Appeal No. EAT/635/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 11th October 1995

	Before

	HIS HONOUR JUDGE HICKS Q.C.

	MISS J W COLLERSON

	MR A C BLYGHTON

SANKEY VENDING LTD	APPELLANTS

MR D BACHE	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR B CARR
(of Counsel)
EEF
Broadway House
Tothill Street
London SW1H 9NQ

For the Respondents	MR F E HINGLEY
(Representative)
Sandwell Citizens Advice Bureau
Municipal Buildings
Halesowen Street
Oldbury
B69 3DB

	JUDGE HICKS Q.C.:   Mr Bache, the respondent to this appeal, worked as a storeman for the appellants, Sankey Vending Ltd, from 16th October 1978 until 5th November 1993, when he was dismissed. That arose because on 27th October 1993 there was an alleged incident at about 3.30 p.m. which was the cause of a complaint by two of his fellow employees, Mr Williams and Mr Longstaff. Mr Williams managed, in fact, to report it to the relevant manager Mr Ferguson that day; he had tried to see him at 4.00 p.m. and eventually was able to speak to him at 5.10 p.m., after Mr Ferguson had been in a meeting. Mr Longstaff by that time had gone home and reported it the next morning. 

	Mr Bache was interviewed on 29th October 1993, the next day after that, and was suspended pending further enquiries and a disciplinary hearing. The disciplinary hearing began on 2nd November 1993 but was adjourned to 5th November 1993, when it was completed, and the manager conducting that hearing, Mr Webb, decided that the complaint was established and that Mr Bache should be dismissed. There was an internal appeal before three senior managers, or executives, and that appeal failed. The dismissal was confirmed.

	Mr Bache then applied to the Industrial Tribunal for compensation on the basis that the dismissal was unfair. The Industrial Tribunal decided that it was.

	The appeal to us is by the employers against that decision.

	In the course of their reasons, the Industrial Tribunal set out in paragraph 17 a quite full extract of the relevant parts of the judgment in the well known case of British Homes Stores Limited v Burchell [1978] IRLR 379, which sets out the way in which questions before an Industrial Tribunal on an application for unfair dismissal should be approached. That passage includes what is accepted to be an appropriate three-stage approach on the part of the Tribunal in dealing with the question whether the employer who discharges an employee on the ground of misconduct has acted fairly and reasonably in doing so within Section 57(3) of the Act. 

	The three stages are, first, to consider whether the employer in fact believed that the employee had been guilty of the relevant misconduct. The second question is whether the employer had reasonable grounds upon which to sustain that belief, and the third question is whether the employer at the stage at which he formed that belief, or as the Burchell judgment puts it:

		"... at the final stage at which he formed that belief on those grounds" 

carried out as much investigation into the matter as was reasonable in all the circumstances of the case. 

	It is clear that the phrase "carried out as much investigation" is not simply a matter of quantity of investigation, it is also concerned with the fairness and reasonableness of the investigation. The Burchell judgment goes on:

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

		It is not relevant, as we think, that the tribunal would itself have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before him, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities ..."

	So the Industrial Tribunal reminded itself that that was the right approach. The primary ground of appeal advanced by Mr Carr on behalf of the employers is that although they directed themselves in those terms the Industrial Tribunal plainly, from the content of their extended reasons, departed from that perfectly proper direction. We have come to the conclusion that that criticism is made out. 

	In paragraph 4, near the beginning of their reasons, the Tribunal, after accepting that the incident, as alleged, would have constituted a very serious act of recklessness, continue:

		"However, we have some serious doubts as to whether the incident took place, as alleged, or at all ..."

It seems to us that quite plainly there the Tribunal is addressing its mind to what one might call the primary issue which was before the employer when considering whether to dismiss, not the issues listed in the Burchell judgment. They go on:

		" ... and if the respondent had carried out a proper enquiry it would have come to the same conclusion or at least to the conclusion that there was sufficient doubt as to the exact nature of the incident that dismissal was not an appropriate remedy."

That is framed, on the face of it, in terms of the third limb of Burchell, whether the employer carried out a proper enquiry. But what is, it seems to us, apparent, is that rather than investigate independently whether the enquiry was proper the Tribunal came to the conclusion that it cannot have been proper because of the result that was reached. Thereby they revert to substituting their own view for that of the employer.

	The sort of considerations which the Tribunal seem to have taken into account in reaching a judgment on the primary facts, and confirmation that they were taking them into account for that purpose and not for a true investigation of the three Burchell questions, is illustrated by the following paragraphs. In paragraph 5 they say:

		"5	It was clear from the statements obtained by the respondent that there was some ill feeling between the applicant one the one hand and two other employees, Paul Longstaff and Keith Williams, on the other hand and it was a result of a complaint made by Mr Longstaff and Mr Williams that the applicant was dismissed."

As a first, and perhaps not a particularly important matter, it seems actually on the evidence that it was Mr Longstaff who was the person with whom there was ill feeling on the part of Mr Bache, rather than both of the employees. But that is a minor consideration. It is also true that that simple statement of the fact that there was some ill feeling was not a matter really in dispute, and indeed, was taken into account by Mr Webb in reaching his decision to dismiss. The fact that the Tribunal were taking it into account for the purpose of reaching their own conclusion as to the primary facts really lies outside paragraph 5 itself. One gets it from paragraph 18, where they list the matters which they conclude should have indicated to the employers that there was something amiss, and the previous disputes between Mr Bache and Mr Longstaff are one of the matters which they list there.

	In paragraph 6 they deal with the incident itself, in the sense that they draw attention to the fact that neither Mr Longstaff nor Mr Williams remonstrated with the applicant at the time, and they say that they find that suspicious. Clearly that is a comment that can only arise out of the Tribunal's bending their mind to primary question, whether the incident occurred at all, or at least occurred in the way that Mr Longstaff and Mr Williams subsequently complained of it.

	In paragraph 7 they deal with the reaction of the manager to whom the matter was first reported, Mr Ferguson. They draw attention to the fact that Mr Ferguson initially took no further action, believing that a cooling off period would defuse the situation. They take that as evidence that Mr Ferguson believed the incident to have been of a less serious nature, and they say that they take into account Mr Ferguson's view. One asks oneself: take it into account for what purpose? The only possible conclusion, in our view, is that they were taking it into account for the purpose of forming their own judgment as to the primary facts.

	Then in paragraph 8, they recount:

		"8	On the evening of Thursday 28 October 1993 Mr Longstaff and Mr Williams saw Mr Ferguson again and made it clear that they wished to make an official complaint against the applicant as they had both felt threatened ..."

and the Tribunal go on to say:

		"... Again we feel we have to question why, and the respondent should have questioned why, if Mr Longstaff and Mr Williams felt so threatened and wished to pursue a complaint they took 24 hours to make that clear to Mr Ferguson."

Quite apart from the fact, that in a sense, that is a rather circular argument, because it was Mr Ferguson's reaction, or rather his failure to react by taking matters further, that caused the delay - quite apart from that - again, it seems to us plain that the only purpose for which the Industrial Tribunal is drawing attention to that fact, and the way in which they draw attention to it, shows that they are taking into account for the purpose of forming their own view.

	When one comes to the way in which, having cited Burchell, they reach their own conclusion, they say in paragraph 18:

		"18	With regard to the three elements enunciated in Burchell the respondent clearly believed the applicant had been guilty of gross misconduct. ..."

That of course was a conclusion in the respondent's favour, and one with which it was extremely unlikely that anybody could quarrel. But then they go on to say:

		"... The question we have to ask ourselves is whether the respondent had reasonable grounds to sustain that belief. ..."

At the end of that paragraph they say:

		"... In all the circumstances we do not accept that the evidence was such that the respondent could reasonably conclude that, while some kind of incident may have occurred, the applicant had been guilty of an act of gross misconduct warranting his being dismissed."

So at that stage they seem to be putting their decision on the second limb of Burchell, whether there were reasonable grounds for the respondent's belief, and they have dropped, and do not further pursue, the suggestion in paragraph 4 that there had been a failure of proper enquiry.

	In our view the extracts which we have referred to from paragraphs 4 to 8 indicate that in truth the Tribunal were substituting their own view; they were not approaching the second element of the Burchell enquiry, any more that the third, in the way which that authority requires. For those reasons we have come to conclusion that this appeal must be allowed.

	Mr Carr goes on to submit that, having reached that conclusion, we should substitute for the Industrial Tribunal's conclusion our own conclusion that Mr Bache was fairly dismissed. He says that we should do that because that is the only conclusion which a reasonable Tribunal properly directing itself could reach.

	We do not find ourselves in a position to dispose of the matter in that way. By the nature of the test which it imposes it is a course which should be followed only in very clear and exceptional circumstances, and we do not find ourselves in that position. We consider that there must be a hearing before a different Industrial Tribunal, which will approach the matter in the right way.

	We come to that conclusion not only on the general grounds of not falling into the same or parallel error as that which the Industrial Tribunal fell into, by substituting our view for the Industrial Tribunal's. We also come to it for a specific reason and that is that when Mr Webb dealt with the disciplinary enquiry he quite plainly, as appears at page 25 of the appellant's bundle, came to the conclusion that Mr Bache's conduct was not only dangerous but deliberate, because he uses the expression "drove the stacker truck at Paul Longstaff and Keith Williams" and then in the next sentence says that the reason he finds for this is the "disagreements and arguments" with Mr Longstaff prior to the incident. Whereas Mr Webb comes to that finding as to the motive and intention of Mr Bache, and whereas on that finding it would be difficult if not impossible to quarrel with the proposition that dismissal was well within the range of reasonable responses, when it came to the appeal hearing before Mr Dixon and two senior colleagues we find that the way in which they reached their conclusions is quite plain from page 33 of the appellant's bundle, where Mr Dixon, in the notes of that appeal, is reported as stating:

		"... the appeal panel had had the opportunity to study the statements and reflect on what had been said. [They had not only had the statements but also heard the witnesses.] The view of the panel was that Mr Bache had assumed that there would be no one standing to his right on the basis that there was no one there when he first drove through the area. There should not, however, have been such an assumption made, especially by an experience, qualified fork lift truck operator with extensive knowledge of the area concerned. Mr Bache's actions were therefore grossly negligent and he had rightfully been accused of gross misconduct."

It is quite apparent that that is not a finding of deliberate driving at Mr Longstaff and Mr Williams, it is one of gross negligence in circumstances where Mr Bache had made an unsafe and careless assumption that the area was clear. There is no indication that the appellate body asked themselves the question whether that effected the right penalty to be imposed, and it seems to us arguable - and it is not for us conclude on this matter, and that is why we remit it - it seems to us at least arguable that an Industrial Tribunal could be asked to consider whether there was any unfairness or unreasonable conduct of an investigation where an appellate body within the employer's organisation reaches that quite significantly different view of the circumstances of the facts but does not review the question whether in those altered circumstances dismissal is still the right penalty. 

	For that particular reason, which reinforces our general reluctance to substitute our view for that of the Industrial Tribunal, we have come to the conclusion that having allowed the appeal the correct course is to remit it for a re-hearing. In all the circumstances, and in particular the nature of the criticisms of the decision of the original Industrial Tribunal, we consider that it would be better for the re-hearing to be before a differently constituted panel.