MS LEONORE SANTAMERA v EXPRESS CARGO FORWARDING T/A IEC LIMITED [2002] UKEAT 780_01_2611

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 780_01_2611Case No Appeal No. EAT/780/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS LEONORE SANTAMERAAPPELLANTEXPRESS CARGO FORWARDING T/A IEC LIMITEDRESPONDENT
Before
Mr Justice WallLord Davies of CoityDate 26 November 2002
[1]APPEARANCES For the Appellant MR K HORNE (of Counsel) Instructed by: Vauxhall Community Law & Information Centre VNC Millenium Resource Centre Blenheim Street Liverpool L5 8UX For the Respondent MS D CAMPBELL Solicitor Dundas & Wilson Solicitors 191 West George Street Glasgow G2 2LD THE HONOURABLE MR JUSTICE WALL Introduction In this case, Ms Leonore Santamera (the Appellant) appeals against the majority Decision of the Employment Tribunal held at Liverpool on 4 and 5 January 2001 (the Decision being sent to the parties on 26 April 2001) that she had been fairly dismissed from her employment with Express Cargo Forwarding trading as IEC Limited (the Respondent).[2]At the preliminary hearing of this appeal on 1 November 2001, the EAT, in a constitution presided over by Mr Justice Lindsay P, permitted the appeal to proceed to a full hearing on the basis that it would give the EAT "the opportunity to consider, in the light of Ulsterbus -v-Henderson [1989] IRLR 251 paragraph 21, and Harvey on Industrial Relations and Employment Law paragraph D1/1515 how far, if at all, an ability to see and hear one's accusers is ordinarily to be regarded as an essential part of a fair disciplinary hearing, and if it is, what factors might justify departure from that ordinary rule".[3]The Employment Appeal Tribunal was also of the opinion that the case gave rise to the question of :
"how far it is proper for those conducting the disciplinary process to consult others in such a way that the employee concerned did not know the nature of the consultation. In particular, how far did it suffice for an Employment Tribunal to be told, without the employee having an face-to-face opportunity to test the witnesses in that regard, that the witnesses felt intimidated by the presence of the Applicant and were terrified of her."
The Facts[4]The Respondent, as its name suggests, is a company engaged in the business of road haulage. It is a substantial organisation operating in various parts of the country. The Appellant was employed as its Fleet Maintenance Manager from 22 February 1994 until 17 March 2000, when she was summarily dismissed. She worked at the Respondent's depot at Bootle in Lancashire.[5]On 24 December 1999, the Appellant was awarded a £2000 increase in her salary. This was, she says, despite the fact that the Respondent did not award annual bonuses as usual to other staff. Her case was that it represented a token of the Respondent's faith in her and was a recognition of the quality of her work.[6]However, on 10 January 2000, one of the Appellant's colleagues, Steve Peers, made a complaint to the Respondent's Human Resources Officer, Joanne Banks. Mr Peers complained about the Appellant's behaviour towards another colleague, John Wherry. Mr Wherry then repeated the complaint to Ms Banks himself. Ms Banks passed it on to the Regional Resources Manager, Mr McKenna, having first ascertained that Mr Wherry wanted to proceed with the complaint. The complaint, in essence, was that the Appellant was guilty of bullying and intimidating him. On receipt of the complaint, Mr McKenna suspended the Appellant on full pay pending an investigation. The investigation, the disciplinary hearing and the internal appeal[7]The investigation was carried out by Ms Banks. She interviewed both Mr Wherry and Mr Peers, and in addition interviewed Robert Southern and Julie Elwill, all of whom worked or had worked with the Appellant. Ms Banks produced a report, and recommended that there be a disciplinary hearing.[8]The disciplinary hearing took place on 16 March 2000. The Appellant was given copies of all the relevant documents, including witness statements and notes of subsequent meetings. We have the statements of Messrs Peers, Wherry, Southern and Ms Elwill in our papers. Each contains a number of specific allegations against the Appellant of bullying and intimidatory behaviour.[9]It is very clear from the documentation that, prior to the disciplinary hearing, the Appellant on at least two occasions asked for the opportunity to cross-examine the makers of the statements against her. That request was refused. The Respondent also refused to permit her to be represented by her nephew at the disciplinary hearing, whilst making it clear that she could be represented by any employee of her choice. On 18 February 2000 and again on 25 February 2000, Ms Banks wrote to the Appellant to this effect, on the latter occasion saying:
"Once again, I must stress that you will not have the opportunity to cross-examine the witnesses. You have been given copies of the witness statements and I now enclose for your attention notes taken from interviews which took place with the witnesses. As stated above you will be given a full opportunity to state your case at the hearing."
[10]No reasons were given for the refusal. Furthermore, when the Appellant asked permission to record the disciplinary hearing, the request was refused (again without any reason being given) albeit it that Ms Banks stated that a note would be taken of the meeting "for management purposes", and that the Appellant was free to do the same.[11]The disciplinary hearing duly took place on 16 March 2000. Ms Lin Phillips, Head of Product Development, presided and Mr McKenna attended as Human Resources Adviser. The hearing would normally have been conducted by Mr Stanley Edwards, the Regional Manager, but he had recently been dismissed by the Respondent. It had not been felt appropriate to involve him earlier, because he had been expected to take part in the disciplinary process.[12]The Appellant's case was that the allegations made against her by Messrs Wherry, Peers and Southern were false and had been engineered by Mr Edwards as part of a deliberate strategy to bring about the Appellant's dismissal. This in turn derived from the fact that the Appellant had, on a number of previous occasions, raised with Mr Edwards the fact that a number of illegal practices were going on within the company, and in particular that vehicles which did not have operators' licences were operating out of the Normanton depot. The Appellant says that Mr Edwards "warned (her) off taking the matter further".[13]The Tribunal records what happened at the disciplinary hearing in the following words:- "(e) …….Ms Phillips and Mr McKenna read the statements. The persons who had made the statements refused to attend the hearing because they felt intimidated by the presence of the applicant. Ms Phillips and Mr McKenna decided to disregard the statement from Ms Elwill because she referred to issues that had been dealt with some time before. Her complaint about the applicant's bullying had been dealt with by separating the two. (f) It was the applicant's contention at the hearing that the other three were telling a "pack of lies". She said that they had been coerced into making those statements by Mr Stanley Edwards, formerly Regional Manager, because she had accused the respondents of operating illegally. The proceedings at the hearing are recorded at (reference given). (g) The hearing was adjourned pending a decision. Ms Phillips and Mr McKenna saw the three witnesses. They confirmed their statements and each said that they had not been coerced by Mr Edwards or anyone into making statements. Mr Wherry was asked if he had got in touch with the applicant after her suspension, he denied that he had done so and maintained his denial under questioning. He said the applicant had tried to get in touch with him and had left telephone messages which he did not return. (h) Ms Phillips and Mr McKenna then considered what their decision should be. They formed the firm view that all three witnesses were terrified of the applicant. They accepted the assurances that none had been coerced into making statements and they accepted the truth of these statements. They decided that the applicant's conduct amounted to serious bullying and intimidation and that she was guilty of gross misconduct. Thus they decided that she should be dismissed. Their letter telling her of their decision is at (reference given). (i) Ms Phillips and Mr McKenna conducted the hearing because Mr Stanley Edwards had by the time it took place been dismissed."[14]The Appellant appealed the decision to dismiss her to Mr Brian Reidy, acting Managing Director, and Ms Valerie Dawson. They read all the documents and listened to what the Appellant had to say. They decided that the dismissal was merited and dismissed her appeal. The findings of the Tribunal[15]The Tribunal found that Mr Edwards had nothing to do with the disciplinary procedure against the Appellant, and that neither Mr McKenna nor Ms Phillips was influenced by any consideration relating to Mr Edwards when they made the decision to dismiss, nor was either Ms Dawson or Mr Reidy so influenced in considering their decision on appeal.[16]The Tribunal dealt with the matter in the following way. It appears to have followed the approach laid down in British Homes Stores -v- Burchell [1978] IRLR 379 . The Tribunal firstly asked itself the question whether the Respondent had dismissed the Appellant. Clearly, it had. The Tribunal then asked itself: what was the reason for the dismissal? It found that there was no ulterior motive to get rid of the Appellant for complaining about breaches of the law. It was satisfied that all the people concerned with the dismissal were uninfluenced by the Appellant's complaint about Mr Edwards. She was dismissed for having behaved oppressively towards her colleagues, and that constituted misconduct.[17]The Tribunal then asked itself: (having regard to the Appellant's conduct): was the Respondent reasonable or unreasonable in treating that conduct as sufficient to justify the Appellant's dismissal? The majority reasoned as follows:
"(a) We directed ourselves that in deciding questions of fairness we must have regard to equity and the substantial merits of the case. We reminded ourselves that in deciding on reasonableness we must have regard to the size and administrative resources of the respondents' organisation; they are a large national organisation with access to a high degree of managerial and human resources expertise; their procedures and decisions fall to be adjudged against high standards. We further directed ourselves that we must not substitute our judgment for that of the respondents: the question for us was not what we should have done in their place but whether their actions lay within the range of options reasonably open to them. (b) Did the respondent genuinely believe that the applicant had bullied and harassed her three colleagues? It was clear that they did. They were unmotivated by any consideration of the relationship between the applicant and Mr Edwards. (c) Did the respondent carry out a reasonable investigation? They did. There was a careful assembly of evidence by Ms Banks. She considered it before recommending disciplinary action. There was a careful hearing by Ms Phillips and Mr McKenna. They listened to what the applicant had to say and took it sufficiently seriously to follow it up by questioning the witnesses about the possibility of Mr Edwards' having put them up to accusing the applicant. After investigation and consideration they rejected that claim as they were entitled to and there was further a careful appeal at which all the evidence was considered again and where the applicant's contention about Mr Edwards was also considered again and rejected. At each stage the applicant was given the opportunity to be represented. There was sufficient reason for the failure to call the witnesses to give evidence live at the disciplinary hearing. (d) Did the respondents have reasonable grounds for their belief that the applicant had misconducted herself? They did. They had the evidence of three people who said that she had bullied and harassed them. (e) Was dismissal a penalty reasonably open to the respondents to impose? It was. The accusation against the applicant was bullying and harassment. The matter contained in the statements of witnesses was sufficient to justify the respondents in concluding that relations in her office had so deteriorated as to make it inappropriate for her to continue to work with the others."
[18]The Tribunal then recorded the view of the member who was in the minority, who accepted the direction of law set out in paragraph (a) above, but who found the Appellant to be unfairly dismissed for the following reasons:- "(a) The [Appellant] applicant before her dismissal had no adverse disciplinary record and had received no warning for bullying or harassment. The complaint made by Ms Elwill was not visited with a penalty but discreetly disposed of. Thus any bullying she may have been guilty of was condoned. She had not long before the dismissal, in December 1999, been awarded a wage rise that reflected the merit of her work." " (b) The [Appellant] applicant was at the disciplinary hearing not given the opportunity to confront her accusers to make a direct challenge to them. The original complaint had been made not by them but on their behalf." " (c) Dismissal was too harsh a penalty for the misconduct the applicant was accused of." The Appellant's arguments for the opportunity to cross-examine[19]Before turning to the arguments advanced by the advocates in this appeal, we need, we think, to record the fact that at the disciplinary hearing, and in her form IT1 and in her statement in these proceedings, the Appellant raised a number of issues designed to undermine the credibility of her accusers. For example, in paragraph 18 of her statement she described socialising happily with her colleagues, attending departmental football matches in their company, and having after-work drinks with them on a Friday night. In relation to Mr Peers she refers to frequent invitations to his home, having dinner with him, exchanging presents with him and having a plant delivered to her office with balloons attached to it as a 'thank you' for the support she had given him over his struggle to win contact with his child. She also refers to Mr Southern having a difficult time in his personal life during the course of which she offered him advice and sympathy. She says she told him to have a week off at the time of his girlfriend's miscarriage, and advised him to take more time off after he returned. She also alleged that Mr. Wherry had been in touch with her several times after her suspension.[20]We were also shown an extract from the internal appeal hearing in which it is clear that the Appellant protested strongly at the Respondent's refusal to allow her to cross-examine witnesses. Furthermore, in the light of the Tribunal's findings that the "persons who had made the statements refused to attend the hearing because they felt intimidated by the presence of the Applicant" it is relevant to note that, in the minute of the internal appeal hearing, in answer to questions from the Appellant:
"What is the problem with me speaking to the witnesses with you present? Do they not wish to speak to me?"
Valerie Dawson is recorded as responding: "we haven't asked them".[21]The Appellant also complains that although the disciplinary hearing was adjourned for Ms Phillips and Mr McKenna to re-interview the three complainants, the only points put to them were the following:(1) a question asking whether or not they had been coerced by Mr Edwards or anyone else into making their statements and(2) Mr Wherry was asked if he had got in touch with the Appellant after her suspension, something which he denied. The arguments for the Appellant[22]Against this background, the first ground of appeal advanced by Mr Horne on the Appellant's behalf is that the Tribunal misdirected itself in deciding that it was not a breach of fair procedure when the Respondent did not call as witnesses at the disciplinary hearing the three individuals upon whose testimony the case against the Appellant was wholly based. Their absence, he argues, meant that the Appellant was not given an opportunity to put to her accusers questions which would have assisted in establishing the truth of events. The fact that the witnesses were subsequently interviewed by the same people who conducted the disciplinary hearing did not remedy the unfairness, as the Appellant did not know what questions had been put to the witnesses, nor did she know of the details of their replies. She thus had no opportunity to deal with issues raised at that second meeting before the decision to dismiss was made.[23]Secondly, Mr Horne argues that the Tribunal's finding that there was a "sufficient reason for the failure to call witnesses to give evidence live at the disciplinary hearing" was perverse. He attacked the finding that the witnesses "refused to attend the hearing because they felt intimidated by the presence of the Appellant". He pointed out that the Respondent is a large national organisation with access to a high degree of managerial and human resource expertise. He submitted that it would clearly have been possible to have constructed a hearing whereby the three witnesses would not have been at risk of feeling intimidated. This, he says, could have been achieved in several ways - for example by other additional members of staff being present. It would be inconceivable for a woman in the Appellant's position to intimidate three adult males (one of whom was in his thirties, another in his forties with eighteen years army experience) in the context of a formal disciplinary hearing to such a extent that each would feel unable to give evidence or unsafe in doing so. He also pointed out that the Appellant was given no reason for their non-appearance at the disciplinary hearing or at the appeal hearing.[24]Thirdly, Mr Horne submitted that the Tribunal erred in not finding that the Respondent failed to follow a fair procedure because a key document which was before the officers conducting the appeal hearing was not disclosed to the Appellant. Mr McKenna had produced a report on the interviews he conducted following the disciplinary hearing. That report was before the officers. The Appellant did not know of its existence. Its contents were not disclosed to her. She was, accordingly, denied the opportunity to deal with the issues raised in the report, notably the denial of any contact with her after her suspension and information about how a personnel officer had found out about the complaint of misconduct.[25]Finally, Mr Horne argued that the view of the minority member was to be preferred, and that the majority failed to consider the effect of prior condonement of the Appellant's management style on the reasonableness of the sanction and the Tribunal's failure to address the possibility that the working relationship between the Appellant and the complainant would have been substantially improved by the Appellant having received a warning together with training in her management style. The arguments for the Respondent[26]For the Respondent, Ms Campbell submitted that the Respondent's disciplinary procedure was fair and conducted in a fair manner. In particular, the Respondent's decision not to call witnesses to the disciplinary hearing was not a breach of natural justice or fair procedure. She pointed out that the ACAS Code of Practice on disciplinary and grievance procedures in paragraph 12 advised that workers should be informed of complaints against them, and where possible, workers should see all relevant evidence before any hearing. Workers should also be given the opportunity of challenging any allegations and evidence before the decision was reached. The guidance did not, however, include cross-examination as a necessary feature.[27]Ms Campbell submitted that the Appellant had been provided with copies of all relevant witness statements, and other supporting documentation prior to the disciplinary hearing. She had been given the opportunity to state her case before a decision was reached and to raise any salient issues. She had, Ms Campbell submitted, suffered no injustice due to the absence of the witnesses.[28]Ms Campbell supported the Respondent's decision not to call live evidence by reference to the decision of the Northern Ireland Court of Appeal in Ulsterbus -v- Henderson [1989] IRLR 2. In reaching a decision not to call them, the Respondent had considered the degree of protection which should be afforded to the witnesses, and concluded that the requirements of natural justice would be met by giving the Appellant the statements.[29]Ms Campbell also relied on Khanum -v- Mid Glamorgan Area Health Authority [1979] ICR 40 in support of the proposition that in a domestic tribunal such as that conducted by the Respondent, all that was required was that the three basic requirements of natural justice be fulfilled; namely(1) that the person should know the nature of the accusation against him or her;(2) that he should be given an opportunity to state his case; and(3) that the tribunal should act in good faith. These essential requirements, she submitted, were fulfilled.[30]Ms Campbell also relied on an unreported case called ADT Auctions Ltd -v- Nayar (EAT/264/97) for the proposition that it was a 'permissible' decision and one which did not manifest perversity or an error of law not to have complainants at a disciplinary hearing. Furthermore, there was no unfairness, she submitted, in the subsequent interviews of the witnesses by those conducting the disciplinary hearing, since they were simply to confirm a particular aspect of the witness statements which was already contained in them. Ms Campbell submitted that by no stretch of the imagination could the decision be considered perverse, and cited the tests put forward by May LJ in the case of Neale -v- Hereford & Worcester County Council [1986] ICR 471 that:
"…..neither the EAT nor this Court could disturb their decision unless one could say in effect 'My goodness, that is certainly wrong'."
Perversity meant that the decision was one which no reasonable Employment Tribunal properly directing itself could properly have reached, and the decision in this case came nowhere near that.[31]In relation to the documents not seen by the Appellant, Ms Campbell relied on British Homes Stores -v Burchell [1978] IRLR 379 and the well known judgment of Arnold J in that case. She submitted that, as the Tribunal found, the Respondent had a genuine belief that the Appellant had misconducted herself in the manner alleged; that the Respondent had reasonable grounds upon which to sustain that belief and, thirdly, that the investigation which the Respondent carried out in this case was reasonable.[32]Finally, Ms Campbell submitted that there was no obligation on the Tribunal to address the possibility that working relationships may have been improved by training. It was not perverse, or an error of law, to say that the decision to dismiss fell within the band of reasonable responses taking into account the matter contained in the witness statements and the deterioration in the relationships between the Appellant and the complainants. Ms Campbell relied on British Leyland -v- Swift [1981] IRLR 91 as authority for the proposition that it was not for the Tribunal to consider whether a lesser sanction would have been reasonable; but whether the dismissal itself was within the band of reasonable responses. Analysis[33]We have come to the conclusion that, on the facts of this case, Ms Campbell's submissions are to be preferred, and that this appeal must be dismissed. We reach that conclusion for a number of reasons.[34]Firstly, it is, we think, necessary to remind ourselves of the function of cross-examination in the forensic context of civil proceedings. In this context, cross-examination is a means of testing the credibility of witnesses as part of a fair hearing in which each party's case is put to the other, and the object of which is for the Tribunal to decide, on the balance of probabilities, who is telling the truth and what, factually, actually occurred. This process, of course, is part of the function of the Industrial Tribunal when hearing a case of unfair dismissal.[35]Section 98 of the Employment Rights Act 1996 and the cases decided under it and its predecessors do not, of course, require the dismissing employer to be satisfied, on the balance of probabilities, that the employee whose conduct is in question has actually done what he or she is alleged to have done. . In a dismissal based on conduct, it is sufficient for the employer to have a genuine belief that the employee has behaved in the manner alleged, to have reasonable grounds for that belief, and to have conducted an investigation which is fair and proportionate to the employer's capacity and resources. The employer has to act fairly, but fairness does not require a forensic or quasi-judicial investigation, for which the employer is unlikely in any event to be qualified, and for which he, she or it may lack the means.[36]These considerations, we think, explain why, in the workplace investigation of misconduct, cross-examination of complainants by the employee whose conduct is in question (or even confrontations between them) are very much the exception. To a lawyer, accustomed to the judicial process, cross-examination designed to undermine credibility - in this case putting to the complainants the matters alleged by the Appellant in paragraph 19 of this judgment - would appear the natural way of testing whether or not they were telling the truth. It does not, however, follow that an employer is bound to take the same course; nor, on the facts of this case does it necessarily follow, in our judgment, that the process was unfair because Ms Phillips and Mr. McKenna did not put the contents of paragraph 19 to the complainants when they re-interviewed them. Whilst, in order to be fair, it is incumbent on an employer conducting an investigation followed by a disciplinary hearing both to seek out and take into account information which is exculpatory as well as information which points towards guilt, it does not follow that an investigation is unfair overall because individual components of an investigation might have been dealt with differently, or were arguably unfair. Whilst of course an individual component, on the facts of a particular case, may vitiate the whole process, the question which a Tribunal hearing a claim for unfair dismissal has to ask itself is: in all the circumstances, was the investigation as a whole fair?[37]In the instant case, a different employer might have wished to test the complainants' credibility by putting to them the matters raised by the Appellant in paragraph 19. This employer did not do so. This employer was satisfied from the interviews that the complainants felt intimidated by the Appellant. This employer believed the allegations to be true, and had reasonable grounds for so believing. The majority of the Tribunal found that the investigation was fair, and on the evidence before it, they were entitled to reach that view.[38]Mr Horne accepted, as he was bound to, that there was no rule of law which rendered it incumbent on an employer, when dismissing an employee for misconduct, to arrange a hearing which gives the employee who is liable to be dismissed the opportunity to cross-examine the person making the complaint. He accepted that the law was accurately stated in paragraph 21 of Ulsterbus -v- Henderson (supra) where O'Donnell LJ stated:
"It is quite clear in this case that a careful investigation was carried out by Mr Campbell, an appeal was heard by Mr Wilson, and a most meticulous review of all the evidence was carried out as evidenced by Mr Heubeck's letter of 31.12.85. As I have indicated, in that letter Mr Heubeck meticulously reviewed all the evidence and considered whether there was any reasonable possibility, indeed any possibility, that a mistake had been made. What the Tribunal appears to be suggesting is that in certain circumstances it is incumbent on a reasonable employer to carry out a quasi-judicial investigation with a confrontation of witnesses, and cross-examination of witnesses. While some employers might consider this to be necessary or desirable, to suggest as the Tribunal did, that an employer who failed to do so in a case such as this was acting unreasonably, or in the words of Lord Denning, acting outside '……a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view', is in my view insupportable."
[39]Ms Campbell drew our attention to an unreported decision of this Tribunal in ADT Auctions Ltd -v- Nayar (7 April 1998) in a constitution presided over by Maurice Kay J. The case involved allegations of sexual harassment against a senior member of staff. Neither complainant was at the disciplinary hearing, nor was either available for cross examination. The argument put to the EAT by Counsel for the Respondent was not that there was a general legal requirement that witnesses be seen and questioned, but that cross-examination in the instant case was essential. The EAT referred to the passage in Ulsterbus to which we have already referred and to Khanum v-Mid Glamorgan Area Health Authority (supra) and concluded:
"At the end of the day it was the Industrial Tribunal to decide what was fair and reasonable in the circumstances of this particular case and whether the employer had acted outside the parameters of fairness and reasonableness. It may be that another, differently constituted Tribunal would have come to a different decision but we are entirely satisfied that the decision of this Tribunal was a permissible one and does not manifest perversity or an error of law on this issue."
[40]Ms Campbell also referred us to the decision of this Tribunal in Southdown Housing Association -v- Barnard 27 June 1997, a division of the EAT presided over by His Honour J Hull QC. In the course of giving the Tribunal's judgment,

Judge Hull said:

"…..although an employer when conducting a disciplinary enquiry is undoubtedly required to behave fairly, he is not required to conduct a forensic hearing, a court-style hearing, in which witnesses are produced for cross-examination. He is not required to permit the attendance of legal representatives. What he is required to do is to be fair."
[41]We note, as did Lindsay P, that in Harvey on Industrial Relations and Employment Law , section D/1 paragraph 1515., the learned editors, in their commentary on Ulsterbus Ltd -v- Henderson say this:
"Query, however, in exceptional cases it may be unfair to refuse cross-examination, such as where the decision to dismiss turns on a critical issue of fact which is the subject of conflicting evidence. It has after all been held that in such circumstances natural justice itself requires cross-examination:- see RB Howell Prison Boards of Visitors ex parte St Germain (No 2) [1979] 1 WLR 401 . Moreover in the Ulsterbus case the relevant witnesses were not employees of the dismissing company. That case concerned the dismissal of a bus conductor and the witnesses were passengers. Arguably the position ought to be different where the relevant witnesses are fellow employees who can readily be required to attend a hearing for cross-examination purposes. It may be, therefore, that the principles stated in Ulsterbus that cross-examination can never be required of a reasonable employer, is too broad."
[42]We do not read Ulsterbus Ltd -v Henderson , and in particular paragraph 21 of the judgment in that case, as laying down the proposition that cross-examination can never be required in any investigation carried out by a reasonable employer. O'Donnell LJ rejects the proposition that "an employer who failed to do it in a case such as this" was "acting unreasonably". The issue, in section 98(4) of the Employment Rights Act 1996 is always reasonableness and fairness. We do not exclude the possibility that there will be cases in which it would be impossible for an employer to act fairly or reasonably unless cross-examination of a particular witness is permitted. The question, however, in each case is whether or not the employer fulfils the test laid down in British Homes Stores -v- Burchell , and it will be for the Tribunal to decide whether or not the employer has acted reasonably, and whether or not the process has been fair.[43]In the instant case, we are of the opinion that the Tribunal directed itself appropriately within the framework of section 98(4) and that the conclusions of the majority cannot, accordingly, be challenged. We think it unfortunate that the Respondent did not give reasons for its refusal to allow the Appellant to cross-examine the complainants: we also think it unfortunate that Ms Phillips and Mr McKenna, when they re-interviewed the complainants did not put to them all the matters which the Appellant raised at the disciplinary hearing. We also think it unfortunate that the Appellant was not given the report of the disciplinary hearing which set out the reasons for her dismissal; and finally, we think the Tribunal was in error when it asserted in paragraph 3(e) of its Reasons that the complainants "refused to attend the hearing" when, in reality, they were not asked.[44]None of these matters, however, either individually or collectively seems to us sufficient to render the Respondent's behaviour unreasonable or the process unfair. In our judgment, this is a case in which cross-examination of the witnesses may well have been helpful to both sides. A different employer might have taken the view that fairness required it. However, an employer who takes a different view is not, thereby, to be considered unreasonable or to be acting unfairly. In our judgment, the procedure in this case adopted by the Respondent was within the band of reasonable options, and the Tribunal was entitled so to find. It follows, of course, that the Tribunal was also entitled to find that the process had not been unfair to the Appellant.[45]As to penalty, the Tribunal rightly decided that the Respondent's decision was within the band of reasonable responses. To do otherwise would have been to have committed the classic mistake of substituting its view for that of the reasonable employer. One employer might have thought a final warning and retraining appropriate: this employer did not. In our judgment, dismissal was not an unreasonable response in all these circumstances of the case.[46]For all these reasons, we are of the opinion that the Tribunal reached the correct decision, and the appeal will, accordingly, be dismissed.