1. The Co-Op pleads three grounds of appeal, as follows:

(1) "Substitution of View and the Reasons for the Dismissal". In short, the Co-Op contends that the ET plainly fell into the trap of substitution as identified above; that that infected not only its view on the (alternative) case under section 98 (4) but its decision on the reason for the dismissal under section 103A; and that the EAT erred in law by failing to so hold.

(2) "Adequacy of Reasons". Para. 13 of the Notice of Appeal reads as follows:

"[It] is … trite law that the parties to ET proceedings are entitled to know why they have won and lost and the ET is under a duty to explain how it got from its findings of fact to its conclusions. The ET in the present case failed to comply with its duty and provide the Appellant with a proper explanation of the basis on which it concluded that a substantial number of senior managers employed by it were engaged in what amounts (on the ET's findings) to a dishonest conspiracy to procure the dismissal of the Respondent. The somewhat chaotic structure of the ET decision indicates that it was reaching unexplained conclusions about the conduct of the Appellant and its employees without having first gone through the exercise of making findings of fact."

(3) "Remitting back to the ET for Additional Reasons". The Co-Op pleads that, given the fundamental inadequacies of the Reasons, this was not an appropriate case for the employment of the Burns/Barke procedure.

1. I should mention one technical point. The appeal before us is an appeal against the EAT's decision of 11 July 2013. Strictly, the EAT did not in that decision do any more than ask further questions of the ET, and only that decision could be the subject of an immediate appeal. A purist would require a separate appeal against the decision of 15 November. But the approach taken by the Co-Op was understandable, given that the EAT had in substance decided most of the issues in its first judgment, and it has meant that the appeal came on sooner. Mr Wheaton made it clear that he took no point on this.

1. In his oral submissions Mr Carr did not pursue ground 3, recognising that it was only in practice sustainable if either or both of his first two grounds were made out – in which case it would add nothing. I take the two surviving grounds in turn.

1. I have already made clear that I agree with the criticism that the ET failed properly to distinguish between (a) the exercise of deciding whether the Co-Op had acted reasonably, on the material available to it, in concluding that the Claimant was guilty of misconduct and (b) the exercise of deciding for itself (for the purpose of remedy and/or the wrongful dismissal claim) whether he was in fact so guilty. But on the face of it the EAT was plainly right (see para. 31 (3) above) that that criticism is immaterial if the ET's finding that the Claimant was dismissed for an inadmissible reason stands, because "substitution" is relevant not to the question of what the reason for dismissal was but only to the question of whether the employer's decision to dismiss for that reason was reasonable under section 98 (4).

1. Mr Carr's answer to that point was that he was alleging not only conventional "substitution" but that the Tribunal had taken its findings that the Claimant was not in fact guilty of the misconduct alleged into account at the first stage of the exercise and not merely the second: in other words, it had reasoned not "because he is not guilty, it was unreasonable of the Co-Op to dismiss him for misconduct" but – more startlingly – "because he is not guilty, the Co-Op must have dismissed him because of the protected disclosures". Mr Carr took us to several passages in the Reasons which he said demonstrated that that was the Tribunal's thought process. But none of them seemed to me clearly to prove his case. Some showed a general looseness of thought and expression, but that is not by itself enough to get him home.

1. The finding with which we are concerned is the finding of the ET that Mr Atkinson and Mr Logue made their decisions respectively to dismiss the Claimant and to reject his appeal not because they believed him to be guilty of the misconduct alleged but because (or at least principally because) they wanted to give effect to Mr Berne's wish to dismiss him because he had made protected disclosures. The issue is whether the ET gave proper reasons for that finding. I need, however, to clear some ground before turning to the detail of the Tribunal's findings and reasoning.

1. The starting-point is that section 103A uses the formulation "the reason (or, if more than one, the principal reason) for the dismissal" which also appears in section 98 (1) and has been central to the concept of unfair dismissal from its first introduction. That phrase was, classically, explained by Cairns LJ in Abernethy v Mott Hay & Anderson [1974] ICR 323 as referring to the "set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee" (see p. 330 B-C). Cairns LJ's exact language may not be wholly apt in every case, but the essential point is that the "reason" for a dismissal connotes the factors operating on the minds of the person or persons who made the decision to dismiss. The same approach applies to the "ground" for a putative detriment contrary to section 47B.

1. That requires the identification of the decision-maker(s). It was accepted before us, and appears to have been accepted by the ET, that the relevant decision-makers – that is, the persons with whose motivation we are concerned – are Mr Atkinson and Mr Logue. In principle, therefore, it is immaterial what Mr Berne may have thought or wanted except to the extent that that operated on their minds. There was some discussion before us of whether that approach was applicable in all cases or whether there might not be circumstances where the actual decision-maker acts for an admissible reason but the decision is unfair because (to use Cairns LJ's language) the facts known to him or beliefs held by him have been manipulated by some other person involved in the disciplinary process who has an inadmissible motivation – for short, an Iago situation. Mr Carr accepted that in such a case the motivation of the manipulator could in principle be attributed to the employer, at least where he was a manager with some responsibility for the investigation; and for my part I think that must be correct. But, as will appear, this does not appear to be the way that the Tribunal viewed the present case: Mr Atkinson and Mr Logue were found to be not innocent dupes but knowing participants, who consciously followed Mr Berne's agenda. It is that finding which Mr Carr says was not properly reasoned.

1. One other distinction is important. It would not be enough for the Tribunal to find that Mr Atkinson and Mr Logue welcomed the opportunity to dismiss the Claimant for misconduct because he was a whistleblower – or, perhaps more pertinently, because they knew that that was Mr Berne's view. Such a finding is not the same as a finding that that was their reason for his dismissing him (or, in the case of Mr Logue, rejecting his appeal). The correct approach was clearly explained by the EAT, Elias J presiding, in ASLEF v Brady [2006] IRLR 576, at paras. 78-79 (p. 584):

"78. We would agree that in principle there is indeed a difference between a reason for the dismissal and the enthusiasm with which the employer adopts that reason. ([Counsel for the employer] in fact drew a distinction between reason and motive, but we do not think that the analysis in this case is assisted by referring to the elusive concept of motive.) An employer may have a good reason for dismissing whilst welcoming the opportunity to dismiss which that reason affords. For example, it may be that someone perceived by management to be a difficult union official is perfectly properly dismissed for drunkenness. The fact that the employers are glad to see the back of him does not render the dismissal unfair. What causes the dismissal is still the misconduct; but for that, the employee would not have been dismissed.

1. It does not follow, however, that whenever there is misconduct which could justify the dismissal a tribunal is bound to find that this is indeed the operative reason. The Thomson case [Times Corporation v Thomson [1981] IRLR 522] shows that even a potentially fair reason may be the pretext for a dismissal for other reasons. To take an obvious example, if the employer makes the misconduct an excuse to dismiss an employee in circumstances where he would not have treated others in a similar way, then in our view the reason for dismissal – the operative cause – will not be the misconduct at all. On this analysis, that is not what has brought about the dismissal. The reason why the employer then dismisses is not the misconduct itself. Even if that in fact merited dismissal, if the employee is treated differently to the way others would have been treated, being dismissed when they would not have been, then in our judgment a tribunal would be fully entitled to conclude that the misconduct is not the true reason or cause of the dismissal. The true reason is then the antipathy which the employer displays towards the employee."

I respectfully agree with that exposition (see also, to the same effect, Governing Body of John Loughborough School v Alexis. Distinguishing between cases falling on either side of the line may not be straightforward and will often require careful consideration of the decision-makers' mental processes.

1. Finally, the burden of proof of an admissible reason for dismissal is on the employer, even in the case of a claim under section 103A: see Küzel v Roche Products Ltd [2008] EWCA Civ 380, [2008] ICR 799.

1. I turn to examine the passages in the Reasons which bear on the Tribunal's conclusion that Mr Atkinson and Mr Logue were following Mr Berne's agenda. There are several such passages, and the relationship between them is not entirely clear. I will take them in the order in which they appear.

1. Section 9 of the Reasons contains a lengthy narrative of, mostly, the Claimant's dealings with Mr Bomphrey, with whom he disagreed about the procedures for the disposal of amnesty stock, but it also covers a meeting between him and Mr Berne on 14 October 2010 on the same subject, which the Tribunal described as very heated. At para. 9.10 the Tribunal found that following that meeting:

"[Mr Berne] decided to marginalise [the Claimant] at the very least and to get rid of him completely if he possibly could. The Winsford Market incident gave him the peg on which to hang that ambition. It was in truth an opportunity which arose unexpectedly. But it gave the conduit through which the claimant's forced exit from the respondent was engineered."

1. Section 10 of the Reasons is headed "Wrong place, wrong time ?". A passage in paras. 10.1 and 10.2 contains what seems to be intended as an overview of the Tribunal's conclusions. Having referred in para. 10.1 to the possibility that the Claimant "was sacked simply by reason of his turning up on 24 July; or of merely being in the wrong place at the wrong time" (though that was neither his case nor the Co-Op's), it continues:

"… There was in our view much more Machiavellian intrigue behind the claimant's dismissal than that. We think that the claimant had set himself against [Mr Berne] in particular, on the grounds of integrity and professionalism. The claimant paid the price for that.

10.2 We sadly came to the view that the events surrounding the claimant's dismissal have "stitch up" written all over them. Having heard all the evidence there is the strong stench of a conspiracy. [Mr Berne] and probably [Mr Bomphrey] were protagonists. [Mr Bomphrey] was probably aware of what was [Mr Berne's] true agenda. [Mr Atkinson] and [Mr Logue] were pulled in as naive and unwitting bystanders. However, by the time the disciplinary process got under way and gathered momentum against the claimant we believe they realized what the underlying agenda was in relation to the claimant. But they had no choice but to go along with it."

That is clear enough as an outline. Mr Berne, pursuing his "agenda" of using the Trading Standards Officer's report as a reason to get rid of the Claimant, put the disciplinary process in motion. Mr Atkinson and Mr Logue were initially ignorant of that agenda but became aware of it as the disciplinary process went ahead. But no particulars are given of the basis on which that finding is made.

1. The next section of the Reasons is headed "David Atkinson and Christian Logue". Para. 11.1 contains the following passage:

"The respondent's AP&P investigation in our view having been sadly deficient from the claimant's standpoint, [Mr Atkinson] and subsequently [Mr Logue] were assigned the task of handling the claimant's overall disciplinary process. They are young men who have not been employees of the respondent for very long. They are we believe conscientious and well qualified pharmacists. However, we think they were following [Mr Berne's] lead (express or implied) in their manner of dealing with the claimant. We judge [Mr Atkinson's] handling of the first instance disciplinary determination of the claimant's case to be distinctly faulty on a number of levels. The claimant's dismissal was badly tainted with major substantive and procedural unfairness. At its very best assessment – which we do not think is deserved – [Mr Atkinson] had taken a dismissive, broad brush approach to the disciplinary hearing which was based on a pre-conception that the claimant was guilty of mal-practice in the handling of the respondent's stock."

The Tribunal then sets out three "facts of particular importance". The first is that Mr Atkinson "only listened to the AP&P interview of the claimant and not the full 13 CDs which had been recorded". The second is that "he came to a conclusion on inadequate evidence of the claimant's guilt of the charges laid against him". The third is an admission made by Mr Atkinson in cross-examination that he "probably did not have evidence to give him a reasonable and genuine belief that the claimant knew there were [POMs and POIs] … sold to Mr Jackson". I should make three points about para. 11.1:

(1) The first sentence represents the full extent of the criticism of the AP&P investigation. The Tribunal does not say in what way it was "sadly deficient". There are no primary findings about the investigation elsewhere in the Reasons, though para. 14.5 adds a little (see para. 53 below).

(2) The criticisms of Mr Atkinson's handling of the disciplinary hearing are hardly any more fully explained. Of the three "points of particular importance", the first does not explain why it was important to listen to the other CDs. They are not referred to elsewhere in the Reasons. The second simply states that the evidence was inadequate, but it is not said why: there is no finding of what the evidence consisted of. The third, Mr Atkinson's admission in cross-examination, is indeed significant; but it is, again, very general in nature.

(3) Neither Mr Atkinson's admission nor the other two "facts" go to the question of whether he was consciously following Mr Berne's agenda (which incorporates the whistleblowing element). They go simply to the question of unfairness.

1. Para. 11.2 starts with a finding that Mr Logue in his appeal decision was judging the Claimant by higher standards than other employees involved in the 24 July incident. It then continues:

"At the same time he was probably acting as he did to protect his own position in a very hard edged business environment. [Mr Berne] we think was in charge as far as the accusations against the claimant were concerned. We suspect that both [Mr Atkinson] and [Mr Logue] knew in their heart of hearts that the claimant was being singled out apparently over a single incident."

I have three observations about that passage:

(1) The statement that Mr Berne was "in charge as far as the accusations against the claimant were concerned" is entirely general. The ET does not say what he did or said, particularly in the direction of Mr Atkinson and Mr Logue, to indicate what he wanted to happen.

(2) The finding about what Mr Atkinson and Mr Logue understood about Mr Berne's agenda is expressed only as what "we suspect". Mr Carr submitted that what was tantamount to a finding of bad faith required more than suspicion. Likewise the finding that they knew "in their heart of hearts": does that mean something of which they were consciously aware ? or some kind of subconscious awareness that they failed to acknowledge to themselves ?

(3) What Mr Atkinson and Mr Logue are said to have known (in their "heart of hearts") is not, as such, that Mr Berne wanted the Claimant dismissed but that he was "being singled out over a single incident". It is not clear whether the Tribunal's thinking was that they should have inferred from that it was intended that he should be dismissed.

1. Para. 11.3 starts with a statement that "DA was simply not competent in his conduct of the dismissal hearing", but no details are given. Both stages of the process are then described as "clumsy and 'mob-handed'": it is not clear what "mob-handed" means in this context. There are then some criticisms of Mr Logue's handling of the appeal process – specifically that "he didn't adhere to the two reasons given in the dismissal letter and he didn't investigate further evidence brought and enquiries raised specifically by the claimant" – but the evidence and enquiries referred to are not identified. The paragraph ends with a criticism of Mr Atkinson and Mr Logue for being "somewhat generalist … in their decision-making process … [which] became pretty much a personalised approach … rather than an objective one".

1. Para. 11.4 contains further generalisations about the unfairness of the disciplinary procedure and to the effect that the outcome was a foregone conclusion, but no more particulars. It records the Tribunal's "conclusion on the balance of probabilities that the claimant's dismissal was subtly orchestrated by [Mr Berne]". This does not take matters much further.

1. Section 13 is headed "The Damning of the Claimant". Most of it is concerned with a character assessment of the Claimant. There is an unparticularised statement at the start of para. 13.2 that "the respondent's senior managers had drawn a conclusion about the claimant before the investigative, disciplinary and appeal process had been completed". Para. 13.4 refers to a "rolling juggernaut of allegations against the claimant which had gained momentum towards a decision to dismiss him"; but it is not clear what this means. Para. 13.5 starts by referring again to the existence of a "Machiavellian … agenda" to get rid of the Claimant because of his disclosures but gives no details about it. But it then switches to an acceptance of a submission by Mr Wheaton "that [Mr Atkinson] made no constructive effort to deliberate and give his determination on each separate incident of alleged misconduct … he was possessed of no clear view of what precisely was the claimant's alleged misconduct to start with".

1. Section 14 of the Reasons is headed "Who will Rid me of this Meddlesome Priest ?" (an inapt reference to Henry II's alleged outburst about Thomas Becket); but again it confines itself to generalities. Paras. 14.1-3 repeat how the Claimant had antagonised Mr Berne, and para. 14.4 repeats the point made earlier that Mr Berne seized the opportunity presented by the Winsford Market incident "to hasten his exit". Para. 14.5 begins:

"… [Mr Berne] took a close and continuing interest in the AP&P investigating process. The claimant was the first person interviewed. We think that the claimant was the principal focus of the investigative process from first to last. He was we think earmarked as the guilty party from the outset of the report from trading standards. That conclusion was probably assisted by [Mr Berne]."

1. Section 15 of the Reasons is headed "Further Findings", but it adds little. Para. 15.1.3 and 15.2 contain what appears to be intended as the formal finding that the dismissal was "in consequence of" the protected disclosures made by the Claimant: cf. para. 28 (4) above. Paras. 15.3 and 15.4 repeat, though in rather different language, the general findings made in the previous paragraphs. They read (so far as material):

"15.4 To put it bluntly, [Mr Berne] was probably the architect of a "stitch up" of the claimant and [Mr Atkinson] and [Mr Logue] were "place men" given the dirty jobs to do, to execute the plan. That plan was to marginalise and exclude the claimant. And the trouble at Winsford Market was the ideal peg on which [Mr Berne] could hang his ousting of the claimant from the company. Truly, by this means he was able as Mr Wheaton has put it get rid of "the troublesome [sic] priest". [The sic is the ET's not mine.]

15.5 We came to the view that [Mr Atkinson] and [Mr Logue] were offered up by the respondent to the tribunal hearing as sacrifices to the respondent's incompetence and duplicity in its dismissing of an experienced manager of clear record who challenged what he legitimately saw as unacceptable practices by the respondent."

At para. 15.6 the Tribunal says:

"The respondent [Mr Berne] and [Ms McNally, the Head of Healthcare HR] handed [Mr Atkinson and Mr Logue] very difficult roles as disciplinary officer and appeal officer respectively. They were we feel constrained to convict the claimant who in our finding should never have stood trial in the first place."

1. Finally, in section 17 (headed "The Claimant: Assessment of his Evidence") there is a short passage concerning Mr Berne, Mr Atkinson and Mr Logue. Para. 17.9 reads (so far as material):

"… If the claimant was indeed guilty then all well and good in [Mr Berne's] mind. Indeed if he but more particularly [Mr Atkinson and Mr Logue] were Burchell satisfied on all tests then our finding would follow. However, such satisfaction was patently absent in our view. From [Mr Berne's standpoint the claimant's guilt or innocence of the Winsford Market events or the lockup/[Mr Jackson] affair was irrelevant. It was a chance opportunity which [Mr Berne] used to his advantage."

1. That is the totality of the factual findings on which the Tribunal's conclusion that the principal reason for the Claimant's dismissal was the protected disclosures was based. There is no doubt that it found that Mr Atkinson and Mr Logue were led to make the decisions that they did by the knowledge that Mr Berne wanted to get rid of him. One or two of the passages might be consistent with some sort of subconscious knowledge, but para. 10.2 is explicit: by the end "they realised what the underlying agenda was". The question is whether sufficient reasons are given for that conclusion.

1. There is no dispute about the nature and extent of the duty on the Tribunal to give reasons. The case most often cited is Meek v City of Birmingham Council [1987] IRLR 250, but the authorities are in truth legion. The reasons given must be sufficient for the parties, and any appellate tribunal, to understand why the ET reached the decision that it did on any issue that affects the result of the claim. The degree of detail required will vary according to the nature and significance of the issue in question.

1. I have come to the reluctant conclusion that the passages that I have quoted above do not satisfy the Tribunal's duty to give reasons. It is important to appreciate that the allegations both against Mr Berne and, more particularly, against Mr Atkinson and Mr Logue are very serious. The allegation against Mr Berne is that he deliberately engineered the dismissal of the Claimant for an ostensible reason other than the true reason: that is an allegation of bad faith. As for Mr Atkinson and Mr Logue, the Tribunal evidently felt that their behaviour was less culpable because it believed that they had no choice but to go along with Mr Berne's agenda (apparently because they were young – and perhaps, though this not stated, less senior than Mr Berne). Nevertheless, they are said to have knowingly colluded in what was happening; and it is a serious criticism of them that they did not have the moral courage to stand up to the pressure that the Tribunal believed they were under. I believe that the Tribunal was obliged to explain the basis for such serious findings with particularity. As I have pointed out, no particulars of any kind are given. The Tribunal paints with the broadest of brushes. No detail is given about how Mr Atkinson and Mr Logue were made aware of Mr Berne's agenda, or even about how that might have happened. There is no finding that they met, or spoke, or that there was any e-mail communication between them, or that some intermediary was used to make sure that they got the message. (Mr Wheaton told us that he had argued that Mr Berne's influence had been mediated through a Mr Irvine, who had spoken to Mr Atkinson before the hearing; but there is no finding about this in the Reasons.) In fact it seems clear – see in particular the phrase "express or implied" at para. 11.1 – that the Tribunal was not in a position to make any detailed findings of this character. We are simply given a conclusion, which does not become any better explained by being repeated.

1. I accept, of course, that there may be cases where a tribunal has to make a serious finding on the basis of circumstantial evidence. But in such a case it is important that it makes clear what the circumstances are which are said to justify the finding. The Tribunal in this case does not do so. I have considered whether, even so, it is sufficiently apparent what its thinking was. If the only circumstances were (a) that Mr Berne wanted to get rid of the Claimant and (b) that Mr Atkinson and Mr Logue did in fact dismiss him, that would plainly not be enough to justify the inference that (b) was the result of (a): quite apart from anything else, it would leave unanswered the important question discussed at para. 43 above. I have considered whether the gap can be filled by reference to the findings that Mr Atkinson and Mr Logue performed their roles in a perfunctory and unfair manner: Mr Wheaton in his submissions before us placed great weight on the admission made by Mr Atkinson which I have quoted at para. 48. But the trouble is that those findings are hardly any more fully reasoned. If the Tribunal had demonstrated that the case against the Claimant was patently weak, then that might justify the conclusion that Mr Atkinson and Mr Logue cannot genuinely have believed that it was made out, which might in turn justify the inference that they were dancing to Mr Berne's tune. But it does not perform that exercise. On any view there were matters involving the Claimant that required investigation. His name had been given by the trader who was found selling Co-Op POMs and POIs at Winsford Market. Similarly, there was no dispute that he had been storing amnesty stock in a private garage off-site, which is on the face of it an irregularity which obviously needed to be explained (though I repeat that it was not suggested that the Claimant was acting for personal gain). It may be that the results of the AP&P investigation and/or the other evidence that was or should have been before Mr Atkinson and Mr Logue showed that he had done nothing culpable – or at least nothing that merited dismissal. But this is not something of which the Tribunal offers a reasoned demonstration. It does of course find, on the evidence before it, that the Claimant had done nothing wrong; but it needs to be shown that the Co-Op was obliged to come to the same conclusion, on the evidence which it considered (or should have considered).

1. I have anxiously considered whether I am applying an inappropriately high standard to the Tribunal's Reasons. It is well established that the decision of an Employment Tribunal should not be overturned merely because the reasoning, or its expression, is less than perfect; and I am very alive to the hardship to the Claimant of having to re-litigate this claim from scratch (incurring, it may be, substantial further costs), and so many years after the event. But it would be equally unjust to the Co-Op, and more particularly to the individuals so strongly criticised by the Tribunal, for a decision to be allowed to stand which does not properly explain the basis on which the Tribunal reached its conclusion. In the end I believe that that is indeed the case; and I am reinforced in that conclusion by the other criticisms of the Tribunal's Reasons made at paras. 23-27 above. In truth, the Reasons at no point inspire confidence that a cool and rational judgment has been applied to the issues.

1. Mr Wheaton also made the point that what might be obscure to us in the Tribunal's reasoning was not obscure to the parties, who had heard the case and knew what the submissions had been. That is a fair point in principle, but it can only go so far. In my view the gaps in the reasoning here are such that the Co-Op cannot fairly know on what basis the crucial findings against them were made.

1. I should perhaps add, though this did not form a separate ground of appeal, that I was left in real doubt whether the strong findings made against Mr Atkinson and Mr Logue were ever put to them in cross-examination. We have no note of the evidence; but Mr Wheaton's written closing submissions suggest that his case was more that they were misled by the results of an inadequate investigation than that they themselves acted in bad faith. At para. 54 of those submissions he says:

"It is the Claimant's case that Paul Berne choreographed a situation whereby the Claimant was subject to a seriously flawed investigation leading to an inevitable conclusion on the part of David Atkinson, supplied as he was with incomplete evidence which excluded anything that supported the Claimant's case."

A later passage (para. 63) refers also to "the incomplete facts presented to David Atkinson"; and at para. 98 he is said to have been "presented with a fait accompli by the investigators". It is fair to say that in another passage (para. 61) he says that it is the Claimant's case "that [Mr Atkinson and Mr Logue] were talked through their roles", a point also made at para. 96; but this seems to fall short of the Tribunal's findings. Mr Wheaton told us that he had put to Mr Atkinson that he knew that the Co-Op wanted the Claimant dismissed, though he had not put any detailed case.

1. I accept that the EAT came to a different conclusion. It set out at para. 52 of its judgment a number of what Mr Carr submitted were instances of the Tribunal having "failed to explain why it made the findings that it did make": those instances broadly correspond to those which I have identified above. It then said, at para. 53:

"We see entirely where Mr Carr was coming from, but we think that these are just examples of the tribunal resorting to inappropriate hyperbole to get its findings across. The tribunal unnecessarily laid itself open to criticism because of the robustness of its language. But the passages in its reasons which are criticised were really just different ways of saying that Mr Berne, probably along with Mr Bomphrey, wanted Mr Baddeley's employment to come to an end because of his insistence on speaking his mind – whether that related to the storage of pharmacy only items and prescription only medicines on the site or his concerns over the joint venture in China. The fortuitous discovery of pharmacy only items and prescription only medicines being sold to the public at Winsford market gave Mr Berne the opportunity to get rid of Mr Baddeley without revealing what his real agenda was. We have not been able to discern in what way the tribunal thought that the investigation was deficient, but the disciplinary process was subverted by Mr Atkinson and Mr Logue having been persuaded to implement the outcome which Mr Berne wanted. And to the extent that the real criticism of the tribunal was that this scenario was merely supposition on its part, we disagree. It was the scenario advanced by Mr Baddeley. Having (a) accepted Mr Baddeley's account of his meeting with Mr Berne on 14 October, and having (b) rejected Mr Atkinson's claim that the disciplinary process had been a genuine attempt to consider and adjudicate on the allegations made against Mr Baddeley, we think that it was open to the tribunal to reach the conclusions which it did, and that its judgment sufficiently explained how it came to them."

Mr Wheaton urged us to take the same approach; but, with all respect to the EAT, I do not think that that passage meets the essential criticism that the Tribunal does not give any basis for its finding that "Mr Atkinson and Mr Logue [were] persuaded to implement the outcome which Mr Berne wanted".

1. I would accordingly allow the appeal on this ground. The consequence, if My Lords agree, is that the case must be remitted to the Employment Tribunal for re-hearing. Given the basis on which the appeal has been allowed, that hearing will have to be before a different Tribunal. I do not think that it would be possible or in any event fair for that Tribunal to be required to accept any of the findings of the previous tribunal: all the claims will have to be re-heard. I have already made clear that I regard this as a very regrettable outcome; but I see no alternative.

Lord Justice Ryder:

1. I agree.

Lord Justice Laws:

1. I also agree.