LANSING LINDE SEVERNSIDE LTD v MR M GIBBS [2003] UKEAT 0495_02_2003

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0495_02_2003Case No Appeal No. EAT/0495/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LANSING LINDE SEVERNSIDE LTDAPPELLANTMR M GIBBSRESPONDENT
Before
Mr Justice BurtonDate 20 March 2003
[1]APPEARANCES For the Appellant MR R MEAD (Representative) Robert & Susan Mead Personnel Consultancy Partnership 186 Redlands Road Penarth Vale of Glamorgan CF64 2QS For the Respondent MR S JACKSON (Solicitor) Instructed by: Messrs Berry Smith Solicitors Haywood House Dumfries Place Cardiff CF10 3GA THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is an appeal by the Respondent, Lansing Linde Severnside Ltd, against the unanimous decision of the Employment Tribunal at Cardiff, that Mr Mel Gibbs, its employee, had been unfairly dismissed. The hearing took place on 12 February 2002.[2]At the close of the hearing the Tribunal announced its decision. It is very often possible, put colloquially, to put the parties out of their misery by announcing the result immediately, even if it is then intended to deliver subsequent written reasons, whether they be Extended Written Reasons or Summary Reasons. That is to be welcomed. Indeed, if it is possible to give extempore Extended Reasons that is also to be welcomed.[3]What occurred on this occasion, however, is, in our judgment, not to be welcomed and has caused considerable problems in this case, as will be shown; namely, that the Chairman, having announced the decision, then gave orally some reasons. He had apparently himself taken a note of what he was going to say. Mr Mead, the Employment Consultant who acted on behalf of the Respondent, also took a note and the two notes are not, as is to be expected in relation to a summary of what is said briefly orally, entirely consistent with each other.[4]The Respondent appealed. One of the grounds of appeal was that the written reasons, when they were forthcoming, differed from the oral reasons. Now that we have seen the Chairman's own notes of what he was going to say, on the assumption that he said roughly what is constituted by his written notation of what he was going to say, then the difference between the oral reasons, as noted by Mr Mead, and the written reasons, as they came forth subsequently when the decision was sent to the parties on 28 March 2002, may not be quite as stark as Mr Mead had thought. But there are still some apparent differences.[5]At the end of the oral announcement of the decision, the Chairman did indicate that, insofar as there were differences between the oral reasons and the written reasons, the written word was to prevail. But we are still left with both argument by Mr Mead, and in the end some conflict between the parties, arising out of the differences.[6]We conclude that it is inappropriate that that course should, certainly with any kind of frequency, be followed, just for that reason.[7]When this case was permitted to proceed on the Preliminary Hearing by a differently-constituted panel of this Tribunal, there were orders made for notes of evidence by the Chairman and it was at that stage that, together with the notes of evidence, the oral note to which we have referred was forthcoming.[8]In addition, the Chairman provided in a document dated 22 August 2002 what is referred to as a "response to the grounds of appeal". This, itself, is an unusual course, but has a relevance, to which we will be referring.[9]Mr Mead's grounds of appeal, as we have indicated, directed themselves in part to the alleged inconsistency between the oral reasons and the written reasons, and in particular directed some fire against the reasons for allowing the application to succeed, which he divined from the oral reasons. But we do not propose to deal with those matters, at any rate at this stage, in any detail at all, because, at the very outset of this appeal, both Mr Mead (who again appeared before us on behalf of the Appellant) and Mr Jackson (the Solicitor instructed by the Applicant who, although he did not appear below, appeared for him today for this appeal) were agreed that there was no point in addressing, per se , the challenges to the oral reasons, insofar as they were different, but invited us to concentrate on the challenge in law to the extended written reasons.[10]We turn then to the Decision of the Tribunal. The Applicant was employed as a Service Engineer by the Respondent working at different sites. From about 1990 the Applicant had regular work at a Fruit Market operated by one of the Respondent's customers, Mack Markets ("the Customer"). He asserted that from time to time he was permitted to take away quantities of unwanted or surplus fruit and vegetables from that Customer. As will be apparent, that was very much in issue.[11]The circumstances of his dismissal referred to a complaint by the Customer that he had taken away a box of fruit and vegetables on 8 June 2001. The matter arose as a result of a letter of complaint sent by the customer, Mr Blandford, Divisional Director, on its behalf, dated 11 June 2001, to the Appellant, which read as follows:
"We are quite disturbed regarding an incident that happened in our warehouse on Friday 8 th June 2001. A box of fresh fruit and vegetables prepared and left for one of our employees to take home was missing. Our internal surveillance system recorded very clearly your engineer, who had been repairing our fork-lift, removing the box from our premises. On many occasions we have to leave your engineers working in our warehouse unattended with only office staff on the premises as a different level. This has always been a trust situation and to find this happening we find it extremely disappointing and destroys the trust. We would like you to ensure that this particular engineer does not attend our premises in the future. We trust that you will have your own system of dealing with such incidents and look forward to hearing from you in the near future."
[12]The Appellant was plainly concerned as a result of this, and held what the Tribunal referred to as a fact finding meeting on 15 June 2001, at the end of which the Applicant was suspended without pay pending further investigation. Mr Bailey, who had suspended him, then attended the customer, to interview a number of employees there in relation to the assertion, which the Applicant had made at the fact finding meeting, that there had been some previous practice or procedure entitling him to take the box of fruit and vegetables that he did take without further enquiry.[13]By letter of 25 June the Applicant was informed that there was a disciplinary case for him to answer and that he was being charged with theft from a customer's property and bringing the Appellant into serious disrepute.[14]That disciplinary hearing took place on 2 July 2001 and, at the end of the hearing, Mr James, who was the Service Director, and had held the interview, informed the Applicant that he would be interviewing all of the people that the Applicant had named.[15]Mr James duly interviewed those people. On 6 July he wrote to the Applicant, with two enclosures:(1) a note of the meeting that had been held at the customer's on 21 June 2001, when Mr Bailey had interviewed among others a Mr Mansell Morgan, recording in detail what had been said by Mr Mansell Morgan of the customer and other matters;(2) a note of the disciplinary meeting itself of 2 July, which ran for some five pages. It was, in effect, a verbatim note of the interview, recording, it is not suggested inaccurately, the question and answer session that ensued in considerable detail. It did not include a note of the further interviews which Mr James had held as a result of that meeting of 2 July on 3 July at the Customer's, but the letter of 6 July itself recorded that Mr James had now interviewed the people that the Applicant had named.[16]There was, it seems, no response to that letter of 6 July by the Applicant, either to the content of the letter or to its enclosures. Both sets of notes, of course, would have been seen thus for the first time by the Applicant.[17]On 12 July by a letter sent to the Applicant the Applicant was dismissed. That letter recorded that Mr James believed that the charges were substantiated. It was his view that the Applicant had taken the items in question from the Customer's premises without the proper authority. The letter continued:
"You have maintained there was a long standing arrangement with the customer to take such items. I have checked with a number of managers from the customer's company, including the ones you have named to me. The unanimous response from them is that no such permission was given. You said that you asked on the day about the possibility of items being available to take away but you accepted that on that day no one came back to you with an answer. … Finally you have said that other engineers from [the Appellant] were aware of the arrangement and received items similar to those you took on the day in question. The engineers who attend that site have been interviewed and they do not confirm what you have said. … Your actions have caused me to lose faith in your integrity and you have caused considerable embarrassment to [the Appellant] when a customer has to report such a matter to us. Theft from a customer, a colleague or from your employer is a fundamental breach of the trust we place in you when we send you out to visit our customers and expect you to work generally unsupervised in a proper manner. This is gross misconduct, as indicated in your Conditions of Employment."
The Applicant was given the opportunity to appeal and did so. He was told that the appeal hearing would be heard on 23 August 2001 but he did not attend that appeal hearing.[18]The Tribunal set out the Applicant's complaints of unfairness and they were threefold, as recorded in paragraph 16:(a) that the Appellant failed to make an adequate investigation and failed to produce to him statements obtained from potential witnesses to consider prior to or at his disciplinary hearing;(b) by suspending him without pay on 15 June 2001 when no investigation had at that stage been carried out; and(c) by failing to grant him an appeal against his dismissal within a reasonable time, despite his request dated 13 July 2001.[19]The Tribunal recorded its conclusions in the written reasons as follows: 18 "The Tribunal…found that the dismissal was unfair because the Respondent failed to follow a fair procedure even though a potentially fair ground for dismissal had been established. 19 The Tribunal considered that the Respondent's actions in suspending the Applicant without pay…were harsh but nevertheless actions which the Respondent was entitled to take… 20 The Tribunal noted the Applicant had to wait for over three weeks before receiving notice of hearing for a further two weeks ahead [in respect of his appeal]. This seemed to the Tribunal – in the absence of any explanation for the delay – a very long drawn out appeal procedure but in the absence of the Tribunal being shown details of the Respondent's appeal procedures the Tribunal could not find that the dismissal was unfair on that account."[20]By those two paragraphs the Tribunal ruled against the Applicant in relation to two of his three complaints. Mr Mead has indicated, by reference to his note of the oral reasons, that those matters perhaps may not have featured in the oral reasoning as clearly as they do in the written reasons. Further he submits that the Tribunal was wrong to say that they have not been shown details of the Respondent's appeal procedures when he had had them with him at the Tribunal and had positively offered to show them but that offer had been declined by the Tribunal as being unnecessary.[21]Suffice it to say for our purpose that it is quite plain from the Tribunal's decision that, whatever may have been said orally, by the time it came to their written recording of the decision they found in favour of the Appellant and against the Applicant in relation to both those two heads. Consequently, there can be no appeal against what was in effect a finding in the Appellant's favour in that respect.[22]We turn however to the basis upon which the Tribunal did find against the Appellant, and that is recorded in paragraphs 21 and 22 which read as follows: 21 "Where the Tribunal found the procedure to be unfair – and therefore the dismissal to be unfair – was on account of the fact that at his disciplinary hearing on 2 nd July 2001 the Applicant was not shown the note taken by Mr Shaun Bailey on 21 st June 2001 of his interviews with the employees of Mack Markets. Ideally the Applicant should have been shown at or prior to his disciplinary hearing statements from Mack Markets' employees commenting on the Applicant's assertion he would have had permission to take the box of fruit and vegetables that he did. At or before his disciplinary hearing, however, the Applicant was not even shown the note that Mr Bailey had taken of his interviews – let alone statements. The Applicant was not shown a copy of Mr Bailey's note until Mr Mike James wrote him on 6 th July 2001 asking him to verify that the notes of the disciplinary meeting were accurate. The defect in the procedure in the view of the Tribunal was compounded when after the disciplinary hearing on 2 nd July 2001 Mr James on 3 rd July 2001 spoke to five employees of Mack Markets – most of whom had previously spoken to Mr Bailey. A note was taken of those meetings. Still the Applicant was not supplied with a copy of that note prior to receipt on 12 th July 2001 of his letter of dismissal. 22 Accordingly, the Tribunal found the dismissal unfair – the Applicant was not given the opportunity at his disciplinary hearing to comment on the case against him."[23]It can thus be seen that the basis of the Tribunal's finding of unfair dismissal can be summarised as follows, leaving aside the two grounds with which we have already dealt and which were found in the Appellant's favour:(1) As nothing whatever is said by the Tribunal in respect of the substantive fairness of the dismissal, it is to be concluded that the Tribunal had not only found, as it did, the reason for the dismissal to be potentially fair (paragraph 17) but also that the dismissal was not unfair by virtue of any substantive ground, i.e. that dismissal per se as a remedy was not outside the band of reasonable responses available to an employer.(2) However, the Tribunal found that the dismissal was rendered unfair by virtue of what it categorised as unfair procedure; and the procedure which it so categorised was the non-disclosure of the note of 21 June 2001, until it was sent under cover of the letter of 6 July, and further, though it appears by the use, in paragraph 21, of the word 'compounded', that it did not regard this second point as of itself sufficient, but rather to be taken together with the first, the non-disclosure of the note of Mr James's interviews with the customer's employees dated 3 July 2001.[24]The Tribunal's decision, on its face, and we have quoted the relevant two paragraphs, was straightforwardly simple. The non-disclosure of those two documents (in the case of the first until the letter of 6 July and in the case of the second at all) rendered the dismissal per se unfair. They did not, it seems, consider the contents of the notes, nor did they ask themselves in terms how it came, if it was the case, that the non-disclosure of those two notes in fact prejudiced the position of the Applicant.[25]So far as the law is concerned, the starting point on the submission of Mr Mead is the decision of Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 CA. That was a case in which the Employment Tribunal found that the dismissal was unfair inter alia on the grounds of procedural unfairness because, as the Tribunal concluded, the Applicant was not given an opportunity to state his case. The Court of Appeal did not uphold that decision on that ground.[26]Mr Jackson has submitted that that may be the result in that case, but it could be said simply to emphasise that there is a need for an employer to give the opportunity to an employee to state his case, albeit it was found in that case that the Employment Tribunal erred in concluding that the employer had not done so. That, plainly, must be so.[27]Mr Jackson further relies on Louies v Coventry Hood and Seating Co Ltd [1990] IRLR 324 to emphasise that the Tribunals have regarded it as important that an employee must know in one way or another sufficiently what is being said against him. In that case Wood P indicated that it was all a question of degree, and he concluded that in that case it was unfair for the employee not to have had sight, in relation to an allegation of dishonesty, of statements made by employees said to implicate him.[28]Since the decision of this Employment Tribunal there have been more fully made known, but certainly even at the time of the Employment Tribunal, though not cited by either side, there were available, decisions of the Court of Appeal in Whitbread Plc v Hall [2001] IRLR 275 and Sainsbury's Supermarkets Ltd v Hitt [2002] IRLR 23.[29]Those two Court of Appeal decisions make it quite plain that the decision as to the reasonableness of an employer's procedures in relation to dismissal is to be made on the same basis as the Tribunal's approach to the reasonableness of treating the reason for dismissal as sufficient for dismissal.[30]At paragraph 34 of Sainsbury's Supermarkets Ltd Mummery LJ said as follows: 34 …I should emphasise clearly that, as held by the Court of Appeal in Whitbread v Hall , the range of reasonable responses approach applies to the conduct of investigations, in order to determine whether they are reasonable in all the circumstances, as much as it applies to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason." It is plain that there is no mention by the Employment Tribunal of that approach, but rather the Tribunal appears to exercise its own judgment as to the fairness or unfairness of the procedure, and to do so by reference simply to the non-production of the two notes.[31]We turn to the detail of those two notes. (1) The 21 June 2001 Meeting[32]That begins by recording as follows:
"Interviewed Mansell Morgan [that is, the relevant employee at the customer]…I asked Mansell if he had given permission for Mel [that is, the Applicant] to take any produce from the warehouse. He stated "
No" and that he did recall a conversation earlier that day with a Lansing Linde Severnside Ltd engineer whose name he did not know and that person asked him if there were any potatoes. Mansell told the engineer "No" and that the potatoes were next door, and added something to the end of that statement which he could not accurately recall but was basically just being polite he believes he said something like "I'll see what's there" or words to that effect." He then went on to say that the box that was removed was one which contained potatoes, carrots, onions, parsnips, strawberries, bananas, melons, tomatoes, lettuce, cucumber, apples and it may also have had leeks, cabbage and cauliflower.[33]At the disciplinary hearing on 2 July 2001, the Applicant was relying not upon any permission given on the day of 8 June, but on the alleged long standing arrangement which would, as he submitted, entitle him and perhaps others to remove surplus fruit or vegetables, without express permission on a relevant day.[34]The note of the hearing includes on the fourth page the following passage in which Mr James put to the Applicant what the customer had said, namely:
"MJ …during the investigation, John Blandford, the person who made the formal complaint stated that he had checked with his staff before making the complaint and verified no-one had given you permission to take the box. Would you say this is your understanding also. MG …I suppose it was – Yes. MJ …during the investigation John Blandford confirmed that you did ask for potatoes but you were told they were next door, do you have anything to comment on this. MG …the employee actually said he would sort something out for me."
Then, later in the meeting, after moving on from that position in which it was agreed, both by Mr James and Mr Gibbs as to what had occurred on that day, namely the limited conversation with the employee of the customer, the following is recorded:
"MJ asked to clarify the following points. You (MG) asked for some potatoes but no-one came back to you to say that they had put some by for you or to tell you where you could get some from. MG …yes that's right MJ …you found a box of fruit and veg but did not ask anyone if it was yours or if it had been made up for you. MG That's right. MJ …the box was not marked with your name or for your attention and no-one had told you it was your. MG Yes that's right. MJ …no-one had given you permission to take it and when you did you didn't tell anyone you had taken it. MG No not that day."
[35]The Chairman, in his response to the grounds of appeal to which we have referred, sought, in circumstances unclear to us, to justify the decision at paragraphs 21 and 22 by reference to the grounds of appeal and said as follows:
"Critically, the Applicant did not see prior to or at his disciplinary hearing Mr Bailey's note of what Mr Mansell Morgan said to Mr Bailey. What Mr Bailey recorded as having been said by Mr Mansell Morgan is very similar to what the Applicant consistently contended Mr Morgan had said to him. Indeed the Tribunal were not told that at his disciplinary hearing the Applicant was even told what Mr Morgan had said to Mr Bailey."
[36]In the light of the passage that we have quoted from the verbatim notes of the disciplinary hearing, that is plainly an incorrect recollection of the Chairman. Not only is that clear from the notes themselves which were in the bundle before the Tribunal (from which we have quoted), but it is made clear also in the Chairman's own notes of evidence, in which he records cross-examination of Mr James by Counsel for the Applicant as follows:
"Put were statements taken from Mansell Morgan, Mike etc? Answer no. Put were the notes that were taken shown to Mr Gibbs at or before his disciplinary hearing? Answer no need to – he was told what was in them."
Then later towards the end of the cross-examination of Mr James the Chairman records his own question:
"Chairman why was Applicant not shown evidence against him until after disciplinary hearing? Why did not James show Gibbs notes of interviews he took after disciplinary hearing?"
This is a reference specifically to the 3 July notes, to which we shall refer in a moment. "Answer no point – same as what witnesses told Shaun Bailey. Applicant told of what they said at disciplinary hearing. Put Shaun Bailey's note of meeting with Mansell Morgan on 21 st June 2001 supports – to greater or lesser extent – Mel Gibb's recollection of what Mansell Morgan said. Mr Gibbs says this was not shown to him before the disciplinary hearing. Answer I agree."[37]So far as concerns the 21 June note, the substantive point occurring in it was that there had been a, what I described in the course of argument as nebulous, that is, inconclusive conversation between Mansell Morgan and the Applicant, and the fact that there had been such conversation, agreeing with the account of the Applicant himself, was not only revealed to him in the course of the disciplinary hearing (to which we have referred), but became common ground between the parties. Of course, if the employer had concealed the fact that there had been such a conversation, and doubted or even suggested the contrary to the Applicant, so that they had even sought to put in issue whether he had had any conversation with any representative customer, that would have been a serious matter. But there was no concealment, there was full disclosure of the relevant content of the note of 21 June, and it led to agreement between Mr Gibbs and Mr James.[38]The issue was not whether there had been that inconclusive conversation, but whether there was anything which led the Applicant to feel or be entitled, notwithstanding the fact that that conversation was inconclusive, then to help himself to the box of fruit and vegetables, which was unmarked, and in respect of which he had been given, as he himself accepted, no permission. That entitlement, believed or actual, would depend upon the alleged long standing arrangement, or at any rate his belief in such an arrangement, which would not have been affected by the contents of the meeting of 21 June. In any event, it was common ground that that note was supplied under cover of the letter of 6 July, to which there was no response, and the reason there was no response was because, as is clear to us, it was not contentious.[39]In those circumstances, the simple fact of the non-disclosure of that document in our judgment had no prejudicial effect, indeed no material effect, at all on the outcome of this disciplinary process. Had the Employment Tribunal addressed the position, as one would have expected them to do had Whitbread v Hall or Sainsbury's Supermarkets Ltd v Hitt been raised, it would seem unlikely that they would have concluded that not disclosing the actual note, as opposed to the material content of it, would have set the employer outside the range of reasonable responses of a reasonable employer. But in any event, it appears to us that simply to conclude that the very fact of non-disclosure of the note, certainly without considering its contents, and whether there was any prejudicial effect, could not be a correct approach in law by the Tribunal. Even on Mr Jackson's case by reference to Louies , it would be necessary for the Tribunal to have asked itself the question as to whether the Applicant was put into the position in which he did not know sufficiently what was being said against him, or could not properly put forward his case. It may be that this arose out of the Tribunal's forgetting that the content of the note had been discussed and indeed agreed in the course of the disciplinary meeting. (2) The 3 July Notes[40]The Tribunal referred to the non-disclosure of the notes of 3 July as compounding the defect in the procedure. The notes of 3 July were not at all disclosed, i.e. they were not sent under cover of the letter of 6 July. There is little or no discussion, as we have indicated, in relation to the Tribunal's conclusions in paragraphs 21 and 22 as to those notes, and certainly no consideration of the effect of their non-disclosure, to which we shall return.[41]As we see it, neither taking them together with the 21 June note nor on their own, is it sufficient for the Tribunal to have found that the procedure was unfair, and certainly a fortiori that the dismissal was unfair, simply by reference to their non-disclosure, at least without considering their contents, and as to whether their non-disclosure put the Applicant in any way to any disadvantage.[42]In those circumstances we are satisfied that the approach of the Tribunal was erroneous in law, and that it was not open to the Tribunal to find that a dismissal, otherwise fair, was rendered unfair by virtue of the procedure, simply by virtue of the fact that the actual note of 21 June, as opposed to its contents, was not disclosed prior to 6 July, or that the notes of 3 July were not disclosed at all, without considering:(1) whether to proceed in accordance with that process was outside the band of reasonable responses of a reasonable employer, or at least;(2) whether any material prejudice was caused to the Applicant by the taking of such course.[43]We are not persuaded by the submissions of Mr Jackson that in some way there is or ought to be a rule that an employer must always disclose and hand over any documents it has which may bear upon a dismissal prior to or in the course of a disciplinary hearing. As his own Louies case makes plain, it must all be a question of degree, and certainly so within the confine of the emphasis now in Sainsbury's as to whether the process adopted was one which was within the range of reasonable responses of a relevant employer.[44]Mr Mead urges that consequently, once we reach that conclusion, we should not only set aside the decision of the Employment Tribunal but substitute our own conclusion that in the circumstances the dismissal was fair. We can only do that if we are of the view that no reasonable Tribunal could come to any other conclusion. Of course it is right to say that in the interests of the end of litigation sending matters back for a rehearing is to be discouraged, if at all possible. But that must be balanced against not only justice but the very stringency of the test to which we have referred, which derives from O'Kelly v Trusthouse Forte Plc [1984] 3 All ER 456 CA.[45]If the Tribunal had directed itself correctly, could it still have come to the same conclusion? So far as concerns the note of 21 June, we find it difficult to see that any different conclusion than that the dismissal was fair could be arrived at in relation to the factual situation to which we have referred. We have been shown nothing in that note, the absence of disclosure of which would materially have prejudiced the Applicant, and indeed, as we have emphasised, here was in fact common ground as to the existence and nature of the inconclusive conversation between the Applicant and Mr Morgan on the day.[46]But the Tribunal also considered that there had been unfairness by virtue of the non-disclosure of the note of 6 July. In relation to that, when invited to identify how its non-disclosure could have prejudiced the Applicant, Mr Jackson did give us an answer. He submitted that it might be that if that note had been disclosed to the Applicant under cover of the letter of 6 July, he might have been able to have pointed out inadequacy in the investigation at the time. The note in material part reads as follows:
"Following the interview with Mel Gibbs on 2 nd July 2001 at Bridgend a number of questions were raised and I felt one in particular needed further investigation. The basis of the questions were Mel Gibbs' insistence that he had an open agreement between Mack Cardiff and himself that allowed him to take loose fruit and veg without permission. If this was true it could have an effect on the outcome of my decision. Mel Gibbs also provided names of people that would verify his understanding of the agreement he had with Mack Cardiff. I interviewed Dave Edwards (Manager) on the above date and asked "
Mel Gibbs has stated that he had an open invitation to take any loose fruit and veg without permission, is this correct?" Dave Edwards replied "No, this is not true and I wouldn't have told him that, because I haven't got the authority to do that." "Also no business could afford to allow propel to take anything without asking." Dave went on to say "There is a lot of flexibility in what is allowed to be given but it is always with the agreement or permission of a member of staff from Mack Cardiff"."[47]Mr Jackson submits that the question that was asked of Mr Edwards was what might be described as a loaded question or a leading question, and that it might be said that it did not leave open the opportunity for the customer to have confirmed what the Applicant himself was saying; or at any rate that had the Applicant seen these notes he might have sought to suggest that an answer given in reply to that question should not be regarded as foreclosing the point that he was putting forward.[48]It seems to us difficult to say that the non-disclosure of that note in fact prejudiced the Applicant in any way. The real problem, as it seems to be, was that the Applicant was not in a position himself to be able to go to the customer and seek to remind, as he submitted it to be, employees of the customer as to the existence of the procedure. That was because he had no access to the customer and had not been permitted by his employer to have such access. That is not a matter of which complaint in relation to unfairness was made, and it may be could not be made.[49]The other matter that is put forward by Mr Jackson as justifying a remission or more particularly as forming the basis for a view which we should form that a different Tribunal might still come to the same conclusion, does not relate specifically to the written reasons at all. This Tribunal concluded that the dismissal was unfair. In the written reasons it concluded it was unfair by reference only to the alleged unfairness of the procedure. As we have indicated, there was no specific addressing, and really if one read the Decision on its own it would be apparent, no implicit addressing either, of any suggestion that dismissal was outside the band of reasonable responses. Indeed, in setting out in paragraph 16 of the Decision (which we have quoted) – that of (a), (b) and (c) – the three complaints which the Applicant was apparently making – the fact that dismissal was outside the band of reasonable responses of an employer, or out of all proportion, does not feature at all.[50]But Mr Jackson submits that if another Tribunal addressed this issue it might find the dismissal unfair not by virtue of the procedure but on the basis that dismissal on the facts of this case, was "out of all proportion". We use that quotation for the following reason. We have already indicated the unusual, and indeed in our judgment unsatisfactory, fact that the oral reasons were given at the end of the hearing in the circumstances which we have described.[51]Leaving aside for the moment Mr Mead's note, which is not accepted by Mr Jackson as being accurate, and we do not in the circumstances enter into any contention in that regard, we look only at the notes prepared by the Chairman himself. That includes the following: (e) Potentially fair reason – App took goods to which not entitled. Reasonable grounds for a disciplinary hearing after a full & thorough investigation. Mr James was impressive witness – commendably frank under cross-examination as to App's basic honesty. (f) Was decision to dismiss out of all proportion? Mr James said he took into account App's belief he was entitled to take goods. Did he? Document 32 & Mr James' statement don't indicate that he did. Was decision fatally flawed? Tribunal must not substitute own view for that of employer on spot. Tribunal alive to this danger." Having said that, the note at the end concludes unfair dismissal.[52]As we have indicated by reference to the written reasons, there is seemingly no reference to the thought process at any rate of the Chairman set out in the Extended Written Reasons. It may be that that note is not necessarily an accurate account of what the Chairman actually said, but rather of what he was going to say, and that he changed his mind before he said it. It may be that it is an accurate note of what he said and that he, either of his own accord or persuaded by his fellow members, changed his mind before he came to the written reasons. It may on the other hand be that the content of that thought process is somewhere implicit, lying behind the Extended Written Reasons, although not specified.[53]All this kind of questioning is wholly unfortunate, wholly inappropriate for the ordinary case and, as we have earlier indicated at the outset of this judgment, the kind of problem that arises when this unfortunate course is taken. But what Mr Jackson says is that there is some support there for the proposition that another Tribunal might reach a different conclusion in relation to the fairness of this dismissal; and that this is not a case in which, as a matter of course, we are driven to say that the industrial jury, namely the Employment Tribunal, reached a unanimous decision that the dismissal was substantively fair, but concluded only that the procedure was unfair, such that once it is clear that the procedure was not unfair in the respects indicated, therefore their decision must stand as to substance and be replaced as to procedure. It is a case in which we are left with a lurking doubt as to what would have been the conclusion had the Tribunal addressed the questions as to procedure correctly and in accordance with the law.[54]In those circumstances, with a degree of reluctance, in the sense that we are possibly interfering with the decision of an Employment Tribunal on substance, about which we may be mistaken, we must conclude that we are not certain as to which way another Employment Tribunal would decide this case.[55]Of course it will be pointed out at any rehearing that the box of fruit in question was not on its face, if the description by the customer is right, the kind of box that would be regarded as surplus and simply left around to be picked up. Of course on the other hand we accept that if the matters of procedure are looked at again, even within the correct approach to the law, the Applicant may be able to establish that he was in some way prejudiced.[56]But we are, while being satisfied that this decision should be quashed, left with the conclusion that another Tribunal might reach a different conclusion, and consequently that it is not one of those cases where it can be said that no reasonable Tribunal would reach any other conclusion but fair dismissal.[57]In those circumstances we remit this decision for rehearing by a different Tribunal.