Appeal No. UKEAT/0401/10/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 November 2010
	   Judgment handed down on 7 April 2011

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
MR. D. JENKINS OBE
MS. N. SUTCLIFFE

SECRETARY OF STATE FOR JUSTICE	APPELLANT

ANTHONY MACDONALD-HEANEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR. CLIVE SHELDON and
MR. SIMON MURRAY
(of Counsel)
Instructed by:
The Treasury Solicitor,
One Kemble Street, 
London
WC2B 4TS
	
For the Respondent	MR. ROHAN PIRANI
(of Counsel)
Instructed by:
Thompson Solicitors,
Congress House,
Great Russell Street,
WC1B 3LW	

SUMMARY

UNFAIR DISMISSAL – Reasonableness of dismissal

Dismissal of a prison officer for assault on a prisoner – Tribunal holds dismissal unfair because of (a) failures to “probe” alleged inconsistencies in the evidence; (b) unreasonable application of a “zero tolerance” approach; and (c) the cursory nature of the appeal process

Appeal allowed – Held:

(a)	The Respondent was entitled to conclude that the allegedly inconsistent evidence was reliable, and in holding otherwise the Tribunal wrongly substituted its own view

(b)	The Respondent’s approach was justifiably strict but did not require automatic dismissal whatever the circumstances.

(c)	The appeal process, which was in the nature of a review, could not properly be described as “cursory”.

THE HONOURABLE MR JUSTICE UNDERHILL

INTRODUCTION

1.	This is an appeal by the Ministry of Justice (“the Department”) against the decision of an Employment Tribunal sitting at London South, chaired by Employment Judge Houghton, that the Claimant was unfairly dismissed.  The hearing took place over four days in January and March 2008, and the Judgment and Reasons were sent to the parties on 15 July 2008.  The Department had been represented before us by Mr. Clive Sheldon and Mr. Simon Murray, and the Claimant by Mr. Rohan Pirani, all of counsel.  Mr. Murray appeared for the Department before the Tribunal but neither Mr. Sheldon nor Mr. Pirani did so. 

2.	The appeal has had an unusual course.  It was dismissed under rule 3 (7) of the Employment Appeal Tribunal Rules 1993, and a subsequent application by the Department under rule 3 (10) was also unsuccessful.  The Department then appealed to the Court of Appeal.  On 17 September 2009 Smith LJ granted permission to appeal.  Shortly before the substantive appeal was due to come on, it was agreed by consent – in accordance with what has now become the practice in the Court of Appeal where permission to appeal is given from decisions under rule 3 – that the appeal should be formally allowed and the case remitted to this Tribunal.  That process accounts for most of the time which has passed since the decision of the Employment Tribunal.  But we regret that pressure of work has meant that we have caused some further delay by the time taken to promulgate our own judgment.  

THE FACTS IN OUTLINE

3.	The Claimant was a Senior Prison Officer at Wandsworth Prison.  He had been in the Prison Service since 1995 and had only one minor blemish on his disciplinary record.  Shortly before 9 a.m. on 15 September 2006 there was an incident in which he used force against a prisoner called Michael Felicien.  We will have to return presently to some details of the incident, but in the barest outline what happened was as follows.  Mr. Felicien, described as “a man of slight build and partially deaf”, was abusive to the Claimant.  He decided to take him back to his cell, accompanied by a junior Prison Officer called Christopher Kottler.  Mr. Felicien was put back into his cell but, in circumstances which were disputed, the Claimant went into the cell after him and the use of force took place.  Mr. Felicien was restrained and two other officers, Messrs. Thackeray and McCarthy, came to the assistance of the Claimant and Mr. Kottler.  The Claimant made a report that day accusing Mr. Felicien of assault, and the following day he pleaded guilty; but no further action was taken, apparently because of a concern that Mr. Felicien had not understood the charge.  

4.	Separately from the charge against Mr. Felicien, the Claimant and Mr. Kottler were required to complete “use of force forms”.  They did so that same day.  The Claimant’s account suggested that he had done nothing more than act in response to violent conduct from Mr. Felicien.  Mr. Kottler’s account broadly corroborated that.  One feature of his form was that he stated that after Mr. Felicien was put into the cell the door was slammed violently from the inside but that it “bounced open”: the significance of this was that since Mr. Felicien was not securely closed in his cell there could have been good reason for the Claimant to go inside.  However, later that day Mr. Kottler submitted a report to one of the Governors called Ellie Gadd, giving a different version which suggested that the use of force against Mr. Felicien had been unjustified.  He submitted a further, revised, version of that report on 19 September.  We will have to consider in more detail below the sequence of events between the completion of the use of force form and the lodging of the revised report.  

5.	Mr. Kottler’s revised version of the incident led to a disciplinary investigation, conducted by Mr. Chris Tate, a Principal Officer who had investigation training.  Mr. Tate interviewed the Claimant, Mr. Kottler, Mr. Felicien and Mr. Felicien’s cell-mate Mr. Beckford.  On 31 October 2006 he submitted a report recommending disciplinary action against the Claimant for assaulting Mr. Felicien.  On 1 November Mr. Ian Mulholland, the “Governing Governor” of the prison, notified the Claimant that he was being charged accordingly.  A disciplinary hearing before Mr. Mulholland took place on 11 and 12 December 2006.  Mr. Mulholland heard evidence from, among others, the Claimant, Mr. Felicien, Mr. Kottler and Ms. Gadd.  The proceedings were tape-recorded, and a verbatim transcript, which runs to some 200 pages, was in due course produced.  The Claimant was represented by Mr. Peter McParlin, an official of the Prison Officers Association (“the POA”).  

6.	At the end of the hearing Mr. Mulholland gave his decision that the Claimant had indeed assaulted Mr. Felicien.  There was a short adjournment in order to allow him to prepare submissions on mitigation.  Mr. McParlin raised various matters in relation to the health of the Claimant’s wife and his children: the Claimant’s wife had been undergoing chemotherapy and also suffered from rheumatoid arthritis – it is not clear what the problems with the children’s health were.  Mr. Mulholland then said that he believed that dismissal was the only possible sanction.  That decision was confirmed in writing by a letter dated 15 December, which we should set out in full as follows:

“I write further to your disciplinary hearing on the 11th and 12th of December and to my decision further to this to dismiss you on the grounds of gross misconduct under PSO 8460 paragraph 7.12. The enclosed DAPS F9 proforma provides formal notice of this decision. 

As you were advised at the hearing, the full transcripts of the two days will be typed up and forwarded on to you. At the time of writing these are currently being typed. 

In my summing up, I explained that I was satisfied that further to careful consideration of Mr Tate's investigation and to a thorough examination of all the findings with yourself and the witnesses called, and to the points made by your trade union representative, that it was reasonable to find your alleged misconduct proved. 

I concluded therefore that you had assaulted Mr Felicien (XA5274) on the 15th September 2006 and that this assault had occurred in the latter's cell. 

I explained that I had found the evidence of Officer Kottler and Mr Felicien highly credible. Having fully explored Officer Kottler's reasons for changing his account of the incident from the detail provided originally on the use of force form he submitted, to the account in his e-mail of the 19th September, I was satisfied that he was ultimately telling the truth. He gave a very clear account and this was tested with real scrutiny by your trade union representative and the account stood up in my view. Officer Kottler's account was also consistent with Mr Felicien's overall account of what had happened. 

In contrast, whilst I did find much of your account also credible it was your explanation of why you decided to go back into Mr Felicien's cell when the cell door was at the very least shut to, and indeed according to Officer Kottler was locked, which I did not find credible. As an experienced Senior Officer you were fully aware of the requirement to de-escalate potentially difficult prisoner situations and here was a clear opportunity to do just that. There was absolutely no need to re-enter the cell. I found no evidence to suggest that the other prisoner was in a vulnerable situation and indeed found it reasonable to believe further to Officer Kottler's evidence that you did not in fact know that Mr Beckford (MP9720) was present initially. I therefore found it reasonable to conclude that you re-entered the cell because you were annoyed with Mr Felicien because of the previous verbal abuse he had given you and that you then assaulted him accordingly. 

Paragraph 3.2 of the Code of Conduct and Discipline - PSO 8460 makes it absolutely clear that an assault on any other person, use of unnecessary force on a prisoner, deliberate provocation of a prisoner and aggressive behaviour towards a prisoner are all types of behaviour which may attract disciplinary consequences. After consideration of the mitigation put forward by yourself and your Trade Union representative I saw your actions as a matter of serious unprofessional conduct which rendered any further relationship and trust between the Prison Service and yourself impossible and that was why I concluded that you should be dismissed from service as a result. 

You do, as Francis Stuart explained to you, have an avenue of appeal against this decision to the Area Manager, Mr Keith Munns, and I refer you to the accompanying proformas accordingly. 

As I explained at the conclusion of the hearing, having to reach this decision brings me no satisfaction whatsoever. However, I am determined to ensure that staff at Wandsworth do set an exemplary standard in their actions.”

It will be seen that the crucial finding was that the Claimant had opened the door of the cell and gone in, in circumstances where there was no need to do so, because he was angered by Mr. Felicien’s abuse; and that the assault had occurred in those circumstances.  The assault had occurred as a result of him escalating a situation which as an experienced officer he should have “de-escalated”.

7.	The Claimant had a right of appeal under the relevant rules.  By para. 11.5 of those rules:

“The person considering the appeal must take the following factors into account:

· Whether the disciplinary procedures were correctly followed and, if not, whether the appellant was materially disadvantaged; 

· Whether the appellant was given a sufficient opportunity to present their case; 

· Whether the disciplinary finding was consistent with the written and oral evidence; 

· Whether any arguments in mitigation were given due weight;

· Whether the penalty was reasonable, given the seriousness misconduct; 

· The appellant's disciplinary record, general record, position and length of service; 

· Any other factors which the appellant may produce as evidence of unfair finding or penalty.” 

It follows that the appeal does not take the form of a full re-hearing.  The Claimant appealed.  His appeal was fixed for hearing on 5 February, before Mr. Keith Munns, the Area Manager for the London Area of the Prison Service.  The Claimant received the transcript of the hearing before Mr. Mulholland on 27 January.  He had asked a different POA representative, Mr. McLaughlin, to represent him on the appeal, though Mr. McParlin was also available and indeed in due course attended the appeal hearing.  Mr. McLaughlin asked for a postponement in order to have more time to familiarise himself with the case; but Mr. Munns refused the application.  The hearing duly took place.  It lasted about an hour.  Mr. Munns upheld Mr. Mulholland’s decision.  He gave his reasons in a letter dated 20 February 2007.  The letter is lengthy, and we need not set it out at this stage: we will refer to any relevant passages below.  

8.	The Claimant had the right to a further appeal to the Civil Service Appeal Board.  He exercised that right, but following a hearing on 31 May 2007 the Board on 21 June decided that the dismissal had been fair.  

THE TRIBUNAL’S REASONS

9.	The reasons for the Tribunal’s decision appear in the “Conclusion” section of its Reasons at paragraphs 43-48, though it refers back to its earlier factual findings and the conclusions must be read with them. 

10.	At paragraph 45 the Tribunal points out that Mr. Mulholland never specified with precision what the assault consisted of on which he based his decision to dismiss the Claimant.  Specifically, there was said to be some ambiguity as to whether the charge was based primarily on the Claimant’s conduct at the start of the encounter in the cell, when he had been said to have taken hold of Mr. Felicien by the throat, or subsequently, when he had been said to have used inappropriate means to restrain the Claimant.  It concluded that it was the former which represented the gravamen of the charge.  We respectfully agree, and the Claimant does not challenge this aspect of the reasoning.  

11.	We should set out paragraphs 46-48 of the Reasons in full: 

“46.  The remaining issue is whether the Respondent acted reasonably or unreasonably in treating the above reason as a sufficient reason for dismissing the Claimant. In approaching this task, it is not our function to substitute our Judgment for that of the Respondent. The Respondent's actions will be unreasonable for the purposes of section 98(4) of the 1996 Act only if the Tribunal concludes that no reasonable Tribunal would have acted as the Respondent did either in relation to the decision to dismiss the Claimant itself, or in the procedure it adopted in reaching its decision, including the reasonableness of the investigation. 

47.    The Tribunal concludes that the Respondent acted unreasonably for the purposes of section 98(4) in the following respects: 

(i)	The Tribunal finds that no reasonable employer would have failed, as the Respondent did, properly to probe the inconsistencies in Mr Kottler's various versions of events and the extent of Ms Gadd's involvement in his evolving story. The responses provided by both Mr Kottler and Ms Gadd were, as we have found, unsatisfactory and evasive as would have been obvious, in our judgment, to any reasonable employer. A reasonable employer would have been alerted to the possibility that all might not be as it appeared and pursued the matter further, rather than let the matter rest with important questions remaining unanswered.  As so much of Mr Mulholland's decision appears to have rested upon questions of credibility, a reasonable employer may well have taken a different view of what had occurred, had, against a background of a missing e-mail, the possibility of Mr Kottler having been encouraged by Ms. Gadd to alter his story been treated more seriously by the Respondent. 

(ii)	The Tribunal finds that the Respondent also acted unreasonably in that the above handling of the disciplinary hearing combined with Mr Mulholland's zero tolerance policy regarding the treatment of prisoners and his wish to set an example, leads us to conclude that the outcome of the disciplinary hearing, despite its elaborate trappings, was pre-ordained. Mr Mulholland's unequivocal evidence to the Tribunal was that once he had "got to proven" on a charge of assault dismissal was inevitable. No reasonable employer would approach its task in assessing the correct penalty in this manner. 

(iii)	   	Any reasonable employer would, unlike Mr. Mulholland, have been prepared to have some regard to the seriousness of the assault in question.  Again, Mr Mulholland’s plain evidence was that an assault was an assault and it was irrelevant that no injuries or harm had occurred.  This further reinforces Mr. Mulholland’s blind adherence to a zero tolerance policy under which dismissal could be automatically triggered provided the label “assault” could be applied to the conduct in question, however trivial it may be or how much provocation may have preceded it.  

(iv)	Closely linked with the above findings, no reasonable employer would have failed, as did this Respondent, seriously to consider any alternative penalty having regard (as the Respondent's own procedure, and indeed Mr Neary's memorandum of August 2000 requires) to mitigating circumstances. No reasonable employer would adopt this stance in relation to the validity of mitigating circumstances in breach of its own procedure, merely because the conduct in question could be described as an assault. As Mr Mulholland told the Tribunal "nothing" would lead him to do anything other than dismiss the Claimant once an "assault" had been established. 

(v)	The Tribunal finds that, against the background of the Respondent's own lengthy delay in producing the transcript of the disciplinary hearing, Mr Munns acted unreasonably by refusing a short postponement of the appeal hearing, seemingly at least in part because he was due soon to retire. In our judgment no reasonable employer, given the volume of documentation, would have refused an adjournment in all the circumstances. 

(vi)	Mr Munn’s decision to refuse the postponement is consistent with his cursory handling of the appeal. Mr Munns failed to address all the points required by the Respondent's procedure and to the extent to which he did so he did, in our view, little more than rubber stamp Mr Mulholland's decision. He was unfamiliar with important facts and issues ventilated at the disciplinary hearing and in our judgment abdicated his responsibility genuinely to examine what had occurred at the disciplinary stage. For example Mr Munns told the Tribunal repeatedly that it was not necessary for him to look at such details as Mr. Kottler’s differing accounts of the incident, because Mr Mulholland was in a better position to judge that. We do not think we are putting it too highly when we say that Mr Munns effectively deferred to Mr Mulholland's actions where they were challenged in the course of the appeal. 

(vii)	Finally, no reasonable employer would adopt Mr Munns's stance that the only circumstances in which dismissal might be avoided in the case of assault (however minor) is where there was medical evidence showing that an employee had been prescribed medication causing him to be out of control. That is, in our judgment, an absurdly restricted interpretation of the obligation to have regard the circumstances in assessing the proper penalty for misconduct (including assaults) and, together with the above findings, betrays the reality that in this case the Claimant was effectively dismissed by the procedure itself, combined with the zero tolerance policy, by having been found by Mr Mulholland to have committed misconduct merely because it could be categorised as an assault. Once that had occurred, the Claimant stood no chance whatsoever, whatever the seriousness of that assault, the extent of any provocation or the extenuating or mitigating circumstances, of avoiding the penalty of dismissal.  It is the Tribunal’s unanimous judgment that no reasonable employer would through a blinkered application of a zero tolerance policy, even in relation to assaults, transforms a genuine discretion in the determination of the correct penalty conferred by its own disciplinary procedures into such a blunt instrument.” 

48.	   The Tribunal has concluded for all the above reasons that the Claimant was unfairly dismissed by the Respondent.”

12.	The Tribunal’s reasons for finding the dismissal unfair thus fall broadly into three groups – (i), which is concerned with Mr. Mulholland’s failure to “probe” alleged inconsistencies in the evidence of Mr. Kottler and Ms. Gadd; (ii)-(iv), which is concerned with whether dismissal was an excessive sanction; and (v)-(vii), which are concerned with the appeal to Mr. Munns (though (v) is largely self-contained).  The Tribunal relies on its criticisms cumulatively in reaching its conclusion that the Claimant’s dismissal was unfair and does not explicitly consider whether any particular criticism or group would suffice by itself. 

THE DEPARTMENT’S CHALLENGE TO THE TRIBUNAL’S REASONS

13.	The Department’s challenge is best examined by taking in turn the groups of sub-paragraphs identified above (but treating (v) separately from (vi)-(vii)).  

(i)	THE CHANGES IN MR. KOTTLER’S ACCOUNT

14.	As already noted, Mr. Kottler’s original “use of force” form, completed shortly after the incident, contained no criticism of the Claimant.  It included the statement that after Mr. Felicien was put into the cell the door was slammed in the Claimant’s face and “bounced open”.  But, as we have said, Mr. Kottler subsequently changed his account.  There was before Mr. Mulholland at the disciplinary hearing an e-mail from Mr. Kottler to Ms. Gadd dated 19 September 2006, i.e. four days after the incident, which begins “this is my report of the events on 15 September 2006”.  It proceeds to give a detailed account of the incident.  The crucial passage for present purposes is in the sixth paragraph, which reads:

“Mr. Felicien entered the cell.  I was then on the outside right of the door facing it with Mr. Felicien inside the cell and the SO [i.e. the Claimant] on my left closing the door.  The door was slammed shut but hard.  I was unable to see whether Mr. Felicien had slammed the door.  SO MacDonald-Heaney then used his key to unlock the door and he entered the cell and held Mr. Felicien by the throat with his left hand and pushed him against the furniture at the rear right of the cell.  SO MacDonald-Heaney raised his right hand as if to strike Mr. Felicien but then lowered his hand.  I entered the cell and shut the bolt on the door.  SO MacDonald-Heaney released Mr. Feliciens throat and forced him to the ground taking his right arm – i.e. that closest to the bed.”  

The e-mail then goes on to explain how Mr. Felicien was restrained and how Messrs. Thackeray and McCarthy were called.  Mr. Felicien was taken to the Offender Management Unit.  A little further on, Mr. Kottler says: 

“On writing our use of force forms it was clear that there was a degree of unease from PO Thackeray and officer McCarthy as to the reason for the use of force on Mr. Felicien.  I completed my report omitting the details about SO MacDonald-Heaney holding Mr. Felicien by his throat.  I knew this behaviour was unacceptable and would need to be challenged.  I was not sure that the use of force form was the correct place to record it.  Having spoken to Governor Gadd about this I am now writing this report to more fully explain the morning’s events. 
…
In my opinion the initial reason for returning Mr. Felicien to his cell was justifiable; I am not clear about who pushed the door – whether Mr. Felicien slammed the door at the SO or whether the SO shut the door hard.  I saw the SO hold Mr. Felicien by the throat and force him against the furniture at the back of the cell and I note that this is not acceptable behaviour.
…
Mr. Felicien was initially walked back to his cell and could have been left to his own devices at that point.  Even if Mr. Felicien did slam the door shut, there was no need to enter the cell; he could have been placed on report for this action.  It is clearly unacceptable that SO MacDonald-Heaney held Mr. Felicien by his throat.”  

15.	The only document before the Tribunal (or indeed before Mr. Mulholland) bearing on how Mr. Kottler came to change his account is an e-mail from him to Ms. Gadd early on the morning of 16 September, which is titled “Adjunct to  Report”.  It reads: 

“Having slept on this, I have an amendment to the 6th paragraph of my report of yesterday’s events.  I had previously sought to protect SO MacDonald-Heaney by stating in my use of force form that the cell door to A2–16 bounced open.  In fact this did not happen – the door closed fully; albeit with some force; I was unable to see whether Felicien had slammed the door and I do not think the SO’s hands were on the handle as it closed.  SO M-H then used his key to unlock the door and entered the cell.”  

16.	It is evident from that e-mail that Mr. Kottler had on 15 September discussed matters with Ms. Gadd and had already given her a first draft of what became the “report” of 19 June: what the e-mail is doing is making a change to that draft.  The point of the change is evidently that the first draft of the report, while criticising the Claimant, did not contain anything positively inconsistent with what Mr. Kottler had said in the use of force form and did not therefore involve any admission on his part that he had initially lied to cover up the Claimant’s behaviour.  It was that equivocation which he decided that he could not conscientiously maintain.  

17.	Mr. Kottler was asked about the history of the drafting of his report both in the disciplinary investigation and in the subsequent disciplinary hearing.  

18.	So far as the investigation is concerned, in an interview on 10 October 2006 Mr. Tate asked Mr. Kottler why his report of 19 June differed from what he had said in the use of force form.  His reply was: 

“Because I wanted to protect SO MacDonald-Heaney at the time he was my colleague part of the team that I work in and I wanted to protect him.  The only reason for him being inside the cell at that point was if the door had bounced open.  That was the only conceivable reason for him going into the cell.  Once the door had shut there was no good reason to go into the cell and I knew that at the time.  I was obviously in a state where I thought, well we have to justify this action somehow and the only justification for being in the cell was if the door bounced open.  So that’s why I put down on the initial use of force form that the door bounced open.  I slept on that that night and realised that actually I wasn’t prepared to lie about it.  It is not something that I have ever done before or that I am prepared to start doing now.  Which is why I decided to put my own record straight so to speak and send that e-mail to Elly Gadd saying what had actually transpired.”  

That answer is not quite correct, because it conflates what seem to have been two distinct stages in Mr. Kottler “coming clean” – first the decision, on the same day as the incident, to lodge a report critical of the Claimant and, secondly, the decision taken overnight to correct that report by making clear that the reference in the original form to the door “bouncing open” had been untruthful.  But the essence of the explanation was there.  

19.	Mr. Kottler gave a much fuller account of the process to Mr. Mulholland at the disciplinary hearing.  He said:

“We got into the room on the CSU to write our Use of Force forms and we wrote them out. I decided there and then that wasn't the correct place to be recording what transpired in the cell and led to the restraint. I knew that would have to be reported somewhere but I didn't know where. At that point in time I really just didn't want to be there, I just wanted this not to have happened. It was something not justifiable and not in any way reasonable or in line with what I believe the service should be. For that reason I put on my Use of Force form that the door had bounced open and that wasn't the case. I finished off writing our use of Force form. After my return to the wing I spoke to my line manager who was SO Bailey, John Bailey and spoke to him and said “Look I'm very uneasy about what has happened here. I will basically will tell the truth to anybody who asks me about it and explain fully what’s happened there". He advised me that was the correct course of action and that telling the truth was entirely the right thing to do. Later on that day I spoke to Elly Gad who asked me to write down my report of it, which I did and you can see that email there (pointing). That night, which I think was Friday night or was it the Thursday; I slept on it. I sent an initial email to Governor Gadd on I think the Friday and then slept on that overnight and I decided on Saturday morning that basically I could not lie about the state of that door. It was locked, it didn't bounce open.” 

The “e-mail there” to which Mr. Kottler referred was the e-mail of 19 June.  That very e-mail could not of course have been the one sent to Ms. Gadd on the 15 June.  Mr. Mulholland picked up on that point and elicited from Mr. Kottler an explicit confirmation that there were indeed two versions – the first sent to Ms. Gadd on 15 June, to which his e-mail of the 16 June refers; and the other being the final version of 19 June.  The essential part of the exchange reads:

“IM: We’ve an email from you dated 19 September that sets out fully your version of events.  Is there another e-mail?

CK: There was a draft of that e-mail [i.e. the e-mail of 19 September], the long e-mail which was sent on 17th, no not the 17th the 15th, which isn’t included there. Which I then slept on and said “actually I can’t do this”.

IM: And the difference between your e-mail of 15th and your email of the 19th was the issue of whether the door was locked or not locked.  

CK: Yes”

(We should say that we have changed the punctuation a little from how it appears in the transcript before us, in order to bring out the sense of the answer: the punctuation is of course the transcriber’s.)  The reference in the second question/answer to “the issue of whether the door was locked or not locked” is clearly to the question of whether it “bounced open”, which was the subject of Mr. Kottler’s correcting email of 16 September.  The clear implication of Mr. Kottler’s answer, and the obvious sense of the matter, is that that was the only difference of substance between the two versions.  Mr. Mulholland then asked Mr. Kottler:

“At any point in this process have you been put under any pressure by anybody, by colleagues or by managers to say something happened but didn’t happen?”

He answered “none whatsoever”.

20.	The issue was re-visited when Mr. Kottler was questioned by Mr. McParlin.  He referred to Mr. Kottler’s evidence on this point, and the following exchange occurred: 

“PM: … You are not being a little disingenuous with this are you? What I mean by that, Governor Gadd ... you had liaised with Governor Gadd and she suggested this to you. 

CK:	Absolutely not. 

PM:	Right thank you.

IM:	Suggested what?

PM:	Suggested that advisedly …

CK:	That I change my testimony on the Use of Force form to this

PM:	Yes, yes.

CK:	Absolutely not.  I was very, very uneasy with what I had written and slept on it and thought, “I’ve never lied for anybody before and never even lied to myself before, so I’m not going to start doing it now”.  That’s why it’s being but right by me as soon as I possibly can to put this record straight.  It is something I regret doing a lot, was putting down what I had put in the Use of Force form. 

PM:	You will accept then and it's difficult for you to hear this from me and I understand but I'm sure you did in fact lie on your Use of Force form? 

CK: I think I stated that in my email to Governor Gadd”

A little later, in response to a suggestion by Mr. McParlin of “collusion”, Mr. Kottler said: 

“No.  As I said to the Governor earlier, at no point did any party … to say anything at all.”

(The missing words are evidently something like “try to get me”.)

21.	Ms. Gadd also gave evidence to the disciplinary hearing, at the request of the Claimant.  For reasons which will appear, we need to set out the relevant parts of her evidence in full, though they are very lengthy: 

“PM:	I've got a few questions. It is regarding your involvement on the 15th September and subsequent in the events surrounding the incident that we're investigating into today. 

EG:	Yes

PM:	And how you became involved, if that’s the right expression, with Mr. Kottler

EG:	Mr Kottler the officer on ‘A’ wing?

PM:	Yes

EG:	You just want a description of how I became?

PM:	Well what we have here in the evidence pack are two emails from him to you.

EG:	Okay

PM:	And we just want to know the background to how you came to receive those?

EG:	Mr Bailey came to see me to say that Mr Kottler was looking for me, I can't remember what I was doing previously to that, so I went to see Mr Kottler to say I was in my office if he wanted to come and see me and that's how I became involved in it. 

PM:	And he subsequently came to see you in your office?

EG:	Yes he did.

PM:	Could you enlighten us on the conversation that took place there?

EG:	He said that he had witnessed something that ... he did, he told me that he'd done Use of Force paperwork, but what he had written on his Use of Force wasn't what actually happened. He said that he witnessed something that was untoward and John Bailey had advised him to come and see me. I asked him what he had witnessed and advised him that he needed to put it in writing.

…

PM:	Did you ask him then to compile a new version of events and to email you?

EG:	Sorry ask me that again?

PM:	So you spoke to him.

EG:	Yes

PM:	And you told him or you advised him that he needed to reconsider, he needed to make amends and produce a new version of events? that he was unhappy. 

EG:	I told him that if what he had written on the Use of Force form was not what he witnessed. 

PM:	Did he show you the Use of Force?

EG:	No he didn’t no.

PM:	If he hadn't witnessed that, that he should ... you said to him, if you haven't witnessed that. 

EG:	What he had put in his Use of Force form was not what he saw then my advice was that he wrote exactly what he saw. 

PM:	Did you tell him what to do with that writing, when he wrote that up and wrote exactly what he now claims to have seen, what he should do with that. 

EG:	Um what do you mean?

PM:	Well he has gone away.

EG:	Yes

PM:	And he has now reconsidered his position about what happened during the incident, what he has put down on his Use of Force form, so he is now compiling a new, effectively a new report, Use of Force form, did you tell him what he should ... where he should take that and who he should give that to when he had compiled it. 

EG:	Yes, he should give a copy to me.

PM:	Were you the Duty Governor that day?

EG:	No

PM:	Why to you and not the Duty Governor or not to the Segregation Unit or? 

EG:	Because that was John Bailey's advice, he had gone to John Bailey to ask what he should do. John Bailey's advice was that he came and spoke to me and it is my duty ... you know I'm his Head of Function, as far as I'm concerned it would be my duty to see him and to advise him accordingly based on what he had told me. 

PM:	Did you then liaise with anyone else in the managerial line, in managerial responsibility.  Did you liaise with the Duty Governor perhaps or make any further enquiries to the Segregation Unit? 

EG:	No

PM:	The first email was dated 16th September

EG:	Okay

PM:	And it quite clearly says, "Subject: Adjunct to report". Which would indicate to us, because he goes on to say, "I have an amendment to the 6th paragraph of my report of yesterday's events". 

EG:	Sorry where am I looking at?

IM:	The date is 16th which is the day after the incident.

EG:	Right

IM:	The title is, "Adjunct to Report", which as PJ is pointing out, suggests that there was already a report written presumably on the 15th or maybe earlier on 16th, but probably the 15th 

PM:	Are you able to tell us if there was another adjunct that we’re looking for.

EG:	Sorry so you are asking?

PM:	That would indicate to us that this was an adjunct to a report that he had already written the day before and sent, we would suggest, to you. 

EG:	Yes

PM:	Do you recall having that? That report.

EG:	I recall that yes he sent a report he then said that he wasn't entirely happy with that and he would produce a new report, I think was the conversation. 

PM:	So it was a conversation? Because he says that doesn't he on the 16th September at 07:00 hours. He says here, "Well I'm going to change what I sent you yesterday" ie amendment to the 6th paragraph. 

EG:	Yes

PM:	But you had a conversation about it as well then?

EG:	Um only once he said this. I think I probably spoke to him to say, "were you not happy with your original report?" Which I think is a legitimate question to ask. Him sending me this. 

PM:	Yesterday Mr Kottler said quite clearly under cross-examination, that the email I assumed was the one that he sent to you that we haven't got, on the 15th, which he now wanted to change the following day, but the one he sent on 15th, he clearly described it as a draft. 

EG:	Right

PM:	A draft would indicate a need of approval of the contents? Would you agree with that.

EG:	A draft would require.

PM:	Would indicate the need for approval of the contents.

EG:	In what way?

PM:	If I have a draft, it is not something that I'm going to publish, it's not something I'm going to submit to the governor. My draft is what I'm working on. It is not the final piece of work, which will probably be the one on the 19th. 

EG:	So what, what ... I don’t understand what it is you’re asking me?

PM:	Well a draft is a draft, what I'm saying is or suggesting is that he was seeking your approval as to whether that was acceptable and then to form part of the evidence that we do have, the email of the 19th, the 3-page email of the 19th. 

EG: 	I think probably in cases like this, I think it is a very difficult thing for Mr Kottler to do. He was very concerned about what he had written on his Use of Force and I think it is probably entirely appropriate that he may have had a couple, he may have had to think very clearly about what he wanted to say. I don't think it is an easy thing. I don’t think it necessarily requires my approval, I'm not going to .... I wasn't there, I wasn't a witness to what went on therefore I couldn't say whether what was in the report, the email, was what had happened or hadn't happened and I think it's entirely appropriate that perhaps he would have to think and rethink what it was he wanted to say. 

PM:	You can understand our difficulty here, that we haven’t got that draft as he describes it.

EG:	Right

PM:	And so there’s slight concerns as … did you advise him on the content of that draft?

EG:	No, I wasn’t there, how could I advise him on the contents if I wasn’t there.

PM:	I just wondered why he felt the need to send you a draft. That's how he plainly described it as that. 

EG:	Sorry.

PM:	He plainly described it as a draft and I just wondered why he felt the need to send you it, why not just sent you the 19th. 

EG:	I don't know, it's not a question that I can answer is it. If he felt the need, I mean I've known Chris for while and he will quite often send me things, but I can't answer why he felt he needed to send me a draft. 

PM:	You’ve known him all the time he’s been at Wandsworth Prison?

EG:	Yes

PM:	On the 19th, the email of the 19th; the very top line says, "Elly, this is my report on events of 15th September, if at all possible please can you recall me on receipt". Did you call him? 

EG:	To say I got this?

PM:	I don't know, I don't know did you call him on receipt, I don't know why he wanted you to call him. 

EG:	Probably because this was sent from his house, just to see if I got it? Yes I probably did, I can't in all honesty remember. 

PM:	I take it from that you can’t remember the contents of what the phonecall?

EG:	No I can’t

PM:	Why didn’t you email him, I wonder why he wanted you to phone? 

EG:	Because Chris has known me for a long time. Chris knows my habits of not responding to emails. 

PM:	I mean there would be a suggestion made from this side that it's more convenient for a phonecall because then we haven't got the evidence. 

EG:	Absolutely not. I think anybody PJ who knows ... Sorry, sorry. I think anybody who knows me very well and Chris had been, certainly Officer Kottler had certainly been on the receiving end of my on numerous occasions saying, "Do not email me, come and see me, come and call me or find me". It is not unusual that I wouldn't respond to an email at all.” 

22.	It will be observed that at some points Ms. Gadd does not answer the question first time round but asks for it to be repeated or for clarification.  Mr. Mulholland told the Tribunal that the way that she gave evidence had been “slightly scatty”, though she had been a credible witness.  The Tribunal, however, at para. 14 of the Reasons puts a much less charitable interpretation on these, as it apparently saw them, equivocations.  It described Ms. Gadd as “persistently evasive and unhelpful”.  We would of course be very slow to differ from a tribunal’s assessment of any witness from whom it had heard, even with the advantage of a full transcript before us.  But in the present case we are in the same position as the Tribunal, since neither it nor we heard Ms. Gadd give the evidence in question (indeed Ms. Gadd did not give evidence to the Tribunal at all); and we are bound to say that we very much doubt whether it was justified in coming to so firm, and so serious, a conclusion.  The occasions on which Ms. Gadd responded with something like “sorry, ask me again” or “what do you mean” seem to us equally consistent with her genuinely not understanding the question, or being surprised by it, or simply being, in Mr. Mulholland’s phrase (and he, after all, was there), a bit scatty.  It should be noted that in each case she went on to give a proper answer to Mr. McParlin’s question.

23.	Against that background we can at last turn to the reasoning in paragraph 47 (i).  What, essentially, the Tribunal holds is (a) that there were inconsistencies both in Mr. Kottler’s accounts of the incident itself and about “the extent of Ms. Gadd’s involvement”; and (b) that Mr. Kottler’s own responses and Ms. Gadd’s, when asked about those inconsistencies, were so unsatisfactory and evasive that a reasonable person in Mr. Mulholland’s position would have “pursued the matter further” rather than letting “important questions remain answered”.  

24.	We are of course here in the familiar territory most recently traversed by the Court of Appeal in Fuller v London Borough of Brent [2011] EWCA Civ 267 – see esp. paras. 27-30.  We need not go through the well-known authorities: we were referred to British Home Stores Ltd v Burchell [1980] ICR 303; Iceland Frozen Foods Ltd v Junes [1983] ICR 17; Sainsbury’s Supermarkets Ltd v Hitt [2003] ICR 111; and London Ambulance Service NHS Trust v Small [2009] IRLR 563.  The Tribunal was obliged to avoid “substitution” – that is, to ask not whether it would itself have been content with the account given by Mr. Kottler and Ms. Gadd but whether it was reasonable for Mr. Mulholland to be.  But we likewise must avoid substituting our own view of what it was reasonable for Mr. Mulholland to do as long as the Tribunal’s view was a tenable one on the evidence before it.  We are, however, entitled to look behind the fact that the Tribunal ostensibly directed itself correctly, as this Tribunal did: as Mummery LJ observes in Fuller, at para. 30, it is not unknown for tribunals to state the correct approach but then overlook or misapply it at the point of decision.

25.	Directing ourselves accordingly, and endeavouring to pay full respect to the Tribunal’s role as the primary judge of reasonableness, we nevertheless have to say that we do not believe that it was entitled to find that it was unreasonable for Mr. Mulholland to accept the evidence of Mr. Kottler and Ms. Gadd.  We acknowledge that when a witness changes his account that is something that needs to be probed: it may at the very least suggest that his evidence is unreliable, and sometimes there may be reason to suppose some discreditable motive, such as pressure from a third party.  Both Mr. Tate and Mr. Mulholland understood the importance of the difference between the accounts given by Mr. Kottler in his use of force form and in the subsequent report dated 19 September, and they asked him about it.  But his answers to both were clear and consistent and in no way implausible.  We cannot see how Mr. Mulholland’s decision to accept Mr. Kottler’s answers was one which he could not reasonably have come to; nor therefore can we see any basis on which it can be said that he was obliged to “probe” further.  

26.	The area which evidently concerned the Tribunal was Ms. Gadd’s involvement.  But with all respect to the Tribunal we find it hard to understand the cause for its concern, or what it means by referring darkly to “the possibility that all might not be as it appeared”.  There is in fact in the Reasons no clear articulation of what it was that the Tribunal thought might have happened between Mr. Kottler and Ms. Gadd that affected the reliability of Mr. Kottler’s account.  On the face of it there is nothing in the least surprising about someone who was in the difficult position in which Mr. Kottler (on his account) found himself wanting to take advice.  His account was that he did so in the first instance from a senior colleague called Mr. Bailey and that Mr. Bailey told him to speak to Ms. Gadd.  The Tribunal does not in fact refer to that evidence: it says only, at paragraph 14, that

“… it is plain that Mr. Kottler having completed his use of force form and having spoken to Ms. Gadd thought better of its contents and decided to provide a fuller report containing material far more critical of the Claimant’s conduct.”

Likewise we would expect a Governor approached by a Prison Officer in such a case to tell him exactly what Ms. Gadd said that she told Mr. Kottler – namely that if he had not told the whole story in his use of force form he should supply a further statement saying what really happened.  All of that seems quite unexceptionable. Of course in theory it is possible that Ms. Gadd could for some improper reason have put pressure on Mr. Kottler to change his version so as to implicate the Claimant, or – more plausibly – have become too closely involved in the drafting and ended up influencing Mr. Kottler to say something that was inaccurate; and it seems to have been this that Mr. McParlin was seeking to investigate in his questions to Ms. Gadd.  But we can see nothing in the sequence of events or in Ms. Gadd’s evidence to the disciplinary hearing to suggest that that happened: on the contrary, Ms. Gadd said in terms that she could not help Mr. Kottler with his drafting because he had been there and she had not.  And even if the possibility was there, the question for the Tribunal was whether the evidence before Mr. Mulholland was such that he, as a reasonable employer, was bound to have found Ms. Gadd’s answers unsatisfactory.  In our view there was no basis for such a finding.  In so far as the Tribunal based its conclusions on what it, on reading the transcript, took to be the evasive character of her answers, that seems to us a clear case of substitution.  In para. 15 of the Reasons, where the Tribunal discusses the evidence of Mr. Kottler and Ms. Gadd, it uses the tell-tale phrases “unconvincingly in our view” and “in our view unconvincing”.  We accept that those phrases are not necessarily evidence of substitution: even a tribunal doing its proper job has to form views about the evidence.  But in this case we believe that they betray a lapse from the proper approach.  It was for Mr. Mulholland, who had the advantage of hearing Ms. Gadd’s evidence live, to decide whether it was suspiciously evasive.  He did not think that it was, and for the reasons already given (see para. 22 above) we believe that that conclusion was (to put it no higher) reasonable.  

27.	We have so far focused on the question of Mr. Kottler’s changes to his account overall.  The Tribunal was evidently also troubled by the further change in his account concerning the door “bouncing open”.  We are bound to say that, if one accepts Mr. Kottler’s general explanation of what occurred, there is nothing particularly implausible about his having at first attempted to maintain consistency between the use of force form and his new report (so that the former was only misleading by omission) but then thinking better of it and realising that he had to accept that the form had been untruthful: see para. 15 above.  But again the crucial point is not what we, or the Tribunal, think; but whether Mr. Mulholland, who made it clear in his decision letter that he had considered this issue carefully, was entitled to form the view that Mr. Kottler was an honest witness and that his account of how this further change came to be made was acceptable.  In our view he plainly was. 

28.	There remains the question of the non-production at the disciplinary hearing (and, if this is material, at the hearing before the Tribunal) of the first version of Mr. Kottler’s report.  If, as Mr. Kottler told Mr. Mulholland, this had been submitted by e-mail it should have been retrievable.  But it does not seem to us particularly surprising that nobody thought to have obtained it in advance of the hearing.  It seems from Mr. Tate’s questions to Mr. Kottler that he had not deduced its existence from the e-mail of 16 September, and it seems only to have been when Mr. Mulholland thought to clarify the issue that the existence of an earlier draft was clearly acknowledged.  If the Claimant or Mr. McParlin had attached real significance to it, they could have asked for its production then or at the subsequent appeal.  We can well understand why they did not.  The Claimant had told them what was in it, i.e. that it was substantially the same as the version of 19 September subject to the correction made on 16 September.  As to why it was not produced before the Tribunal, it is said at para. 15 of the Reasons that its non-production had not been satisfactorily explained.  But we are not clear what enquiry had been made, and in any event for the reasons already given we cannot see that the absence of the document justified any suspicion of misconduct on the part of Ms. Gadd.  It was acknowledged from no later than the hearing before Mr. Mulholland that the earlier report existed, so there can have been no intention to conceal.  

29.	We should add for completeness that we are puzzled by the last sentence of paragraph 47 (i), which says that a reasonable employer “may well have” taken a different view of what occurred, although the Tribunal does not spell out what that view would have been.  If the Tribunal was addressing the question of the reasonableness of Mr. Mulholland’s belief in the Claimant’s guilt, that way of putting it would appear to show an obvious self-misdirection.  “May well have” is not good enough: the Tribunal could only find unfairness if it found that Mr. Mulholland’s contrary belief was outside the range of what was reasonable on the evidence before him.  But both Mr. Sheldon and Mr. Pirani thought that the Tribunal was probably addressing the issue, or potential issue, under section 98A (2) of the Employment Rights Act 1996.  We are not wholly convinced by that explanation, but we would not want to decide the appeal on the basis of what may have been simply a lapse of wording.  It can at least be said that the sentence suggests a certain frailty in the Tribunal’s reasoning on this aspect.  

30.	The upshot of this, we regret to say, very lengthy analysis is that we do not believe that the Tribunal was justified in finding that Mr. Mulholland unreasonably failed to probe the inconsistencies to which it refers.  The central questions were squarely addressed in the evidence and by him, and there was nothing in the evidence that required him to investigate further a possible case of improper collusion between Ms. Gadd and Mr. Kottler (if that is indeed what the Tribunal had in mind).  Even if the Tribunal was itself troubled by that possibility, the question is not what it would have done but what it was reasonable for Mr. Mulholland to have done.

(ii)/(iv) PENALTY

31.	Sub-paragraphs (ii)-(iv) make what is ultimately essentially the same point, namely that Mr. Mulholland, once a finding of guilt had been made, unreasonably refused to consider any alternative sanction save dismissal.  (The first sentence of sub-paragraph (ii), if read in isolation, might suggest a more serious finding, namely that the question of guilt was also “pre-ordained”; but if the sub-paragraph is read as a whole it is clear that that is not what the Tribunal meant.)  In particular, Mr. Mulholland failed to take into account that the assault was not very “serious”, in the sense that Mr. Felicien had suffered no significant injury, or the mitigating circumstances.  The latter are not identified, but presumably the reference is to the ill-health of the Claimant’s wife and children, as relied on by Mr. McParlin: contrition was not available since the Claimant had throughout denied any misconduct.  “Mr. Neary’s memorandum of August 2000” to which the Tribunal refers in sub-paragraph (iv) is a memorandum from the Director General of the Prison Service (in fact Mr. Narey, not “Neary”), to all “Governing Governors”, which reads as follows: 

“In recent weeks there have been a number of allegations and proven cases of assault by prison staff on prisoners.  This seems the right time to send a clear message to colleagues of where I stand, and have stood since becoming Director General.

I have throughout my term in office made very clear my personal commitment that there is no place in the Prison Service for staff – of any grade – who assault or mistreat prisoners.

Clearly each case must be treated on its merits and adjudicating Governors will quite rightly take account of mitigation where it is offered.

However, Governors and their staff should know my position which is that, unless there are exceptional circumstances, the only proper sanction in cases of deliberate assault by prisoners is dismissal.”

32.	Mr. Sheldon’s challenges to that finding were essentially twofold:

(a)	that the evidence did not support the finding that Mr. Mulholland refused to consider any alternative to dismissal – or, in the Tribunal’s language, that he “blindly adhered to a zero tolerance policy”; and

(b)	that in any event the essential question was not precisely how Mr. Mulholland thought about the matter but whether the decision to dismiss the Claimant was, in the circumstances of the present case, a reasonable one.

In our view both submissions are well-founded.

33.	As to (a), the starting-point is that the Narey memo does not prescribe that dismissal must be the only possible sanction in any case of assault, whatever the circumstances.  On the contrary, it says in terms that each case must be treated on its merits and that, although ordinarily the only proper sanction will be dismissal, that will not be so if there are exceptional circumstances.

34.	Mr. Mulholland in his witness statement said, unsurprisingly, that Mr. Narey’s memo represented “the current standard to which we work”.  At para. 30 he stated his approach in terms entirely consistent with the memo, though he was more explicit about the circumstances which he would regard as exceptional.  He said: 

“Dismissal or final written warnings are the usual penalties for an assault on a prisoner.  The majority of cases result in dismissal.  The only occasions on which something less than dismissal is awarded is when there has been an early admission of guilt and evidence of remorse and where the assault is of a minor or technical nature.”

Applying that general approach to the Claimant’s case, he continued: 

“31.  Unless Mr. Macdonald-Heaney had produced something exceptional by way of mitigation, in my mine there was only one course of action – dismissal. 

32.  An example of something exceptional would be a psychiatric illness preventing Mr. Macdonald-Heaney from being fully in control of his actions, but Mr. Macdonald-Heaney produced no evidence to show that he was suffering from a psychiatric illness.

33.  I could not accept stress as a mitigating factor.  The Prison Service provides a caring and supportive environment and Mr. Macdonald-Heaney would have been well aware of the help and support available to him at times of stress.  I would have expected him to step forward earlier to take advantage of this help and support.”

35.	Para. 31 of the witness statement does not pick up on Mr. Mulholland’s earlier reference to assaults “of a minor or technical nature”.  But that is not surprising since on his findings the Claimant’s conduct would not fall within that description.  At para. 37 he said:

“In making my final decision, I looked at the Prison Service Conduct and Discipline Databases and I looked again at the policy on the use of force PSO 1600.  This lists four elements which must be satisfied if the use of force is to be justified.  First, it must be reasonable in all circumstances.  Secondly, it must be necessary.  Thirdly, it must be no more force than is necessary and fourthly, it must be proportionate to the seriousness of the circumstances.  There was nothing in the use of force policy which could justify Mr. Macdonald-Heaney going into the prison cell where he did not need to.  He did not need to because he was not under threat.”

For the Claimant to go back into Mr. Felicien’s cell and assault him because he was annoyed at the abuse he was getting could not be described as “minor and technical”, even if the level of force used was moderate and no injury was done.

36.	That evidence is consistent with the terms of the dismissal letter written by Mr. Mulholland, and is, frankly, what one would expect.  It does not demonstrate a blanket refusal to consider any sanction save dismissal.  The Tribunal was of course entitled in principle to find that Mr. Mulholland’s evidence did not reflect his true position.  But it could only do so on the basis of evidence.  The evidence on which it seems to have relied was twofold.  First, at para. 6 of the Reasons it records that he:

 “accepted [sc. in his oral evidence] that on the basis of [the Narey memo] he implemented an effective ‘zero tolerance’ policy at Wandsworth in relation to assaults on prisoners”.

Secondly, as appears from para. 47 (iv), he apparently told the Tribunal that there was “nothing” that would lead him to do anything other than dismiss the Claimant once an assault had been established: if read literally, that is plainly inconsistent with the evidence in his witness statement.  

37.	So far as the “zero tolerance” answer is concerned, this seems to us to go nowhere.  “Zero tolerance” is simply a label (and a rather crude journalistic label) which the questioner – it is not clear if it was the Claimant’s representative or the Tribunal – sought to put on the Narey memo and/or the policy explained in Mr. Mulholland’s witness statement.  It cannot possibly be taken as a retraction of the clear statement that Mr. Mulholland would not dismiss for a minor or technical assault or where there were exceptional mitigating circumstances (and still less so if weight is given to the qualifying word “effective” in the Tribunal’s phrase “an effective zero tolerance policy”).  

38.	As to Mr. Mulholland’s evidence that “nothing” would have led to him awarding a lesser sanction, it is important first of all to note that this is (potentially) significant only as regards mitigation.  Mr. Mulholland had already made clear that since the assault could not be regarded as “minor and technical” he regarded it as meriting dismissal unless there was exceptional mitigation.  To anticipate (see para. 40 below), we regard that approach as wholly justifiable.  So the statement only represented a qualification to his oral evidence if it meant that he would not be prepared to consider any mitigation at all.  That would be surprising in view of the explicit terms of Mr. Narey’s memo and how Mr. Mulholland behaved at the hearing, when he invited submissions on mitigation and gave time for them to be prepared.  Mr. Sheldon told us, and this seems in accordance with the overwhelming probability, that the evidence relied on by the Tribunal was not volunteered but was in response to a question along the lines of “can you think of anything the Claimant could have advanced by way of mitigation that would have led you not to dismiss him ?”, to which he replied “no”.  If that was the context, the answer seems to us, again, to go nowhere.  It is simply a thought–experiment (of a kind rather too popular with cross-examiners).  The Tribunal was not concerned with Mr. Mulholland’s powers of imagination but with the actual decision that he took on the actual mitigation advanced to him.  His answer is not evidence that he examined that mitigation with a closed mind.  All that we need to know is that he did not regard that mitigation as sufficient to justify an exception to the general policy.  The question for the Tribunal was whether that decision was reasonable.

39.	That leads into Mr. Sheldon’s second submission.  Even if Mr. Mulholland’s answers betrayed a degree of confusion or “self-misdirection” about the degree of strictness required by the policy at a general level it does not necessarily follow that dismissal in the present case was an unreasonable sanction.  On the contrary, he submitted, the policy appearing from Mr. Narey’s memo was self-evidently reasonable; and it was reasonable, if not indeed inevitable, for Mr. Mulholland to decide that the application of that policy in the Claimant’s case required his dismissal.

40.	We agree that Mr. Narey’s policy is reasonable, and indeed Mr. Pirani did not seek to suggest otherwise.  Unjustified acts of violence by prison officers against prisoners are self-evidently a serious matter, and a strict policy of the kind set out is plainly justified.  As to its application in the Claimant’s case, there are two elements – the seriousness of the offence itself and the question of mitigation.

41.	As to the seriousness of the offence, Mr. Narey’s memo acknowledges that each case must be considered on its merits, and Mr. Mulholland was right to recognise that that means that dismissal may not be appropriate in cases of minor and technical assaults.  But we believe that he was also clearly right to regard the Claimant’s case as too serious to fall within that description, for the reasons that he gave: see para. 35 above.  In reaching this view we are not, strictly speaking, differing from the Tribunal, since one of the consequences of it having reached its decision on the basis of the supposed errors in Mr. Mulholland’s overall “stance” is that it did not have to consider the objective reasonableness of his actual decision.  But there are at least hints in these sub-paragraphs that it believed that dismissal was an unreasonable sanction because the assault on Mr. Felicien was “trivial” or because his attitude had been provocative (see in particular the end of sub-para. (iii)).  If that was indeed the Tribunal’s view, we cannot agree.  As we have already said, Mr. Mulholland was fully entitled to regard the circumstances of the assault on Mr. Felicien as serious, irrespective of the actual degree of violence used: because of a lack of self-control, he quite unnecessarily created a physical confrontation when he could and should have simply walked away.  As for provocation, while no doubt in some particular cases provocation may be a mitigating circumstance, there is nothing in the facts of the present case to suggest that Mr. Felicien did more than use verbal abuse of the kind which regrettably prison officers do face.  We do not suggest that such abuse is to be condoned, and no doubt Mr. Felicien could have been disciplined for it, but Mr. Mulholland was fully entitled to regard it as having no weight as a partial excuse for assault.

42.	Turning to mitigation, the Tribunal makes no finding that the health problems of the Claimant’s wife and his children constituted such powerful mitigation that the only reasonable course was to impose a lesser sanction than dismissal: again, its criticism was limited to Mr. Mulholland’s supposed refusal to consider the possibility of mitigation.  Had it considered the question for itself, we do not believe that it could properly have made such a finding.

43.	We accordingly believe that the Tribunal’s conclusion on the reasonableness of the sanction of dismissal cannot be supported.

(v) 	REFUSAL TO POSTPONE THE APPEAL

44.	The Tribunal’s reasons for stigmatising Mr. Munns’ refusal of a postponement as unreasonable are amplified at para. 31-34 of the Reasons.  The principal point made is that Mr. Munns unthinkingly applied the Prison Service’s policy that an appeal should be heard within three weeks of the appeal notice, and failed to appreciate (a) that that provision was intended for the protection of the employee and should not be insisted on against his wishes; and (b) that in any event the policy allowed for delay when there were acceptable reasons.  It also took into account that at least part of Mr. Munns’ reason for refusing a postponement was that he was due to retire shortly after 5 February (the Tribunal does not say when, but his witness statement says that his employment ended in February).  

45.	There is no basis on which we could hold that that criticism of Mr. Munns was not open to the Tribunal.  But the question is whether it is sufficient to render the dismissal unfair.  Procedural flaws in the handling of an appeal do not necessarily vitiate the fairness of the dismissal.  The Tribunal does not find that the Claimant or his representatives did in fact find it impossible in the time available to prepare properly for the appeal or that there were in consequence points that might have been taken at the hearing which were overlooked.  Such a finding would have been surprising.  The facts of the case were within a short compass, and although a 200-page transcript no doubt takes some time to digest it is hard to accept that Mr. McLaughlin would need more than eight days for the purpose, still less when he had the assistance of the Claimant and Mr. McParlin.

46.	In these circumstances we do not believe that Mr. Munns’ refusal of a postponement could by itself suffice to render the Claimant’s dismissal unfair.

(vi) – (vii)	THE APPEAL

47.	The Tribunal’s findings of fact about the appeal hearing and decision are at paras. 34-39.  We need not set them out in full.  The criticisms which it makes are as follows:

(1)	It is said that Mr. Munns in his letter of 20 February

“adopted Mr. Mulholland’s reasoning that that as the conduct in question attracted the description of ‘gross misconduct’ under the Respondent’s procedures, dismissal was the only sanction available to him”

and that nothing in his letter suggested that he had considered “the seriousness of the misconduct” – i.e. the fact that, in the Tribunal’s view, it was not very serious – or the Claimant’s length of service (para. 37).

(2)	The Tribunal refers at para. 37 to a passage in Mr. Munns’ witness statement where he says: 

“There was no new evidence about mitigating personal circumstances and Governor Mulholland had taken these into account already.  The possible type of new evidence on mitigation which would have influenced me was, for example, medical evidence showing that Mr. Macdonald-Heaney had very recently been prescribed new medication which had had caused him to be out of control.”

At para. 38 it recites that Mr. Munns “was unable in his oral evidence to think of any other circumstances … that would cause a dismissal in a case like this to be unreasonable”.

(3)	Mr. Munns is criticised in para. 39 for not “following, in a structured manner, the factors set out in paragraph 11.5 of the conduct and discipline procedure” (see para. 7 above).

(4)	Mr. Munns is described in para. 39 as carrying out no more than “a cursory review”.  Two examples are given – (a) that Mr. Munns “did not … appear to appreciate the significance of the missing e-mail, telling the Tribunal merely that it had been ‘superseded by a later one’”, and (b) that he was unfamiliar with the fact that Mr. Felicien had pleaded guilty to a charge of assault.

48.	Those are the findings which are referred to, and at one or two points amplified, in para. 47 (vi) and (vii).  We consider them in turn.

49.	As to (1), we agree that Mr. Munns’ letter broadly endorses Mr. Mulholland’s thinking on the question of sanction; but for the reasons given at paras. 31-42 above we do not believe that Mr. Mulholland’s approach was that dismissal was the only possible sanction.  We can see nothing in Mr. Munns’ letter to suggest that he thought so either.  He clearly gave careful consideration to the question of mitigation.  As regards the Claimant’s wife’s ill-health, he said: 

“I was also made aware of the illness that your wife is suffering from, and appreciate that [she] must have been having a very difficult time.  However, the personal circumstances that you endured does not excuse the actions you chose to take.  As a manager you should have been able to control your emotions effectively and not let it impact on the role you were undertaking.  The Prison Service have support mechanisms in place for staff who are facing difficulties, such as an establishment based care team, or the Staff Care and welfare service.  It is not clear whether these were accessed by you, but there certainly are avenues you could have taken to gain the support you may have needed.”

He also, contrary to what the Tribunal says, expressly considered the Claimant’s length of service, saying that Mr. Mulholland will have been well aware of the Claimant’s good record but that his behaviour was “unacceptable … regardless of length of service”.  It is indeed clear that he, like Mr. Mulholland, took a different view from the Tribunal about the seriousness of the assault found; but that question was for him to assess unless his conclusion was unreasonable, and, as we say at para. 41 above, we do not believe that it was.  

50.	As to (2), the passage from Mr. Munns’ witness statement is wholly unobjectionable.  It is simply an example, and it is to be noted that it is an example specifically of what new mitigation might have influenced Mr. Munns’ decision in the present case.  We do not find it particularly surprisingly that he could not think of any other examples when questioned.  What he was plainly not saying was that this was the only kind of mitigation that would prevent dismissal for any assault, however trivial and whatever the circumstances.  In any event, this sort of questioning is of very dubious value, for the reasons given at para. 38 above: what matters was whether the penalty given in this case was reasonable.  The summary of the views of Mr. Mulholland and Mr. Munns at sub-para. (vii) bears no relation to what they say in their contemporary documents and their witness statements, and the oral answers relied on by the Tribunal do not establish that – most implausibly – their accounts of their approach, based as they were on Mr. Narey’s memo, did not represent their true attitude.  

51.	As to (3), Mr. Munns’ letter may not be a masterpiece of drafting, but it sets out to – and so far as we can see does – cover the points on which Mr. McLaughlin on the Claimant’s behalf sought to rely, which are carefully identified at the start of the letter.  We asked Mr. Pirani if he could identify any particular points overlooked, and he was constrained to accept that all the points raised had been addressed: he said that the real criticism was that the exercise was too cursory.

52.	As to (4), the starting-point is that the nature of the appeal provided for in the rules was quite clearly a review.  We are aware of the warnings given by the Court of Appeal in Taylor v OCS Group Ltd [2006] ICR 1602 about the over-glib use of the dichotomy between “rehearing” and “review”, but in the light of the criticisms made by the Tribunal in sub-para. (vi) it is important to bear in mind that Mr. Munns’ role was limited to that set out at para. 7 above, for which “review” is an appropriate label.  It is not, in the case of such a hearing, an “abdication of responsibility” for the person carrying out such a review to defer to the judgment of the decision-taker who heard the evidence.  Of course even a review must grapple with the detail of the case if there is reason to suppose that, in the words of the third bullet in para. 11.5 of the rules, the disciplinary finding was inconsistent with the written and oral evidence.  But it is quite plain from Mr. Munns’ letter that he had familiarised himself with the evidence, to which he refers at several points, and he deals with a number of particular criticisms advanced by Mr. McLaughlin.  As to the two particular examples given by the Tribunal of his “cursory” approach:

(a)	Mr. Munns devoted a paragraph in his letter to “the missing e-mail”, concluding that its absence was insignificant because – as apparently he also told the Tribunal – it had been “superseded” by subsequent e-mails.  That is essentially the same conclusion as we reach at para. 28 above, and we can see nothing wrong with it.

(b)	 It seems to have been in the witness-box that Mr. Munns showed himself ignorant of the fact that Mr. Felicien had pleaded guilty to an assault.  It is not clear that that was a point on which any weight had been placed at the appeal hearing – we dare say for good reason (see the end of para. 3 above) – but, even if it was, we cannot see that Mr. Munns’ failure to remember it is a point of real significance: the damning evidence against the Claimant was that of Mr. Kottler.

53.	We do not therefore accept that Mr. Munns did not properly carry out his responsibilities under para. 11.5 of the rules.  But even if, contrary to our view, his approach could fairly be described as “cursory”, we do not believe that, taking the process as a whole and taking into account the very thorough hearing before Mr. Mulholland, any defects were such as to vitiate the fairness of the decision to dismiss.

CONCLUSION

54.	We accordingly allow the appeal and dismiss the claim of unfair dismissal.