Appeal No. UKEATS/0070/08/BI

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

	At the Tribunal
	On 22 May 2009 

Before
THE HONOURABLE LADY SMITH
MISS S AYRE FIPM FBIM
MR R THOMSON

MANOR OAK (PMG) LTD	APPELLANTS

MR A KELLY	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR J D CRAN
(Solicitor)
Messrs McGrigors LLP MNP Solicitors
Princes Exchange
1 Earl Grey Street
Edinburgh
EH3 9AQ	
For the Respondent	MR J C MUIR
(Solicitor)
Messrs Muir Myles Laverty Legal Services
Meadowplace Building
Bell Street
Dundee
DD1 1EJ	

SUMMARY
UNFAIR DISMISSAL:  Reasonableness of dismissal / Contributory fault
The Tribunal erred in application of the Burchell test in a case where the claimant admitted misconduct. Tribunal rightly criticised an aspect of the disciplinary hearing (related to the right to be accompanied by a representative) but failed to take account of the whole circumstances including what happened after the hearing by way of communication between the claimant and respondents and at the appeal hearing.  

THE HONOURABLE LADY SMITH
INTRODUCTION 
1.	This is an employers’ appeal from the judgment of an Employment Tribunal sitting at Dundee, Employment Judge Mr N Hosie, finding that the claimant was unfairly dismissed and ordering that he be reinstated.  The judgment was registered on 29 August 2008.

2.	We will continue to refer to parties as claimant and respondents.

3.	The claimant was represented by Mr J C Muir, solicitor, before the Tribunal and before us.  The respondents were represented by Mr J D Cran, solicitor, before the Tribunal and before us.

BACKGROUND 
4.	The claimant was employed by the respondents as a service technician at their garage premises in Dundee.  His duties included MOT testing.  The purpose of MOT testing of a vehicle, as explained in the first paragraph of the relevant government website (http://www.direct.gov.uk/en/Motoring/OwningAVehicle/MOTDG_4022111), is “to ensure that it complies with at least the minimum road safety and environmental standards”. 

5.	The claimant entered the respondents’ employment in August 1971 and he was dismissed on 31 December 2007. 

6.	On 9 August 2007, the claimant was issued with a final written warning arising out of the incorrect connecting of a starting wire in the course of fitting an engine to a van.  He did not appeal it.  He was advised that the written warning would remain on his record for a period of 12 months.  He was also given a list of performance related objectives to which he was to pay immediate attention and the letter issuing the written warning suggested that he meet with Willie Falls, the Service Manager on 10 September 2007, to review his improvements against expectations.  Mr Falls also offered support and assistance with the objectives set out and indicated that he was available to discuss any concerns that the claimant had. 

7.	No meeting took place on 10 September and no specific instances of support/assistance took place.  

8.	On 15 November 2007, the claimant carried out repairs and a service on a Peugeot motor vehicle registration number ST54 GZY.  It had failed its MOT test the previous day.  He also performed a further MOT test on it on 15 November and passed it.  He presented the vehicle as complete and fit for MOT certification.  It was not in fact fit to be certified for MOT purposes.  It should have failed its MOT test. A quality control check carried out on the vehicle by another employee (Ernie Balfour) found a fault which meant that it should not have passed its MOT test.  The fault was:
“O/S/F drive shaft gaiter damaged and leakage” 

9.	The claimant was called to a disciplinary meeting.  The minutes of that meeting, in which the claimant is referred to as “AK” and the respondents’ General Manager, Mike Dand, as “MD”, and which were found by the Tribunal to be reasonably accurate, included the following:
“AK confirmed that no-one assisted him in doing the repairs apart from Dick helping in engaging the hub. 
MD showed AK a picture of the damage and asked him if based on this picture, would it result in an MOT failure – AK said yes it would.  MD asked if AK damaged the vehicle during the repairs and AK said he must have done. 

MD told AK that after carrying out a re-test the vehicle was quality checked 20 minutes later.  The quality check confirmed that a cv boot clip was broken and grease was leaking from the cv boot.  AK said that it may have been damaged in the repairs, and broken when the vehicle was road tested after being retested.
…- AK said the clip must have been damaged when he carried out the repairs to the vehicle, and then broke during the road test.  MD asked AK that when doing a visual inspection, what parts of the clip he would have been able to see, AK confirmed that he would see exactly what was in the picture.

10.	The picture to which he was referring was the picture showing the damage which should have been noticed and should have resulted in the car failing its MOT test.  The claimant was then asked to take a seat outside the meeting and told that he would be called back in.  The General Manager (Mike Dand) called in the employee who had carried out the quality check (Ernie Balfour).  The minute records:
“Ernie said the damage to the clip could not occur on a road test.  Ernie said this damage looked like it had been deliberately done.  It could not have snapped during a road test, therefore (sic) it would have been damaged before the road test.” 

11.	Mr Falls, the claimant’s line manager, was also questioned outwith the presence of the claimant.  He was asked about the vehicle’s mileage and was shown the picture of the damage.  He said the damage shown could not have occurred during the road test but during the repair. 

12.	The claimant returned to the meeting and was shown the damaged clip.  The note records:
“AK said that it had been hit and damaged during the repair.”

The note also records the claimant’s position as being that the vehicle was road tested before the MOT test carried out on 15 November.  In his later appeal letter (26 November), however, he explained that he had not intended to give that impression.  He explained:
“When asked why I chose to road test the vehicle I stated I had done so as this is procedure after fitting brake, suspension and exhaust parts, although not required when carrying out MOT.  From the minutes it would appear I said I did this after the re-test but this was not in fact the case.  I did the road test after the repairs and prior to the re-test which is confirmed by the mileage in all the paperwork.  I can only suggest a mix up in words not a deliberate lie ….”

13.	On 23 November, Mr Dand wrote to the claimant advising him that he had been dismissed, saying:

“Our investigation and subsequent discussion revealed that you performed unsatisfactorily in your role as Technician, you have conducted yourself improperly relating to the damage caused and negligence in carrying out the repairs and MOT to ST54 GZY.” 

14.	The claimant was supplied with a copy of the minutes of the disciplinary meeting.  He appealed in terms of the above letter.  He did not, in that letter, take issue with the record of the admissions made by him at the disciplinary hearing, other than that relating to the timing of the road test which he dealt with as noted above.  He again, in that letter, accepted responsibility for the damage to the vehicle.  The essence of his appeal was that there was no deliberate negligence on his part, he had been a long serving employee and that in those circumstances, dismissal was an extreme response.  An appeal hearing took place on 4 December. 

15.	The appeal was conducted by the respondents’ managing director, Allan McGuire.  The minutes of the appeal, which the Tribunal were satisfied were reasonably accurate, included:

“AK mentioned that after 36 years service, he feels that this is a severe decision, for a snapped gator clip.  AK said that these things are common to break in a 206.  AM mentioned that in the appeal letter AK confirmed that he probably did cause the damage.  He accepts the blame for the damage, because if the clip was broken it must have been him.
AM mentioned that AK was on a final written warning and that this event has occurred within 6 months of the final written warning and it is difficult for us to see any way forward from this.  It is clear what the final decision of the company should be.  From the company’s point of view we need to make sure that when a car leaves our workshop, to the best of our knowledge, the car has been handed out safely and that due care has been taken…
AM said that… would take time to discuss the matter with Kevin Lamb (the Finance Director) and come to a final decision because of the fact that he has been a long time employee with the company.
AM called AK back into the meeting.  AM mentioned that he had spoken to KL and as far as our duty of care goes as a company, we are bound to ensure the safety of our customers, so we have nowhere to go but to uphold Mike Dand’s decision.” 

16.	 The decision to dismiss was confirmed by letter dated 4 December 2007 in which Mr McGuire wrote:

“ …your appeal was based on the following grounds – 
‘There was no deliberate negligence on your part, and after 36 years of service, you feel that this decision of dismissal is extreme.’
….I must advise you that the decision to dismiss you from our employment remains on the grounds of negligence resulting in unacceptable performance.” 

The Tribunal made no other findings of fact of relevance to the issues raised by this appeal. 

The Tribunal’s Reasons
17.	At paragraph 44, the Tribunal state that they were satisfied that the reason for the claimant’s dismissal was conduct and that the respondents believed he was guilty of misconduct.  They comment: “Indeed this was not disputed”.  However, they also state:

“That is not to say, however, that we felt that he was guilty of the conduct complained of.” 

18.	That appears, at first sight, to be all that they have to say on the Burchell question of whether the employers entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time (British Home Stores Limited v Burchell [1978] IRLR 379 at paragraph 2) since the next paragraph begins by stating:

“The remaining question which we had to determine, therefore, under Section 98(4) of the 1996 Act was whether Manor Oak had acted reasonably in treating the reason for dismissing Mr Kelly as a sufficient reason and that question had to be determined in accordance with equity and the substantial merits of the case.” 

19.	The Tribunal returns, however, to Burchell considerations at paragraphs 48–55 and find that the respondents did not have reasonable grounds for their belief that the claimant had committed an act of misconduct.  They appear to have arrived at that conclusion under reference to three matters.  The first was that the respondents had taken evidence from witnesses at the disciplinary hearing outwith the presence of the claimant.  The second was that that evidence included Mr Balfour having said that the damage to the car was caused deliberately.  The third was that Mr Dand and Mr McGuire had proceeded on what the Tribunal refers to as “the false premise” that the car was unsafe or dangerous.

20.	As regards the second of the above matters, the Tribunal states, at paragraph 50 that they were not persuaded that Mr Dand had put Mr Balfour’s allegation out of his mind.  Their reasons for that are stated to be twofold:  firstly, that when he gave evidence Mr Dand was at pains to stress the importance of customer safety, and secondly, that he had used the word “improperly” in his letter of dismissal. 

21.	As regards the third of the above matters, at paragraph 51, the Tribunal rely, for its conclusion that the men proceeded on a false premise on a series of factors, namely, that they were not qualified mechanics, that neither of them investigated the safety implications of the defect with Ernie Balfour or Willie Falls and that:

“While the vehicle did fail its MOT , it does not necessarily follow that the car was thereby rendered unsafe or that the driver would be in imminent danger or indeed that it was in a ‘dangerous condition’.”

The Tribunal did not, however, find that the car was safe or that, on further enquiry it would have been found to have been safe.

22.	The above phrase in italics is a quotation from the letter calling the claimant to the disciplinary meeting.  It is not to be found either in the initial dismissal letter or in the letter intimating the outcome of the appeal.  The Tribunal nonetheless summarise their conclusion on the second branch of the Burchell test at paragraph 54 as being that the respondents did not have reasonable grounds for their belief in the claimant’s misconduct

“particularly having regard to the fact that Mr Dand, in particular, who took the decision to dismiss, proceeded on the false premise that the car was in a ‘dangerous condition’.”

23.	They concluded, at paragraph 57, that the car was not in a “dangerous condition” on the basis that it took only a short time to repair, that that particular fault was not uncommon in those vehicles, that a considerable amount of work was required on the car at a cost of £938.88 and that the defect was rectified at minimal cost within ten minutes.  They also observe that as the broken gaiter clip was part of a wheel, it would only be obvious if when the wheel was in the same position as when the photograph was taken.  The latter was not something that was raised at the disciplinary meeting or the appeal and its relevance is not immediately obvious given the claimant’s admission at the former that had he carried out the necessary inspection, he would have seen what was shown in the photograph, namely the broken clip.  In that paragraph, the Tribunal also comment that the claimant’s error was to fail to spot the broken gaiter clip and that otherwise there was no suggestion of his work being unsatisfactory.  They make no mention, however, of the fact that he accepted that he must have caused the damage in the first place or of his accepting that the car should have failed its MOT.

24.	Then, regarding the third part of the Burchell test, the Tribunal state at paragraph 55, that the respondents had not carried out as much investigation as was reasonable because neither Mr Dand nor Mr McGuire took time to “clarify the issue” which appears to be a reference to the nature of the defect. 

RELEVANT LAW 
25.	In a case where an employee is dismissed on grounds of misconduct, the guidance provided in the case of Burchell is relevant.  There, at paragraph 2, Arnold J referred to the Tribunal requiring to begin by considering the issue of whether an employer who has dismissed an employee for misconduct entertained a reasonable belief in the employee’s guilt of that misconduct at the time of dismissal.  Burchell was a case of alleged dishonesty.  Miss Burchell’s employers believed that she had been involved in dishonesty relating to staff purchases, in particular a transaction involving an expensive pair of sunglasses.  She denied the allegation.  Her employers had, however, inferred her dishonesty from three separate matters.  The task for the Tribunal was, as it was put at paragraph 18:

“ ….quite simply whether a reasonable management could find from those three matters material for a belief that this young lady had done what she was suspected of doing.” 

26.	That was the context in which Arnold J made the well known comments that the single question to which we have referred above is made up of three elements namely the fact of the employers’ belief, the need for the employer to have had reasonable grounds on which to entertain that belief and the need for the employer to have carried out a reasonable investigation by the time he formed his belief that the employee had committed the misconduct in question. Arnold J continued:

“It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.” 

27.	In this case, that meant asking whether, when the claimant was dismissed for having negligently caused damage to the motor vehicle ST54 GZY and for having certified it as having passed its MOT test when he should have failed it, the respondents entertained a reasonable belief that he had done so, on reasonable grounds, after reasonable investigation.  The nature and extent of any admissions made by the employee are highly relevant and may well be determinative of the Burchell issue.  If, for instance, Miss Burchell had admitted to her employers, when asked, that she had defrauded them in relation to the sunglasses transaction, they would not have required to make any further enquiries;  it would plainly have been reasonable for them to entertain a belief in her guilt in those circumstances. 

28.	Moving on, where the employer has demonstrated a reasonable belief in the employee’s misconduct, the question to be addressed next is that of whether, in dismissing the employee the employer was acting within the band of reasonable responses open to a reasonable employer (Iceland Frozen Foods v Jones [1982] IRLR 439).  That means that the Tribunal must consider the reasonableness of the employers’ decision, not simply whether they consider the dismissal to be fair.  Nor is it relevant for them to consider whether they would themselves have dismissed.  They require, in short, to recognise that in many cases there is a band of reasonable responses within which one employer might reasonably take one view and another employer quite reasonably take another.  At this stage, the Tribunal should consider both substantive and procedural unfairness.  In the event that the decision was that the dismissal was procedurally unfair, a Tribunal considering a case (at the time of this one) then required to ask whether the employer has established that, had the procedure been a fair one, the employee would still, on the balance of probabilities, have been dismissed (section 98A(2) of the Employment Rights Act 1996).

29.	Finally, in a case of dismissal for misconduct, the Tribunal may require to consider whether or not the claimant contributed to his own misconduct.  If the employee did contribute to his dismissal then the Tribunal may reduce any compensatory award by such proportion as it considers just and equitable (section 123(6) of the 1996 Act).  The fixing of that proportion is a matter of impression, opinion and discretion for the Tribunal and is not to be interfered with absent perversity (Hollier v Plysu Ltd [1983] IRLR 260). 

THE APPEAL 
30.	For the respondents Mr Cran presented four principal submissions in law:  (1) the Tribunal did not apply the Burchell test correctly;  (2) the Tribunal had no basis for finding that a fair procedure was not followed;  (3) the Tribunal did not apply the band of reasonable responses test (Iceland Frozen Foods v Jones);  and (4) the Tribunal did not apply itself correctly to the issue of contributory conduct. 

31.	Mr Cran referred to paragraph 44.  The reference to the Tribunal feeling that the claimant was not guilty of misconduct was, in the circumstances, worrying; he had admitted the misconduct in question.  The respondents plainly had reasonable grounds for their belief that he had committed misconduct.  The Tribunal had fallen into error.  In particular, it was wrong to focus on the issue of safety in the way in which it had done so.  Investigation of whether or not the car was safe or not was an irrelevant consideration.  There was no basis for the Tribunal’s statement that the respondents’ belief was based on a false premise.  Their view that the car was not unsafe was the result of error on their part.  An MOT certificate confirmed that at the time of testing, the vehicle met the minimum acceptable safety standards.  The respondents’ view that the car was unsafe was a reasonable one.  Further, the Tribunal had reached its own view as to the safety of the vehicle in circumstances where it had not been raised as an issue either at the disciplinary meeting or at the appeal.  There was no finding that the claimant considered that the car was safe. 

32.	Further, the Tribunal’s conclusion that the car was not in a dangerous condition, set out in paragraph 57, was based on a non sequitur.  In the same paragraph, the Tribunal recorded the claimant’s failure as being that he failed to spot the broken gaiter clip but they ignored the fact that he had admitted that he must have caused the damage in the first place.

33.	Mr Cran submitted that the Tribunal’s reference to the third part of the Burchell test at paragraph 55 was misconceived.  It ignored the fact that the safety of the car was not raised as an issue at either the disciplinary meeting or at the appeal.  It ignored the nature and extent of the claimant’s admissions.  The Tribunal had erred in failing to find that the Burchell test was satisfied and then going on to consider whether or not dismissal was, in the circumstances, within the range of reasonable responses. 

34.	Mr Cran also submitted that the Tribunal had misdirected itself in law regarding procedural flaws.  Whilst the claimant had been asked to leave the disciplinary meeting while fellow employees were spoken to, he was provided with the minutes of the meeting which the Tribunal accepted as having recorded what happened, including what was alleged in his absence.  He had the opportunity to respond to the allegations made in the appeal process.  The Tribunal gave no consideration at all to whether that later procedure cured the earlier defect.  It was not to put too much of a burden on the claimant to expect him to speak up at the appeal stage if he took issue with what had been said.  Further, it was not open to the Tribunal to take from the use of the word “improperly” in the dismissal letter that Mr Dand considered he had deliberately damaged the car.  

35.	When it came to applying the Iceland Frozen Foods guidance, the Tribunal had misdirected itself, in Mr Cran’s submission.  The Tribunal did not explain why it was not open to the respondents to dismiss.  They gave no weight to the existence of a live written warning which had not been appealed.  Insofar as the Tribunal had regard to the fact that the suggested meeting had not taken place and there had been no specific instances of support and assistance in meeting the set objectives that was irrelevant.  It did not detract from the fact that the written warning subsisted.  Overall, the situation was one where an employee on a final written warning had committed a further act of misconduct.  In such circumstances, a Tribunal would have to be very clear as to why dismissal was not within the range of reasonable responses.  This Tribunal was not.  Rather, it appeared to have taken the view that the misconduct constituted minor error, the car was safe (despite the fact that it should have failed its MOT test), the respondents harboured a belief that the claimant had deliberately damaged the car and the live final written warning was irrelevant.  In short, it had substituted its own views and it was not entitled to do that. 

36.	Conversely, the position on the facts was that the car should have failed its MOT test, the claimant was responsible for the repair of the vehicle and its testing, he accepted that he must have caused the damage, he accepted that it should have failed its MOT test, he had certified that it passed that test, the respondents took the view that in the circumstances the car was unsafe, the claimant did not dispute that and the claimant did not suggest that he would not have been able to see the damage.  In those circumstances, dismissal was manifestly within the range of reasonable responses.  The Tribunal had fallen into error of the sort that was warned against in the recent case of London Ambulance Service NHS Trust v Small [2009] ALL ER (D) 179. 

37.	Turning to contribution, Mr Cran submitted that the case of Hollier showed that where, as here, the employee was wholly or significantly to blame, the relevant proportion for reduction purposes was 100 per cent or 75 per cent.  The Tribunal had erred in their assessment. 

38.	As to disposal, Mr Cran submitted that this tribunal should overturn the Tribunal’s finding and substitute one of fair dismissal which failing remit to a fresh Tribunal for a rehearing. 

39.	For the claimant Mr Muir began by stressing that the case had been conducted with the achievement of reinstatement in mind.  He seemed to be seeking to suggest that the evidence may have taken a different turn if that had not been the case but accepted that it was not appropriate to speculate as to what other or additional findings in fact might have been made in that event.

40.	Mr Muir submitted that the MOT test was not about safety;  it was to do with roadworthiness.  He accepted, however, that there had been no discussion of the issue of safety at either the disciplinary meeting or the appeal hearing.  He drew attention to the Tribunal having recorded, at paragraph 57, that the claimant told Mr Dand and Mr McGuire that he had a car of the same make which suffered an identical fault;  that gave the Tribunal “something to go on”, he said.  He accepted that the claimant was the MOT examiner and responsible for signing off the vehicle but it was, he said, important to consider the degree of negligence.  He sought to make reference to there having been a poor relationship between the claimant and Willie Falls but accepted that there were no findings in fact to that effect. 

41.	Mr Muir referred to the fact that evidence had been taken from employees outwith the presence of the claimant, at the disciplinary meeting.  That was a breach of natural justice.  He submitted that the cost of repairing the defect and the time it took to repair was not irrelevant.  Regarding the final written warning, he submitted that the Tribunal were entitled to take account of the fact that nothing was done in terms of having a meeting or supporting the claimant. 

42.	Mr Muir explained that, although at the time of the Tribunal hearing the claimant was seeking reinstatement, that was no longer his position.  Ultimately Mr Muir submitted that the best that he could hope for was that the case would be remitted back to the Tribunal.  

43. One of the lay members, Mr Thomson, raised with Mr Muir the fact that the claimant did not have a representative present at the disciplinary and appeal hearings and that the respondents’ note recorded that he had declined the opportunity to have a “witness” present.  Had he in fact had the opportunity to have an appropriate representative with him?  Mr Muir assured this Tribunal that there was not any difficulty in that regard and no issue was raised by the claimant regarding his right to have been accompanied by a representative.

DISCUSSION 
Majority View:
43.	We are satisfied that the Tribunal fell into error in its application of the relevant law.  Firstly, it misapprehended and so misapplied the Burchell test.  This was a case where, in answer to the respondents’ questioning, the claimant made clear admissions accepting responsibility for having caused the defect in the vehicle, not noticing the defect and for having certified it as passing its MOT test when he should have failed it.  These were acts of misconduct.  In these circumstances, the respondents discharged the onus of showing that they genuinely believed that the claimant had committed misconduct, that they had reasonable grounds on which to hold that belief and that they had carried out a reasonable investigation before reaching their conclusion.  Once the admissions were made by the claimant in response to their questioning of him, they plainly did not require to take their investigations any further.  They were, in particular, not required, for Burchell purposes, to investigate how serious the defect was.

44.	Secondly, we note that the Tribunal make a point of explaining, at the beginning of the discussion of their decision at paragraph 44, that although they accept that the respondents believed the claimant was guilty of misconduct, that was not to say that they felt that he was.  They do not indicate how they reconcile that conclusion with the claimant’s own admissions;  it is impossible to see how they could do so.  More importantly, however, any conclusion drawn by a Tribunal as to whether or not a claimant was guilty of the conduct complained of is irrelevant.  The relevant question is whether the employer was entitled to hold such a belief (a question which was answered by the Tribunal in the affirmative).  Their considerations, accordingly, began from an erroneous basis. 

45.	Thirdly, the Tribunal, in its application of the Burchell test find that the respondents did not have reasonable grounds for their belief in the claimant’s guilt because, as they put it, it was based on the “false premise” that the car was in a “dangerous condition” (paragraph 54).  They are wrong, on their own findings in fact, about the basis for the belief in the claimant’s misconduct;  it went beyond the condition of the vehicle.  The findings at the disciplinary meeting and on appeal were that the claimant had been negligent in carrying out repairs to the vehicle and the MOT and that these matters compromised customer safety.  More importantly, however, at paragraph 54, the Tribunal consider an issue which is not relevant at the Burchell stage, namely how serious was the effect of the claimant’s misconduct?  They were evidently of the view that the respondents should have regarded it in a less serious light than they did but their conclusion that, for that reason, the respondents were not entitled to believe that the claimant had committed misconduct at all is a non sequitur.  We, accordingly, accept Mr Cran’s submission that the Tribunal misapplied the Burchell test. 

46.	Turning next to the matter of procedure, whilst we have no difficulty in agreeing with the Tribunal and with Mr Muir that there was unfairness in excluding the claimant from the disciplinary meeting at one point whilst other evidence was taken, that is not an end of the matter.  As the Tribunal themselves state at paragraph 49, it is essential that an employee who is subject to disciplinary procedures be made aware at some stage of the full extent of the allegations made against him and be afforded an opportunity of responding to them.  There is no single way of achieving that, however, and it is not the case that every flaw in procedure renders a dismissal unfair.  The flaw requires to be considered in the light of the whole facts and circumstances.  A defect at one stage in the procedure may be cured by what happens thereafter.  The Tribunal here have unfortunately ignored that, on their findings of fact, matters did not end at the stage of the disciplinary meeting.  The claimant was made aware of what had been stated at the hearing in his absence; he was sent the note of the meeting.  Having received it, he wrote an appeal letter in which he commented on the note.  He picked up on the fact that the note recorded him as indicating that he road tested the vehicle after putting it through its MOT re-test and sought to explain that there must have been a “mix up in words”.  He also responded that in that letter that “there was no deliberate negligence on my part”.  His appeal letter was followed by an appeal hearing. The claimant did, accordingly, have full notice of the case against him and a full opportunity of stating his case (see: Byrne v BOC Ltd [1992] IRLR 505).  Despite having been referred to Byrne, the Tribunal failed to have regard to these matters.  In so doing, it erred in law.

47.	Turning to the Tribunal’s application of the “range of reasonable responses” test (Iceland Frozen Foods Ltd v Jones), we are satisfied that the Tribunal also fell into error.  Their decision on this matter is strongly influenced by their view that the respondents proceeded on a “false premise” that the car was in a “dangerous condition”.  As noted above, the respondents did not use that language in their conclusion as to the effect of the claimant’s misconduct.  They refer, rather, to safety considerations which they were, manifestly, entitled to do given that the car should have failed its MOT test, one which is carried out for the purpose of ensuring compliance with minimum standards of road safety.  To say that something is a “false premise” is to say that it is not true.  Indeed, the word “false” is commonly accepted as connoting an intention to deceive.  In the context of this case, the use of “false premise” at least means that the car was safe and not dangerous.  However, as Mr Cran rightly commented, nowhere do the Tribunal find that the car was safe nor, importantly, did the claimant take issue at the stage of the disciplinary meeting or at the appeal stage with the respondents’ view that customer safety was compromised notwithstanding that it was expressly stated in the note of the disciplinary hearing (which was sent to the claimant) and in the course of the appeal hearing (when he was present), that that was how they viewed matters.  In these circumstances, the Tribunal had no proper basis for their conclusion that the respondents proceeded on a false premise so far as the condition of the vehicle was concerned.  

48.	When the Tribunal’s reasons are examined to find how it is that they reached that view, it is evident that they did so by taking account of irrelevant matters and by substituting their own view for that of the reasonable employer.  In particular, at paragraph 57, the Tribunal refer to a series of factors:  the defect took only a short time to repair, the particular fault was not uncommon in such vehicles, a considerable amount of repair work had been required to the vehicle overall, the cost of those repairs was £938.88, the owner was not aware of the defect, and there was no loss of reputation to the respondents.  None of these indicate that the car was safe or that the respondents were not entitled to take the view that the claimant’s conduct in causing and not spotting the defect and in wrongly certifying the vehicle as passing its MOT test involved negligence on his part, gave rise to safety considerations and was a serious matter.  The time it takes to repair a defect and the cost of doing so are not matters which are obviously indicative of its severity nor do they negative its cause being negligence.  Further, also in that paragraph, the Tribunal wrongly state that the claimant’s only error was to fail to spot the defect.  That ignores the fact that, on his own admissions, he also negligently caused it, should have noticed it and should not have certified the vehicle as passing its MOT test.  Also, confusingly, whilst the Tribunal appear to accept that the claimant should have noticed the defect, paragraph 57 contains a statement by them that the defect would only have been obvious when the wheel was in the particular position it was in when the photograph that was shown to the claimant was taken, thereby seeming to suggest that he could be excused for not noticing it.  If that was their intention, it would conflict with the claimant’s admission to the respondents that on a visual inspection he would have seen what was in the photograph.  It would also conflict with their own finding that he contributed, through his conduct, to his dismissal.

49.	The Tribunal also required, when considering the range of reasonable responses, to have regard to the fact that the claimant was subject to a “live” written warning.  That warning specifically stated:

“ …if any further incidents occur before the end of the 12 month period, it may be necessary to move to the next stage of the company’s disciplinary procedure which could lead to dismissal.” 

50.	It was not conditional on the suggested meeting taking place or on there being specific instances of support or assistance.  It remained in effect.  That being so, whether or not the respondents actually took it into account, when considering what the range of responses was that was open to a reasonable employer, the Tribunal required to allow for the fact that it would have been open to such an employer to rely on it.  They did not do so. 

51.	A further matter which influenced the Tribunal’s decision was that they approached matters on the basis that Mr Dand did not put out of mind Mr Balfour’s allegation that the claimant had caused deliberate damage to the vehicle (paragraph 50).  The reasons they give for arriving at that conclusion were twofold; when he gave evidence Mr Dand was at pains to stress the importance of customer safety and in his dismissal letter, he used the word “improperly”.  We do not, however, see that Mr Dand’s focus on safety shows that he had in mind Mr Balfour’s allegation nor can we accept that the dismissal letter can, on any view, be read as indicating that he had it in mind at that stage.  In any event, it was not suggested that Mr McGuire placed any reliance on the allegation when it came to the appeal stage and it was plain from his letter that the reason for dismissal was negligence resulting in unacceptable performance.  It is, of course, of the essence of negligence that a failure to take reasonable care is involved as opposed to the carrying out of a deliberate act.  The Tribunal accordingly fell into error in concluding that Mr Dand had Mr Balfour’s allegation in mind when he dismissed the claimant and in taking that conclusion into account in their reasoning.

52.	Finally, we are satisfied that the Tribunal fell into a substitution error, often warned against, most recently in the case of Small v London Ambulance Service NHS Trust where, at paragraph 43 Mummery LJ said:

“It is all too easy, even for an experienced ET, to slip into the substitution mindset.  In conduct cases the claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer.  He has lost his job in circumstances that may make it difficult for him to get another job.  He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question – whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal.” 

53.	The Tribunal here has, in one respect, gone further than apprehended by Mummery LJ, in that it concluded that they did not feel that the claimant was guilty of misconduct when that does not even appear to have been his position.  Then, when looking at the range of reasonable responses, it has evidently arrived at its own view that the claimant’s error was a minor one, that it ought to have been regarded as minor, that it did not regard the condition of the car as giving rise to safety considerations notwithstanding that it should have failed its MOT test, that the respondents really entertained a belief that the claimant had deliberately damaged the vehicle and acted on it, and that the fact of the live written warning could be left out of account.  That was an erroneous approach.  On the facts found, the Tribunal required to approach its considerations by taking account of the following:  that the claimant ought to have failed the car on its MOT test, that the claimant had damaged it in the course of repairs, that he had failed to spot the defect caused by him, that the purpose of an MOT test is to ensure compliance with minimum road safety standards, that the claimant took no issue throughout the disciplinary and appeal procedure with the respondents approaching matters on the basis that safety considerations arose, and that the claimant was subject to a live written warning.  Against the factual matrix, the Tribunal should then have asked whether dismissal was within the range of responses open to a reasonable employer.  They failed to do so.

54.	In these circumstances, we do not require to deal with the respondents’ submissions on contribution and will confine ourselves to observing that notwithstanding the extent of the discretion available to the Tribunal of first instance on the matter, there is some force in the respondents’ case that the percentage arrived at by this Tribunal did not reflect the extent to which the claimant was the author of his own misfortunes.  

DISPOSAL 
55.	In these circumstances, we will pronounce an order upholding the appeal.  We have considered whether it is open to us to bring an end to these proceedings by deciding, on the facts found, whether the respondents unfairly dismissed the claimant or not but have reached the conclusion that we ought not to decide that issue.  Whilst, as indicated, it is clear that the Burchell test was satisfied, the Tribunal never properly addressed the question of whether, in all the relevant circumstances, it was within the range of responses open to a reasonable employer to dismiss the claimant and that issue needs to be addressed by a Tribunal of first instance.  In these circumstances, there requires to be a remit for a rehearing of the case.  It will be a remit to a freshly constituted Tribunal;  the nature and extent of the Tribunal’s errors makes it appropriate to do so.

Minority View 
Mr Thomson disagreed with the majority.  He would refuse the appeal.  The Employment Tribunal applied the case law stated in British Home Stores v Burchell and Iceland Frozen Foods v Jones to findings in fact they were entitled to make from the evidence given and made their decisions on these findings.

There are three elements to the onus on employers laid out in British Home Stores.  The second, having reasonable grounds and the third, carried out reasonable investigation are inclusive, to have reasonable grounds requires reasonable investigation. At paragraph 51 the Tribunal details their reasons for finding that the respondents had not carried out sufficient investigation to sustain their conclusion that the car was in a “dangerous condition”, they were not substituting their view for that of the respondents.  The Tribunal findings at paragraphs 54 and 55 are ones which they were entitled to reach based on evidence narrated and facts found.

In their decision at paragraph 60 the Tribunal remind themselves of the guidance in Iceland and state that had a fair procedure been followed the claimant would not have been dismissed. At paragraphs 47 to 50 they detail the evidence and their reasons for finding the procedure was unfair.  These findings and in particular those in paragraph 50 adequately deal with the issue of whether the respondent’s appeal hearing cured the unfairness at the disciplinary hearing.

Most of the respondent’s submissions challenged the findings in fact by the Tribunal and as such should have been appealed on the grounds of perversity.  They chose not to do so.

The Tribunal’s findings that the claimant’s contributory conduct was 10 per cent appears law in relation to the guidance in Hollier v Plysu. He would remit this issue to the same Tribunal to receive submissions from both parties. 

Observation:  Mr Thomson was concerned that at the disciplinary and appeal hearings the claimant did not have a representative present.  He accepts that the respondents gave the claimant the opportunity to have a “witness” rather than a representative present, which he declined.  We do not know the reason for him declining, whether in a small establishment he could get no one to accompany him or some other reason.  The consequences of losing one’s job are far reaching and profound.  The statutory position is that an employee is only entitled to have a fellow employee or trade union official present at a disciplinary hearing, they are not entitled to a representative of their choice.  It is his view that in serious disciplinary cases refusing an employee the opportunity of a representative of their choice can amount to a breach of their rights under the European Convention of Human Rights.  This is especially so since under case law quoted in this appeal, an employers’ reasonable belief based on facts found at internal hearings cannot be challenged at subsequent court/tribunal hearings.

Mr Thomson was also concerned regarding the description and standing of the employers’ notes of the disciplinary and appeal hearings.  These were described as minutes.  His understanding of a minute is that it is a written summary of what was discussed and decided at a meeting and subsequently agreed by all the parties who were at the meeting.  Otherwise it is only one person’s or one side’s account of the meeting and should be treated accordingly.  More so when one of the parties are on their own.  It is difficult for a professional person far less a lay person to participate in a meeting and take notes at the same time.