SOUTH LANARKSHIRE COUNCIL v MRS ANN THOMMENY FISHER [2005] UKEAT 0079_04_2604

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0079_04_2604Case No Appeal No. EATS/0079/04Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF
Between
SOUTH LANARKSHIRE COUNCILAPPELLANTMRS ANN THOMMENY FISHERRESPONDENT
Before
Mr Justice BurtonDate 26 April 2005
[1]APPEARANCES For the Appellant Mr S Miller, Solicitor Of- Messrs Macroberts Solicitors 152 Bath Street GLASGOW G2 4TB For the Respondent Mr A Hardman, Advocate Instructed by- Messrs Cameron Macauley Solicitors 80 Berkley Street Charing Cross GLASGOW G3 7DS SUMMARY PRACTICE AND PROCEDURE SPLIT HEARINGS UNFAIR DISMISSAL REINSTATEMENT/RE-ENGAGEMENT As a result of indication by ET, a witness was not called by R, the absence of whose evidence subsequently proved central to the ET's judgment: hearing plainly unfair. ET further failed to address s116(3) of ERA 1996 or the evidence in relation to its order for re-engagement. Hearing remitted to different Tribunal. THE HONOURABLE MR JUSTICE BURTON (P): In the hearing of an appeal by the Respondent, South Lanarkshire Council, against the unanimous decision of the Employment Tribunal, at a hearing held in Glasgow on 11, 14 and 25 June 2004, in a judgment sent to the parties on 21 July 2004. The Applicant, who had been employed by the Appellant as a carer, for 24 years, was dismissed by the Respondent after an incident in which she was alleged to have assaulted, probably in self defence (using the word loosely), an elderly resident at the Home, which incident was witnessed and/or reported by a fellow employee, Mrs Wilson.[2]The decision of the Appellant was to dismiss her. Such decision was upheld on internal appeal. The unanimous conclusion of the Tribunal was that the Applicant was unfairly dismissed.[3]Mrs Wilson was plainly an important witness as to what happened. She reported the matter to those investigating on the part of the Appellant, including a Mr Wilson (it is unclear to us whether there is any relationship between the two) and Mr Wilson then acted, together with the other responsible officers at the Appellant, in taking forward the investigation.[4]The Appellant had Mrs Wilson available at the hearing as a witness to call, together with those witnesses they did call, being Ms Alexander the unit manager at Dewar House, where the Applicant was employed, Ms Gallagher, the team leader, Ms Hutchison, the personnel services manager, and Mr Wilson, to whom we have referred.[5]In the exercise of case management, which we at the Employment Appeal Tribunal generally encourage Employment Tribunal Chairmen to exercise, it is apparent that the Chairman was anxious to hustle the matter on, and make sure that the hearing was completed within the 3 days allotted to it, particularly once there had been a loss of some time due to sorting out and obtaining copies of some of the productions intended to be used at the hearing.[6]The Appellant Council has complained in this appeal of a number of matters. First, in the Notice of Appeal there was a very detailed account given of the Appellant's narrative of what happened at the hearing and, in particular, of remarks made by the Chairman which the Appellant, and Mr McCann, its solicitor present at the hearing on its behalf, concluded amounted to discouragement, if not prevention, of the Appellant's calling Mrs Wilson, as it had intended to do.[7]There were also other matters set out in the Notice of Appeal, by way of specific complaints about what happened at the hearing. The first of those is that conclusions were reached by the Tribunal, in paragraph 43 to 47 of its judgment, as to alleged failures by Mr Wilson adequately to consider alleged inconsistencies in Mrs Wilson's evidence, which were, it would seem from the Tribunal's judgment, in the end determinative, certainly very influential, in the conclusion which the Tribunal reached. The assertion by the Appellant, in the Notice of Appeal, was that the matters said to amount to such errors were not put in cross-examination to Mr Wilson, and that that was an unfairness if those issues were to form the basis of the Tribunal's decision.[8]The second matter set out in the Notice of Appeal relevant to the considerations, which we are now mentioning, related to Ms Hutchison, to whom we have referred as being one of the witnesses in the event called on behalf of the Appellant. The Tribunal in its judgment said this in the course of its summary of the evidence, at paragraph 34 of the judgment:- "No evidence was given to show it would not be practicable for the respondents to re-engage the applicant." In paragraph 56 of the judgment, the Tribunal said the following:- "The respondents led no evidence that it would not be [practicable] to make an order for re-engagement." The Appellant, in its Notice of Appeal, asserted that both those statements were inaccurate, because, in fact, the Appellant did call Ms Hutchison, indeed, recalled her, specifically, to give evidence as to the impracticability of re-engagement of the Appellant.[9]Those matters were clear from the Notice of Appeal. It is unfortunate that the opportunity was not taken, on the EAT sift of this Notice of Appeal, for orders to be made in accordance with the procedures, well-established in England and Wales, but now also becoming frequent in Scotland, set out in paragraphs 7 and 11 of the EAT Practice Direction 2002. Operation of paragraph 11 would have led to an order for an affidavit from the relevant representative, actual, and/or legal, of the Appellant, with answering affidavits from the Applicant or those representing the Applicant, if they wished, upon which the Chairman and the Members would then be invited to comment. In the event no such order was made, although the Chairman was invited to comment on the Notice of Appeal, without an affidavit, and despite an application in November by the Appellant for an affidavit to be ordered, no such order was made.[10]It is always difficult for an Employment Appeal Tribunal to resolve issues of alleged misconduct of employment tribunal proceedings, particularly as it is clear that it would be, and is, quite inappropriate for a chairman and/or members ever to be asked to make an affidavit themselves. Nevertheless, it is far easier to resolve, where there are, at the very least, affidavits from both sides, indicating the importance with which the Court recognises these allegations, and particularising the allegations and answers fully, so that both the chairman and the members are in a better opportunity to comment.[11]In the absence of such affidavits here, we are driven to be in the only position we could be in, namely, to accept the Chairman's statement, as interpreted by us, as the best account of what occurred, and we are in no position to accept the rather stronger allegations that are made by the Appellant.[12]Secondly, we have a problem which could have been but was not resolved, by virtue of the failure to operate paragraph 7 of the Practice Direction, either by order of the Employment Appeal Tribunal or by agreement and co-operation between the parties, so as to arrive at a satisfactory understanding of what the actual position is in relation to the two other matters of complaint, to which we have referred. We no longer encourage in England and Wales, and have never encouraged in Scotland, the obtaining of wholesale notes of evidence before a tribunal, which can very often impose a wholly unnecessary burden on a chairman, while leading to no great advantage at the Appeal Tribunal hearing. But what can now be done, is that specific matters can be agreed between the parties, and/or specific questions can be put to a chairman or specific extracts from the notes of evidence obtained.[13]At the outset of this hearing, in the absence of any prior answer to the question, we asked Counsel, Mr Hardman, who appeared today for the Applicant, not having appeared below, whether he accepted what is put in the Appellant's Notice of Appeal, namely, that Ms Hutchison did return to the witness box in order to give evidence as to the practicabilities of re-engagement; and, very fairly, Mr Hardman accepted that position, namely, that she did indeed return to the witness box. But it became apparent that his submission was, or would be, that, when she returned to the witness box, she gave evidence which, in fact, supported or certainly did not rebut any suggestion that re-engagement would be practicable, while the Appellant submits that the evidence she gave would have supported the Appellant.[14]What is clear is that the shorthand statements by the Tribunal, in paragraphs 34 and 36, to which we have referred, are of no assistance in resolving the dispute. They are most consistent with a statement that Ms Hutchison did not go into the witness box and give any evidence at all in respect of practicability, which we now know not to be the case. Mr Hardman submits that in fact what the Tribunal was saying was that, although Ms Hutchison did go into the witness box for such purpose, the evidence she gave, for whatever reason, either did not support, or positively rebutted, the suggestion of such practicability. We are clearly unable to resolve that aspect, as could easily have been resolved had there had been either agreement between the parties, or, if necessary, an order from the Employment Appeal Tribunal requesting the Chairman to produce notes of evidence or answer a questionnaire, as to what it was that Ms Hutchison said.[15]Similarly, there was no consensus ad idem as to the issue, which we also earlier mentioned, namely, whether there was or was not cross-examination by Mr Wilson, in relation to the matters which surfaced in paragraph 43 to 47 of the Tribunal's judgment. The assertion by the Appellant is that there was no such cross-examination. In general terms, that was denied by the Applicant and his advisors, but we are left wholly unclear as to what amount, if any, there was of cross-examination, and, in particular, as to how far it would have become apparent to anyone as a result of any such cross-examination that the conclusions in paragraphs 43 to 47 were likely to be reached, or as to the significance, if any, of the evidence of Ms Wilson, arising as a result. This dispute too, could have been rendered much easier to resolve, had there been an operation of paragraph 7 of the Practice Direction.[16]Against that background, we turn to what we have been able to conclude satisfactorily on this appeal and to the nub of the case for the Appellant on liability. We have mentioned that the complaint by the Appellant related to what it said was a discouragement, or prevention, by the Chairman of the calling of Mrs Wilson to give evidence by the Appellant's representative. 17. As we have indicated, we are in no position to find that what is asserted in the Notice of Appeal is accurate, and we do not refer to it. What we do refer to, however, is the content of the Chairman's comments in a document sent to Employment Appeal Tribunal dated 16 October 2004, in this regard. The Chairman states at paragraph 1(f) of that letter, the following:- "There was some discussion over who would give evidence to the tribunal. It is not the Chairman's practice to discuss with legal representatives who will give evidence and the nature of the evidence to be given by witnesses. It is the Chairman's recollection that on this occasion the Appellant's representative indicated that when the tribunal heard evidence from Mrs Wilson the tribunal would be in no doubt that she had witnessed the Respondent assault an elderly resident. The Chairman did suggest to the Appellant's representative that it appeared to him that, notwithstanding any evidence which was given to the tribunal by Mrs Wilson, the relevant matter was the evidence given during the disciplinary proceedings by Mrs Wilson. The representative was asked to consider whether he wished to lead evidence from Mrs Wilson and indeed from Ms Alexander who had obtained the initial report from Mrs Wilson."[18]It is quite plain therefore that the Chairman did raise specifically with the Appellant whether it would be necessary to call Mrs Wilson on the basis of the issues as the Chairman saw them to be, at that stage of the Tribunal hearing. In paragraph 2 of the Chairman's comments, the Chairman returns to this topic in relation to what happened later in the hearing:- "The Chairman accepts that he probably indicated to the Appellant's representative that during the course of the adjournment he could consider his position in relation to who would give evidence."[19]This was, therefore, the second time when the Chairman specifically encouraged the Appellant's representative to reconsider what evidence he needed to call, and it must plainly be the evidence of Mrs Wilson, on any basis, which was specifically in mind in the light of the earlier discussion, to which we have referred. The Chairman's comments then return, in response to the allegations of the Appellant in the Notice of Appeal, to which we have referred, but which we have not cited, to what happened on the third occasion when this was raised,:- "The Chairman accepts that after the first adjournment he may have enquired of the Appellant's representative what his position was in regard to the witnesses. The Chairman specifically denies that when the Appellant's representative indicated he intended calling Mrs Wilson to give evidence his disposition was one of "extreme annoyance". As has been noted it was apparent the Respondent denied there had been any assault on an elderly resident. The Chairman may have indicated to the Appellant's representative that the Respondent's position was clear from the papers and what had been said by the Respondent's representative."[20]The Chairman, in paragraph 6, denies making any remark that he wished the hearing concluded by the end of the second day, but accepts that discussion on the length of the hearing "may have taken place, but would only be in the context that three days had been allocated for the hearing and because of the delay occasioned by having to copy the necessary sets of productions less than three days was available for evidence to be heard."[21]Finally, the Chairman says in his first paragraph 8:- "8. In the event that any evidence had been given to the tribunal, either from Mrs Wilson, Ms Alexander or from any other person which was not relevant then it is the Chairman's firm belief that this would not have influenced the Chairman in his obligation to deal with matters justly as required by a rule 11(1) and to act in an impartial and fair manner in the discharge of his judicial function."[22]The Chairman was understandably cautious about what had occurred, in the light of the passage of time since the hearing. However we are satisfied from what he said in paragraph 4 - in specific answer to the allegation that he had expressed dissatisfaction with the statement that Mrs Wilson was still intending to be called - that he did make to the Appellant's representative some such statement as that the Respondent's position " was clear from the papers and what had been said by the Respondent's representative ": this being the third occasion on which he had endeavoured to suggest to the Respondent's representative that he did not need to call, and should reconsider the calling of, Mrs Wilson.[23]As we have indicated earlier, we welcome responsible case management, and if, in fact, a tribunal has formed a view that certain evidence is immaterial or irrelevant, it may be appropriate to discourage its calling, or to indicate that it will not be necessary to call it, or to indicate where the Tribunal's thinking has got to. It is apparent here that what the Tribunal was saying was that it was not necessary to go into the Respondent's position, as it would have been reached at the initial enquiry, by exploring the evidence of Mrs Wilson, because her evidence was what it was, if I can use that expression.[24]We have mentioned the conclusions of the Tribunal in paragraphs 43 to 47, as they eventuated in the judgment, and we now return to them. The Appellant has expressed a concern that what the Tribunal did in its judgment, was outwith the guiding principles of Sainsbury v Hitt [2003] IRLR 23 , so far as concerns the reasonable responses of an employer. These apply not only to the formation of an employer's belief, but also to procedure, including investigatory procedure; and, of course there is the overriding position in Post Office v Foley [2000] IRLR 827 , which restates the obligation of a Tribunal not to substitute its own judgment, but to consider whether the employer's responses fell within the reasonable band of responses of a reasonable employer. It is of course open to a Tribunal to conclude that, in its judgment, an employer behaved so unreasonably by way of its investigation that it was outside the reasonable band of responses of a reasonable employer. But there is always the danger that in doing so that it is substituting its own judgment. It is an area which clearly a Tribunal will enter into with caution.[25]This Tribunal did reach the conclusion that the investigation by the employer was inadequate, and, therefore, unreasonable, and, therefore, that the dismissal was unfair. But, at the nub of that conclusion were its findings in paragraph 43 to 47, which we now read, referring to the account given to Mr Wilson, the enquirer or investigator, by Mrs Wilson, the alleged eye-witness of the incident, and fellow employee of the Applicant:-"43. There were matters in Ms Wilson's statement which were inconsistent with other evidence. Ms Wilson's statement as to the time of the incident differed significantly from the time stated by Ms McFarlane in her statement. We were not told by Mr Wilson what time he concluded the incident had taken place and if he accepted Ms Wilson's evidence as to the time the incident had taken place why he preferred her evidence to that of Ms McFarlane.44. Ms Wilson stated she had received a phone call during the evening of 15 January from Ms McFarlane. Ms McFarlane did not acknowledge any such phone call was made but she said she did make one to Ms Wilson on 17 January which Ms Wilson did not acknowledge was made. We were not told by Ms McFarlane and if so why he rejected Ms McFarlane's evidence.45. At no time was Ms Wilson asked to show how the applicant slapped the elderly resident and where the elderly resident was slapped. Any inconsistencies in Ms Wilson's version of how the slap was administered and where the elderly resident was slapped were never tested. … 47. Given that certain aspects of Ms Wilson's statement were challenged by other evidence presented to Mr Wilson we conclude the respondents did not have reasonable grounds upon which to sustain their belief that the applicant had assaulted the elderly resident."[26]That is the nub of the basis upon which the Tribunal concluded in paragraph 54:- "54. We conclude the respondents did not have reasonable grounds on which to sustain their belief that the applicant was guilty of the misconduct in question and further that the investigation which they carried out in this case was inadequate. We conclude therefore the applicant was unfairly dismissed by the respondents."[27]It is wholly apparent, in those circumstances, not only that Mr Wilson's conduct was under challenge - and we have here the irresoluble dispute as to whether of any of this was put adequately to Mr Wilson during cross-examination so that he could deal with these suggestions - but, even more significantly, Mrs Wilson's evidence was thus central to the conclusion of the Tribunal. If it was to be concluded that the evidence of Mrs Wilson was, or might have been, in some way inconsistent, then that had to be explored, because it might well be that, on analysis of Mrs Wilson's evidence, it would have become apparent that there were in fact no inconsistencies, or that, if there were any inconsistencies, then had they been probed, they would have been easily resolved, so that a reasonable investigator would not have been caused to have any doubt about her reliability. The issue would thus not have been whether she was credible before the Tribunal, but would have been directed to exploring to see whether, in fact, she would have been credible before Mr Wilson.[28]It is apparent that by the time the Tribunal came to write its judgment, it was now no longer of the view, if it ever had been, so far as concerned Mrs Wilson that " the Respondent's position was clear from the papers, and what had been said by the Respondent's representative ", but rather that the evidence which was before Mr Wilson was indeed under challenge, and needed to be resolved before a Tribunal could be satisfied that there had been a fair investigation.[29]We are prepared to understand, and accept, knowing how Tribunal hearings develop, that at the time when the Tribunal Chairman gave the indication he did, upon either the first or second or third occasion, the matters which in the end led or helped the Tribunal to reach its conclusion, in paragraphs 43 to 47, had not begun to be apparent to it; and it may well be that at that stage of the hearing the Tribunal regarded the evidence of Mrs Wilson as immaterial or irrelevant. But that was plainly not the view of the Tribunal when it came to its judgment, and, in our judgment, if it was appropriate to have given an indication as to the immateriality of, or lack of need for, Mrs Wilson's evidence, then that indication should have been, and could have been, reversed or qualified by the Chairman, when the Tribunal came to appreciate the significance of Mrs Wilson's evidence. He plainly had appreciated its materiality by the time of paragraph 43 to 47 being incorporated into the judgment. We emphasise that it is never too late, if a case management indication of this kind has been given, for a chairman and members, who, even when it comes to their discussions in their room, realise that matters of evidence, which they had not previously thought relevant or important, had been discouraged by them from being adduced or developed, to restore the hearing, or at least give the opportunity to the parties for a restoration of the hearing, in order that that evidence could now be explored, in order to give a fair hearing. Without that course being taken, there would plainly be an unfair hearing.[30]Mr Hardman has valiantly fought to defend the position of the Tribunal, in the interests of the Applicant, and to avoid the possibility of a remission. He has submitted first, that there is no duty on part of a Tribunal to assist a party, particularly, a represented party, with guidance with which witnesses it should call, and thus as to whether to do so. Subject always to the possibility, which can arise, that even if a party does not intend to call a witness, particularly a witness whose witness statement has been exchanged and/or who is present to give evidence, there is the power on a tribunal, of its own initiative, to call such a witness, we would agree. But we are satisfied that this case was not an example of a tribunal being asked to give guidance to a party, or having to volunteer whether to give advice. It is quite plain to us that the Tribunal itself, on three separate occasions, was positively questioning the need for the calling of a witness and, in our judgment, taking steps in the perfectly bona fide operation of what it concluded to be case management, to render it unnecessary for the witness to be called, by indicating its view that no benefit would be gained from calling the witness.[31]Mr Hardman's alternative submission was that, in fact, the Chairman was not giving any such indication in this case. It is right that in his comments, as we have quoted them, the Chairman says that he may have given the indication described to the Appellant's representative. We have to resolve this case on the balance of probabilities. That answer is given in the context of his firm denial that he had positively been extremely annoyed when the suggestion was made that, notwithstanding the earlier indications, Mrs Wilson should be called. But it was in that context that he went on to say what he may have indicated, and it is clear to us, that, in fact, he did so indicate. We invited Mr Hardman to give any other explanation of what purpose could have been served by giving such an indication, other than to discourage the calling of Mrs Wilson, now the third time the matter was expressly raised by the Chairman, and/or to indicate that the calling of Mrs Wilson was unnecessary in the circumstances; and Mr Hardman was able to give no alternative suggestion, and we sympathise with his difficulty.[32]In those circumstances, notwithstanding that we understand that these kind of indications are, and can amount to, helpful case management, this is not the case where it leads, and leads permanently, to the exclusion of relevant evidence and where, in the end, the Tribunal's decision rests upon the absence of the evidence, which might otherwise been given, had the indication not been made.[33]We are satisfied that there was not a fair hearing in this case, because of the absence of Mrs Wilson, in the light of the Tribunal's indication. We accept that this is not a situation in which the Tribunal actually prevented the Appellant from calling a witness. It is, however, an example of how courts and tribunals run in practice, namely that where a tribunal indicates that certain evidence is unnecessary and immaterial, in the light of the way the tribunal's mind is thinking, that is intended to be, and, in this case, was taken as, a clear statement of this Tribunal's provisional view and, as we have indicated, that provisional view should have been in this case, but was not, reversed or corrected at some later stage.[34]As it happens, the evidence of Mrs Wilson would not only have been relevant for the consideration of unfair dismissal, but, in the light of the finding made by the Tribunal, also of re-engagement. Re-engagement of itself gives rise to a separate complaint by the Appellant. Such complaint, of itself, only goes to the making of the order for re-engagement, and thus might have been resoluble by setting aside only the decision on remedy; but in the light of our decision on liability, the conclusion on remedy falls away as well. Nevertheless, there are significant independent problems about the order for re-engagement.34.1 We have already mentioned the statement by the Tribunal that the Respondents led no evidence that it would not be practicable to make an order for re-engagement. Either that is an incorrect statement, because Ms Hutchison was called, or, it is an inadequate statement of reasons why, albeit that Ms Hutchison was called, her evidence was unhelpful to the Appellant, and/or helpful to the Respondent, which would clearly not be Meek compliant (see Meek v City of Birmingham [1987] IRLR 250 ). We cannot resolve, in the absence of knowing what Ms Hutchison said, which it was, that on either basis, it is fatal to any conclusion that a re-engagement order was appropriate.34.2 Further, and quite independently, there was an apparent failure by the Tribunal to comply with its obligations, under s116(3) of the Employment Rights Act 1996. S116 is the section which relates to an order for reinstatement or re-engagement, and s116(3) reads as follows:- "(3) In so doing [that is, in making an order for either reinstatement or re-engagement] the tribunal shall take into account- (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms."[36]It is mandatory on any Tribunal ordering re-engagement to consider the issue as to whether the complainant caused or contributed to some extent to the dismissal. For that purpose, it was necessary here for the Tribunal to make a finding, before it made an order for re-engagement, as to what actually happened. It was not sufficient for it simply to have addressed questions of reasonable belief and reasonable investigation by the employer, but it would need to make its finding as to the events in January 2003, as to the circumstances, and whether there was any act of any kind by the Applicant, contributory to what occurred.[37]For that purpose, the Tribunal clearly needed to reach a conclusion on the evidence of Mrs Wilson. In any event, quite apart from that, the Tribunal needed to reach a conclusion as to whether there was contribution by the Applicant, and it reached no such conclusion, and that is a clear flaw in its judgment. Mr Hardman submits that the Tribunal must have implicitly reached such a conclusion, but we are afraid that is completely insufficient. A Tribunal must overtly reach a conclusion and, indeed, give its reasons, and it did neither.[38]We conclude only by saying that there was a further complaint made by the Appellant, that the Tribunal erred in its dealing with the internal appeal. The Tribunal stated in paragraph 55, that the Respondents:
"did not lead any evidence from any of the elected representatives who were on the appeal panel why they reached their decision to reject the applicant's appeal of. In the absence of such evidence we cannot say the applicant has received the appeal hearing to which he is entitled in terms of the respondents' disciplinary procedures."
[39]That is clearly insufficient to amount to a finding of procedural unfairness leading to unfair dismissal. It is not necessary for the employer to prove the fairness of the dismissal. Issues in relation to the appeal will only arise in two circumstances.(i) If the appeal is said to be defective in some respects, and it was not said to be by the Applicant:(ii) If it was found that the original dismissal was unfair procedurally, but an appeal might or might not have been able to cure the defects and, on the facts of a particular case, was not shown to have done so.[40]Mr Hardman accepted that the Tribunal was not entitled to have taken into account the question of the appeal in arriving at a conclusion of unfair dismissal, and submitted that all it was entitled to and, in his submission, did do, was follow the latter course of mentioning the appeal only for the purpose of ruling it out as a possible saving grace for the Appellant.[41]That argument, we regret, is not open to Mr Hardman in the light of the very fact that paragraph 55 of the Tribunal's judgment ends, after the passage which we have quoted above, in relation to the appeal, with the following clear words:
"We conclude therefore that procedurally the applicant was unfairly dismissed by the respondents."
Mr Hardman has invited us notionally to cross through that sentence, which we have done, but it does not give great confidence in the rest of the judgment, which, for the reasons we have given, in any event, we do not have.[42]Nothing we have said in this judgment would be intended to express any view, one way or the other, as to the outcome on a remission. It is plain that the Applicant has a good arguable case for unfair dismissal, which the Respondent will wish, robustly, to defend. It is unfortunate that this matter will have to go back, because the Tribunal's decision is erroneous, both in law, and, as to natural justice, because of the way that the proceedings were handled, in the way which we have described, and there must be remission, both sides accept, in the event of this order being made, to a differently constituted Tribunal. We do, however, urge the parties that, rather than that there be an actual further hearing, both parties use the services of ACAS, to see if this unfortunate dispute can be resolved by conciliation, and we shall incorporate in our order a requirement that both parties indicate in writing within 21 days of today, whether they are willing to submit this dispute to ACAS for conciliation.[43]On that basis, the appeal is allowed and the case will be remitted to a different Tribunal.