The claimant, a van driver with the respondent, was dismissed after he had had 3 'avoidable' accidents within a period of 12 months. The respondent operated a policy of '3 strikes and you are out', which meant that it could dismiss employees who had 3 avoidable accidents within 12 months. The Tribunal found that he had been unfairly dismissed, saying that this was a capability case, not a conduct case and that the 3 strikes rule in these circumstances was unfair. They also found that the respondent was wrong to have issued a written warning at the same time as a final written warning in respect of the first 2 accidents which happened within a short space of time. Finally, the Tribunal considered that the decision to dismiss fell outside the band of reasonable responses because the respondent had not given consideration to any other mitigating factors or the relatively small amount of damage done to the vehicles. The respondent appealed.

The EAT upheld the appeal. First, the ET had fallen into error by approaching the matter on the basis that the claimant drove carefully. This was not the opinion of the respondent and if the Tribunal had started from the correct point it ought to have found that the reason for dismissal related to conduct. The Tribunal also substituted its own view for that of the employer on the question whether the third accident was avoidable and had not addressed directly the question in respect of the first 2 accidents. Finally, the Tribunal should have addressed the question whether the procedure adopted in respect of the 2 warnings was reasonable – it was not sufficient to say the respondent did not follow its own policy.
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Appeal No. UKEAT/0038/11/RN

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 8 June 2011

Judgment handed down on 16 January 2012

Before

HIS HONOUR JUDGE DAVID RICHARDSON, MS V BRANNEY, MR G LEWIS

UPS LTD (APPELLANT)

MR S HARRISON (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR MICHAEL FORD (of Counsel)

Instructed by:
TLT LLP Solicitors
1 Redcliff Street
Bristol
BS1 6TP

For the Respondent
MS KATE ANNAND (of Counsel)

Instructed by:
Messrs 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 erred in law in substituting its own view for that of the employer (1) when characterising the reason for dismissal (Abernethy v Mott, Hay & Anderson [1974] ICR 323 and Sutton & Gates (Luton) Ltd v Boxall [1979] ICR 67 applied) and (2) when reaching its conclusions as to whether the dismissal was unfair.

1. This is an appeal by UPS Limited ("UPS") against a judgment of the Employment Tribunal sitting in Newcastle upon Tyne (Employment Judge Singleton presiding) dated 3 November 2010. By its judgment the Tribunal upheld a claim of unfair dismissal brought against UPS by Mr Stephen Harrison.

1. Mr Harrison, who was aged 59 and had 33 years of service at the date of his dismissal on 12 January 2010, was a feeder driver – mainly driving vans of 7.5 tonne capacity. He was dismissed under a rule which was described in shorthand before the Tribunal as a "three strikes rule" – put shortly, he had three accidents within 12 months which UPS regarded as avoidable.

1. UPS had a document entitled "Code of Policy and Procedure", which included Company Rules and a variety of policies and procedures to deal with various aspects of employment.

1. The Company Rules included the following.

"18 Traffic Accidents

All employees are under obligation to report promptly, in writing and on the appropriate form, to management, all accidents or damage to vehicles … Driving personnel with 3 avoidable accidents within a 12 month period may be liable for dismissal in accordance with the Counselling, Disciplinary and Competency Procedure."

1. Within the Counselling, Disciplinary and Competency Procedure there was a Disciplinary Code (Annex D). The first section set out a list of matters which might constitute gross misconduct. The fourth and fifth sections set out other lists of "misconduct" for which warnings, written or oral, might be given. The second section read as follows.

"SECTION B

Each of the following shall constitute incapability for which an employee may be dismissed with notice.

1. Unacceptable accident record eg three avoidable accidents within any 12 month period.

2. Persistent or serious poor performance."

The Disciplinary Procedure made provision for a formal written warning and a final written warning. The Competency Procedure also made provision for a formal written warning and a final warning.

1. It was common ground before us (and we would in any event have considered it plain) that "avoidable" meant avoidable by the exercise of due care by the employee concerned. The three strikes rule was directed at the employee who had accidents involving lack of care on his part.

1. It is, we think, necessary to say a word about each of the three accidents, explaining the case for Mr Harrison and UPS at the Tribunal.

1. The first accident was on 15 January 2009. Mr Harrison was driving out of the Gateshead warehouse when he struck and damaged an overhead shutter door (the Tribunal thought that he was reversing into the warehouse; but it was mistaken). Mr Harrison said in his witness statement that he did not think this accident was his fault: the shutter was only three quarters open, there were no height markings and he had driven out of the warehouse on many occasions before. The case for UPS was that the accident was avoidable: Mr Harrison, like all other drivers, should have checked that it was safe to go out through the warehouse doors.

1. The second accident was on 22 January 2009. Mr Harrison's vehicle struck a cone on the A1 Western bypass causing the rear nearside air deflector to be broken. Mr Harrison said in his witness statement that he did not consider this accident avoidable; his 7.5 tonne vehicle was caught by a gust of wind. The case for UPS was that the accident was avoidable by the use of care; if Mr Harrison had driven with his hands on the wheel in the "ten to two" position and left reasonable space, the accident would not have happened.

1. The third accident – the one which led directly to Mr Harrison's dismissal – took place on 11 December 2009 at a roundabout on the exit to the A1 southbound near Sedgefield. Mr Harrison was driving a Transit van. He pulled up at the roundabout behind another car. The traffic was heavy. The car moved forward as if to set off. He started to move forward as well – but the car stopped and he ran into the back of it, causing minor damage. Mr Harrison said in his witness statement that the car in front stalled and therefore the accident was not his fault. The case for UPS was that the accident was avoidable; drivers received specific training to leave a car length in space when stopped in traffic, and to count "one-two-three" after the vehicle ahead starts to move.

1. After each of the first two accidents Mr Harrison received further training. Mr Harrison received a letter dated 3 February informing him he was required to attend a disciplinary hearing on 6 February 2010. On that day two meetings chaired by Mr Taylor (a supervisor) were held one after the other to deal with these accidents. In both cases Mr Harrison admitted that the accident was avoidable and informed Mr Taylor that he was having "personal problems".

1. Following these meetings Mr Taylor issued simultaneously on 9 February 2010 a written warning in respect of the first accident and a final written warning in respect of the second accident. The final written warning told him that if there was a further avoidable accident within the next twelve months further disciplinary action would be taken which could result in dismissal. He had been told about this warning at his disciplinary hearing and had expressly accepted that if he had one more avoidable accident before next January he could lose his job. There the matter rested. Mr Harrison did not appeal either warning.

1. Following the accident on 11 December Mr Harrison was suspended on full pay. A disciplinary hearing was taken by Mr Platt on 12 January 2010. He considered all three accidents. Mr Harrison's representative told him that Mr Harrison had had a bad year and had personal problems. The Tribunal found the following:

"2.12 Mr Platt told the Tribunal that the claimant was at fault in respect of the first accident for not getting out of his vehicle and checking both the height of his vehicle and the height of the shutter. The Tribunal were not convinced by Mr Platt's evidence and his suggestion that the claimant should have got out of his vehicle to check the height of the shutter because if, as Mr Platt had also suggested, the shutter was always either fully open or fully closed there would be no requirement for the claimant to get out of his vehicle to check this."

1. Mr Platt dismissed Mr Harrison with notice, saying that all three accidents were deemed to be avoidable.

1. An appeal was heard on 25 February 2010 by Mr Angerstein. He also considered the circumstances of all three accidents and found them to be avoidable.

1. The Tribunal heard from Mr Platt, Mr Angerstein and Mr Harrison. It made findings of fact upon which we have already drawn in this judgment: we will return to some others in a moment.

1. In its reasons, after a section setting out findings of fact, the Tribunal set out the applicable law relating to unfair dismissal. It then set out its conclusions in two paragraphs:

"4.1 The Tribunal considered carefully all of the evidence put before it as to the reason for the dismissal. As the Tribunal has set out above, misconduct and incapability are sometimes hard to differentiate but the Tribunal was satisfied in this case that the claimant was driving carefully and trying his best in difficult circumstances in respect of the accident which led to his dismissal. The Tribunal found that it was not a matter of the claimant failing to exercise to the full his driving skills. It was a foggy night, it was dark, (facts accepted by the respondent's two witnesses) and the vehicle in front of the claimant's vehicle stalled with no brake lights showing. Having found that this was a capability and not a conduct issue the Tribunal found that to apply the three strikes and you are out rule in these circumstances was unfair. Whilst the Tribunal made no findings as to whether the first two accidents amounted to capability or conduct issues the Tribunal noted that the respondents themselves had classed them as capability issues when inviting the claimant to the disciplinary hearing following the third accident. The Tribunal also noted that the final written warning had been given at the same time as the written warning allowing the claimant no opportunity to improve between these two warnings and then linking these warnings to the third accident to apply the rule had to be unfair. If the Tribunal is wrong in this respect it found, in any event, that the respondent had failed to follow its own procedure both in respect of capability issues and in respect of conduct issues. In respect of the capability issue there was no informal action with a possible verbal warning for the first incident, the written warning remained on the record beyond the six month period specified in the policy and there was nothing clearly documented to set out what was required of the employee and the fact that any repetition might result in a disciplinary hearing. If the Tribunal had found that the reason for dismissal was conduct it would still have found the dismissal unfair upon the basis that the respondent did not take into account any mitigating factors and also upon the basis that it failed to follow its own procedures in respect of conduct issues.

4.2 Finally the Tribunal went on to consider whether the decision to dismiss fell within the band of reasonable responses. In addition to having disregarded its own policies both Mr Platt and Mr Angerstein told the Tribunal that they had not considered any alternative to dismissal. The claimant was a long term employee having been employed for 33 years, he had been having personal problems which were ignored as were the mitigating factors of each individual accident. The Tribunal were satisfied that both Mr Platt and Mr Angerstein applied the 'three strikes and you are out' rule without giving consideration to any other factors including the relatively small amount of damage that was done. Having regard to what was known to the respondent at the time the decision was taken and asking itself would a reasonable employer in those circumstances dismiss the Tribunal found that a reasonable employer would not dismiss in those circumstances and accordingly the decision to dismiss this claimant fell outside the band of reasonable responses."

1. In reaching these findings the Tribunal was building on some findings which it made earlier in its reasons concerning the warnings given in February and concerning Mr Platt and Mr Angerstein.

1. As regards the warnings given in February, the Tribunal had noted, in paragraph 2.10 of its judgment, that the letters did not specify a time for improvement or set a review date. The competency procedure adopted by UPS included these features; as did the disciplinary procedure relating to the giving of written warnings.

1. As regards Mr Platt, the Tribunal had criticised his conclusions in paragraphs 2.12 and 2.13 of its findings of fact, and it had then said:

"2.14 The Tribunal were satisfied and found that Mr Platt disregarded any mitigating factors or matters which might explain any of the three accidents including disregarding the claimant's length of service, the fact that the previous two accidents had occurred nearly twelve months earlier, the weather conditions and the claimant's personal problems and that he was only prepared to apply the 'three strikes and you are out' rule in a very prescriptive and rigid manner. The Tribunal were also satisfied and found as a matter of fact that no proper investigation had been carried out by the respondent as to the severity of the weather conditions on the day or the delays that the fog had caused in respect of the third accident."

1. As regards Mr Angerstein, the Tribunal said:

"2.16 As with Mr Platt, Mr Angerstein also re-opened the circumstances of the first two accidents as well as looking at the third accident. He suggested to the Tribunal that the claimant did not follow the five seeing habits rules stating that training had been given in this respect by the training assessor after the accident. With regard to the second accident with the cone Mr Angerstein told the Tribunal that he did not believe the cause of the accident was the wind. He suggested to the Tribunal that had the claimant been driving correctly applying the respondent's defensive training rules the claimant would not and could not have hit the cone. Mr Angerstein told the Tribunal that he believed that the claimant was the only person who had hit a cone that night but he was unable to say how he could make such a statement. He told the Tribunal that he had considered the matter to be one of capability not conduct when he decided to uphold the decision to dismiss. Like Mr Platt, Mr Angerstein told the Tribunal that he had not considered any other options as required by the respondent's own policies and, that he had not taken the claimant's length of service into account. He told the Tribunal that he would treat any driver in the same way whether they had been employed for 33 months or 33 years whilst also telling the Tribunal that the claimant as an experienced driver should not make these types of mistakes."

1. The key provisions which the Tribunal was required to apply are found in sections 98(1), (2) and (4) of the Employment Rights Act 1996.

"98 General

(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it –

(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) relates to the conduct of the employee,

(c) is that the employee was redundant, or

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

1. On behalf of UPS, Mr Ford submitted that in paragraph 4.1 of its reasons the Tribunal substituted its own findings relating to the accident in December for those of UPS. This was the wrong starting point. The Tribunal should have started with the employer's reasons: see Abernethy v Mott, Hay & Anderson [1974] ICR 323. The Tribunal approached the matter on the basis that Mr Harrison drove carefully. This was not the opinion of UPS. He submitted that the Tribunal ought to have found the reason to relate to conduct. He referred to and relied upon Sutton & Gates (Luton) Ltd v Boxall [1979] ICR 67.

1. On behalf of Mr Harrison, Ms Annand submitted that the Tribunal was fully entitled to find that the reason for dismissal related to capability. This had been the stance of UPS in its response form, where conduct was only pleaded as an alternative. The letter dated 14 December 2009 suspending him and inviting him to a hearing stated that his unacceptable accident record was considered as capability. Mr Angerstein gave evidence to the Tribunal that he regarded the matter as one of capability. The Tribunal correctly referred to and applied Sutton & Gates (Luton) Limited v Boxall as authority for the proposition that misconduct and capability are hard to differentiate but that a reason would relate to capability if the employee was trying her best and failing but would relate to conduct if she was failing to exercise to the full such talents as she possessed.

1. We have no doubt that the correct approach, when deciding whether an employer's reason for dismissal relates to conduct, or capability, or indeed is some other substantial reason justifying dismissal, is to make findings as to the employer's own reasons for dismissal. Once those findings have been made the Tribunal should then ask itself how the employer's reasons are best characterised in terms of section 98(1). It is not bound by the label the employer puts on its reasons; but it is seeking to characterise the employer's reasons rather than to make findings of its own about the employee's conduct or capability.

1. This follows, we think, from the terms of section 98(1) itself. It is for the employer to show its reason for dismissal; the focus is therefore upon finding the employer's reason. It follows also from the well known decision of the Court of Appeal in Abernethy v Mott, Hay & Anderson where Cairns LJ said:

"A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him which cause him to dismiss the employee."

1. In this case the Tribunal adopted the wrong starting point. As the Tribunal had itself found, UPS dismissed Mr Harrison for having three accidents within 12 months which it regarded as avoidable – that is, avoidable with the exercise of due care by Mr Harrison. This was the appropriate starting point.

1. The Tribunal, however, in paragraph 4.1, started from a quite different point. It set out its own finding to the effect that Mr Harrison was driving carefully and trying his best in difficult circumstances. This was not the opinion of Mr Platt or Mr Angerstein, who thought that Mr Harrison ran into the back of the car in front because he disregarded basic training which UPS gave to its drivers. The Tribunal's reasoning is therefore flawed.

1. If the Tribunal had started from the correct point, it would, we think, have characterised UPS's reason for dismissal as relating to conduct.

1. In Sutton & Gates (Luton) Limited v Boxall Kilner Brown J gave valuable guidance as to the characterisation of a reason for dismissal. He said:

"11. We have had occasion to indicate more than once that it may not necessarily be that there is a wide range in the field of incapability, but that incapability ought to be treated much more narrowly and strictly than has been done in the past; and cases where a person has not come up to standard through his own carelessness, negligence or may be idleness are much more appropriately dealt with as cases of conduct or misconduct rather than of capability. It means of course that Industrial Tribunals, as argued in this instant case, may well be in danger of misdirecting themselves unless they clearly distinguish in their own minds how far it is a question of sheer incapability due to an inherent incapacity to function, compared with a failure to exercise to the full such talent as is possessed.

1. The Tribunal correctly referred to this guidance, but applied it incorrectly because it started from its own view of Mr Harrison's driving rather than that which was held by UPS. We think it is plain that UPS regarded Mr Harrison as having failed to come up to standard through want of care. Applying Sutton & Gates the Tribunal ought therefore to have characterised the reason as relating to conduct.

1. We would, however, add the following. If the Tribunal's only mistake had been to characterise the reason incorrectly – that is to say, to put an incorrect label on the employer's reason - the appeal would not necessarily be allowed. UPS itself made reference to the concept of incapability when describing the "three strikes" rule; it is not always easy to characterise an employer's reason; whether the reason related to conduct or capability, section 98(4) still fell to be applied; and if it was applied correctly, it would not necessarily be fatal to the Tribunal's conclusions that the Tribunal had labelled the reason wrongly.

1. The problem in this case is rather that the Tribunal substituted its own view of Mr Harrison's driving instead of accepting as its starting point the reason given by UPS. If this error was carried over into its application of section 98(4), it would indeed be fatal.

1. Mr Ford submitted that the Tribunal indeed fell into the same error when applying section 98(4) – that is, it started from its own view of the facts rather than reviewing the findings made by the employer and asking whether those findings were made on reasonable grounds. He relied in particular on the way in which the Tribunal expressed itself in paragraph 4.1 of its reasons. Further, he submitted that the Tribunal asserted that it was unfair to apply the three strikes rule without giving any reasoning. The rule, he submits, is there for a good reason – to identify drivers who may be unsafe on the road.

1. Ms Annand submitted that the Tribunal was entitled to conclude that it was unfair to apply the three strikes rule. She submitted that where the Tribunal made its own finding in paragraph 4.1 that Mr Harrison was driving carefully it made that finding only in the context of the reason for dismissal. She argued that the error did not carry over into the Tribunal's assessment of the reasonableness of dismissal. She argued that passages earlier in the Tribunal's judgment, in the course of its findings of fact, were consistent with application of the correct test. She drew our attention to Jones v Mid-Glamorgan County Council [1997] IRLR 685 at 690 where Waite LJ said:

"The guiding principle, when it comes to construing the reasons of an [employment] tribunal at an appellate level, must be that, if the tribunal has directed itself correctly in the law and reached a conclusion which is open to it on the evidence, the use in other passages of its reasons of language inappropriate to the direction it has properly given itself should not be allowed to vitiate the conclusion unless the relevant words admit of no explanation save error of law."

1. The Tribunal had, earlier in its reasons, set out the statutory test in correct terms. The question is whether it applied the statutory test. We have not found the Tribunal's conclusions in paragraph 4.1 of its reasons particularly easy to follow. We have in the end reached the conclusion that the Tribunal has erred in its approach to section 98(4) as it erred in its approach to section 98(1). Our reasons are as follows.

1. UPS applied the three strikes rule because it concluded that Mr Harrison was involved in three avoidable accidents within 12 months. A key question for the Tribunal was therefore whether UPS acted reasonably in concluding that the three accidents were avoidable – i.e., that Mr Harrison was at fault in each case. We would expect the Tribunal's reasoning on this matter to be found within paragraph 4.1 and 4.2 of its reasons, which were expressed to set out its conclusions.

1. It is fundamental to the law of unfair dismissal that section 98(4) requires a Tribunal to identify the conclusions which the employer reached and decide whether those conclusions were, or were not, reasonable. It is an error of law for the Tribunal to substitute its own conclusions.

1. We cannot find any place in the Tribunal's reasons where it addressed directly the question whether UPS reasonably concluded that the three accidents were avoidable. We think paragraph 4.1 must be intended to address this question. We do not understand the Tribunal to be saying that a three strikes rule was in principle unreasonable – rather that its application "in these circumstances" was unfair.

1. The Tribunal did not spell out what it meant by "in these circumstances". But it had just said in its reasoning that it considered Mr Harrison to have driven carefully as regards the third accident. This is without doubt to substitute its own view for that of UPS. Its statement that it "made no findings" as to whether the first two accidents were capability or conduct also indicates a wrong approach to the section 98(4) question. Its first task was to review the employer's findings (which were that the accidents were avoidable) and ask whether those findings were reasonable. This it did not do.

1. We have carefully considered whether earlier passages in the Tribunal's reasons are sufficient to demonstrate that it applied its mind to the correct test. We conclude that they are not. The Tribunal's findings of fact occasionally state some criticisms of the conclusions reached by UPS, but these are not couched in terms of the statutory test. To say, for example, that the Tribunal was "not convinced" by an opinion of Mr Platt (as the Tribunal did in paragraph 2.12 of its findings of fact concerning the first accident) is not the same as saying that Mr Platt was unreasonable in holding the opinion in question.

1. There are other features of the Tribunal's findings of fact which cause us to doubt whether it was correctly applying the statutory test. The Tribunal said that no proper investigation was carried out as to "the delays that the fog had caused in respect of the third accident". It is difficult to see why any delay caused by fog was of any relevance to the question whether Mr Harrison was careless when he drove into the car in front of him. It is therefore difficult to suppose that the Tribunal was, at this point in its reasoning, asking whether the Respondent had carried out such investigation as was reasonable.

1. We therefore conclude that the Tribunal indeed fell into error. It substituted its own view for that of the employer on the question whether the third accident was avoidable. It seems not to have addressed directly the correct question in respect of the first two accidents.

1. The Tribunal went on, in paragraph 4.1, to find that the Respondent had failed to follow its own procedure in respect of conduct and capability issues; and had in particular issued a first written warning and a final written warning at the same time, then linking them to the dismissal. This was also part of its reasoning for holding that the dismissal was unfair.

1. Mr Ford submitted that the Tribunal again failed to apply the correct legal test. The question was whether the Respondent acted reasonably in following the procedure it adopted. Given that the two accidents happened so closely together, he submitted that it was reasonable for the warnings to be given at the same time. It was also reasonable to link the warnings to the final accident. He emphasised the responsibility of UPS to ensure that its vehicles were driven safely.

1. Ms Annand submitted that, read in context, the Tribunal's reasoning was clear and correct. She argued that the Tribunal in essence found that the both procedures required time for improvement between the first and final written warnings; that no time for improvement was given; and that the Tribunal's reasoning could be upheld.

1. We prefer the argument of Mr Ford. The question for the Tribunal was whether the procedure adopted by UPS was reasonable, having regard to equity and the substantial merits of the case. In this case the first two accidents were close together in time (though separated by some additional training as a result of the first accident). The question was not whether UPS failed to follow its own policy, but whether the procedure it followed was reasonable. No policy or procedure can cover every circumstance; and a dismissal is not necessarily unfair by reason of a breach of a policy or procedure. The argument put forward by UPS was, in essence, that the three strikes rule was known; that it was there for powerful safety reasons; that the giving of the warnings at the same time, given the close proximity of the accidents, was justified; and that Mr Harrison at all times knew where he stood and what he had to achieve – namely, no further avoidable accident within the 12 months. We think the Tribunal should have addressed, but did not address, the question whether the procedure adopted was reasonable; it was not sufficient to say that the UPS did not follow its own policy.

1. The Tribunal's conclusion that dismissal was outside the band of reasonable responses is contained in paragraph 4.2 of its reasons. We will repeat the last sentence of this paragraph.

"Having regard to what was known to the Respondent at the time the decision was taken and asking itself would a reasonable employer in those circumstances dismiss the Tribunal found that a reasonable employer would not dismiss in those circumstances and accordingly the decision to dismiss this claimant fell outside the band of reasonable responses."

1. Mr Ford submitted that the Tribunal's reasoning was vitiated by its earlier errors; and he also submitted that the Tribunal applied the wrong test in the last sentence of paragraph 4.2. He submitted that the correct question was not "would a reasonable employer in those circumstances dismiss?" but rather "would no reasonable employer in those circumstances dismiss?". Ms Annand submitted that the Tribunal was plainly aware of, and applied, the range of reasonable responses test.

1. In our judgment the real difficulty is that the Tribunal had not earlier applied the statutory test when considering (1) whether UPS was reasonable in reaching the conclusion that the accidents were avoidable and (2) whether UPS followed a reasonable procedure prior to dismissal. It approached the question whether dismissal was a reasonable sanction without any clear findings as to whether UPS had acted reasonably in these respects. Its reasoning in paragraph 4.2 accordingly does not rest on secure legal foundations. It is one thing to say that the decision to dismiss fell outside the band of reasonable responses if Mr Harrison had driven competently in respect of one or more of the accidents; another to say that the decision fell outside the band of reasonable responses if UPS had indeed reasonably concluded that all three accidents were avoidable.

1. For these reasons we conclude that the appeal must be allowed; and that the case must be remitted for hearing by a freshly constituted Tribunal.

1. We emphasise again the importance of applying the statutory criteria in section 98(4). Without restricting in any way the arguments which the parties may put forward at the re-hearing, key questions would appear to include the following. (1) Was it reasonable for UPS to conclude that the three accidents were avoidable – that is, avoidable by the exercise of reasonable care by Mr Harrison? (2) Was that conclusion reached after reasonable investigation? (3) Was the procedure adopted by UPS – including the conflation of two warnings given the close proximity in time of the accidents – a reasonable procedure? (4) Was it reasonable for UPS to have a "three strikes" policy and were reasonable steps taken to draw it to the attention of employees? (5) Was it reasonable to dismiss Mr Harrison? When we use the word "reasonable" in all these contexts, we have of course in mind the "band of reasonable responses" test applicable under section 98(4) of the 1996 Act.

1. We regret the delay in delivering this judgment, the reasons for which have been explained to the parties.