GRATTAN PLC v KAMRAN HUSSAIN [2003] UKEAT 0802_02_0107

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0802_02_0107Case No Appeal No. EAT/0802/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
GRATTAN PLCAPPELLANTKAMRAN HUSSAINRESPONDENT
Before
His Honour Judge J BurkeDate 1 July 2003
[1]APPEARANCES For the Appellant MR JONATHAN SWIFT (of Counsel) Instructed by: Eversheds Cloth Hall Court Infirmary Street Leeds LS1 2JB For the Respondent No appearance or representation by or on behalf of the Respondent HIS HONOUR JUDGE J BURKE QC The facts This is an appeal by Grattan PLC ("Grattan") against the Decision of the Employment Tribunal, sitting at Leeds and chaired by Miss Matthews and sent to the parties with Extended Reasons on 11 June 2002, that the Applicant before them, Mr Kamran Hussain, had been unfairly dismissed. Grattan have been represented before us by Mr Jonathan Swift of Counsel. Mr Hussain has not attended and has not been represented; he has written a letter to us in which he says that he is unable to afford representation and relies, in opposition to the appeal, on the Employment Tribunal's Decision. We have, therefore, proceeded to hear the appeal in his absence.[2]The facts can be briefly summarised for present purposes. Grattan are a well known mail order catalogue company whose customers phone their call centre to place their orders. Each customer has an individual security code which he or she uses to verify his or her identity when goods are ordered. Usually, the caller requires delivery to his address; but some callers are sales agents who have their own sub-customers; and in their cases the orders which they place may, at the agent's request, be delivered to the sub-customer direct. For obvious reasons, such deliveries would normally be to an address in the area in which the sales agent lives and operates.[3]Mr Hussain was employed by Grattan at their call centre in Bradford; at the material time he worked on the morning shift, from 8.30 am to 1 pm. His duties included taking orders from customers over the phone and arranging for goods so ordered to be despatched as required. On 24 August 2001 a sales agent, identified only as "Mr P", placed an order with Grattan; that order was taken by Mr Hussain. Thus Mr Hussain had the opportunity, as did anyone working in the call centre on receipt of a customer call, to learn Mr P's security code.[4]On 16 October 2001 an order was placed, purportedly by Mr P, for goods with a value of just under £5000 to be delivered direct to a sub-customer at an address in Bradford which was outside Mr P's home area. Grattan became suspicious of this order for two reasons, firstly because the delivery area was outside Mr P's home area, and, secondly, because the delivery address was in Bradford where the call centre and Grattan's head office are located and where many employees (including Mr Hussain) live. The order was, therefore, put on hold; and Grattan decided to investigate it.[5]Eight days later another order was placed purportedly by Mr P, this time for a stereo system worth £1000, to be delivered direct to the same address as that given in the call of 16 October. The caller pressed the call centre about the non-delivery of the goods ordered on the previous occasion; he said that both orders were intended for his son "Ryan". The caller asked the employee who took the call to ring his son Ryan at a telephone number which he gave.[6]The team manager of the evening shift, Miss Kellett, was informed of what had occurred. She rang the number given as that of Ryan. The person who answered replied "Hello, Gino's". She asked to speak to Ryan and the telephone was handed over to a man with an Asian accent who said he was Ryan. She then checked with directory enquiries and discovered that the number which she had just called was that of Gino's Pizza in Bradford and that the address for that number was that given by the caller as the delivery address for the two orders of 16 and 24 October. She then discovered that Mr Hussain's home address was round the corner from Gino's Pizza.[7]As a result, two further calls were made. The first was made by Miss Kellett to Gino's Pizza. She asked to speak to Kamran Hussain; the responder said "Yes, speaking". Miss Kellett said "Are you Kamran Hussain?" and the responder said "Yes". Miss Kellett then put the phone down. The second call was to Mr P who said that he had not placed either the order of the 16 th or the order of the 24 th October.[8]Mr Hussain was suspended on 25 October; while he was being informed of his suspension and the reasons for it, Mr Dixon, who was Grattan's Investigations Manager, observed him through the glass window in the door of the office in which he was being spoken to. Later that day Mr Dixon went to Gino's Pizza; he looked into Gino's Pizza from outside and recognised Mr Hussain who, he said, was working there. Shortly afterwards he went round to the back of the building and saw Mr Hussain again, this time handling a stack of pizza boxes.[9]In the light of all this material, Grattan convened a disciplinary hearing on 1 November at which Mr Hussain was represented by a union official, Mr Briggs. For reasons of confidentiality Grattan did not permit Mr Hussain or Mr Briggs to see the documentation which set out Grattan's evidence, including Mr Dixon's statement, until the morning of the hearing itself. Mr Briggs did but Mr Hussain did not see Mr Dixon's statement. The hearing was conducted on Grattan's side by Miss Oddy, a human resources adviser, and Miss Marshall. Mr Hussain denied any involvement in fraud; he denied that he worked at Gino's Pizza; he said he worked at a garage which could verify the hours he worked there and that he took his brother to and from Grattan and for that reason could not have been working at Gino's Pizza. In the light of Mr Hussain's denial of any connection with Gino's Pizza, Miss Oddy adjourned the hearing and made a further telephone call to Gino's Pizza. She asked for Kamran Hussain's telephone number. The responder did not suggest that he did not know Kamran Hussain; he said that he did not have his telephone number; when asked whether Mr Hussain was due into work, he said that Mr Hussain was on holiday for two weeks.[10]The contents of this telephone call were put to Mr Hussain when the hearing re-convened; he maintained his denial that he worked at Gino's Pizza. The two earlier phone calls made by Miss Kellett, which had been recorded, were then played to Mr Hussain and Mr Briggs. Mr Briggs said that the two voices were not the same (which could hardly have been very surprising since Miss Kellett was led to believe that, in the first conversation, she spoke to Ryan and, in the second, to Mr Hussain) but Miss Oddy said that, regardless of the tapes, Grattan had clear evidence that Mr Hussain was working at Gino's Pizza and therefore, as the tapes were inconclusive, Grattan would not take them into account.[11]After another adjournment, the decision was taken to dismiss Mr Hussain on the basis of Grattan's belief that he was responsible for the fraudulent orders in Mr P's name.[12]Mr Hussain appealed against his dismissal; his appeal was heard on 21 November. Mr Hussain was represented on this occasion by Mr Radigan, who did not get the papers until the day before the hearing. At the hearing Mr Hussain admitted that he had previously had access to Mr P's account. He denied however that the orders of 16 and 24 October were anything to do with him. He suggested that there was another employee of Grattan who might have been working at Gino's Pizza, called Jahangir Hussain. There was an adjournment during which Miss Hartley of Grattan established:(1) that nobody called Jahangir Hussain worked for Grattan and(2) that no one named Hussain other than the Applicant had had access to Mr P's security code and there was only one Kamran Hussain who worked for Grattan. The decision to dismiss was upheld. The Tribunal's Decision[13]There was never any doubt that the reason for dismissal was misconduct. The Tribunal found, however, that the dismissal for that reason was unfair on two separate bases. They found firstly, at paragraph 22 of their decision, that Grattan did not have reasonable grounds for believing that Mr Hussain was guilty of the misconduct alleged against him and had not conducted an adequate investigation; they found secondly, in paragraph 23 of their decision, that Grattan's failure to provide documentation to Mr Hussain and his union representatives a reasonable time in advance of the disciplinary hearing and the appeal was a procedural defect which rendered the dismissal unfair.[14]The Tribunal set out their reasons for their conclusion that the dismissal was substantively unfair in these words, in paragraph 22 of their decision:
"1 Firstly, that the Respondent overly relied on the identification evidence of Mr Dixon. This was not conclusive; it was from a distance. He had not seen the Applicant for a long enough amount of time. He did not take a photograph. He did not go into the shop and challenge the person who was thought to be the Applicant and as the case proceeded this became the most critical bit of evidence. 2. The second ground on which we considered it was not adequate was that the Respondents did not make sufficient enquiries as to who else might have been involved. They simply sought to back up their theory that it was Mr Hussain which they had formed based on phone call evidence which the Respondents later chose not to rely on as it became apparently less reliable than they had initially thought……. 3. Thirdly the Respondent did not follow up sufficiently any of the points ventured by the Applicant, i.e. that he dropped his brother off at a certain time, that he worked at a garage at certain times, which went to proving he did not work at Gino's."
[15]At a subsequent hearing the Tribunal assessed compensation for unfair dismissal on the basis that the dismissal was both substantively and procedurally unfair. In the light of their finding, as they described it in their second decision, that there was "simply insufficient evidence" on the balance of probabilities to prove that Mr Hussain was guilty of the fraud, they did not reduce his compensation on the basis of any contributory conduct on his part; nor did they consider making any reduction to the full award on the basis set out in the well known case of Polkey -v- A E Dayton Services [1988] ICR 142 . The Appeal[16]Grattan do not seek by this appeal to attack the Tribunal's factual finding, in paragraph 23 of the decision, that the dismissal of Mr Hussain was procedurally unfair. They submit, however, that the Tribunal, in reaching their conclusions in paragraph 22 of their decision, that Grattan did not have reasonable grounds for their belief that Mr Hussain had been guilty of fraudulent conduct and did not carry out a reasonable investigation, erred in law or, alternatively, reached conclusions which were perverse.[17]It is important, in our judgment, to consider what investigations Grattan carried out and what material was produced by those investigations. At the time of the original disciplinary hearing Grattan had discovered that:- 1) An order had been placed on 16 October 2001 purportedly by Mr P for goods of a high value for delivery to an address which was outside Mr P's home area and was the address of Gino's Pizza. 2) Another order had been placed on 24 October, purportedly by Mr P, for goods of a high value for delivery to the same address. 3) Neither order had been placed by Mr P. 4) Mr Hussain had had access to Mr P's security code when he took Mr P's genuine order of 24 August. 5) The purported customer who gave the two orders also gave the telephone number of Gino's Pizza. 6) Mr Hussain lived round the corner from Gino's Pizza. 7) Mr Dixon saw Mr Hussain on 25 October firstly at Grattan's premises and secondly, twice, in circumstances which indicated that he was working at Gino's Pizza and had made a statement to that effect which was before the disciplinary hearing.[18]To this information was added the further information obtained during the hearing, in the light of Mr Hussain's denial that he worked at Gino's Pizza, that when called and asked for the telephone number of Mr Hussain, Gino's Pizza replied in the manner which we have described above. In addition there were the contents of the two recorded telephone calls to Gino's Pizza on 24 October on which Grattan decided not to rely and which, therefore, played no part in the process by which they reached their conclusion.[19]At the end of the appeal hearing there was the further information, Mr Hussain having suggested that another employee of Grattan's, Jahangir Hussain, might work at Gino's Pizza, that no one of that name worked for Grattan and no other Hussain, save Kamran Hussain, had had access to Mr P's security code.[20]Plainly, Grattan were entitled to believe that the orders purportedly placed by Mr P on 16 and 24 October were bogus orders. Grattan had to decide whether those orders had been placed by Mr Hussain. The Tribunal's task, in the light of the familiar principles in British Home Stores -v- Burchell [1980] ICR 303 , was to decide whether Grattan's conclusion that Mr Hussain had placed those orders was based on reasonable grounds after an adequate investigation (there does not seem to have been an issue as to whether it was reasonable to dismiss for that conduct if it was reasonable to believe, after an adequate investigation, that Mr Hussain was guilty of it). However it was important that the Tribunal should be careful to approach that task on the basis that they should not substitute their view of what was, in the circumstances, objectively reasonable for that of the employer and that the correct approach was to consider whether the decision of the employers fell within the range of reasonable responses to the circumstances before them.[21]In Boys and Girls Welfare Society -v- Macdonald [1997] ICR 693 the Employment Appeal Tribunal, at page 702, emphasised the importance of Tribunals demonstrating that they have applied their minds to the reasonable range of responses test and at pages 701H to 702E set out the passages from the decisions of the Court of Appeal in British Leyland UK Ltd -v- Swift [1981] IRLR 91 and of the EAT in Iceland Frozen Foods -v- Jones [1983] ICR 17 which contain the classic expositions of that test. In Foley -v- The Post Office [2000] ICR 1283 and HSBC Bank -v- Madden the range of reasonable responses test, which was temporarily put aside as a result of the decision of the Employment Appeal Tribunal in Haddon -v- Van den Bergh Food Ltd [1999] ICR 1150 , was restored to its former position by the Court of Appeal. At page 1287E - H Mummery LJ, with whom Nourse and Rix LJJ agreed said: " "The band or range of reasonable responses" approach to the issue of the reasonableness or unreasonableness of a dismissal, as expounded by Browne-Wilkinson J in Iceland Frozen Foods Ltd v Jones …… and as approved and applied by this court ……. remain binding on this court, as well as on the employment tribunals and the Employment Appeal Tribunal. The disapproval of that approach in Haddon -v- Van den Bergh Foods Ltd ........ is an unwarranted departure from binding authority." In a further important passage at pages 1292H to 1293C Mummery LJ said: "It was also made clear in Iceland Frozen Foods Ltd ……. That the members of the tribunal must not simply consider whether they personally think that the dismissal is fair and they must not substitute their decision as to what was the right course to adopt for that of the employer. Their proper function is to determine whether the decision to dismiss the employee fell within the band of reasonable responses "which a reasonable employer might have adopted". In one sense it is true that, if the application of that approach leads the members of the tribunal to conclude that the dismissal was unfair, they are in effect substituting their judgment for that of the employer; But that process must always be conducted by reference to the objective standards of the hypothetical reasonable employer which are imported by the statutory references to "reasonably or unreasonably" and not by reference to their own subjective view of what they would in fact have done as an employer in the same circumstances. In other words, although the members of the tribunal can substitute their decision for that of the employer, that decision must not be reached by a process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer, which they were not."[22]In Sainsbury's Supermarket -v- Hitt [2003] IRLR 23 the employee was dismissed for misconduct which consisted of the theft of a box of razor blades. The evidence available to the employers was that a box of razor blades had gone missing and that, when employees' lockers were searched, a similar box was found hidden in Mr Hitt's locker. There was also evidence that Mr Hitt had twice been in the area of the employer's premises where the box had previously been. Mr Hitt denied any knowledge of the box, alleged that it had been planted and named a number of employees who, he said, had keys which fitted his locker. It was established that one of them did have such a key; but he denied responsibility. The Tribunal, by a majority, found the dismissal to have been unfair on the basis that the employers did not carry out an adequate investigation. The Employment Appeal Tribunal upheld the Tribunal's majority decision. The decisions of both the Tribunal and the Employment Appeal Tribunal were reached during a period when the EAT decision in Haddon (reference above) held sway; but by the time the case reached the Court of Appeal, the Court of Appeal's decision in Foley (reference above) had restored the range of reasonable responses principle. What is important about Sainsbury's Supermarket -v- Hitt is that, in that case, the Court of Appeal made it clear that that principle applies to each of the three branches of the British Homes Stores -v- Burchell test and therefore applies to the issues of reasonable belief and adequate investigation. Mummery LJ, with whom on this occasion Ward and Parker LJJ agreed, expressed his conclusions in these words:
"28 …….. the test applied by the majority in the employment tribunal and, I also think, by the dissenting Chairman was that laid down by the Employment Appeal Tribunal in Madden . Applying that test, the majority considered that the investigation was not reasonable. They arrived at that conclusion by substituting their own opinion as to what was a reasonable and adequate investigation, instead of applying, as was required by the Court of Appeal in the subsequent decision reversing the appeal tribunal's decision in Madden , the objective standard of the reasonable employer as to what was a reasonable investigation. 29 The employment tribunal were understandably faced with a confusing statement of the law as between, on the one hand, the long established approach laid down by Arnold J in the employment appeal tribunal in Burchell, and, on the other hand the more recent decisions of the employment appeal tribunal in Haddon and Madden . I had hoped that that confusion would have been removed by the subsequent decision of the Court of Appeal on the appeal in Madden and that it had been clear in the judgments that it was necessary to apply the objective standards of the reasonable employer to all aspects of the question whether the employee had been fairly and reasonably dismissed. Unfortunately, it appears that the law has not been made as clear as it should have been, since experienced members of the employment appeal tribunal had in this case interpreted what was said in Madden , in relation to the objective standards of reasonableness and the range of reasonable responses test, as not applying to the question whether an investigation into the alleged or suspected misconduct was reasonable in the circumstances of the case. 30 In my judgment the employment appeal tribunal has not correctly interpreted the impact of the decision of the Court of Appeal in Madden . The range of reasonable responses test or, to put it another way, the need to apply the objective standards of the reasonable employer applies as much to the question whether the investigation into the suspected misconduct was reasonable in all the circumstances, as it does to the reasonableness of the decision to dismiss for the conduct reason. ……. 32 In suggesting further investigations of the kind set out in paragraph 6 of the extended reasons, the majority of the employment tribunal were, in my judgment, substituting their own standards of what was an adequate investigation for the standard that could be objectively expected of the reasonable employer. On the decision of this Court in Madden , that is not the correct approach to the reasonableness of an investigation."
[23]In the present case the Tribunal did not at any stage in their decision indicate that they were applying the reasonable range of responses principle either to the issue of Grattan's belief or to the issue of the adequacy of Grattan's investigation; and in our judgment, when the reasons for the Tribunal's conclusions are considered, it is apparent that the Tribunal reached their decisions on those issues on the basis of their own views as to what was reasonable and adequate and did not consider whether Grattan's belief and investigation fell within the range of reasonable responses to be expected of an employer in the circumstances. The Tribunal had to decide whether the material considered by the employer could be regarded as sufficient to justify a belief in Mr Hussain's guilt on the part of a reasonable employer, not whether it was reasonable, in the view of the Tribunal, for the employers so to regard that material. The criticisms of what the Tribunal describe as the "identification evidence", set out in paragraph 22.1 of the Tribunal's Decision, namely that Mr Dixon identified Mr Hussain from a distance and for too short a period of time and neither photographed the person he believed to be Mr Hussain nor challenged him, are based on the Tribunal's own view of what they appeared to have thought Mr Dixon should have done; but there is no suggestion in the Decision that these points about Mr Dixon's evidence were taken on Mr Hussain's behalf at the disciplinary hearing or the appeal; Mr Dixon was not a witness at the Tribunal hearing - or at the disciplinary hearing; he was not cross-examined; his witness statement which was before the disciplinary hearing and the appeal reveals nothing as to the distance from which he saw Mr Hussain or the duration of his observations. The Tribunal do not set out any factor which was known to Gratton at the disciplinary hearing or the appeal which indicated that Grattan were not, within the bounds of reasonableness, entitled to rely on the statement made by Mr Dixon, who had specifically observed Mr Hussain in the office so that, if Mr Hussain was at Gino's Pizza, he could recognise him and had made his recognition of Mr Hussain at Gino's Pizza on the same day. Mr Dixon's statement says that he had a clear, unrestricted view of Mr Hussain through the front window of Gino's Pizza. There is nothing in that statement, nor was there, so far as the Tribunal record, anything in the evidence before Grattan at the time of the disciplinary hearing which might indicate to the employers that Mr Dixon's identification, or to be more accurate, recognition was in some way flawed so that a reasonable employer could not safely rely on it. In finding shortcomings in that evidence, the Tribunal have, in our judgment, put forward their own view as to the reliance which could have been placed on it and have, thereby, erred in law.[24]We conclude, therefore, that the Tribunal erred in their approach to Grattan's belief as to Mr Hussain's guilt by relying on their own analysis and conclusion as to whether there were reasonable grounds for that belief and by failing to consider whether a reasonable employer, on the material available, could reasonably have reached the conclusion as to Mr Hussain's guilt which Grattan reached in this case.[25]Mr Swift also submitted that the Tribunal had erred too, in failing to give sufficient reasons for their conclusions on this part of the case; in the light of the views we have expressed, we do not strictly need to consider this further point; our view, however, is that the Tribunal have given sufficient reasons; had the Tribunal not erred in the manner we have described, we would not have been persuaded that there was any failure to provide adequate reasons for their conclusion.[26]We turn next to the Tribunal's conclusions on the issue of the adequacy of Grattan's investigation. On this issue, in our judgment, the decision reveals that the Tribunal made the same error of approach as that which they made on the issue of Grattan's belief. The Tribunal criticised Grattan for failing to make sufficient enquires as to who else might have been involved and for not following up sufficiently the points made by Mr Hussain as to dropping his brother off and as to working in a garage. However the Tribunal did not, in paragraph 23 of their decision, analyse the information that was before Grattan, which we have set out in the first part of this judgment, and appear to have failed to take into account the facts, as they had earlier found, that when in the course of the disciplinary hearing Mr Hussain said that he did not work at Gino's Pizza, Grattan made a call to Gino's Pizza, from the response to which Grattan, plainly not unreasonably, inferred that Mr Hussain was known to Gino's Pizza and worked there. Further at that stage it is not suggested that Mr Hussain put forward any case as to who, other than he, Grattan could have reasonably been expected to but did not investigate. When at the appeal hearing Mr Hussain did name another person, Grattan immediately investigated and established that no person of that name had had access to Mr P's security code or worked for Grattan. The suggestion made by the Tribunal that there should have been further investigation of others arose, we believe, from the Tribunal's belief that it was unreasonable to conclude that Mr Hussain was guilty of the misconduct alleged; but however it arose, it demonstrated a fundamental error in the Tribunal's approach. The issue was not whether further investigation might reasonably have been carried out but whether the investigation which had been carried out could be regarded by a reasonable employer as adequate; the Tribunal, however, did not approach the case in that way.[27]We have reached the same conclusion upon paragraph 22.3 of the Tribunal's decision. How would further investigation of Mr Hussain's suggestions about his brother or his working at a garage, at times wholly unspecified by the Tribunal, have materially affected the position? The issue for the employers was whether Mr Hussain was working at Gino's Pizza at the material time, wherever else he worked, and the Tribunal, in considering whether the investigation as to that issue fell within the range of reasonable responses, should have considered what investigations were made and what they showed; they could only have considered that it was unreasonable not to make further enquiries if Grattan could not reasonably have believed that there had been sufficient investigation and that if the further enquiries suggested by the Tribunal might have substantially affected Grattan's decision; but the true state of the material available to Grattan at both hearings, in the light of their investigations, was that there was ample evidence that Mr Hussain was working at Gino's Pizza; and no evidence to support his suggestion as to transporting his brother or his working in a garage was ever produced by Mr Hussain. In this area too, in our judgment, the Tribunal reached their conclusion on the basis of their own judgment as to what was or was not a reasonable investigation and did not consider whether the investigation could have been regarded by a reasonable employer as adequate.[28]Lest we are wrong about the errors in the Tribunal's approach to this case which we have spelt out, we need to consider Mr Swift's alternative submission that the Tribunal's conclusions in paragraph 22 of their decision are perverse i.e. are conclusions which no reasonable Tribunal, properly directed, could reach or are conclusions reached by taking into account a fact or facts which was or were material or omitting a fact or facts which was or were material.[29]In our judgment the Tribunal's conclusions were perverse in that sense. As to the reasonableness of Grattan's belief, we have set out the material available to them and do not need or propose to repeat it. The evidence that Mr Hussain worked at Gino's Pizza was, in our judgment, clear; Mr Dixon's evidence did not stand alone - although the Tribunal seemed to have thought that it did. Mr Hussain was, according to the material before Grattan, living round the corner from Gino's Pizza; and when Gino's Pizza was asked for Mr Hussain's phone number, they gave answers from which, as we have said, any reasonable employer would or at least could reasonably infer that Mr Hussain worked there. There was no evidence, save for Mr Hussain's denial, that Mr Dixon's witness statement was or might be wrong. Further, as we have pointed out, while the Tribunal describe Mr Dixon's evidence as identification evidence, it was in truth evidence of recognition of a person at whom he had particularly looked earlier the same day with a view to recognising him if the opportunity arose; and there is nothing in the Tribunal's account of the material available to Grattan which could, in our judgment, lead to any other conclusion on that material but it was open to Grattan reasonably to conclude that Mr Hussain was working at Gino's Pizza (wherever else he worked) and was responsible for the two bogus orders placed in Mr P's name.[30]We also regard the Tribunal's conclusion as to the investigation as perverse. Their conclusion omits a highly relevant fact, namely that when Mr Hussain did purport to name a specific person who, he said might be responsible for the bogus orders, his suggestion was immediately investigated and shown to have no foundation. The Tribunal's statement that Grattan simply sought to back up their theory that Mr Hussain was responsible for the two bogus orders was, on the facts, as found by the Tribunal, incorrect. Even without that error, in our judgment while enquiries of Mr Hussain's brother or the garage might have been made in the course of a police investigation in order to seek to prove Mr Hussain's involvement in the bogus orders to a criminal standard, no Tribunal properly directed could reasonably conclude that the investigations carried out by Grattan, including further investigations at the disciplinary hearing stage and at the appeal stage in the light of Mr Hussain's case as developed before them, fell outside the range of reasonable responses, by way of investigation, to the original suspicion. Conclusion[31]The appeal is allowed to the extent that the Tribunal's conclusion that the dismissal of Mr Hussain was substantively, as opposed to procedurally, unfair is set aside. The decision that Mr Hussain's dismissal was procedurally unfair stands. The Tribunal's subsequent assessment of compensation, made on the basis that the dismissal was both substantively and procedurally unfair, is set aside. The matter is remitted to the same Employment Tribunal to reconsider the assessment of compensation in accordance with this Decision and on the basis that the dismissal was procedurally but not substantively unfair.