment it clearly is a case where the Tribunal have wandered backwards and forwards as between section 98(1) and section 98(4). Accordingly, it must follow that they have been applying the wrong burden of proof to matters that ought to have had what is sometimes called a neutral burden or, perhaps, more happily expressed as no burden at all.

1. We accept Miss Moss' submission that it must be a very rare case where there has been an error as to the burden of proof in which case it can be said, "Well it makes no difference". She relies upon the judgment of the Court of Appeal in the case of Maund v Penwith District Council [1984] ICR 143 and IRLR 24. In particular, she relies upon paragraph 28 in the judgment of Griffiths LJ (as he then was) in which he emphasises that it, as he put it "requires a very strong case to say that it can have had no effect on the Decision".

1. We cannot say that this error as to the burden of proof can have had no effect on the Decision. Accordingly, for that reason we will allow the appeal in relation to the first ground of appeal and the matter will have to be remitted to the Employment Tribunal; the terms of the remission we will discuss later.

1. Having regard to that conclusion, it may be unnecessary strictly to look at two out of the other three matters. We have been urged by Miss Moss in relation to the statutory procedure finding that the matter is so clear that we ought to make a determination about it. We will therefore come to that submission in due course but first we will add a few words on the second and third grounds of appeal.

1. The second ground of appeal is that the Employment Tribunal substituted its own judgment for that of the employer. This is the vice addressed 31 years ago by Arnold J in Burchell and which occupied the Court of Appeal in the three cases that we have referred to. Miss Moss submits that when one looks at it here, the facts are very simple: there was an informant who denounced the Respondent. His place of work was searched and the filters were found. He was asked about it and appeared to admit it. When the matter was looked at further and a car was identified, on inspection it was found to contain the original filter although there seems to be some confusion as between paragraph 11 of the judgment of the Tribunal and paragraph 21.10 in relation to what the document precisely contained, a confusion that we cannot resolve since we only have the first page of the document. There was a document and certainly there was a service checklist which, as we understand it, showed the filter to be changed. Finally, there was a lack of explanation put forward at the disciplinary hearing.

1. The issue that the Tribunal had to consider, submits Miss Moss, was whether that material had been produced as a result of a reasonable investigation and whether it was reasonable to rely upon that material in coming to the conclusion that Mr Joss did as set out in the letter of dismissal. But when one looks at the way that the Tribunal criticise it when they set out their ten "flaws", Miss Moss submits that it can be seen clearly that this is all being looked at really, not from the point of view of what the employer knew or what the employer had, but from the point of view of the employee and, moreover, from the shortcomings of the procedure as the Tribunal perceived them to be. The prime examples of that, submits Miss Moss, are paragraphs 21.5 and 21.6. They have, in short, to quote Mummery LJ, "slipped into the substitution mindset".

1. Mrs Henstock-Turner submits that they have not slipped into the substitution mindset because they are not in fact considering section 98(4) and they are simply looking at the matters relating to section 98(1). She also submits that this is an exceptional case. Thirdly, she submits that this was a manifestly flawed procedure and that there were, clearly, matters that ought to have been investigated.

1. We need reach no conclusion on these matters but it seems to us that the Employment Tribunal did slip into the substitution mindset. The issue must be not what is "a fair and thorough" investigation, nor is the issue as to what is an "adequate" investigation, the issue is as to whether on that material, having conducted that investigation and having heard the evidence that it heard over the two days of the disciplinary hearing, the employer acted reasonably in the terms set out in section 98(4) of the Employment Act 1996 and, furthermore, whether in the circumstances dismissal was a sanction that could have been applied by a reasonable employer, the classic formulation of that being whether it was within the band of reasonable responses.

1. It seems to us that the Employment Tribunal have looked at this from the point of view of some absolute standards. In our judgment, in relation to the procedural unfairness where they refer to "rules of natural justice" the Employment Tribunal are giving an indication of adopting some sort of absolute standard. This, of course, we realise, relates to the third ground of appeal but nevertheless it seems to us to be somewhat revealing of the way that the Employment Tribunal approached the matter.

1. We also think that paragraph 14 is a significant paragraph in the judgment. The Employment Tribunal thought that it was significant that Mr Joss had not been called to give evidence, as they put it at paragraph 21.1 that the Appellant had failed "to adduce any first-hand evidence as to what Mr Joss believed". This seems to us to be scrutinising the matter as though it was a crucial part of the case that Mr Joss came before the Employment Tribunal and was subject to investigation by the Employment Tribunal as to what he believed and why he had done what he had done.

1. There is no doubt that the quality of evidence that is placed before the Tribunal is an important consideration in the fact-finding exercise that a Tribunal must complete. Nevertheless, we think that it, coupled with paragraphs 21.5 and 21.6, does indicate that the Tribunal were tending to look at this from the point of view of what they thought; not from the point of view of the reasonableness of what the employer had done.

1. So far as the other aspect of section 98(4) is concerned, namely general procedural unfairness, it could be objected that the Employment Tribunal have also set rather absolute standards in relation to that. It seems to us that that is a matter that, whilst it is dealt with as a freestanding point, is, in essence, really part of the substitution mindset point. What is set out at paragraphs 24.1 to 24.4 of the judgment and subjected to criticism by Miss Moss seems to us simply to be indications that the Tribunal have not been adopting the right approach.

1. That brings us to the question of statutory procedural unfairness. We have already referred to the two letters: the letter of 5 November at page 65 and 12 November at page 66. In between there is the first disciplinary hearing at which certain matters were articulated as set out at page 62 of the bundle. The issue is whether or not paragraph 26 is a sound application of the law to the facts. At paragraph 26 there is reference made to failure to provide "copies of the documents to the Claimant in advance, or to afford him a sight of the pollen filter upon which it relied".

1. It seems that failure may relate to the second disciplinary hearing. Mrs Henstock-Turner seemed inclined to concede that was so. Miss Moss' submissions were essentially: what more could be needed? She referred us to the judgments of this Tribunal in YMCA Training v Stewart [2007] IRLR 185 and Ingram v Bristol Street Parts UKEAT/0601/06. Those cases demonstrate that what is necessary in this context is to know what the basis was and to know what the grounds are for that basis.

1. The case of YMCA Training v Stewart illustrates that the matter can be addressed in a single letter; it does not need to be split up over two letters. In the case of Ingram, Elias J at paragraph 21 says this:

"In our view they set the requirement under Step 2 far too high. It was not necessary for the employee to see in advance all the detailed invoices in order to deal with the fundamental complaint against her, namely failing to disclose the fact of the thefts and then concealing them by false accounting. The Tribunal was wrong to assume that the statutory requirements obliged the employers to provide in advance all the evidence on which they intended to rely. It merely requires sufficient material to enable the employee to put her side of the story. In our judgment there can be no doubt that this principle was honoured here."

1. Miss Moss submits that paragraph 65 sets it all out and if we are looking, as we may be, at simply the situation leading up to 16 November, then it has all been set out in the letter, not just at page 65 but at page 66, and it was not necessary, in order to be able to deal with the matter, for the Respondent to see either the document or the filter in advance of the meeting. He must have known perfectly well what was being contended.

1. Mrs Henstock-Turner submits that this was not a sufficiently detailed statement and that it did not give the Respondent enough material to enable him to defend himself.

1. Powerful though Miss Moss' submissions have been, we have reached the conclusion that we ought not to make a final decision as to this matter. It seems to us that the Tribunal may not have considered the components of paragraph 2(2) correctly in the light of the factual material available but given that there is some lack of clarity at paragraph 26 as to what the Tribunal actually have in mind, and given that the Tribunal have not had the advantage of the helpful submissions of Miss Moss in relation to the authorities, and given that we do not know exactly how it is that the Claimant might say that this was inadequate, something which may or may not bear on the issue, we have come to the conclusion that, as with the second and third issues, whilst we would go some way along the road to thinking that there was an error on the part of the Tribunal, we can reach no conclusion. Certainly, we would not wish to inhibit the Tribunal that has to re-hear this case from reconsidering the statutory dismissal and disciplinary procedure aspect of the case by reaching a final conclusion on what may be an incomplete picture.

1. Accordingly, the appeal will be allowed and this case will be remitted to the Tribunal for a complete re-hearing. My understanding is that the Employment Judge has now retired and that in any event, therefore, the matter would have to go to a differently constituted Employment Tribunal. We have heard no submissions as to that but unless any objection is taken to the course, we propose to direct that the matter be remitted for a complete re-hearing to a differently constituted Employment Tribunal.

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UKEAT/0175/09/DM

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