WEST COAST TRAINS LTD v CATHERINE MURPHY [2006] UKEAT 0064_05_0404

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0064_05_0404Case No Appeal No. UKEATS/0064/05Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
WEST COAST TRAINS LTDAPPELLANTCATHERINE MURPHYRESPONDENT
Before
Lady Smith Miss J Gaskell Dr W SpeirsDate 4 April 2006
[1]APPEARANCES For the Appellant Mr Bradley, Solicitor Messrs DLA Scotland LLP Solicitors Rutland Square Edinburgh EH1 2AA For the Respondent Mr Erroch, Advocate Messrs Drummond Miller Solicitors 65 Bath Street Glasgow G2 2DD SUMMARY The claimant, a service manager employed on the respondents' trains was dismissed on conduct grounds for having sworn at and been threatening towards a customer. She claimed she had been unfairly dismissed and the tribunal upheld her complaint. They found the respondents' investigation to have been inadequate in respect that although they had a written complaint by the customer and had interviewed her by telephone, they had not conducted a face to face interview and should not have accepted the customer's word. On appeal, it was held that the tribunal had erred in relying on their own assessment of what had happened between the customer and the claimant, in relying on the Linfood guidelines in a case which did not involve an informant, in failing to apply the "range of reasonable responses" test on the stage of investigation, and in making a qualitative assessment thereby substituting their own subjective views. The case was remitted to a freshly constituted tribunal for a rehearing. THE HONOURABLE LADY SMITH Introduction This case concerns a claim by Mrs Catherine Murphy that she had been unfairly dismissed by West Coast Trains Ltd. An Employment Tribunal sitting at Glasgow, Chairman Mr D R Anderson, by a decision registered with extended reasons on 26 April 2005, determined that she had been unfairly dismissed and awarded compensation of £33,799.82.[2]The respondents appeal against that decision.[3]The claimant was represented before the tribunal by Mr J Carmichael, solicitor and by Mr Erroch, advocate, before us. The respondents were represented by Mr Cooney, solicitor, before the tribunal and by Mr Bradley, solicitor, before us.[4]We will refer to parties as claimant and respondents. The Facts[5]The relevant facts are to be found from the tribunal's findings in fact and the various documents referred to by them which were contained in the appeal bundle and which consist of letters, statements, minutes of investigatory interviews, minutes of disciplinary hearings and minutes of the appeal hearing.[6]The claimant was employed as a service manager on the respondents' passenger trains running between London and Glasgow. She had been in their employment since 1993. She was dismissed on 8 June 2004 following disciplinary proceedings having been taken against her in respect of an allegation which was found to have been established that she had:
"committed Gross Misconduct as defined in section 8.7.3 of the Employee Handbook in that on the 11 th February 2004 you used foul and abusive language and were threatening towards a customer."
[7]The circumstances giving rise to her dismissal were as follows. A group of three passengers travelling on the 18.30 London to Glasgow train on 11 February 2004 complained about the service that they had received from the claimant. The initial complaints were made on the train to the train manager, Richard Helm. In essence, the complaint was that the claimant had been rude, offensive and threatening to one of the female passengers in the group, Gaynor Bell. The problems appeared to stem from a dispute over a sandwich that the claimant had refused to serve to Ms Bell and what principally gave rise to the complaint was an exchange between her and the claimant that had taken place in a part of the train referred to as the vestibule in a one to one situation where the two women were physically close to each other. The train manager, who was not present during the incident but spoke to the group of passengers very shortly thereafter, reported to the respondents in a statement taken from him on 5 March that Ms Bell told him that she was quite frightened of the claimant at the time. His statement goes on and explains that he apologised to Ms Bell, got some tea and food and gave it to her and asked another employee to see to it that she was looked after for the remainder of the journey. He also appears to have advised them to intimate their complaints to the respondents and gave them the address to which they should be sent.[8]Mr Sandwell wrote to the respondents by letter dated 16 February 2004, detailing the complaint about the claimant's conduct which he described as "offensive to the extreme". He knew her name was "Kathy". Regarding the exchange between the two women, he indicated that the claimant's "tone and volume was far from appropriate to the situation" and that other passengers "had their attention drawn to the volume of the conversation". The respondents wrote back apologising to Mr Sandwell and sent him travel vouchers for £10 each. He telephoned the respondents on 1 March and expressed dissatisfaction with that as a response.[9]The respondents requested that the claimant attend an investigatory interview, which took place on 2 March 2004 from which it was evident that the claimant was under pressure that night due to a shortage of food and a shortage of staff. Mr Sandwell's letter was read to her. She admitted speaking to Ms Bell outside the carriage, which was at the claimant's request so that no other customers could hear, but she denied having been rude or aggressive to her. It was, she said, the customer who was rude.[10]Mr Sandwell wrote again on 3 March returning the vouchers and indicating that they, the group of passengers who had been travelling together, wished a full explanation and to know what action had been taken regarding the "named staff". By letter dated 5 March 2004, the respondents' Gwydion Ball, who had conducted the investigatory interview on 2 March, indicated to Mr Sandwell that he was not happy with the responses that he had received from the claimant thus far and that he was still carrying out further investigations. He asked if Mr Sandwell could ask Ms Bell to provide answers to two specific questions:
"What did the Service Manager, Catherine, say to you in the vestibule? In your letter you refer to Catherine's behaviour as offensive to the extreme could you please elaborate on this?"
[11]Following Gwydion Ball's request for further details, Ms Bell wrote by letter of 18 April, setting out in some detail what had happened on the train. In the letter she stated:
" …I told her I was not happy with the service we had. She started to raise her voice and I felt very threatened, she swore at me and would not let me speak……..Marie said she could hear Cathy's voice shouting and got worried and came out."
[12]Gwydion Ball followed up Ms Bell's letter by speaking to her on the telephone. In the course of the telephone call, Ms Bell confirmed what she had stated in her letter and explained that her reference to the claimant swearing was that she said:
"I've done nothing fucking wrong. You have the fucking problem - not me."
The call was taken with the telephone on loudspeaker mode and notes were taken of the call by another member of the respondents' staff who was listening in. Those notes appear to bear Ms Bell's signature together with those of Ms Ball and the note-taker, Ms Harley.[13]A further investigative interview was held on 29 April 2004. The notes of the telephone call with Ms Bell were put to the claimant but she denied that she had spoken as was alleged. The claimant was suspended on 30 April.[14]Gwydion Ball then interviewed the train manager on 3 May. He advised that he had ascertained that there was a problem over some sandwiches and that the claimant had asked Ms Bell to go into the corridor to speak to him; Ms Bell had asked to see the train manager. He was not there at the time and Ms Bell had told him at the time that the claimant was shouting and abusive at her. He also stated that Ms Bell's friends had overheard the claimant shouting. He said that he gave Ms Bell a complaint form and got the group something to eat and drink. His knowledge of the incident came from having spoken Ms Bell and her travelling companions at the time.[15]He also interviewed other train staff. He spoke to the chef, Paul Coles, who had been working on the train at the time of the incident complained of. He indicated that the claimant had "given verbal" back to Ms Bell in the carriage, when he was serving drinks from the trolley. He also indicated that it was very embarrassing, that there was an atmosphere in the coach that you could cut with a knife and that, in the kitchen, the claimant said that she had "had it out" with the claimant, in the vestibule. He had not heard what was said but had heard raised voices. He spoke to Ioana Huntbach, who remembered a lady being upset and there being friction between her and the claimant regarding something to do with food; there was not enough. She remembered the claimant being flustered and rushing about. A statement was also obtained from Karl Valentine; his name was also on the roster for that day. He indicated that he was not in the vicinity of the incident but had heard the claimant saying something about it by way of overhearing what she was saying to Paul Coles.[16]The foregoing statements and information were considered at a disciplinary hearing on 26 May 2004, presided over by Warren Grigg, when the allegation which we have quoted above was put to her. The claimant was represented by Mr McIntyre, from the RMT. He advised that the claimant did not deny there having been a:
"discussion" with the customer and that: "in the heat of the moment people say things, however Cathy has absolutely no recollection of swearing"
He also said:
"We are not saying that something didn't take place." and "…we refute the allegation. She probably didn't swear, rather doubtful in fact very. I am not saying she did or didn't as we weren't there but the probability is that she didn't."
[17]Mr McIntyre advised that another employee, Carla Baxter, had said that there was a history of Ms Bell having made complaints. Points were raised regarding Paul Cole's statement and regarding Karl Valentine, it being thought that he was not in fact on the train at the relevant time.[18]In the light of what had been advanced on behalf of the claimant, the hearing was adjourned and the respondents made further enquiries. Carla Baxter was interviewed. She referred to a customer who regularly complained and was awkward but Carla Baxter was not on the train at the time of the incident and she could not be sure that it was the same person. It transpired that Karl Valentine had not been on the train. Paul Coles was re-interviewed. He confirmed what he had said earlier and also advised that the group were regular passengers on the train, that he had had no problems with them in the past and that Ms Bell was not obnoxious to the claimant.[19]The Disciplinary hearing resumed on 8 June 2004 and the results of the further enquiries were reported. It having transpired that Karl Valentine was not on the train, his statement had been removed from the pack of papers for use at the hearing. Regarding the allegation that the group of passengers were regular complainers, it was evident that Carla Baxter did not support it and the respondents had, further, checked their customer relations records and found no support for the allegation there either. The claimant's position was unchanged. The hearing adjourned for over half an hour and on resuming, advised that they were satisfied on a balance of probabilities that the claimant had sworn at Ms Bell and found the allegation established and that their decision was that the claimant would be dismissed. They had considered the possible alternatives but decided that they would not be appropriate. After they had intimated their decision to her, the claimant asked why an employee called Julie Atkinson had not been interviewed as she was working on the bar when the claimant spoke to Ms Bell. That was the first mention by or on behalf of the claimant that she considered that Julie Atkinson had anything relevant to say.[20]The claimant appealed. The pack of documents that had been before the disciplinary hearing was before the appeal hearing which took place on 22 June 2004. In addition, they were provided with a copy of a statement taken from Julie Atkinson who spoke to the claimant having, before the incident complained of, washed her hands in the kitchen area and saying that she would be with the customer as quickly as she could. Her statement said nothing about what passed between the claimant and Ms Bell during the exchange in the vestibule that followed. The claimant was again represented by Mr McIntyre. The outcome of the appeal was advised in writing on 28 June 2004. Detailed reasons were given. Each of the points raised by Mr McIntyre on the claimant's behalf were considered and answered. Mr Walton, who had heard the appeal, confirmed that he had read through the complete pack of documents. The appeal was refused and the decision to dismiss upheld. The Tribunal's Judgment and Reasons[21]The tribunal found that the claimant had been unfairly dismissed. They did so against a background of having begun their consideration of the "circumstances surrounding the dismissal" by carrying out their own assessment of what happened on the train between the claimant and Ms Bell. It is clear from paragraph 3 that they heard evidence from the claimant of her account of what had occurred. They state:
"The Tribunal accepted the claimant's evidence that there was no confrontation between herself and the passenger. The claimant denied that she had used any threatening behaviour towards the passenger or that she had sworn or been offensive. The Tribunal accepted this…… There were various other members of staff on duty on the train, none of whom gave evidence to this Tribunal, but some of whom were asked to give statements for a subsequent disciplinary meeting. There was one error on the part of the respondents who took a statement from a member of staff as if he had been on the train but in fact it was subsequently ascertained that he had not been on the train at all and could not have possibly given any first hand evidence."
[22]Their reasons for finding that the claimant's dismissal was unfair appear to be contained in paragraphs 15, 16 and 17 of their extended reasons. In paragraph 15, they explain that they consider that the principles set out in British Home Stores Ltd v Burchell [1978] IRLR 379 applied and their comments include:
"There was clearly a conflict between the evidence of the complaining customer and the evidence of the claimant. These were the only two people who were present at the incident and who were in a position to give any real evidence. In endeavouring to decide this factual contest the respondents seemed to accept the evidence of the complaining customer almost without question. The opinion of the complaining customer was really the nub of the matter. One would have thought therefore that the making of an objective and considered judgment on this was precisely what the respondents should have been doing. However they discounted the claimant's own evidence for no apparent reason. It would have been perfectly simple for the respondents to have had a meeting with the complaining lady. However they chose not to do so."
The latter comments followed up comments they had made in paragraph 13 regarding the "strong denial" of the claimant as compared to the customer's complaint and that:
"The statements taken from the various other staff members were not very conclusive and certainly did not support the lines of the letters of complaint. …….The evidence of the claimant herself was quite clear cut. However no one ever met the complaining female."
[23]At the end of paragraph 15, they state:
"…the respondents no doubt had a belief that the claimant was guilty of misconduct, there seemed to be little to support any adequate grounds for that belief or that an adequate investigation had been carried out. The investigation that was done was not really adequate in the circumstances. In particular it took the word of the complaining customer almost without question which was not really supported by such other evidence as they took."
[24]In paragraph 16, the Tribunal consider the case of Linfood Cash & Carry Limited v Thomson [1989] IRLR 235 and state:
" Linfood Cash and Carry Limited particularly deals with the situation of a complaining customer."
[25]Then, under reference to the Linfood guidelines, they make three criticisms of the respondents. The first is that corroboration was desirable but it "did not appear to emerge in the present case". The second is that where "the informant" does not attend any disciplinary hearing, consideration should be given to whether the disciplinary process could be continued with but that was not addressed by the respondents. The third was that the manager responsible for the hearing "should himself interview the informant and satisfy himself as to the weight to be given to the information. Again, other than a mere telephone call, that was not done." The Tribunal finish paragraph 16 by stating:
"Here the Tribunal felt that the ready acceptance of the complaining lady's position was not reasonable in the particular circumstances of the case. Moreover, the complaint from these passengers seemed to escalate with each stage, and there was a clear impression given that they were more interested in getting compensation from the respondents than anything else."
[26]In paragraph 17, the Tribunal state:
"Despite the investigation that was carried out, the Tribunal felt that it missed the crucial point of properly evaluating the evidence. This occurred both at the original disciplinary hearing and at the appeal. The Tribunal asked themselves very searchingly whether the dismissal fell within the range of reasonable responses open to the employer and came to the conclusion that it did not…………The Tribunal were …in no doubt that ….the respondents, although carrying out quite a detailed enquiry and appeal, had come to the wrong conclusion because of the foregoing failure. Accordingly, the Tribunal made a finding that the dismissal had been unfair."
The Respondents' Case on Appeal[27]By way of introduction, Mr Bradley drew attention to the various comments and findings of the Tribunal which showed, he said, that their whole view of the case was erroneous. He drew attention to the comments in paragraph 3 to the effect that they accepted the claimant's evidence as to what had happened on the train. It appeared to have influenced them but it was irrelevant. Similarly, it was surprising, he said, that the Tribunal had commented on the failure of the other employees to give evidence at the Tribunal hearing. Likewise, it was surprising that they made comments at p.3 which appeared to be critical of the respondents for not having sent documents to the claimant in advance of the investigatory meeting of 2 March, when the respondents were not obliged to do so. At p.4, they seemed critical of the absence of evidence from other passengers on the train but there was no indication of why such evidence was required or that it could have been obtained. There was, for example, no finding that the names or contact details of any other passengers were known. Regarding the comments at the end of paragraph 16, he said that the letters did not give an impression either of escalation or that the passengers were more interested in compensation. Further, there was no evidence that it would have been a simple matter for someone to meet with Ms Bell, contrary to what seemed to be suggested by the Tribunal's comment to that effect in paragraph 15.[28]Regarding the applicable law, Mr Bradley submitted that the Tribunal had erred in relying on a part of the decision in the Linfood Cash and Carry case which was obiter. He relied, instead, on the passage at paragraph 21 of the President's judgment in that case where, regarding the matter of assessing credibility, he states:
"..the tribunal must not substitute their own view for the view of the employer, and thus they should be putting to themselves the question – could this employer acting reasonably and fairly in these circumstances properly accept the facts and opinions which it did? The evidence given is that given during the disciplinary procedures and not that which is given before the Tribunal. If a Tribunal is to say that this employer could not reasonably have accepted a witness as truthful, it seems to us that this decision must be based on logical and substantial grounds – good reasons."
[29]Secondly, regarding the Linfood case, Mr Bradley submitted that the Tribunal had misapplied the guidelines set out there. This was not an "informant" case. The guidelines were not applicable.[30]Thirdly, Mr Bradley submitted that the Tribunal had erred in law under reference to Burchell and Post Office v Foley & HSBC v Madden [2000] IRLR 827 in that they had reached their decision by means of a qualitative assessment.[31]He also submitted, under reference to Santamera v Express Cargo Forwarding t/a IEC Limited [2003] IRLR 273 that the Tribunal had erred in that they had failed to recognise that in many cases, consideration by an employer of witness statements without meetings with or cross examination of witnesses constitutes a fair process.[32]Fourthly, Mr Bradley submitted that the Tribunal had erred in failing to distinguish between investigation and formation of a reasonable conclusion on the basis of the available material, an important distinction which was recognised in the case of Burchell at p.308. They sought to criticise the investigation as inadequate yet the nub of their reasoning was of the way in which the respondents had weighed and evaluated the evidence, a different matter.[33]Finally, Mr Bradley submitted that the decision was perverse in the sense explained in Neale v Hereford & Worcester County Council [1986] ICR 471 . There was ample evidence to support the letters of complaint received by the respondents and despite the Tribunal's comment that they had dismissed the claimant's evidence "for no apparent reason", it was plain that that was not so. Claimant's Case on Appeal[34]Mr Erroch moved us to dismiss the appeal. He submitted that parallels could be drawn between the circumstances of the informant employee as considered in the Linfood case and a complaining customer: both had provided information, the provision of information led to disciplinary proceedings and both were outwith the management structure. The Linfood guidelines were, accordingly, apt. The respondents had failed in two respects to comply with them. They had, apart from making enquiries regarding whether the customer could provide clarification, made no enquiries into the background or character of the customer; they should have asked her whether she was in the habit of making complaints as that could point to her being vexatious. Secondly, the member of management who was responsible for the disciplinary hearing did not interview the customer himself. He did, however, add that it would have been perverse for the Tribunal to regard Ms Bell as though she was an informant of the sort discussed in Linfood .[35]He submitted further that the Tribunal did set out a logical basis for rejecting the respondents' conclusion. He began by referring to the Tribunal's acceptance of the claimant's evidence set out in paragraph 3 of their reasons, to the comment that her evidence was "quite clear cut" at paragraph 13 (a comment which he submitted was capable of being read as referring to the claimant's evidence at the disciplinary hearing), and to their comments in the last sentence of paragraph 16.[36]Regarding the principles set out in Burchell , Mr Erroch accepted that it would be wrong for a Tribunal to carry out a qualitative assessment but submitted that the Tribunal had not done so in this case. They had considered only adequacy. In apparent recognition of the fact that the Tribunal's reasons could be read as being to contrary effect, he relied on the following passage from Jones v Mid-Glamorgan [1997] ICR 815 at p.826:
"The guiding principle, when it comes to construing the reasons of an industrial tribunal at an appellate level, must be that, if the tribunal has directed itself correctly in law and reached a conclusion which is open to it on the evidence, the use in other passages of its reasons of language inappropriate to the direction it has properly given itself should not be allowed to vitiate the conclusion unless the relevant words admit of no explanation save error of law."
[37]Finally, he resisted the submission that the Tribunal's decision was perverse with a submission that it was a high test that was not overcome in this case under reference to Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 and Yeboah v Crofton [2002] IRLR 634 . Discussion and Conclusions[38]We have no hesitation in allowing this appeal.[39]We regret to say that the Tribunal appear to have been wrong footed from the outset. They begin by treating as a circumstance surrounding the claimant's dismissal that they found, having listened to the claimant's evidence regarding what happened on the train, that there was no confrontation and that the claimant did not use threatening behaviour towards Ms Bell, did not swear and was not offensive. That is a finding that is ex facie irrelevant, the question for them having been whether the respondents, if acting reasonably and fairly, could have accepted the facts that they did; the evidence that was relevant was any which was given by the claimant to the respondents during the disciplinary procedures, not that which was given at the Tribunal hearing. The Tribunal's view as to what actually happened on the train had no part to play in this case. Notwithstanding that, it appears to have influenced the Tribunal in their thinking. We so conclude not only from the place the findings take in their reasons but also from their reference to the claimant's evidence in paragraph 13 as being "clear cut". Mr Erroch suggested that that comment could be taken to be a reference to evidence given by the claimant at the disciplinary hearing. We do not agree. It is plain from the minutes of the disciplinary hearing, to which we have referred under the "Facts" section of this judgment, that the claimant did not give evidence at it. Moreover, her position, as advanced by Mr McIntyre on her behalf was, as is evident from those minutes, far from clear cut. We can only conclude, therefore, that what the Tribunal had in mind when they made that comment at paragraph 13 was the claimant's evidence before them.[40]Turning to the Tribunal's reliance on the case of Linfood , they begin by wrongly stating that it deals with the case of a complaining customer. It does not. Linfood concerned circumstances where one employee had informed his employer that a fellow employee had stolen two books of credit notes and had refused to allow his identity to be disclosed because of fear of reprisals. A tension clearly arose between the desirability of protecting informants who are genuinely in fear and of providing a fair hearing of issues for employees accused of misconduct. It was against that background that the Employment Appeal Tribunal considered that it was incumbent on them to set out guidelines for the assistance of employers where informants were involved, no prior such guidance having been given. The guidelines are not rules and every case will depend on its own circumstances, as was expressly recognised in Linfood . Further, the guidelines were not designed for cases such as the present one. We do not agree with Mr Erroch that a parallel can be drawn between the circumstances of this case and those in Linfood . Ms Bell's identity was not hidden from the claimant. She had access to all the relevant documentation including the letters of complaint and notes of the telephone call with her. She knew exactly what was being alleged to have taken place, by whom, where and when.[41]It follows that the Tribunal's reliance on the Linfood guidelines as a basis for the criticisms of the respondents that are contained in paragraph 16 is misplaced. In any event, the criticisms are ill founded. Firstly, as regards the assertion that corroboration was absent, the Tribunal are plainly wrong. There may not have been a second eye witness but eye witness evidence is not the only form of evidential corroboration. There were a number of adminicles of evidence upon which it was open to the respondents to rely as being corroborative of Ms Bell's allegation: Mr Sandwell wrote of being able to hear the conversation to a great degree, of the claimant's tone and volume being far from appropriate and of her attitude and behaviour being offensive to the extreme. Richard Helm gave an account of what the customers had told him at the time that was consistent with the complaint, he had reacted by apologising, providing them with food and drink and by furnishing them with details to enable them to write and complain. Paul Coles had come across these passengers before and had had no problems with them, he heard the claimant giving a "verbal" to the claimant such that there was a bad atmosphere caused in the carriage and she later told him that she had "had it out" with the customer in the vestibule. Ioana Huntbach spoke of there having been friction between the claimant and the customer, of the customer having been upset and of the claimant having been flustered and rushing around. Further, at the disciplinary hearing, the position adopted by Mr McIntyre on the claimant's behalf at the hearing was, at best, equivocal.[42]Secondly, as regards the suggestion that the respondents should have considered whether it was appropriate to continue with the hearing in the absence of the complaining customer, there was no suggestion at any time that the claimant was in any way prejudiced by her absence. There will only very rarely be a requirement for an employer to arrange for a complainer to be available for cross examination at a disciplinary hearing: Santamera v Express Cargo Forwarding . This was not, in our view, one of those cases.[43]Thirdly, as regards the suggestion that "other than a mere telephone call" the respondents failed to interview Ms Bell, the Tribunal's trivialisation of what was done is not justified. The telephone call in question lasted, according to the note which was before the Tribunal, eighteen minutes. The notes were taken by someone separate from Mr Ball whose only task was to note the call. The notes appear to have been signed not only by Mr Ball and the notetaker but also by Ms Bell. The picture is hardly one of a casual telephone call. Further, even in the Linfood guidelines, it is not suggested that the interview of an informant requires to take place at a face to face meeting.[44]The third principle area of criticism of the Tribunal on behalf of the respondents concerned the question of whether or not they had fallen into the error of making a qualitative assessment of the respondents' approach. We consider that it is clear that they have done so. Under the guise of a finding of inadequate investigation, they have found the dismissal unfair. It is not a matter of mere infelicity of language of the sort envisaged in the Jones v Mid-Glamorgan case, in our view. Two points arise.[45]Firstly, the only investigative failure referred to is that the respondents did not interview Ms Bell on a face to face basis. We do not consider that a reasonable tribunal could have concluded that that shows any inadequacy, bearing in mind not only that they did interview her albeit by telephone but that when considering the question of investigation, it requires to be remembered that the "range of reasonable responses" test applies just as much as it does at the stage of considering whether the response of dismissal was reasonable or not: Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23 . There is no indication that the Tribunal bore that principle in mind.[46]Secondly, the essence of the Tribunal's criticism of the respondents is nothing to do with their failure to interview Ms Bell on a face to face basis but is that they do not think that the respondents should have accepted the customer's allegation because they did so "almost without question" and in circumstances where it "was not really supported by such other evidence as they took". That is clearly a qualitative assessment. It is indicative of the Tribunal having substituted their views for those of the respondents. Further, their views are ill founded. They had no proper basis in the evidence. A reading of the documents that were in the pack considered by the disciplinary hearing, of the minutes of the disciplinary hearings and of the appeal hearing and decision letter makes it clear that it was not simply a matter of the respondents accepting Ms Bell's complaint without question and, as we have already indicated, hers was not the only relevant evidence. The Tribunal's views appear further to have been coloured by their assessment of the passenger's complaints as having escalated and of them being more interested in getting compensation than anything else. We do not, however, see that the documentation of the complaints can justifiably be dismissed in that way. There is clarification of detail not escalation and insofar as redress is referred to, it is not stressed, not referred to by Mr Sandwell at all initially, referred to by him as a "positive goodwill gesture" subsequently and not referred to at all by Ms Bell.[47]The Tribunal ought to have had in mind that in the case of a dismissal based on conduct, it was sufficient for the first stages of the Burchell test for the respondents to have a genuine belief that the claimant had behaved in the manner alleged based on reasonable grounds and reached after reasonable investigations, remembering that the range of reasonable responses test applies when considering the reasonableness of the investigations carried out by an employer in a misconduct case. It was not for the Tribunal to decide that, had it been the employer, it would not have been satisfied by the evidence but that is what they plainly did. Disposal[48]Parties were agreed that if we were satisfied that the appeal should be allowed, the case should be remitted to a freshly constituted Tribunal for a re-hearing. We agree that that is an appropriate course in this case and will pronounce an order to that effect.