Appeal No. UKEAT/0045/06/MT

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
On 8 February 2007

Before
THE HONOURABLE LADY SMITH
MR J KEENAN, MCIPD
DR M SMITH, OBE, JP

THE STATE HOSPITALS BOARD FOR SCOTLAND	APPELLANTS
	(Respondents)

MR MICHAEL HUGHES	RESPONDENT
	(Claimant)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellants (Respondents)	Mr I Truscott, Q.C.
Instructed by:
NHS Scotland Central Legal Office
Anderson House
Breadalbane Street
Bonnington Road
Edinburgh
EH6 5JR
	
For the Respondent (Claimant)	Mr M Upton, Advocate
Instructed by:
Messrs Levy & McRae Solicitors 
266 St Vincent Street
Glasgow
G2 5RL

SUMMARY

In a claim for unfair dismissal where the claimant had written a document in which other employees were criticised and which gave rise to various concerns on the part of his employers, the Employment Tribunal approached the issue of whether or not there had been unfair dismissal on the basis that the onus of establishing that the dismissal was fair was on the respondents and that the claimant had not been dismissed on grounds relating to his conduct (or on any other potentially fair grounds).  Despite that finding, the Tribunal went on to consider fairness.  They appeared to have posed a test of whether a reasonable employer would have found the claimant’s conduct so wilful, gross or reckless that dismissal would be fair.  They appeared to have substituted their own view as to whether or not dismissal was the appropriate response rather than apply the range of reasonable responses test.  Further, they stated that the test of whether or not a dismissal was fair had to be applied having regard to all factors pertinent to the claimant, not primarily with regard to the interests of the respondent organisation.  The Tribunal went on to consider remedy although they had not been asked to do so and had not heard evidence or submissions thereanent;  they issued a provisional view that there should be an order for re-engagement but without any specification as to what might be contained in any such order.  Further, the judgment they originally issued contained over forty errors and two sections at the end which had no understandable bearing on the decision but appeared to be extracts from the claimant’s submissions.  A Certificate of Correction was issued in which the entire judgment was reissued.  Not all errors had, though, been eliminated.  Circumstances in which the respondents’ appeal was allowed; the Tribunal had made several fundamental errors of law and their apparently careless attitude to the issuing of the judgment was a cause for concern. 

THE HONOURABLE LADY SMITH

Introduction
1.	By a judgment of the Employment Tribunal sitting at Glasgow, Chairman Miss J M Burns, registered on 5 April 2006, it was determined that the claimant had been unfairly dismissed.  The order of the tribunal also states that they “provisionally indicate (subject to any further hearing on remedies)” that the claimant should be re-engaged in comparable employment or other suitable employment.  It says nothing further regarding re-engagement.  It does not, for instance, indicate the terms on which such re-engagement should be effected. 

2.	We note that the judgment, as issued, contained at least 40 typing errors and errors of expression and then a section which was not understandable as being part of the judgment at all followed by a “conclusions” section which contained seven paragraphs about the reliability of the respondents’ witnesses but nothing more.  These sections read as though they could well have come from the claimant’s submissions. 

3.	By Certificate of Correction registered on 21 July 2006, the entire judgment was re-issued with, again, a finding that the claimant had been unfairly dismissed and the same provisional indication regarding re-engagement.  The two sections at the end were simply deleted.  No explanation was given by the tribunal regarding the many errors in the first judgment, for the original inclusion of the last two sections or for their subsequent deletion. 

4.	We will refer to parties as claimant and respondents. 

Background Facts
5.	The respondents run the only high security hospital in Scotland.  The claimant began working there in 1993 and remained employed there until 27 October 2004, when he was dismissed.  At that time his post was that he was acting up in a seconded role as the Rehabilitation Unit Ward Manager, at Grade H. 

6.	It is not altogether easy to discern the relevant facts from the judgment but according to their findings, the following seems apparent.  There was a history of poor staff relations and considerable work had, prior to October 2004, been done by senior management, following reviews, so as to foster better consultation and staff/ management relationships.  

7.	On 7 May 2004, the claimant was asked by his line manager to prepare a summary of any issues which were causing concern regarding the Rehabilitation Unit. He did so in a typed paper headed “Acton Points for Change”.  In that paper, he summarised there having been a history of poor staff morale and attitudes and it having been recognised that there was a core group of staff who were proving detrimental to progress.  The paper went on to explain that they had, accordingly, planned a deliberate strategy to address the issues that arose.  That strategy included the identification of such staff as were thought to be having a detrimental effect and the transferring of staff who were thought to be “negatively influential”.  Particular members of staff were then named in the document as being candidates for transfer.  Reference was made to their strong union connections and a perception that that would adversely affect proposals for change. 

8.	The claimant went to a meeting that day with his line manager and the Nurse Consultant and took the document with him to the meeting.  He handed it to the Nurse Consultant.  According to what is contained in the findings in fact, he and the claimant’s line manager only “scanned” it at the meeting but there was no discussion directly relating to it (paragraph 15).  The discussions at the meeting were in more general terms.  The claimant left the document with them at the end of the meeting.  He then went on leave.

9.	While the claimant was away on leave, a copy of his document was leaked and sent by someone (never identified) to each of the individual members of staff named in it.  A copy of it was passed to the respondents’ Chief Executive, Andreana Adamson who was alarmed at its tone and content.  It ran counter to the culture that she had been trying to engender and she considered that it revealed a covert plan for staff movement without consultation which would have been contrary to the policy then in place.  The claimant had not intended his document to be published or distributed.  That was accepted by the respondents.

10.	Also while the claimant was away on holiday, an open meeting was held on the ward which was attended by the respondents’ Director of Learning and Development and many of the ward staff, including persons who had been mentioned in the document and who felt aggrieved as a result. 

11.	Thereafter, Ms Adamson instructed that a management review be carried out.  It was carried out by the Director of Psychology, Dr J McGinley, and Mr A Mallon, the HR Senior Adviser.  Management review rather disciplinary action was determined on because senior managers wanted to discover how the situation had arisen and also whether the views expressed in the document were widespread or not. 

12.	The management review was produced on 28 May 2004.  It found, according to the Tribunal’s quotation from it:
“..the author of the controversial and damaging document ….has exposed a management strategy for implementing change that is unacceptable ……..if it had not come to notice one can only surmise that the unacceptable practices appear (sic) to reveal would continue, with the potential victims being unable to bring it to the attention of the Chief Executive even as a last resort partnership working has been seriously damaged.”

13.	On 3 June 2004, Ms Adamson wrote to staff advising them not only about the management review but also that the claimant would not, on his return from leave, be returning to the Rehabilitation Unit.  The reason for the latter was that she feared that unless she reassured those working there that that would be the case, she would be faced with a walk out or a riot (paragraph 25).  The plan was to return the claimant to a position in Nursing Administration;  this was also in the context of the Director of Learning and Development having concerns for the claimant’s safety on his return (paragraph 25). 

14.	The claimant was suspended from duty.  External investigators were appointed for the purposes of a disciplinary investigation.  They interviewed fourteen people.  They concluded that the management reports were reliable and consistent.  They concluded that disciplinary action should follow.  The Tribunal comment at paragraph 30 that the outside investigators regarded the “disciplinary hearing” as being “significantly different” but that is in the context of narrative regarding their work as investigators; the reference to the “hearing” does not make any apparent sense. 

15.	A disciplinary hearing took place on 27 October 2004 and was chaired by a non–Executive Director, Brian Beacom.  The claimant was represented by an official of the Prison Officers Association for Scotland and the respondents were represented by the two external investigators.  Brian Beacom deliberated immediately after the hearing.  He was assisted, on the Tribunal’s findings:  “by the presence of Ian Jones who had also been present at the hearing acting as a Human Resources advisor.”  Mr Jones’ evidently advised on the viability of different possible penalties;  for instance, he advised that there was no formal mechanism for secondments outwith the hospital and that demotion would not have had the effect of keeping the claimant away from contact with those he had criticised.

16.	Brian Beacom found that there had been conduct amounting to serious failure which either constituted gross irresponsibility or gross misconduct; the wording of the claimant’s document was unacceptable and damage had been caused to the organisation as a result.  He issued a decision that the claimant was to be dismissed.

17.	The claimant appealed.  His appeal was heard on 25 November 2004 by the respondents’ Chairman, Gordon Craig, together with a non-Executive director and an independent HR director.  Brian Beacom gave evidence to them to explain why he had reached his decision to dismiss.  The claimant was represented by the same union member again.  The appeal hearing considered mitigation but had little material before them; the Tribunal is critical of his representative in that respect – “It is clear that he was not well–served by his representative” (paragraph 65).  Mr Craig concluded that the claimant had been “daft and stupid” in writing his document and that it had had “repercussions”.  It was considered that he had “demonstrated a behaviour pattern which was totally” unacceptable.  The appeal panel found that “trust had disappeared” and agreed that dismissal was the appropriate outcome.  An attempt had, by then, been made to arrange a secondment but it had foundered. 

18.	In dismissing the claimant, the respondents “undoubtedly acted in a way which they considered best served the interests of the State Hospital and its future management.” (paragraph 67).

19.	The respondents had a written Disciplinary Policy which provides that dismissal:
“May be appropriate in cases of gross misconduct, or in cases involving serious misconduct where there is a current previous warning(s) on file, and where all the evidence indicates that any action short of dismissal would not be appropriate.” 

and which gives a series of examples of matters which could potentially constitute serious misconduct subject to the reservation:
“It must be stressed that each situation will be judged on its merits.  It is not an exhaustive list of offences giving only matters for which dismissal without previous warning will be given.” 

One of the matters listed is “Gross negligence or irresponsibility which causes unacceptable loss, damage or injury.”

20.	There was no finding that the Chief Executive wanted the claimant to be dismissed or thought that he should be dismissed. 

The Tribunal’s Decision and Reasoning 
21.	The Tribunal begin by stating, in an unnumbered paragraph on page 8:
“The onus is on the respondents to establish that the dismissal is fair.”

They continue by considering section 98(1) and (2) of the Employment Rights Act 1996.  They do not appear to have considered the terms of section 98(4). 

22.	They continue:
“The Tribunal unanimously concludes that the respondents have not discharged the onus of establishing that the reason for the dismissal was fair.” (para 53) 

Also in paragraph 53, notwithstanding their finding in fact that the Action Points document was but “scanned” without comment (paragraph 25), they make the following comments which would seem to be very much at odds with that finding in fact:
“As his superior Sean Conway could have advised the claimant to destroy the document after the meeting or done so himself.  He did not do so.  The document was passed to him and to his colleague Jim McNicol.  It is inconceivable that in a meeting lasting ninety minutes that they would not have noted the terms in which the Action document was expressed.” 

23.	The import of those comments is not altogether clear and is not followed through anywhere else in the judgment.  We can see that they may be saying that they infer that the detail of the document was appreciated by the claimant’s superiors at the meeting and since they did not tell him to destroy it or destroy it themselves, what ensued was their fault.  If so, however, they neither explain the relevance of such an observation nor do they seek to reconcile it with their findings in fact at paragraph 25. 

24.	As is evident from the Tribunal’s comments at paragraph 60, they were not even satisfied that the claimant had been dismissed for a reason relating to his conduct.  They state:

“The fact that in expressing his views in an unguarded way as he was arguably entitled to do so, to his nursing superior, cannot reasonably be said to amount to conduct falling within section 98(1)(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,’ nor  section 98(1)(b) ‘relates to the conduct of the employee.’” 

25.	They appear, judging by what is said by them at paragraph 55, to have applied a test of whether or not a reasonable employer would have found the claimant’s conduct:
“so wilful, gross or reckless, that dismissal would be fair.”

26.	They continue, in relation to the decision to dismiss:
“It does not come within the reasonable range of responses having regard to the claimant’s unblemished work history and the context in which the document was produced.” 

27.	The Tribunal do not, though, make any findings in fact about the claimant’s work history. 

28.	The Tribunal also take account of a view they formed that the evidence did not satisfactorily establish the degree of unrest or potential mutiny which the respondents claimed.  They do so notwithstanding that such a view appears to contradict their findings in fact that Ms Adamson wrote her memo of 3 June 2004 indicating that the claimant would not be returning to work in the Rehabilitation Unit because she was concerned that there would be a walk-out or a riot if she had not given that reassurance and that Mr Jones had concerns about the safety of the claimant on his return to work in the circumstances (paragraph 25).  

29.	The Tribunal regard as “crucial” the terms of the respondents’ Disciplinary Policy which, they say, provides that “gross negligence or irresponsibility should result in ‘unacceptable loss, damage or injury’”; they appear to indicate that they were not satisfied that it was established that damage had been caused and that, therefore, there could have been no breach of the respondents’ policy.  They state:
“The Tribunal finds that the evidence on behalf of the respondents did not satisfactorily establish the degree of unrest or even potential mutiny which they claimed.  On questioning in cross examination, and by the Tribunal it was clear that whilst there was some apprehension that this might result, there was no satisfactory evidence that this was a strong possibility let alone a probability.  Crucially, the terms of the Disciplinary Policy and Procedure …provides that gross negligence or irresponsibility should result in ‘unacceptable loss, damage or injury’ and this aspect never appears to have been satisfactorily addressed at the disciplinary hearing, the appeal hearing or in the context of the Tribunal hearing.”

30.	They make no reference to the other terms of that policy to which we have referred above.  Further, they disregard their own findings about Ms Adamson’s and Mr Jones’ fears about what might happen if the claimant returned to work in the Rehabilitation Unit and they do not seek to reconcile their view with their finding that the outside investigators concluded that the management reports, which included a finding that partnership working had been seriously damaged, were reliable and consistent.  They appear to leave out of account that Mr Beacom found, in terms, that damage had been caused and that Mr Craig had found that there had been repercussions caused.  Nor do they seek to reconcile it with their comment, at paragraph 55, that it is “indisputable” that the circulation of the document caused, amongst other things, personal hurt to the individuals named in it and a degree of unrest in the hospital.  Nor do they seek to reconcile it with a comment they make at the beginning of  paragraph 60 that the repercussions of the document were “serious” or with their comment at paragraph 58 that the circulation of the document was intensely embarrassing and undermining for the respondents. 

31.	At paragraph 57, the Tribunal speculate.  They say:
“An equally plausible explanation is that there was a recognition that the thought processes and attitudes expressed in the action point document were regarded as heretical to the ethos of the new management structure and the existence of such a document and the continued employment of the staff member expressing those views would jeopardise the implementation of the new management regime and that for reasons of hospital management objectives, the dismissal of the claimant would reinforce the message and intent of the current management.” 

32.	At paragraph 63, the Tribunal make the following further criticism of the respondents:
“It seems inconsistent to involve outside investigators in the Disciplinary hearing and yet have the hearings, Disciplinary and Appeal, before members of the Board, albeit that the appeal hearing board included two external members who were not called as witnesses.” 

33.	The Tribunal do not explain the nature of the inconsistency that they perceive. 

34.	At more than one point, the Tribunal make reference to it being the case that the Chairmen of the Disciplinary Hearing and the Appeal panel would have wanted to be loyal and supportive to the Chief Executive; their loyalties would lie very clearly to supporting her.  They also, however, state that they did not question the integrity and good faith of Mr Beacom or Mr Craig.  Neither of them appear to have given evidence that they were motivated in their decision making by any desire to please the Chief Executive and there is no finding in fact to that effect.  That being so, the relevance of the comments about what these men “would have wanted” is not apparent.

35.	Although, as we have noted, the Tribunal were critical of the claimant’s representative on the matter of the presentation of mitigatory factors, they are also critical of the respondents.  At paragraph 65, they comment:  
“..but the management had within its own possession information such as previous appraisal reports which did not receive any consideration.” 

36.	They have made no finding about the content of those appraisal reports.  Nor do they refer to any authority for the proposition that seems to be implied by their comment, namely that an employer considering dismissal has a duty to check whether there are any relevant mitigatory factors which have not been advanced by the employee or on his behalf.  We are not aware of there being any such authority.

37.	At paragraph 66, the Tribunal note that the claimant’s counsel set out in detail the mitigatory factors that he relied on and add that they accepted them “as relevant and material”.  Not all the factors listed are obviously matters of mitigation.  The last two are, for instance, that there was a failure to apply the open and transparent culture which was the respondents’ professed approach and that the reasons put forward by them to justify dismissal were not robust.  However, perhaps of more significance is that the Tribunal do not find that the list of mitigatory factors were matters which would have been taken into account by any reasonable employer as weighing in favour of the claimant;  they only explain that they considered them to be relevant and material.

38.	Finally  on the question of unfair dismissal,  having referred to the respondents having acted in accordance with what they saw as the best interests of the State Hospital (paragraph 67), the tribunal continue:
“………..There are undoubtedly instances where the long term management objectives can be supported by appropriate disciplinary action being taken against individuals but this must always be in the proper context of a fair assessment of the conduct of the individual concerned and those management objectives are not the overriding factor in determining whether a dismissal is fair.

The test must be applied to the claimant having regard to all the factors pertinent to the individual and not primarily with regard to the respondents’ organisation.”  (paragraphs 67 and  68) 

39.	The Tribunal then include a section entitled “The Remedy”, the paragraphs of which are not numbered.  It begins:
“The parties agreed that the issue of compensation be reserved until the Tribunal had reached a decision on the merits.  Accordingly the Tribunal was not addressed on the issue of compensation, re-instatement or re-engagement. However, in unanimously finding that the appellant has been unfairly dismissed we have nevertheless proceeded to indicate provisionally that since the claimant has only indicated the remedy of re-engagement in his claim (and nothing during the course of the lengthy hearing indicated that the claimant had altered his position in this regard) that the indicated remedy in this claim is that of re-engagement ….”  

40.	As we have indicated, nothing is said about the terms of re-engagement and the Tribunal ultimately indicated that it was a provisional view, including some wording to that effect in their order. 

The Appeal 
Submissions for the Respondents
41.	For the Respondents, Mr Truscott QC stated that this was possibly “the most atrocious judgment ever”.   He highlighted the questions that arise from a reading of the findings of fact which we have noted in our narrative above.  He referred to a passage in the respondents’ Notice of Appeal to the effect that part of Mr Craig’s evidence had been misrepresented in respect that although the Tribunal record, at paragraph 49, that Mr Craig agreed that he would rather not be seen to be disagreeing with the Chief Executive, Mr Craig had in fact gone on to say that he would be prepared to do so. 

42.	Overall the findings in fact were far from being a model of clarity.  Whilst in other circumstances that might have been able to be overcome, when it came to the Tribunal’s analysis of the law, it was so flawed as to require that the judgment be set aside. 

43.	He founded on the Tribunal having begun by stating that the onus of establishing fairness was on the respondents; that was wrong.  The burden of proof that lay on an employer was only that of establishing what was the reason for the dismissal and that it came within one of the categories of potentially fair reasons:  Abernethy v Mott, Hay and Anderson [1974] ICR 323;  W Devis & Sons Ltd v Atkins [1977] AC 931;  Gilham & Ors v Kent County Council [1985] ICR 233;  Post Office Counters v Heavey [1990] ICR 1;  Timex v Thomson [1981] IRLR 522;  and ASLEF v Brady [2006] IRLR 576 .  

44.	It was odd in this case that the Tribunal had found that the reason for the claimant’s dismissal did not fall within any of the categories covered by section 98(1) and (2) of the 1996 Act yet went on to consider fairness separately.  If a dismissal is not for a reason falling within those categories then it is not potentially fair at all.  Their having done so gave rise to questions as to their understanding of the relevant statutory test. 

45.	What the Tribunal should, he submitted, have done, was they should  have recognised that the reason for the claimant’s dismissal related to his conduct and then gone on to consider fairness in the light of that finding.  They should then have been mindful of the guidance set out in the case of British Home Stores v Burchell [1978] IRLR 379 though bearing in mind that although, at the stage of the Burchell decision, the relevant legislation did place an onus on the employer to establish fairness, the current position was that there was no such onus:  Boys and Girls Welfare Society v McDonald [1996] IRLR 129.

46.	On the matter of procedure, Mr Truscott accepted that it could be important in an unfair dismissal case:  Taylor v OCS [2006] IRLR 613.  However, it was not possible to tell what findings this tribunal ultimately made about the procedure.  It was not clear whether they were critical of it or not. 

47.	Regarding the range of reasonable responses test, Mr Truscott referred to the case of Conlin v United Distillers [1994] IRLR 169.   The reasoning of the Tribunal did not follow the structure that could reasonably be expected if they had had the correct test in mind.  A mere mention of the range of reasonable responses at the wrong stage, which was what they did, was not good enough.  They had substituted their own view.  He relied, in support of that submission on:  Glasgow City Council v Deans UKEATS 61/05;  CEC v Stephen [1977] IRLR 135;  Trust Houses Forte Leisure Ltd v Jaquilar ]1976] IRLR 251;  Iceland Frozen Foods v Jones ]1982] IRLR 439 and Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23.   

48.	Overall, there was, Mr Truscott submitted, no hint of this Tribunal appreciating and applying the law that was relevant in an unfair dismissal case.  Then, they compounded matters by making an order which gave an indication as to remedy without there having been any submission or indeed evidence about it.  Their having done so conflicted with the views expressed in the case of Lilley Construction Ltd v Dunn [1984] IRLR 483.  

Submissions for the Claimant 
49.	For the claimant, Mr Upton, Advocate submitted that the appeal should be refused.  Whilst he agreed that the relevant law was as put forward on behalf of the respondents, in particular, that there had been no onus on them to establish fairness, he submitted that the Tribunal’s error in that respect did not matter because the critical facts had not been in issue.   

50.	He submitted that there were no necessary inconsistencies in the Tribunal’s findings and comments, as founded on by Mr Truscott.  Regarding the submission that Mr Craig’s evidence was misrepresented, Mr Upton simply referred to there being no agreed note of the evidence.  We were, however, surprised that he adopted that position since, when questioned on the matter, it became apparent that Mr Upton had not checked his own notes of the evidence (he had represented the claimant at the Tribunal hearing), as we would have expected him to do.  In these circumstances, we consider it appropriate to proceed on the basis of the account of Mr Craig’s evidence put forward in the Notice of Appeal. 

51.	Mr Upton sought to dismiss the findings at paragraph 25 regarding how Ms Adamson and Mr Jones regarded the risk of unrest as being merely hypothetical since the claimant was not infact returned to the ward.  He also sought to rely on the terms of the respondents’ Disciplinary Code and submitted that it had not been established that the claimant was in breach of it.  He submitted that the Tribunal were correct in their determination that the claimant was not dismissed for a reason relating to conduct because the action of producing the document did not amount to misconduct.  He submitted that even if the Tribunal made an error about the first part of s.98 of the 1996 Act, that did not vitiate its treatment of section 98(4).  On a number of occasions he submitted that we should “apply the principle of charity” to the Tribunal’s judgment and read it in a way which favoured the view that they had not erred in law.  It had not substituted its own view for that of the reasonable employer.

52.	Mr Upton made a number of submissions the purpose of which seemed to be to persuade us that the claimant was unfairly dismissed.  They all focussed on how matters looked from the claimant’s point of view.  Whilst accepting that not all findings in fact were to an effect accepted by the respondents, he submitted that no reasonable Tribunal could have come to any view other then that the claimant was unfairly dismissed.  The claimant had been made to answer for something that did not do.  The critical facts showed that he did not intend the document to be circulated or to do damage.  The respondents had not proved the degree of resultant problems that were claimed. 

Discussion 
53.	We very much regret that we have to agree with Mr Truscott’s description of this Tribunal’s judgment as being atrocious.  The error ridden and partly incomprehensible nature of its original presentation immediately raises questions as to what standard of care was taken in its planning and preparation.  The same can be said in respect of the various apparent contradictions as between the Tribunal’s findings and comments to which we have already drawn attention. 

54.	We move then to matters of law.  To state, twice, that the onus of establishing whether or not the dismissal was fair lay on the respondents shows a fundamental misapprehension of the relevant law.  No such onus lay on them.  As Mr Truscott rightly observed, the burden they were required to bear was to establish that the reason for the dismissal was potentially fair.  That is, that it fell within one of the categories covered by section 98(1) and (2).  If it did, then but only then, section 98(4) would have come into play:
“98(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.” 
As was commented by Griffiths LJ, in the case of Gilham v Kent CC:
“The hurdle over which the employer has to jump at this stage of an inquiry into an unfair dismissal complaint is designed to deter employers from dismissing employees for some trivial or unworthy reason.  If he does so, the dismissal is deemed unfair without the need to look further into its merits.  But if, on the face of it the reason could justify the dismissal then it passes as a substantial reason and the inquiry moves on to section 57(3), and the question of reasonableness.”  (at p.239) 

55.	This Tribunal’s statements on onus evidencing, as they do, a fundamental lack of understanding of the structure and import of the statutory scheme, we cannot have any confidence that they had in mind the correct approach of a neutral onus when it came to considering fairness.  We do not accept, as was submitted by Mr Upton, that the critical facts were not in issue:  for example, the question of whether or not damage was caused clearly was, as was the question of whether or not the final decisions on dismissal were influenced by any desire to please Ms Adamson. However, even if they had not, that could not have sufficiently disposed of the problem which was not a matter of fact finding but of what, once found, the Tribunal took from and did with those facts. 

56.	We should add, on this point, that the Tribunal’s apparent criticisms of Mr Craig which were based on a view that he would not have wanted to disagree with the Chief Executive are undermined by their failure to have regard to the whole of his evidence which includes him having said that he would be prepared to be seen to disagree with her.

57.	Then, we cannot understand how the Tribunal reached the view that the claimant was not dismissed for a reason that related to his conduct.  The reason for his dismissal was manifestly related to his conduct, that is, something that he did in his capacity as a employee of the respondents, namely the writing of the Action Points document.  Given that the Tribunal begin their “Issues” section by stating that they required to decide whether the “conduct” of the claimant came within the statutory reasons which justified dismissal, it may be that, in rejecting the proposition that it did fall within section 98(1) and (2) they were, in reality, expressing the view that what the claimant did did not amount to misconduct (which would accord with Mr Upton’s submission to us).  That would, however, still have been an erroneous approach. Section 98(1) and (2) do not require that the reason for dismissal relates to misconduct.  If that was what Parliament had intended, it would have been a very simple matter to use that word rather than “conduct”.  We are not aware of any authority in which such an interpretation has been put on the statutory provision and were not referred to any.  The prospects of a dismissal being found to be fair if for a reason that relates to conduct that cannot also be described as misconduct may be less strong than where misconduct has occurred but that is not to say that such a finding could not result.  Plainly, Parliament decided to allow for that as a possibility. 

58.	Further, even if the Tribunal thought that they had to ask themselves whether the claimant had been guilty of misconduct, the fact that they have, having decided that he was not, gone on to consider the reasonableness of dismissal as a response, again shows either a fundamental lack of understanding of the statutory scheme or that they did not really consider that the respondents had failed to show a potentially fair reason at all. 

59.	Moving on, we are concerned to note that the Tribunal appear to have asked themselves not simply whether the dismissal was fair, bearing in mind the Burchell guidance but whether the conduct of the claimant was “so wilful, gross or reckless that dismissal would be fair.”  No such wording appears in the statute.  Dismissals may be found to be fair in the case of conduct which is not wilful, gross or reckless.  

60.	Further, the Burchell guidance does appear to have been ignored namely that in the case of a conduct dismissal, the Tribunal have to decide whether the employer believed that the conduct complained of had occurred, whether he had reasonable grounds on which to sustain that belief and whether, at the stage he formed that belief, he did so after as much investigation as could reasonably be expected had been carried out.  Had this Tribunal done so, they could only have concluded that the respondents had a genuine belief in the conduct complained of on reasonable grounds after reasonable investigation.  Indeed, the claimant did not dispute that he had conducted himself in the manner complained of.  There is some indication of the Tribunal being distracted with considerations of procedure but it is not as if, in the end of the day, they have any substantive or relevant criticisms to make of the investigatory and disciplinary procedure at all.  For instance, their comments about the inconsistency of the outside investigators involvement that appear in paragraph 63 seem to be left hanging without any meaningful conclusion being drawn from them.  We would, in any event, that we do not understand the Tribunal’s concern here.  It seems entirely understandable to us that when it came to the Disciplinary and Appeal hearings, board members who had the power to dismiss, chaired them.   Similarly, their apparent criticism of the part played by Mr Jones is not followed through to a conclusion.

61.	The issue for the Tribunal was whether, in the light of the claimant’s conduct, dismissal lay within the range of reasonable responses.  To answer that issue, it was incumbent on the Tribunal to follow the guidance laid down in Iceland Frozen Foods v Jones:
“(1)	the starting point should always be the words of s.57(3) themselves;
(2)	in applying the section an Industrial Tribunal must consider the employer’s conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair;
(3)	in judging the reasonableness of the employer’s conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;
(4)	in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;
(5)	the function of the Industrial Tribunal, as an industrial jury is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal is fair;  if the dismissal falls outside the band it is unfair.” 

62.	The Tribunal then required to bear in mind that if it did not appropriately refer to the range of reasonable responses test in a way which showed that it had taken it into account, they would be at risk of being seen as substituting their own opinion as to what was fair.  As was commented by the Lord Justice Clerk, in the opinion of the court in the case of Conlin v United Distillers at paragraph 6:
“In Scottish and Newcastle Beer Production Ltd v Cannon, the Employment Appeal Tribunal  emphasises that unless the Industrial Tribunal does refer to s.57(3) or at least summarise the wording, the Employment Appeal Tribunal may have difficulty in concluding that the Industrial Tribunal has applied its mind to the statutory requirements.  That is no doubt so, and we agree with what the Employment Appeal Tribunal has said regarding this matter in this case.  In the course of their decision the Employment Appeal Tribunal has quoted the reasons which the Industrial Tribunal gave for their decision.  We agree that the Industrial Tribunal appear not to have applied the correct test.  There is nothing in their decision to indicate that they ever applied their minds to the question of whether the dismissal of the appellant fell within the range of responses open to a reasonable employer.  Having regard to what they do say, it appears to us that what the Industrial Tribunal have done is simply to express their own opinion upon the question of whether the dismissal was unfair.  That being so, we are satisfied that the Employment Appeal Tribunal were well – founded in concluding that the appeal against the decision of the Industrial Tribunal must succeed.”  

63.	The fact that this Tribunal looked for the conduct to be wilful, gross or reckless, that they took account of the claimant’s “unblemished work history” about which there were no findings in fact, that they referred generally to the “context” in which the document was produced and that the matter of damage caused by the document was not satisfactorily addressed in the context of the Tribunal hearing all appear to indicate that they have but paid lip service to the need to apply the range of reasonable responses test.  There is no language that satisfies us that they sought to identify objectively, what range of responses could properly have been adopted by a hypothetical reasonable employer.  

64.	Further, it is evident from the Tribunal’s comments at paragraph 67 and 68, that they appear to approach matters so as to rule out the possibility of an employer’s business reasons or management objectives weighing more heavily in the balance than the interests of the employee, when fairness is under consideration.  That is not, however, correct. It all depends on the facts and circumstances of the individual case.  We would refer to the following line of authority:  Chubb Fire Security Ltd v Harper [1983] IRLR 311;  Catamaran Cruisers v Williams [1994] IRLR 386;  Scott & Co v Richardson EATS/74/4 and Glasgow City Council v Deans.  

65.	Finally, it is a matter of further concern that despite having heard no evidence or submissions thereanent and despite being told that parties asked that the issue of “compensation” be reserved, it being the case, according to Mr Upton, that the claimant did not, by the end of the hearing before the Tribunal any longer wish to seek re-engagement, they have proceeded to express the provisional view that they did.  They should not have done so in circumstances where parties had made it clear that the matter of remedy was something that they were not asking for any ruling on. Further, the giving of a direction regarding re-engagement which fell short of the very precise statutory requirements (see:  sections  113 -116 of the 1996 Act) is something which was frowned on and recommended against in the case of Lilley Construction Ltd v Dunn.  In that case, the Employment Tribunal did not make a formal order for re-engagement but they directed the employers to make “an offer of re-engagement” to the employee within a stated period and on certain terms but not so as to comply with the statutory requirements.  The Employment Appeal Tribunal, at paragraphs 9 and 14, said:
“9. 	An offer direction may well share a common purpose with a full re-engagement order (and may in practice achieve the same result) but the two remain in our view essentially different forms of order in law.  A re-engagement order writes a new contract for the parties:  an offer direction merely directs one of them to make an offer to the other without legislating at all as to whether and if so in what circumstances, or upon what terms, the employee shall become bound in law to accept it………………..

14. 	We would wish, however, to add a general comment upon the use in future by Industrial Tribunals of an ‘offer direction’ of the kind made in this case.  Neither side in the appeal sought to argue that the Industrial Tribunal had no jurisdiction to make such a direction.  We see no reason officiously to disturb that consensus.  We say only that there does appear to us to be some risk that the jurisdiction to make an order in that form might one day be successfully challenged.  One ground of challenge might be that having legislated in considerable detail for forms of order for re-instatement and re-engagement, Parliament, had it intended Industrial Tribunals to have power to achieve similar results by different forms of order would have so stated in terms.  Another might be that such directions provide a possible source of confusion in the minds of the parties and even of Tribunals.  The present case, we think, shows that such a criticism might have some force.  All in all therefore we take the view that an offer direction – despite its practical good sense – is a form of order which Industrial Tribunals would be better advised not to repeat for the future.” 

66.	This provisional order made by this Tribunal appears to be intended to achieve the same effect as the offer directions criticised in the Lilley case.  This Tribunal has either chosen, for no given reason, to ignore those criticisms or has made its judgment in ignorance of them.  Either way, it simply adds to the picture of wholly erroneous and unsatisfactory judgment. 

67.	In all the foregoing circumstances, we have no hesitation in acceding to the respondents’ submission that the appeal should be allowed. 

68.	In the event of us being so persuaded, parties were agreed that the case should be remitted not to the same but to a freshly constituted Tribunal.

Disposal 
69.	We will, accordingly, pronounce an order allowing the appeal and remitting the case to a freshly constituted Tribunal for a rehearing.