MR D BOLAH v INVICTA COMMUNITY CARE NHS TRUST [1999] UKEAT 1281_98_1908

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1281_98_1908Case No Appeal No. EAT/1281/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D BOLAHAPPELLANTINVICTA COMMUNITY CARE NHS TRUSTRESPONDENT
Before
Mr Justice Charles Mr P A L ParkerDate 19 August 1999
[1]APPEARANCES For the Appellant MR D CAVENDER (of Counsel) Messrs Ryder & Co Solicitors 57 High Street Tunbridge Wells Kent TN1 1XU For the Respondents MR Q BARRY (Solicitor) Messrs Donne Mileham & Haddock Solicitors 100 Queens Road Brighton E Sussex BN1 3YB MR JUSTICE CHARLES : The parties to this appeal are a Mr David Bolah (the Appellant and the Applicant below) and Invicta Community Care NHS Trust (the Respondents here and below). The Appellant appeals against the decision of an Employment Tribunal sitting at Ashford in Kent. Introduction and Overall Conclusion It was the unanimous decision of that Employment Tribunal that the Appellant was fairly dismissed and therefore that his claim for unfair dismissal failed. Summary Reasons for that decision were sent to the parties on 16 July 1998 and Extended Reasons for the decision were sent on 28 August 1998.[2]The ground of the appeal is that the decision of the Employment Tribunal was perverse. We agree. Accordingly we allow this appeal.[3]In addition we make a finding that the Appellant was unfairly dismissed and remit this case to a different Employment Tribunal for them to deal with the issues that arise relating to remedy. Our Approach[4]It was, in our judgment correctly, common ground between the parties that the test to be satisfied on an appeal based on perversity is undoubtedly a high one. In this context in their helpful skeleton arguments both sides referred us to Piggott Brothers & Co Ltd v Jackson [1991] IRLR 309 and, in particular, to paragraph 17 of the judgment therein which is in the following terms:
"Nevertheless, it is an approach which is not without its perils. A finding of fact which is unsupported by any evidence clearly involves an error of law. The Tribunal cannot have directed itself, as it should, that findings of fact need some evidence to support them. The danger in the approach of May LJ is that an appellate court can very easily persuade itself that, as it would certainly not have reached the same conclusion, the Tribunal which did so was 'certainly wrong'. Furthermore, the more dogmatic the temperament of the judges concerned, the more likely they are to take this view. However, this is a classic non sequitur. It does not matter whether, with whatever degree of certainty, the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law, the EAT will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the Industrial Tribunal. If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as 'perverse'."
We were also referred to Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 and, in particular, to paragraph 33 of the judgment therein which is in the following terms:
"Whenever an appeal is based on the perversity ground, this Tribunal must be extremely cautious not to conclude that the decision of the Industrial Tribunal is flawed because the Appeal Tribunal would have reached a different conclusion on the evidence or thinks that another Industrial Tribunal would have reached a different conclusion on the evidence. An appeal should not be allowed on this ground simply because the Employment Appeal Tribunal disagrees with the Industrial Tribunal as to the justice of the result, the merits of the case or the interpretation of the facts. This Tribunal should only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is 'irrational', 'offends reason', 'is certainly wrong' or 'is very clearly wrong' or 'must be wrong' or 'is plainly wrong' or 'is not a permissible option' or 'is fundamentally wrong' or 'is outrageous' or 'makes absolutely no sense' or 'flies in the face of properly informed logic'. This variety of phraseology is taken from a number of well-known cases which describe the circumstances in which this Tribunal (and higher courts) have characterised perversity. The result is that it is rare or exceptional for an appeal to succeed on the grounds of perversity. The reason why it is a heavy burden to discharge is that it has been recognised by those with wide experience and practical wisdom that there are many factual situations arising in the field of industrial relations, including sex discrimination, in which different conclusions may be reached by different tribunals, all within the realm of reasonableness. It is an area in which there may be no 'right answer'. The consequence of this approach, also approved in cases of high authority, is that it is not appropriate or fruitful to subject the language of the decision of the Industrial Tribunal to 'meticulous criticism' or 'detailed analysis' or to trawl through it with 'a fine-tooth comb' ... "
[5]In considering this appeal we have borne in mind:(a) the point, demonstrated by the above authorities, that we should be extremely cautious not to substitute our own view for that of the Employment Tribunal,(b) it is difficult and rare for an Appellant to demonstrate perversity, and(c) in this case the difficulties of the Appellant are compounded by the fact that the function of the Employment Tribunal, as an industrial jury, was to determine whether, in the particular circumstances of this case, the decision of the Respondent employers to dismiss the Appellant employee fell within the band of reasonable responses which a reasonable employer might have adopted. This is because if the dismissal falls within that band the dismissal is fair; and if the dismissal falls outside that band it is unfair (see Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 at 442 cited with approval in Boys & Girls Welfare Society v McDonald [1996] IRLR 129 ) and British Home Stores Ltd v Burchell [1980] ICR 303 which, as the other two cases point out, is a starting point for the test of reasonableness in respect of unfair dismissal).[6]It follows, and indeed this was common ground between the parties, that (adopting two of the descriptions in the Stewart case) for the Appellant to succeed he has to show that the decision of the Employment Tribunal that the conduct of the Respondent employers in this case was within the band of reasonable responses which a reasonable employer might have adopted 'was not a permissible option' or 'flies in the face of properly informed logic'.[7]It was also (in our judgment correctly) common ground that that overall approach could be split up and rephrased by reference to the approach in the Burchell case by stating that for the Appellant to succeed in satisfying that high test he must at least satisfy us:(a) that the decision of the Employment Tribunal that the Respondent employer's belief that the Appellant had been guilty of sexual assault (or of having made sexual advances) as alleged was based on reasonable grounds, is perverse, and further, or alternatively,(b) that the decision of the Employment Tribunal that at the times that the Respondent employer formed that belief and decided to dismiss the Appellant, it had carried out as much investigation into the matter as was reasonable in all the circumstances of the case, is perverse. The Findings of the Employment Tribunal[8]As they make clear the Employment Tribunal correctly have regard to sections 94 and 98 of the Employment Rights Act 1996 and to the test set out in the Burchell case. Their findings are in paragraphs 10 to 20 of their Extended Reasons which are in the following terms:
"10 We find that the Applicant was employed as a community psychiatric nurse from 1 July 1981 to 18 November 1997, which is the effective date of termination. 11 The Applicant was dismissed with effect from 18 November 1997 and the reason, pursuant to section 98(2)(b) of the Employment Rights Act 1996, was conduct, namely it was gross misconduct because he was believed to have committed a sexual assault on a patient. 12 In accordance with section 98(4) of the Act, we are required to consider the fairness of the dismissal. We remind ourselves that it is not for this Tribunal to substitute its own views for those of the Respondent, and it is not part of our function to say whether or not we believe the misconduct occurred. We do have to ask ourselves whether the Respondent had a reasonable belief that the misconduct occurred, whether that belief was based on reasonable grounds and whether there was sufficient investigation. 13 At the outset, we say that we find Marie Dodd to be a particularly reliable and honest witness. We are perfectly satisfied that she approached the disciplinary hearing in an open and even-handed way, she recognised that there were inconsistencies, but she did try to evaluate the evidence and try to establish a proper chronology. She was concerned at the delay in these matters coming to light, but she told us that in her experience such delay was not unusual, and in this case Julie Delahaye had given a plausible reason for raising the matter in 1997. 14 We find that Mr Lindsay did carry out a very detailed and thorough investigation. He kept a meticulous record of his investigation and supplemented it with relevant statements and documents. It is true that he himself did not make a great effort to establish the date of the incident, but there was, however, no doubt that the meeting at the pub had taken place. It was accepted that he did not contact Ian Scott Reed and he accepted, with hindsight, that this was something which could have been done. 15 In cases such as this, the Respondent is required to carry out a reasonable investigation to test the allegations that have been made. We find that the investigation in this case was thorough, even if it was not absolutely perfect. Mr Cavender has made great play of the fact that the date of the meeting at the pub was never established. Mr Lindsay did not try to establish the date and both Marie Dodd and the Appeal panel tried to do so, and failed. We have to say that even with the benefit of the detailed hearing before us, the actual date has still not been established satisfactorily. However, so far as the Respondents were concerned, the date was not crucial because there was no dispute that the meeting had taken place. 16 There has been no fault at all in relation to the disciplinary procedure and the disciplinary hearing which was carried out quite correctly. Equally, the appeal hearing was in accordance with the procedures and carried out correctly and with fairness. 17 In this case the Respondent, through Marie Dodd, was faced with a serious allegation made by one person, and a denial by the Applicant. It was therefore Miss Dodd's task to decide who she believed. We are satisfied that she weighed up the evidence, she noted the inconsistencies and, unlike this Tribunal, she also saw all the relevant witnesses and heard them give their evidence. 18 We have no doubt whatsoever that she had a reasonable belief that this misconduct occurred, and that belief was based on reasonable grounds following the detailed investigation by Mr Lindsay and the detailed disciplinary hearing which she held. 19 The Applicant himself agreed that if the incident occurred as alleged, then dismissal was a reasonable option, and we find that, in all the circumstances, dismissal in this case was an option which was open to this Respondent to take. 20 We find this dismissal was fair and the Originating Application is dismissed."
A Chronology with Some Comment June 1981 The Appellant was employed by the Respondent. The Appellant was a community psychiatric nurse who had had a long career in nursing. At the time of his dismissal he had been employed by the Respondent for 16 years and during that time no complaint similar to that made against him by Julie Delahaye (JD) had been made against him. 26 September 1994 First counselling session between the Appellant and JD. 5 October 1994 Second counselling session between the Appellant and JD. 19 October 1994 Third counselling session between the Appellant and JD. 20 October 1994 The Tudor Park conference. 4 November 1994 A counselling session that was due to take place on this date between the Appellant and JD was cancelled. 9 November 1994 The fourth and final counselling session between the Appellant and JD took place at which she was discharged from any further counselling. 11 January or 23 March 1995 JD had a conversation with a Dr Jones during a consultation. About October 1996 JD told a Sian Baker, a colleague, that she wanted to tell her something that had happened about 2 years earlier and told her of the alleged sexual assault or advances by the Appellant. She also said that now she was working in the same trust as the Appellant she was afraid that he might cause trouble for her and was telling Sian Baker about the alleged incident to cover her back but did not want to do anything more at that time. She also said that she had reported the alleged incident to Dr Jones at the time. 29 September 1997 Sheila Bernasconi, another employee of the Respondent, thought that JD was looking pale and she asked her if she was feeling alright. During the course of the ensuing conversation, JD explained that she had just seen the Appellant in Reception and he had ignored her. She went on to say that when she was his patient three years ago he had made a sexual advance towards her. October 1997 JD made a complaint against the Appellant. 14 October 1997 Mr Lindsay commenced his investigation of the complaint and saw JD on 14 October 1997 when having been given an opportunity to retract her allegation she did not do so and gave an account of her experience while she was under the care of the Appellant. These dates and events were not disputed and they were known to the Respondent employer when it formed its belief that, on the balance of probabilities, in 1994 Mr Bolah had sexually assaulted JD, or made sexual advances towards her, in the manner she alleged. We have used this alternative description because the Employment Tribunal refer to a sexual assault (see paragraph 11 of the Extended Reasons), but (for example to Sheila Bernasconi) JD refers to the Appellant making sexual advances towards her.[9]The timetable of the decision making process of the Respondent employer was: October / November 1997 Mr Lindsay's investigation. 18 November 1997 Disciplinary hearing chaired by Marie Dodd, Director of Child and Family Services at the Respondent employer, at which the presenting manager was Mr Lindsay and the Appellant was represented by Rose Welch a regional officer for the RCN. 9 January 1998 Appeal hearing before an appeal panel of four at which the Appellant was represented by a workplace colleague Ian Dyer.[10]If one stands back from the detail it is immediately apparent that the Respondent employer was not in an easy position. On the one hand serious allegations had been made by a lady (JD), who it is apparent, the Respondent employers thought had no real reason to lie, whereas on the other hand those allegations were against a nurse (the Appellant) who, at the time the allegation was made, had been employed by the Respondent employers for 16 years and no similar allegations had been made against him.[11]In those circumstances it seems to us that any reasonable person, acting reasonably, who had to investigate and reach decisions based upon his or her conclusions concerning the truth of the allegations made by JD, and therefore the Respondent employers as employers, would take all steps reasonably open to him or her to check independent facts and the observations of third parties that were relevant to the competing accounts.[12]Again, leaving aside the detail of this case, in our view the following are matters which should obviously be considered and/or investigated by any reasonable investigator or decision-maker who is acting reasonably in respect of a case of this type:(a) the nature of the contact and communication between the person making the complaint and the person against whom the complaint is made before and after the alleged incident,(b) the views and observations of third parties who were alleged to be present at, or at about the time of, the alleged incident,(c) the views of third parties as to the behaviour of the persons by whom, and against whom, the allegation was made before and after the alleged incident,(d) the views and observations of anybody who the person making the allegation and complaint says she told about the alleged incident, and(e) when the alleged incident took place in relation to other relevant events[13]Here, and perhaps unsurprisingly, given the fact that the alleged incident took place about three years earlier, JD was unclear and somewhat confused as to the date on which the alleged incident took place. Marianne Belcher who had been at the pub with the Appellant was also unclear as to the date on which the alleged incident took place.[14]Given that there was no dispute that the Appellant met JD at a pub, we agree that the precise date of this meeting after which JD alleged the sexual assault or advance took place is not important. However, this does not mean that it is not important to try and discover when it took place against a background of known events and, in particular, when it took place within the timetable of counselling sessions that took place between the Appellant and JD. Indeed in our judgment it always was, or should always have been, obvious to a reasonable investigator / decision maker that it was of great importance that this should be done in carrying out a reasonable investigation and decision making process[15]Mr Lindsay, on behalf of the employers, attempted to obtain the Appellant's diaries but was unable to do so because his diaries for 1993/94 and 95 were missing. However, a record was available of the dates and times upon which the Appellant had counselling sessions with JD. We have set out the dates of these. They took place between the 26 September and 9 November 1994.[16]However, and notwithstanding that:(a) as is apparent from the Chairman's notes of his evidence to the Employment Tribunal Mr Lindsay thought that the meeting at the pub took place in October/November 1994 which we would agree is the obvious conclusion to draw from the information he had gathered and which was available at the Disciplinary Hearing and the Appeal Hearing in respectively November 1997 and January 1998,(b) in her statement (the typed version of which is dated 24 October 1997 and was made during the investigation carried out by Mr Lindsay) JD said that after the meeting at the pub and she and the Appellant were in the Appellant's car the Appellant had suggested that 'we cancel next Friday's counselling slot' and 4 November 1994 was a Friday, and(c) in her evidence at the Disciplinary Hearing JD said that there were no counselling sessions after the Tudor Park conference, when the record showed that this took place on 20 October and was in fact followed by two counselling appointments, one of which took place and one (on 4 November) was cancelled, no real attempt was made by the Respondent employers to check and test the allegations made by JD against the known timetable of counselling appointments, or to pursue the issue whether an appointment was cancelled after the meeting at the pub and the alleged incident, whether that was the appointment fixed for 4 November and if it was why JD attended the counselling session on 9 November.[17]The statement of JD dated 24 October 1997 contains the following passage:
"He put his hand under my left arm and remarked that I was sweating a lot, which was true and he kissed me on the lips. I then knew what DB really wanted and got out of the car. I got out of his car and drove away. On the exterior I was very calm but as soon as I got away I put my foot down, went home phoned a friend and drove immediately to T.Wells. The police stopped me at Wateringbury for speeding - I said I had had a bad evening and just wanted to get away. They let me off. I went to a friend's house because I needed to talk to someone. Two days later DB rang me . I was surprised, I had hoped to just leave it, it wasn't a good time to say anything and he said he would ring back. In the meantime I spoke to Ian Scott Reed the NHS Director of Psychiatric Services in Portsmouth Hampshire (via my T.Wells friend) who advised me to report him to my Doctor. It made me realise how unprofessional DB had been. He was very angry. DB rang me again to invite me out for a coffee and to 'apologise'. I told him he was dangerous and put the phone down. A while later I reported DB's behaviour to Dr Jones, Tonbridge Road Surgery 'Off the record'. I didn't want to make it official because I felt vulnerable. It would be my word against his, my job was insecure, he was in a powerful position and life for me was already very difficult. So I left it."
[18]Although they interviewed Sian Baker and Sheila Bernasconi to whom JD had made her allegations as to the meeting at the pub followed by the alleged sexual assault or advance by the Appellant respectively 2 and 3 years after the alleged incident, the Respondent employers made no attempt to contact Ian Scott Reed, or so far as we are aware the friend or friends referred to in the above passage from the statement of JD who, she says, she went to see on the evening that she alleges the Appellant made sexual advances towards her and who, she says, assisted her in contacting Ian Scott Reed. In our judgment these are startling omissions because both Ian Scott Reed, and the friend (or friends) would on the basis of JD's account of events have been able to give an account of what she said and how she appeared shortly after the alleged incident and possibly to date it. If JD's account is true it seems likely that both Ian Scott Reed and the friend (or friends) would be able to remember something about it because of the nature of the allegation and JD's alleged reaction to it.[19]Further in respect of Ian Scott Reed, and having regard to his position, the fact that there is no record of him contacting the Respondent employers in 1994 about such a complaint by JD increases the obvious need to try and contact him and if this was not possible to query why the NHS Director of Psychiatric Services did not take JD's complaint up with the Respondent employers if, as she alleges, she spoke to him. Also a point which obviously required further investigation and consideration was why if as JD alleges Ian Scott Reed told her to report the Appellant to her doctor she did not do so at the time and only spoke to Dr Jones some months later.[20]Further, no attempt was made by the Respondent employers to contact the police to see whether they had any record of having stopped JD in Wateringbury. As to this we accept that it is a small omission in that the likelihood that the police would have any record of this incident is small. However, the failure to make any attempt to contact the police is, in our judgment, indicative of the manner in which the investigation and decision-making process was carried out by the Respondent employers, and confirms a significant and considerable failure to investigate and to consider and ask questions about the events which JD asserted took place shortly after the alleged incident and how they fit with the known timetable of counselling sessions, and other known events.[21]Indeed apart from the Appellant and JD the only person who the Respondent employers sought information from who had a role at the time was Marianne Belcher who it was common ground had been present at the pub with the Appellant when JD arrived. She was a witness at the Disciplinary Hearing who confirmed that JD had joined them at the pub, but who could not date the meeting and who said that she did not think that the Appellant was being thought of as fairly as he could have been when she was interviewed (these interviews were on 17 and 22 October) and that she was shocked by the allegation. Apart from confirming what was common ground Marianne Belcher's evidence did not support JD's allegations, or (apart from her view as to the investigation and expression of shock) the Appellant's denial of the allegation of sexual assault, or the making of sexual advances, made against him by JD.[22]As to Dr Jones: (a) he was interviewed by Mr Lindsay at his surgery on 22 October 1997 and on that date he wrote a letter to Mr Lindsay in the following terms:
"Dear Mr Lindsay, Further to our conversation of the above date and as requested I endeavour to report the facts pertaining to the complaint made by Julie Delahaye against David Bolah, CPN attached to our practice at the time of the alleged incident in 1994. During a consultation with myself dated either 11th January 1995 or 23rd March 1995, Mrs Delahaye mentioned her concern about unprofessional conduct by David Bolah. She stated, to the best of my recollection, that following a series of counselling sessions David had invited her out for a meal or drink to discuss the possibility of employment opportunities. At the time it was agreed that I would bear the comments in mind in case of any further suggestion of impropriety coming from other patients. My concern was lessened as I knew that David often invited practice staff out socially and would use meals as an opportunity to discuss many issues. No further incidents came to my attention and David and I discussed issues relating to attraction to the opposite sex within professional relationships on an informal basis. I was left with no lasting concerns and felt that it was appropriate to take no further action. I hope this statement reflects our conversation and is an accurate account of proceedings." (b) Dr Jones was unable to attend the Disciplinary Hearing which took place on 18 November 1997 before Marie Dodd. Notes made in respect of that Disciplinary Hearing record that Marie Dodd's approach to Dr Jones' letter was as follows: "
She then referred to the GP's statement which appeared inconclusive. He obviously knows DB well and may wish to believe the best of him. The GP may not have been aware of the seriousness of the accusation, and may be concerned that he neglected to address this matter more formally by contacting the Trust. and before she reached her conclusion Marie Dodd made no attempt to talk to Dr Jones either on the telephone or in person. (c) Dr Jones did give evidence at the Appeal Hearing which took place on 9 January 1998. That evidence did not support the approach taken by Marie Dodd to his letter and the notes of the appeal hearing indicate that his evidence was supportive of the Appellant at that hearing.[23]In relation to the reasoning of the Respondent employers we note that: (a) In her witness statement before the Employment Tribunal Marie Dodd says this:
"I formed the view that Mr Bolah did arrange to meet the patient at Hanrahan's Public House and that the two people remained after the departure of Marianne Belcher. I felt that the relationship between the Clinician and his patient had been exceeded and that it had moved to a social relationship. The crossing of the boundary from professional to personal had, therefore, been breached. I concluded that on the balance of probabilities Julie Delahaye's evidence was to be believed. Her evidence was consistent and there was no evidence other than that of Mr Bolah to refute that allegation. Although the patient was vulnerable at the time there was no indication that she was mentally ill. I noted the point that there was a time delay until Delahaye reported the incident. However, we also had evidence that she had told her GP of an incident involving Mr Bolah five months after the incident. This had not been reported to us at the time, but his statement was available at the disciplinary hearing. In reaching my decision I was mindful of the vulnerability of staff working in the field, but I felt that Mr Bolah had failed to maintain the professionalism and work standards expected of him as an employee and a professional nurse and I believe that the allegation against him was on the balance of probability true. I was mindful of the fact that a member of staff in this position would be in contact with vulnerable people and that he would work with a high degree of independence. Making sexual advances towards a patient was a sufficiently serious basis in my view to dismiss a member of staff in such a responsible position. I, therefore, reluctantly had to summarily dismiss Mr Bolah for gross misconduct. In the notice of dismissal Mr Bolah was informed of his right to appeal. I refer to my reasoning on pages 14 and 15 of the notes of the disciplinary hearing."
Those notes contain the passage we have already cited concerning her approach to Dr Jones' statement and also indicate that another matter which influenced her was a conclusion that the notes made by the Appellant relating to the counselling sessions were not of an appropriate standard. As to that there was evidence before the Employment Tribunal that they did accord with the standards that existed in 1994. (b) Brian Oatley, the Chairman of the Respondent employers, and a member of the panel who heard the Appeal Hearing, says in his statement to the Employment Tribunal that:
"In the circumstances we were willing to believe that the facts led to a situation Julie Delahaye had described in her statement. We heard nothing to make us doubt that Marie Dodd's decision based on her account of the truth of the allegation and Mr Bolah's unprofessional behaviour was the right one. We believe that the decision was right and that on the balance of probability Mr Bolah had done what Julie Delahaye had said that he had. We decided that the act was one of gross misconduct and in the circumstances we felt that dismissal was the correct decision."
[24]In our judgement this reasoning by itself is not based on, and indeed flies in the face of, properly informed logic. Without more there is no logical connection and indeed an enormous quantum leap between:(a) (i) the common ground that the Appellant met JD socially when she was his patient (which we agree might be classified as unprofessional conduct), and (ii) a criticism of the Appellant's note-taking, and(b) a conclusion that the Appellant made sexual advances towards, or committed a sexual assault upon, JD in the manner she alleged.[25]In this context it has to be remembered that the reason the Respondent employers dismissed the Appellant was because they concluded on the balance of probabilities that the Appellant did make such an advance, or commit such an assault on, JD (see for example paragraph 11 of the Extended Reasons). The Respondent employers did not take their decision to dismiss on the basis of the admitted conduct of the Appellant which we accept might be classified as unprofessional.[26]How therefore did the Respondent employers conclude that on the balance of probabilities the Appellant had made the sexual advance, or committed the sexual assault, alleged by JD? The answer, as we understand it, is that they believed JD and thought that she had no reason not to give a true account of the incident which founded her allegations and that she had no reason to exaggerate or embellish whereas, in contrast, they found the Appellant unconvincing.[27]Naturally there is force in the point that the persons involved, on behalf of the Respondent employers, saw and heard the Appellant and JD and were able to assess their accounts and truthfulness with that advantage. We do not have that advantage and accept that much can be derived from seeing and hearing the main witnesses or protagonists. But if that observation is to be properly informative, beneficial and of advantage the main witnesses or protagonists need to be properly tested in the circumstances relevant to the dispute.[28]Here we are confident that those acting on behalf of the Respondent employers (ie Mr Lindsay, Marie Dodd and the Appeal Panel) thought that they were acting reasonably and fairly but we have come to the clear conclusion that when assessed from the standpoint of a reasonable employer the following acts and omissions of the Respondent employers were grossly unfair to the Appellant:(a) the failure to put to, and investigate with, JD in any detail or with any rigour when she said the alleged incident took place by reference to the known timetable of counselling sessions and, in particular, as to the timing of the cancelled session on 4 November and the session which did take place on 9 November;(b) the failure to check and investigate surrounding events and, in particular, to attempt to obtain information from: (i) Ian Scott Reed, or (ii) the friend (or friends) JD says she saw during the evening after the alleged incident took place, or (iii) albeit less importantly for the reasons we have already given, the Police;(c) Marie Dodd's approach to the evidence of Dr Jones which we consider to be grossly unfair: (i) to Dr Jones in that it questions his motives and evidence without giving him an opportunity to deal with the basis for that questioning and the doubts it reflects, and (ii) to the Appellant because the evidence of Dr Jones supported his case;(d) the failure of the Appeal Committee to question the approach of Marie Dodd to the evidence of Dr Jones when they heard evidence from Dr Jones which did not support her approach to, and questioning of, his evidence and which generally supported the Appellant; and(e) the consequent failure to put to, and investigate with, JD and thus to test her allegations and their truthfulness and accuracy against: (i) the information that was derived from the persons referred to in (b) above, or the results of the enquiries made of the those persons, and how they bore out JD's account of events, or (ii) the real content and relevance of Dr Jones' evidence without the effect thereon of the unfair approach to it that was taken by Marie Dodd.[29]In reaching the conclusion set out in paragraph 28 we have had regard to the fact that at the Disciplinary Hearing and the Appeal Hearing those representing the Appellant do not seem to have emphasised the points referred to in sub-paragraphs 28 (a) to (d) as much as Counsel for the Appellant did before us, and as we understand it, before the Employment Tribunal. Also we have tried to guard against assessing the points with the benefit of hindsight. However, these matters have not caused us to consider that the acts and omissions referred to in paragraph 28 (a) to (d) were not grossly unfair to the Appellant.[30]Additionally, and importantly, it is the case that the Employment Tribunal did not reach the same conclusion in respect of the points set out in paragraph 28 (a) to (d) and indeed found that the actions and omissions of the Respondent employers were within the band of reasonable conduct and reaction of a reasonable employer in the circumstances. In this context we consider it to be of note that the Employment Tribunal comment on the evidence, character and approach of Marie Dodd and Mr Lindsay. We accept, and indeed have no doubt that, both of them were honest and impressive witnesses but, in our judgment, their character and the fact that they are persons (i) who both generally, and in respect of the matters in issue, behave, and behaved, honestly, and (ii) who gave evidence impressively are not the issues for us or the Employment Tribunal. Further, it seems to us that the views of the Employment Tribunal on Marie Dodd and Mr Lindsay may well have misled the Employment Tribunal or caused them not to focus on what was of crucial importance in this case, namely what the Respondent employers actually did and did not do in the investigation and the decision-making processes that were carried out and how this conduct effected its fairness and reasonableness.[31]In our judgment when what was done, and not done, in the investigation and the decision-making processes are examined rather than the character and subjective views of the individuals who carried them out, it is apparent that the degree of unfairness of the acts and omissions identified in paragraph 28(a) to (d) have the consequence that the following decisions of the Employment Tribunal are perverse in the sense described at the beginning of this judgment: (a) the finding of the Employment Tribunal that the belief of the Respondent employers that the Appellant had sexually assaulted, or had made sexual advances to, JD in the manner she alleged was a reasonable one or one based on reasonable grounds;(b) the finding of the Employment Tribunal that Mr Lindsay carried out a very detailed and thorough investigation; and(c) the overall conclusion of the Employment Tribunal that the conduct of the Respondent employers in this case was within the band of reasonable responses which a reasonable employer might have adopted and thus that they acted reasonably within section 98 (4) of the Employment Rights Act 1996. Remission[32]The Respondent company argued that we should remit the whole case to a differently constituted Employment Tribunal on the basis that the Employment Tribunal is the fact finding Tribunal.[33]We reject that submission.[34]In respect of the issue of remission Counsel for the Appellant referred us to paragraph T 1712 of Harvey on Industrial Relations and Employment Law which is (inter alia) in the following terms:
"If the tribunal has neither misdirected itself in law nor reached a perverse decision, then the appeal will be dismissed. Conversely, if the tribunal has not misdirected itself in law but has nevertheless come to a perverse decision (ie one which no reasonable tribunal properly directing itself on the law could have reached), the EAT will substitute its own decision for that of the tribunal (see O'Kelly v Trusthouse Forte Plc [1983] IRLR 369), ... . There is usually no difficulty about the correct form of order in these straightforward cases. It is where the EAT concludes that there has been a misdirection in law that problems can arise as to the appropriate order. ..."
[35]In our judgment, having found that the decision of the Employment Tribunal in this case was perverse, we should substitute our own decision for that of the Employment Tribunal. Putting the matter another way, in our judgment and by analogy with the approach in Dobie v Burns International Security Services (UK) Ltd [1984] IRLR 329 our conclusion that the decision of the Employment Tribunal in this case was perverse leads to the result that in our judgment any Employment Tribunal properly directing itself would, in this case, conclude that the Respondent employers had acted unreasonably and that the dismissal of the Appellant was unfair. Overall Conclusion[36]For the reasons set out we allow this appeal.[37]For the reasons set out above we remit this case to a differently constituted Employment Tribunal to deal with the issues that arise relating to remedy.