MR P CLOUGH v HALIFAX FINANCIAL SERVICES [2002] UKEAT 1252_01_0711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1252_01_0711Case No Appeal No. EAT/1252/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P CLOUGHAPPELLANTHALIFAX FINANCIAL SERVICESRESPONDENT
Before
Ms Recorder CoxDate 7 November 2002
[1]APPEARANCES For the Appellant MR J FALKENSTEIN (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors 7th Floor 1 Balm Green Sheffield S1 3AF For the Respondent MR J LEWIS (of Counsel) Instructed by: Messrs DLA Solicitors Princes Exchange Princes Square Leeds LS1 4BY MS RECORDER COX QC By a Decision promulgated on the 28 th August 2001 the Newcastle Employment Tribunal held unanimously that the Appellant had been fairly dismissed from his employment. The Appellant contends that, in so deciding, the Tribunal erred in law. In a case where he alleges that the reason for dismissal had not been established at the hearing by the person who decided to dismiss, he contends that the Tribunal erred in holding that they could substitute the reasons for disallowing the internal appeal in order to satisfy the statutory test under Section 98(1)(a) of the Employment Rights Act 1996. The burden of proving the reason for the dismissal is on an employer. The Appellant submits that, throughout their Decision, the Tribunal confused and conflated the initial decision to dismiss with the subsequent appeal process; and that they erred in holding that they could revisit the reason for dismissal at the appeal stage in seeking to establish the real reason for the Appellant's dismissal.[2]The Respondents in their Answer and Cross-Appeal deny, firstly, that the Decision discloses any error of law. They submit that the Tribunal made a clear finding as to the reason for the dismissal, namely the Appellant's gross misconduct, both at the time of the initial decision to dismiss and at the appeal stage, and that the Respondents had therefore established the reason for dismissal in accordance with Section 98(1)(a). In relation to the test under section 98(4) for determining the fairness of the dismissal and, essentially, the issue of the Respondents' reasonable belief as to the Appellant's misconduct, the Respondents contend, firstly, that if the Tribunal held that the initial dismisser did not have a reasonable belief as to that misconduct, then that was a perverse finding, the only finding open to them on the facts being that she had a reasonable belief. Alternatively, it is said, the Tribunal was entitled to find that the appeal process in this case cured any deficiency there was as to the belief of the initial dismisser, because the appeal was sufficiently comprehensive to remedy any defect. If all these submissions fail, then there is an application to amend the Respondents' Notice to argue that the Tribunal erred in refusing to allow the Respondents to recall the initial dismisser at the time to deal with her reasonable belief, the Chairman having raised a concern about it at the hearing, and thereby erred in failing to take a relevant consideration into account.[3]From the above it will be seen that the following issues arise for determination in this appeal:(i) Did the Tribunal find that the Respondents had established the reason for the Appellant's dismissal as gross misconduct, as at the time he was dismissed?(ii) If so, in considering the fairness of the dismissal, did the Tribunal hold that the initial dismisser did not have a reasonable belief as to the Appellant's misconduct at the time she dismissed him? If so, was that finding perverse?(iii) If that finding was not perverse, was the Tribunal entitled to conclude that the reasonable belief of the person hearing the appeal from dismissal remedied any initial defect at the time of the decision to dismiss and that the dismissal was therefore fair?(iv) If they were not so entitled and if the matter must be remitted, should we grant the application to amend the Respondents' Notice to allege an error of law in refusing to allow the Respondents to recall the initial dismisser at the time to deal with the issue of her belief as to the Appellant's misconduct? Background[4]The Appellant was employed by the Respondents as a financial services manager (FSM) and was based in Darlington. The Respondents are closely regulated by the Personal Investment Authority and there was an internal Fitness and Properness Committee (F&PC), which considered regulatory matters relating to staff and authorised disciplinary proceedings where appropriate. In January 2000 two close colleagues of the Appellant, Mike Jeffrey and Joe Dorian, were suspended by the Respondents following allegations of bullying and harassment made by a number of Personal Financial Advisers. An investigation was commenced. On the following day the FSMs were warned not to speak to any PFAs about the subject of the investigation and this was repeated to the Appellant personally on 18 th January.[5]Some two months later, on 23 rd February, after this investigation had been concluded, a PFA named Nalini Younghusband gave information to the Respondents about a telephone conversation she had had with the Appellant on 29 th January relating to the bullying investigation. On the 24 th February the Appellant was suspended for interfering with this investigation. A subsequent report to the F&PC, following an investigation into the Appellant's conduct, identified a potential case of gross misconduct in attempting to interfere with the investigation of the bullying allegations. Disciplinary action was authorised. Audrey Moore, Head of Sales, held the disciplinary hearing on 10 th April 2000. The Appellant gave his account of the telephone conversation with Nalini Younghusband and Ms. Moore adjourned the hearing for a week to follow up some further lines of investigation. However, on 17 th April the Tribunal found that she decided that the charge was made out and amounted to gross misconduct. She therefore dismissed the Appellant. He appealed to Mr. Abram, Head of Distribution, who heard the appeal some five weeks later on 23 rd May. The appeal was dismissed.[6]The Appellant lodged his Originating Application at the Tribunal on 5 th July 2000, complaining of unfair dismissal. The Respondents resisted the complaint, alleging that the Appellant was fairly dismissed for gross misconduct after a full and fair investigation. At the hearing both parties were legally represented. The evidence was heard over three days in February 2001, when leave to amend the Originating Application was given and the case was adjourned part-heard until April 2001 for another three days of evidence. There was then a delay before the Tribunal met, in August, to read closing written submissions and to deliberate. It is to be noted that the Tribunal expressed regret about the delay and also commented on the fact that they had found this a difficult case to try. In addition to the complex factual background and extensive documentation they referred in particular, in paragraph 3 of their Decision, to the fact that witnesses had been taken out of order, that two had had to be recalled and that the Appellant's case had developed piecemeal. We record these observations in this judgment because we consider that they are relevant to the issues we have to determine. A disjointed hearing, an evolving case on the part of the Appellant and delay, all superimposed on an already factually complex case, is a regrettable state of affairs and can only have hampered this Tribunal's task as the fact-finding body charged with determining the fairness of the dismissal. The Tribunal's Decision[7]The Tribunal recorded their findings of fact at paragraphs 4 (a) to (j) of the Decision. The material facts, having regard to the issues we have to determine, were as follows.

(c) to (e):

"c) On the next day after Jeffrey's and Dorian's suspension, 12 January 2000, a national sales conference was held attended by FSMs at which the suspensions were officially notified, although rumours were already rife. FSMs were expressly warned not to speak to PFAs about the subject of the investigation. On 18 January 2000, Mr Urwin interviewed the applicant in connection with the bullying investigation. Urwin's interview guidelines repeated warnings about not talking to staff about the subject of the investigation. d) On 29 January 2000, an important telephone conversation took place between the applicant on his mobile phone in a supermarket car park and Nalini Younghusband who was at work as a PFA. The fact of the telephone call having taken place did not come to light until 23 February when Nalini Younghusband had a meeting to appeal against the level of an appraisal given to her by the applicant. She appealed to Carol Davis, the Area Manager. In the course of the conversation Carol Davis asked about Debbie Gallagher, another PFA, and her relationship with Jeffrey and Dorian. Nalini Younghusband then gave information that she had had a conversation with Paul Clough about what appears to have been a core allegation against Jeffrey; that he had said to PFAs at a meeting that they would be "dragged, kicking and screaming into Ethos"
. Davis reported this to Urwin on 23 February in a hand-written letter at page 57 to 58 (which contains version number 1 of Younghusband's account of the telephone conversation with the applicant). Younghusband faxed her account to Urwin the same day, page 59 (version number 2). e) On 24 February 2000, Urwin interviewed Paul Clough and suspended him for interfering with his earlier investigation (which had concluded at the end of January or beginning of February). His preparation notes for the interview are at page 62-63. At statement at line 6 on page 63 indicates that Urwin had it in mind that Clough might have been put up to it by Jeffrey. At the interview Clough denied in general terms interfering with the investigation, but no specific question was asked of him directing his attention to the Younghusband telephone call." After referring to further communications between the Appellant, Mr. Urwin and Ms Younghusband, the Tribunal found that the F&PC considered Mr. Urwin's report concerning the Appellant on 17 th March 2000.

(g) to(j):

"g) ……….His conclusion was that if Younghusband's account of the telephone conversation was correct there was a potential case of gross misconduct in attempting to interfere with the investigation of the bullying allegations. The Committee authorised disciplinary action at stage 3. h) Audrey Moore held the disciplinary hearing on 10 April 2000 in Leeds. Karen Williams was there as note taker. Clough was represented by Mr John Dickinson of the Independent Union. Ms Moore had Urwin's report and the accompanying documentation. This had been provided in advance to the applicant and his representative. Clough handed in written submissions and supporting documents see pages 140-196, amongst them an e-mail from Younghusband with a subject title "
A Terrible Injustice" addressed to a number of fellow PFAs. It was a reference to her appraisal by Clough. It is fair to observe that it was also copied by Younghusband to Paul Clough himself. At the disciplinary hearing the applicant gave his account of the telephone conversation with Younghusband and its circumstances. There were conflicts as to the reason why the call had been instigated and in particular as to who raised the issue of the Jeffrey's remark about dragging the PFAs kicking and screaming into Ethos. Following the hearing Ms Moore followed up one of the lines of investigation suggested by Clough at the disciplinary hearing but not all of them. She did speak to Younghusband on the telephone herself. See page 219-220 (version number 5). The disciplinary hearing was reconvened on 17 April 2000 and it is clear from Ms Moore's evidence that where there were conflicts between the applicant's account and Younghusband's account, she believed Younghusband. She decided that the charge was made out and amounted to gross misconduct. She decided to dismiss. This was confirmed in writing on 18 April (page 2-225). i) The applicant appealed to Mr Abram (Head of Distribution) and the appeal was heard on 23 May 2000. Again Karen Williams took notes. This time the applicant was represented by Clive Webster from the trade union. In effect Mr Abram reviewed all of the documentation which had been before Ms Moore, together with the notes of Ms Moore's telephone call with Younghusband. Clough gave his account of the telephone call and also volunteered for the first time that he had received a telephone call from Jeffrey some two days before on 27 January suggesting to Clough that he needed positive support from PFAs in relation to the investigation against him. Earlier that day Jeffrey had been interviewed by Urwin and had been informed that if he wanted to rely upon PFAs to support him in the bullying investigation, their names should be put forward to the respondent so that the respondent could makes the investigation themselves. It was in those circumstances that Jeffrey had made the telephone call but, according to Clough, he apparently had not asked Clough to contact Younghusband specifically. j) Having considered the matter Abram considered that the charge had been made out and confirmed the dismissal."[8]From these "background facts" the Tribunal then moved on to consider the Appellant's submissions and, at paragraph 6, to direct themselves as to the legal principles which apply. Based on the principles set out in the cases of British Homestores Ltd. V Burchell [1978] IRLR 379 and Post Office v Foley [2000] IRLR 87 they asked themselves the following questions:
"a) Has the respondent proved that the principal reason for dismissal was the dismissers (Moore and Abram's) belief in misconduct i.e. the interference with the investigation. b) Was there a reasonable investigation? c) Based on that reasonable investigation was the dismissers' belief in the misconduct a reasonable belief?" d) If it was, was dismissal upon the basis of that belief within the band of reasonable responses?"
The final paragraphs 7 – 10 of the Decision contain the Tribunal's answers to those four questions.[9]In relation to the first question, whether the Respondents had established the principal reason for dismissal, paragraph 7 deals mainly with the Appellant's primary case that the real reason for his dismissal was that he had refused to incriminate Mike Jeffrey and assist the Respondents' case against him. The Tribunal rejected this contention. They found that:
"7………..It is clear that both dismissers did believe that Clough may have been put up to it by Jeffrey, but in the view of the Tribunal, having regard to the circumstances that belief was not unreasonable nor was it unreasonable for Ms Moore to consider that if Clough had been put up to it by Jeffrey that was a mitigating circumstance that she was entitled to take into account. The Tribunal did not conclude that these findings of fact undermined the bona fides either of Ms Moore or Mr Abram. The Tribunal concluded that their decisions to dismiss were based on a genuine belief that the applicant had in respect of the telephone call with Ms Younghusband interfered with the investigation."
[10]In paragraph 8 the Tribunal found that there was a reasonable investigation and that the Appellant had had a full opportunity to put his side of the case both orally and in writing and at the disciplinary hearing. No criticism is made of this finding in this appeal.[11]The third question, whether " … the dismissers' belief in the misconduct was a reasonable belief" was addressed in paragraph 9, the key paragraph of the Decision in relation to this appeal. In view of its importance we set it out in full here. "9. The third question was whether the dismissers' belief in the misconduct was a reasonable belief. The Tribunal has indicated above that there were two principal issues of fact as to the circumstances of the telephone call. Essentially the dismissers had to decide whether to accept the applicant's account that the purpose of the telephone call which was returned by Younghusband was to make an enquiry into the health of another PFA who was suffering from cancer or whether the intention was to drum up support for Jeffrey. Secondly, there was a dispute as to who had mentioned the remark allegedly made by Jeffrey "Kicking and screaming into Ethos". In the view of the Tribunal both Ms Moor and Mr Abram properly considered this conflict and were entitled to come to the conclusion that Ms Younghusband's account of the conversation was the correct one and not the applicant's. There was a common thread going through Ms Younghusband's account of the conversation by which it was not unreasonable to conclude that the applicant was expressing disappointment at Ms Younghusband's recollection of that remark having been made by Jeffrey, so that she herself asked of Mr Clough whether it would be better if she could not remember it. Before the Tribunal Ms Moore clearly did not appreciate the difference between merely approaching a witness to see if that witness could give helpful and truthful evidence on behalf of someone under investigation, and approaching a witness in order to encourage her not to tell the complete truth. In legal terms that latter amounts to an attempt to pervert the court [sic] of justice but the former does not. The Tribunal accepted the evidence of Mr Abram at the Tribunal, and he had specifically made that distinction in the final sentence at paragraph 19 of his witness statement, which was made before all the proceedings had begun and the issue had been canvassed in the Tribunal during Ms Moore's evidence, when Mr Emmitt made an application, which was not granted, to recall her to deal with the point. In those circumstances the Tribunal accepts that certainly Mr Abram had a reasonable belief that Mr Clough was intending to interfere with what Ms Younghusband would tell Mr Urwin if Mr Urwin approached her. Ironically, this did not happen in the course of the bullying investigation."[12]Finally, in paragraph 10 the Tribunal considered the fourth question, whether, based upon the dismissers' belief, dismissal was within the band of reasonable responses. They determined this question in favour of the Respondents, having regard to the high standards of integrity and honesty to be expected of employees in the field of financial services and to the reasonableness of Mr. Abram's conclusion that the Appellant had attempted to persuade Ms Younghusband to alter her evidence. No criticism is made of this finding on the fourth question before us. The Law[13]It is common ground that the Tribunal asked themselves the right questions in paragraph 6, although not referring expressly to the relevant statutory provisions. Section 98(1)(a) of the Employment Rights Act 1996 places on the employer the burden of proving the reason or principal reason for the dismissal, providing that:
"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it was a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal……"
One of the acceptable reasons in subsection (2) is "(b) a reason related to the conduct of the employee" and that is the only reason which arises for consideration in this case. If the employer fails to show that the reason was an acceptable reason the dismissal will be unfair. If however, the employer discharges the burden imposed on him under section 98(1)(a) then the Tribunal must move on to consider the question of fairness. That requires them to apply the test contained in section 98(4), namely that "….the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case."[14]In relation to conduct dismissals, it is well-established that the approach laid down by Arnold J. in the British Home Stores v Burchell case, approved by the Court of Appeal again recently in Post Office v Foley is to be adopted by Employment Tribunals. This requires Tribunals to ask themselves the four questions identified in paragraph 6.[15]In the present case we have also had regard to decisions dealing with the role of internal appeals in the dismissal. It is clear from the decision of the House of Lords in West Midlands Co-operative Society Ltd. v Tipton [1986] 1 A.C. 536 that the reasonableness overall of the employer's decision to dismiss should be scrutinised at the time of the final decision to dismiss, namely at the conclusion of any internal appeal hearing. Lord Bridge stated, at page 546C, that:
"Both the original and the appellate decision by the employer, in any case where the contract of employment provides for an appeal and the right of appeal is invoked by the employee, are necessary elements in the overall process of terminating the contract of employment. To separate them and to consider only one half of the process in determining whether the employer acted reasonably or unreasonably in treating his real reason for dismissal as sufficient is to introduce an unnecessary artificiality into proceedings on a claim of unfair dismissal calculated to defeat, rather than accord with, the "equity and substantial merits of the case" and for which the language of the statute affords no warrant."
That, as the EAT (Knox J. presiding) observed in Byrne v BOC Ltd. [1992] IRLR 505 @ 508 , was directed at identifying the extent of the dismissal process as embracing the internal appeal and was not directed at any question of a deficiency at the first stage being cured by a fair and comprehensive appellate stage.[16]In Whitbread & Co. PLC v Mills [1988] IRLR 501 the EAT (Wood P. presiding) considered the extent to which defects which occur in the disciplinary procedures and initial decision to dismiss can be remedied on appeal. Acknowledging that internal appeals procedures form an important part of the process of ensuring that a dismissal should seek to be fair, the EAT, applying Tipton , held that the issue of fairness must be decided after the appeal procedure has been completed. If the original decision to dismiss has been flawed, then "….whether or not an appeal procedure has rectified the situation must depend upon the degree of unfairness at the initial hearing. If there is a rehearing de novo at first instance, the omission may be corrected, but it seems to us that if there is to be a correction by the appeal then such an appeal must be of a comprehensive nature, in essence a rehearing and not a mere review." Subsequently, in the Byrne case the EAT held, at page 508, that:
"No doubt the degree of unfairness of an initial disciplinary hearing is indeed likely to have an influence upon the ability of an Industrial Tribunal to find that the overall result of the dismissal process, which includes both stages, is that the dismissal was fair. We doubt whether there could ever be a combination of a somewhat defective initial disciplinary hearing and a somewhat defective appeal which overall amounted to a fair process………Where [the first stage of the disciplinary hearing is seriously flawed] it is essential, if the appellate process is to be properly treated as establishing fairness overall, for it to be able to stand on its merits as conferring upon the employee all the rights which the contract of employment is intended to protect, notably proper notice of complaint and a full opportunity of stating the employee's case"
Approving the requirement for an appeal of a comprehensive nature and in essence a rehearing, referred to in Whitbread , the EAT held that "A review, even a mere review, could be fairly conducted and yet be inadequate to make good the deprivation which the employee has suffered by being denied a proper disciplinary hearing at first instance." The Appeal[17]We turn, then, to the first issue to be determined in this appeal, namely whether the Tribunal found that the Respondents had discharged the burden upon them under section 98(1)(a) and had established the reason for the Appellant's dismissal, at the time of his dismissal, as gross misconduct.[18]Mr. Falkenstein, counsel for the Appellant, submits that the Tribunal erred in concluding that the Respondent could rely on the state of mind and reasoning of the manager hearing the internal appeal in establishing the reason for the dismissal. He relies upon the frequent references by the Tribunal, throughout their Decision, to "the dismissers", conflating two distinct exercises carried out by Ms. Moore, the initial dismisser, and Mr. Abram, who upheld the decision to dismiss on appeal some five weeks later. In this way, he suggests, it is impossible to say on whose evidence particular findings of the Tribunal as to the reason for dismissal have been made. He submits that it is an error of law to treat both people as responsible for the dismissal and to substitute the reason for dismissal given by Mr. Abram for what he complains was defective reasoning on the part of Ms. Moore.[19]This defective reasoning is referred to obliquely in paragraph 9 of the Decision, where the Tribunal observe that, before them, Ms. Moore clearly did not appreciate the qualitative difference between merely approaching a witness to see if that witness could give helpful and truthful evidence on behalf of someone under investigation, and approaching a witness in order to encourage her not to tell the complete truth. That issue, they state, had been canvassed during Ms. Moore's evidence, when Mr. Emmott, representing the Respondents, had unsuccessfully applied to recall her to deal with the point.[20]Mr. Falkenstein submits that, after Ms. Moore had given her evidence to the Tribunal as to her reasons for dismissal, the Chairman had asked for her and Ms. Younghusband to leave the room. He then gave an indication as to the Tribunal's view of the Respondents' case, informing the Respondents' solicitor that the reason on which the Respondents relied as justifying the dismissal, namely interference with the investigation, had not been made out and that they could not understand what the reason for dismissal was. At the Preliminary Hearing of this appeal the Chairman was asked to produce his notes relating to this issue. These were supplied in the Chairman's letter of 3 rd January 2002.[21]The relevant passages in that letter are as follows:
"Mr Clough was apparently dismissed, at first instance by Ms Moore and on appeal by Mr Abram, for interfering with the enquiry into the conduct of a Mr Jeffrey by speaking to Ms N Younghusband. The Tribunal considered it very relevant whether the dismisser(s) believed that the interference amounted merely to an attempt to find out if she would support Jeffrey or was, more seriously in the view of the Tribunal, an attempt to persuade her to change her evidence; ie not to tell the complete truth when and if questioned by Mr Urwin. This was reflected in paragraph 9 of the Tribunal's extended reasons. See especially line 16 onwards. The point was not explicitly dealt with in Ms Moore's witness statement (which stood as the evidence in chief) or in cross examination which took place on 5 February 2001. Accordingly I asked questions on behalf of the Tribunal. I do not record all questions and answers but usually the direct speech by way of reply. Where brackets appear words have been added to cover omissions or by way of explanation. Ms Moore "
I believed after speaking to both Paul and Nalini Younghusband that he spoke to her to establish whether NY could have been put forward as a person to support MJ (Mr Jeffrey). I did not understand your question as to whether I thought she was being asked to tell the truth or not" (this is a reference to the chairman's questions). The issue was not dealt with in re-examination. The hearing on 6 February was adjourned following an application by the applicant for further disclosure. On 7 February the matter was raised again by me as chairman when Nalini Younghusband commenced her evidence for the applicant out of order. She read her witness statement. My notes continue:
"Lengthy discussion:- Ms Moore and NY sent out of tribunal. Tribunal chairman reviews issues":- Issue 1: What was in the mind of the dismisser? Mere "interference" does not explain what she thought the applicant was doing. It would make a substantial difference if she believed that the applicant was trying to falsify any evidence that NY might give or was he merely seeing if she would support Mr Jeffrey? … "
Respondent applies to recall Ms Moore re what was in her mind re "interference". A objects (submissions) (i) Respondent can make submissions as to what was in her mind (ii) Respondent can cross examine (the applicant) (iii) If respondent recalls her and she gives evidence of what was in her mind at the time she (took the decision) which is different from earlier evidence the respondent had a credibility problem. Respondent's (reply) Cross examination of the applicant will not be relevant to what was in the mind of the dismisser in terms of the submission that she might give different evidence, that won't happen because she hasn't given any evidence on this issue. DECISION - Application to recall Mrs Moore is refused - REASONS There is a principle that questions should be asked at the right time:- It is for the respondent to prove what was in the mind of the dismisser. At the moment the witness evidence is clear that she preferred the evidence of Nalini Younghusband and believed in consequence that applicant had interfered with the investigation. She has not explained precisely what she meant by "interference" and it remains for (us to decide). We would be concerned at the value of asking for further clarification with hindsight on an issue which is of considerable importance and which took place now some 9 months ago. This is a matter which may arise again at the appeal stage. … In paragraph 7 of the notice of appeal the appellant claims that the chairman stated that the reason which the respondents relied on to justify the dismissal, that being interference with witnesses, had not been made out and that "frankly having heard from the dismissing officer neither he nor his colleague could establish what the reason for the dismissal was." I have no recollection of making that observation and I do not accept that I did so. My notes quoted above bear me out." We accept the Chairman's notes as providing an accurate description of the evidence that was given and of the remarks made by the Chairman at the time.[22]Mr. Lewis, counsel for the Respondents, submits that there were clear findings by the Tribunal as to the reason for dismissal, which the Respondents had established as a reason related to the Appellant's conduct, namely his interference with the bullying investigation by speaking to Nalini Younghusband. The concern expressed by the Tribunal as to Ms. Moore's evidence arose not in relation to the reason for the dismissal but to the question of fairness and, in particular Ms. Moore's' reasonable belief as to the Appellant's conduct, which is the issue they were concerned with in paragraph 9 of their Decision.[23]We agree with Mr. Lewis on this point. It seems clear to us, reading the Decision as a whole, that this Tribunal held that the Respondents had discharged the burden upon them of establishing the reason for dismissal and that the reason was one which related to the conduct of the Appellant, namely his interference with the investigation. Whilst we accept that it was unhelpful to refer throughout to "the dismissers", which merges two, quite separate functions together and is liable to cause confusion, we take the view that this confusion of terminology did not lead to the criticisms made of it by Mr. Falkenstein. The Tribunal found as a fact, at paragraph 4(h) that Ms. Moore decided at the disciplinary hearing that the charge (of attempting to interfere with the investigation) had been made out and amounted to gross misconduct, causing her to dismiss the Appellant. The final sentence in paragraph 7, which deals with whether the Respondents had proved the reason for the dismissal, is unequivocal. The Tribunal concluded that the decisions to dismiss of Ms. Moore and Mr. Abram were based upon a genuine belief that the Appellant had, in respect of the telephone call with Ms.Younghusband, interfered with the investigation.[24]It seems to us that, the Respondents having established that the reason for dismissal was misconduct, the Tribunal then moved on to consider the issue of fairness and the section 98(4) test, having regard to the well-known questions in Burchell . It is in this context that their concerns about the evidence of the actual dismisser, Ms.Moore, and what precisely she believed the Appellant had done, become important. A distinction was plainly drawn, in our view, between the conclusion of Mr. Abram on the appeal, that the Appellant had attempted to persuade Ms. Younghusband to alter her evidence, and the failure on the part of Ms. Moore, who decided to dismiss the Appellant in the first place, to appreciate the qualitative difference between such an attempt and an approach made by him merely to find out if she would support Mr. Jeffrey. Whilst both Ms. Moore and Mr. Abram found that the charge of interfering with the investigation had been made out, the Tribunal found that the phrase "interfering with the investigation" bore a different meaning for the dismisser from that understood by the person hearing the appeal against dismissal. The former, according to the Chairman's note (the letter of 3/1/02, page 2) believed after speaking to the Appellant and Ms. Younghusband that he spoke to her "to establish whether NY could have been put forward as a person to support MJ."[25]As the Chairman rightly observed, there is a qualitative difference, in terms of the fairness of a dismissal, between(a) a finding of gross misconduct meriting dismissal on the basis of an approach to a potential witness, simply to find out if she would support someone under investigation; and(b) a finding that an approach was made to attempt to persuade that witness to alter her evidence.[26]This brings us to the second issue to be determined in the appeal, namely whether the Tribunal, in considering fairness, made a finding that Ms. Moore did not have a reasonable belief as to the Appellant's misconduct when she dismissed him; and, if so, was that finding perverse? Mr. Lewis submits that there was no such finding made in paragraph 9 and that, at its highest, it can only be suggested from that paragraph that they failed to make an express finding about Ms. Moore's reasonable belief. Had they done so, he submits, there was only one possible finding open to them, namely that she reasonably believed that the Appellant had attempted to persuade Ms. Younghusband to alter her evidence. If, in the alternative, they did make a finding that she lacked such a reasonable belief, then that was a perverse finding on the evidence.[27]Paragraph 9 must be read in the context of what has now been discovered from the Chairman's notes dealing with this issue. Read together with the notes of Ms. Moore's evidence, the Tribunal found, in our view, that Ms. Moore did not believe that the Appellant was intending to interfere with the evidence Ms Younghusband would give to the investigation if questioned. That is the only inference to be drawn from the emphatic conclusion at the end of that paragraph that Mr. Abram had such a reasonable belief and the deliberate omission of Ms. Moore from that finding. We therefore do not accept Mr. Lewis' first submission.[28]Nor are we persuaded that that finding was a perverse one. Mr. Lewis spent some considerable time addressing us on the evidence which had been before the Tribunal in an attempt to persuade us that the Tribunal could only have come to the conclusion that Ms. Moore had the reasonable belief referred to above. However, we are not in possession of all the evidence which was before the Tribunal; and nor do we have all the Chairman's notes of evidence, having only those ordered at the Preliminary Hearing, which address the Tribunal's concerns and comments over Ms. Moore's evidence. It is not appropriate for this Appeal Tribunal to deal with a perversity challenge when we are not in possession of all the material to enable us properly to do so. Mr. Lewis' submissions were not in any event accepted by Mr. Falkenstein who appeared for the Appellant below (Mr. Lewis did not). Mr. Lewis submits, for example that, when giving evidence, Ms. Moore did not resile from her witness statement, which is included amongst our papers. However, the Chairman commented in his notes that the matters which concerned them had not been dealt with expressly in her witness statement. Further, Mr. Falkenstein apparently cross-examined Ms. Moore for the best part of a day but no notes of that cross-examination are before us. In any event, the combined experience of the members of this Appeal Tribunal is that the contents of witness statements do not always survive intact after the maker of the statement has given evidence before the Tribunal, whether she/he resiles from them or not. This Appeal Tribunal is at an obvious disadvantage in seeking to assess witness statements after the witnesses have been extensively cross-examined and we have no notes of that cross-examination before us.[29]We note also that the Chairman's recollection, which we accept, is that his comments about Ms. Moore's evidence were made after Ms. Younghusband gave evidence, the latter having been called as a witness for the Appellant. In her witness statement, which we have seen, Ms. Younghusband stated amongst other things that the Appellant did not ask her to lie and that notes taken by Ms. Moore of what she had said in interview were inaccurate. It can be seen from the Tribunal's Decision that there were a number of different versions of Ms.Younghusband's account of the telephone conversation with the Appellant, which are before us.[30]In a case which clearly involved considerable factual dispute and extensive oral and documentary evidence, only some of which is before us, we are therefore unpersuaded that the Tribunal's finding, that Ms. Moore did not have a reasonable belief as to the Appellant's attempt to alter the evidence of a potential witness, was perverse. We consider that, in relation to the overall fairness of the dismissal, whilst the Tribunal was unhappy with the decision of Ms. Moore as the dismisser, they decided to wait and see what emerged at the appeal stage. That much is clear in our view from the statement in the Chairman's notes on page 3 that "This is a matter which may arise again at the appeal stage." It follows too from their expressed certainty in paragraph 9 that Mr. Abram had that reasonable belief on the appeal, which they obviously considered saved the situation for the Respondents and enabled the Tribunal to find that the dismissal overall, including the decision made at the appeal stage, was a fair one.[31]The extent to which that was a legitimate finding is the third issue for us to determine. The question is whether the Tribunal was entitled to conclude that the reasonable belief of Mr. Abram remedied the absence of such a belief on the part of Ms. Moore. The situation in the present case, whilst not on all fours with those which existed in the cases of Whitbread and Byrne , is in our view plainly analogous and merits the same approach. Each case will always turn on its own individual facts but consistency requires that the same principles should apply. In this case the Tribunal regarded the initial decision to dismiss as flawed because the dismisser did not appreciate the distinction recognised by the Tribunal between persuading a potential witness to an investigation to alter her evidence and merely seeking to find out if she would support the person under investigation. In this case the facts surrounding the approach made by the Appellant to Ms. Younghusband were disputed. This was a serious charge levelled against a financial services manager, who would inevitably lose his licence to practice if he was dismissed for gross misconduct, as the Tribunal recognised in paragraph 7. Given the seriousness of the allegations made against the Appellant, the fact that the allegations were hotly disputed and the fact that the decision-making was flawed at first instance, this was a case which required a complete re-hearing or, at any rate, a sufficiently comprehensive hearing, if the flawed decision to dismiss was to be remedied on appeal.[32]We therefore turn to consider the Tribunal's findings as to the nature of Mr. Abram's appeal. It is to be noted that the Tribunal have not referred to the cases of Tipton , Whitbread or Byrne and have not directed themselves at any stage as to what was required at the appeal hearing in order for the earlier flaw arising from the approach of the dismisser to be remedied. The key findings of fact are in paragraphs 4(i) and (j) and there is little there to support the submission of Mr. Lewis that this was a sufficiently comprehensive appeal to remedy the earlier defect. The only description given is that:
"In effect Mr. Abram reviewed all of the documentation which had been before Ms. Moore, together with the notes of Ms. Moore's telephone call with Younghusband."
It appears that the Appellant was allowed to give his account again. We learn also, from paragraph 7, that the trade union representative appearing for the Appellant was seeking to mitigate on the Appellant's behalf because there was some discussion concerning the possibility of Mike Jeffrey having asked the Appellant to position witnesses to the investigation in his favour. There are no findings as to the nature of the appeal hearing in any of paragraphs 8 – 10.[33]The Chairman's notes refer to Mr. Abram's evidence on pages 3 – 4. They refer in the main to the conclusions drawn by Mr. Abram but an important note of his evidence appears on page 4 relating to further cross-examination of Mr. Abram invited by the Chairman, namely:
"I understand my position was to determine whether the decision that AM made was a fair and reasonable one."
[34]In our view the Tribunal's findings as to the nature of this appeal are not consistent with a hearing which was sufficiently comprehensive to remedy the earlier defect in Ms. Moore's decision-making. Rather it seems to have been limited to a review of the documentation, which had been before Ms. Moore some five weeks earlier, carried out by someone who regarded his role as being restricted to determining whether the decision made by her was a fair and reasonable one. In our view therefore this appeal was insufficient to remedy the earlier proceedings and the Tribunal erred in concluding that it was and that the dismissal viewed overall was a fair one. We consider that this appeal should therefore be allowed.[35]The Appellant submits that, in these circumstances, we should substitute a finding that the dismissal was unfair. The Respondents submit that the matter should be remitted and that we should give them leave to amend their Notice to allege an error of law by the Tribunal in refusing to allow them to recall Ms. Moore to deal with her belief as to the Appellant's conduct, once the Chairman had raised concern about her evidence. The Respondents contend that the same Tribunal should consider again the question of Ms. Moore's belief and that she should therefore be recalled to give evidence.[36]We do not accept either of these submissions. This is patently not a case where the Tribunal, directing themselves correctly, could have reached only one conclusion, that the dismissal was unfair. The matter must therefore be remitted. In the unusual circumstances of this case and given the concerns expressed by the Tribunal both about Ms. Moore and about the difficulties in the case generally(see paragraph 6 above), it would not be appropriate in our view to remit the matter for a re-hearing only of Ms. Moore's evidence before the same Tribunal. This matter should in our view be remitted for a complete re-hearing before a fresh Tribunal as soon as is practicable.