UKEAT/0100/06/LA 1) MRS S J JONES v UKEAT/0101/06/LA 2) MRS C E SHINGLER [2006] UKEAT 0100_06_0911

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0100_06_0911Case No Appeal No. UKEAT/0100/06/LA & UKEAT/0101/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
UKEAT/0100/06/LA 1) MRS S J JONESUKEAT/0101/06/LA 2) MRS C E SHINGLERAPPELLANTLOPPINGTON HOUSE LTDRESPONDENT
Before
Mr Justice Burton Ms K Bilgan Mr J HoughamDate 9 November 2006
[1]APPEARANCES For the Appellant MR JAMES HOLMES-MILNER (of Counsel) Instructed by: Messrs Wace Morgan Solicitors 2 Belmont Shrewsbury Shropshire SY1 1YD For the Respondent MR GARY POLLARD (Representative) Messrs Pollard Associates The Old Mill Reedness Road Swinfleet Nr Goole DN14 8EN SUMMARY Contract of Employment – Wrongful dismissal Unfair Dismissal – Reasonableness of dismissal The Employment Tribunal dismissed claims for wrongful and unfair dismissal by 2 nurses dismissed upon reasonable belief of abuse of patients. Appeal allowed as to wrongful dismissal as ET did not find that they had committed the abuse, and so there ought to have been a finding of wrongful dismissal. As to unfair dismissal, ET perversely failed to take into account a substantial area of evidence of failure to investigate by the Respondent, which might have led to a different belief and/or result: remitted to different Tribunal for rehearing. THE HONOURABLE MR JUSTICE BURTON This has been the hearing of an appeal by the Claimants, Mrs Jones and Mrs Shingler, against the unanimous decision of the Employment Tribunal at Shrewsbury that there was not unfair dismissal of them by the Respondent Loppington House Limited. The hearing took three days in May and August 2005, together with a deliberation day in October, and the Judgment was sent to the parties on 17 November 2005. The conclusion of the Tribunal was summarised at the outset of the Judgment in the following terms:
"The unanimous judgment of the Tribunal is that it is satisfied that Sarah Jones and Christine Shingler were dismissed for gross misconduct summarily and such a dismissal was fair in both instances. The claim therefore failed."
[2]The two Claimants were both nurses in charge of vulnerable adults at Loppington House, which is a home for adults with severe learning difficulties and associated difficulties and behaviour. In such role they require certification by POVA, the body which deals with the Protection of Vulnerable Adults. The consequence of their dismissal was that their certification by POVA was removed and that consequently they have not been able to work thereafter in that field.[3]The dismissal arose out of events in April and May of 2004 when either or both of them were on duty, and complaints were, it seems, made by agency staff who were employed alongside them, but in particular to work while they had the opportunity of sleeping or resting at the home, so as to provide cover for them. The agency is called QNS (Quality Nursing Services) and the complaints that were made were by four employees of the agency: a Dee Little, a Debbie Henfield, a Patricia Quigley, and a Louise Mullard. The complaints were of misconduct by both of the two Claimants in respect of alleged verbal abuse and physical aggression towards a patient named, in order to preserve the identity of that patient, as NM.[4]The incidents which led to the dismissal were as follows: two incidents, or series of incidents, involving both the first Claimant, whom I shall call, I hope without disrespect, Sarah, and the second Claimant, whom I shall call Chris, on 16 April 2004, allegedly witnessed by and complained of to QNS by Dee Little; one incident, or series of incidents, on 18 April, by way of complaint against Chris, complained of again by Dee Little; one incident on 8 May, complained of in respect of Chris by Debbie Henfield; one incident on 14 May in respect of Chris, complained of by Patricia Quigley; and at one incident on 19 May, complained of by Debbie Henfield in respect of Sarah. Those were the six incidents, or series of incidents, which featured in the dismissal letters to which we shall refer. In addition, there was evidence given in relation to an incident on 16 May, said to have been witnessed by Debbie Henfield in respect of Chris and Sarah, and there was then, additionally, complaint relating to incidents said to have occurred some time in April 2004, complained of in respect of Sarah by the fourth agency nurse Louise Mullard.[5]These complaints by the four agency nurses were, as we have indicated, made not to the Respondent but to their own employer QNS, it seems, in April and/or May of 2004, and QNS did not notify Mr Warburton, the relevant senior manager at the Respondents, until 15 June. Mr Warburton it was who then took upon himself and was responsible for the investigation of those matters, and in particular by way of interview of the complainants at QNS, who were for that purpose to be made available by QNS. It seems that, whereas statements were provided by all four complainants, only three of them were willing to be positively interviewed by Mr Warburton. There were, it seems, no notes, at any rate no notes retained by Mr Warburton, of those interviews and it was not, at any rate, in evidence before the Tribunal as to which of those four employees it was who was the agency staff member who was not willing to be interviewed and/or available to be interviewed by Mr Warburton, or indeed why that was so.[6]His investigation was consequently into the statements and complaints on paper, coupled with the interviews that he had had with the complainants, and it is not surprising that he formed a clear view that, in the light of the weight of the evidence against the Claimants, the now Appellants, and the fact that there appeared to be no reason for four independent agency employees to have made-up their accounts, and the fact that, by dint of the number of them, they corroborated each other, there was plainly a substantial case to be made against the Claimants. And investigation was carried out including interviewing of the Claimants.[7]A meeting on 19 July took place between Mr Warburton and both Claimants and there was, at the Tribunal, an issue as to the consequence of that meeting. The Tribunal had to decide who dismissed the Claimants, whether that person, so dismissing, had carried out reasonable investigations, and whether, as a result of those reasonable investigations, that person had formed a reasonable belief that the Claimants were guilty of the misconduct complained of, and that the procedure in which the reasonable belief was formed was fair. There is no issue before us, as we suspect there was not before the Tribunal, about the relevant law in that regard, for example by reference to British Home Stores Ltd v Burchell [1978] IRLR 379 .[8]The matter was, if not complicated, certainly put in its context by two significant matters. First this was a nursing home looking after vulnerable adults. Plainly those patients could not be put at risk. The second matter is that there was, in the background, the question of POVA, and there has been reference, as we shall describe, to POVA guidelines. Those POVA guidelines are not in evidence before us. It is not clear to us as to whether they were in evidence before the Tribunal, but there is no reference to them in the Tribunal's Judgment and we are thus unable to know what is in them. The submission of Mr Pollard, who has appeared for the Respondents today, is that the consequence of those guidelines was simply to emphasise or indicate that, so far as misconduct is concerned, in a nursing home context it was not necessary to prove that misconduct to the satisfaction of an employer, or indeed to the satisfaction of a POVA panel, to the standard of beyond reasonable doubt, and that a conclusion on the balance of probabilities would be sufficient. If that is what they said of course they would only be stating what, in any event, is well-understood law in general terms in the civil, as opposed to the criminal, area. But we cannot know what, if anything else, was in the guidelines.[9]There are notes of meetings that took place on 21 July 2004 at what is called a joint review meeting, or what is also called a multi-party panel meeting, which was attended by Mr Warburton. There were, at any rate for the purposes of technicality, two separate meetings leading to two separate notes, but they do appear to have taken place at the same time with the same people present. One of them was consideration of the position of NM, the vulnerable adult said to have been the victim of the misconduct complained of, and one was related to the position of a different vulnerable adult, NB. The notes are similar in relation to the minutes of the meeting which took place and, in relation to both minutes, it is recorded as follows:
"Peter Warburton from Loppington assured the meeting that the AA's [a description of the nurses] will be dismissed following this meeting."
Each of the Claimants was dismissed on the day after the meeting by letters in almost identical terms, sent by Mr Warburton to them.[10]We shall only read the letter sent to Chris:
"Dear Mrs Shingler, Further to the disciplinary hearings held on Thursday 8 July at 10am and Monday 19 July at 3pm, I am writing to inform you of my decision. At this meeting you were offered the opportunity of having a work colleague present as a witness which you declined. The matters of concern to me that on 16 April 2004, 18 April 2004 and 8 May 2004, it is alleged that you pushed NM aggressively and verbally abused NM. Then on 14 May 2004 it is again alleged that you were verbally aggressive towards NM and that you did strike NM on a number of occasions. At the hearing you indicated that none of the above took place and that you could not understand why such allegations would be made. Having listened to your explanation I consider it to be unsatisfactory because you were unable to justify your actions relating to the four separate incidents and with regards to POVA guidelines, the allegations are probable, therefore, as your actions amount to gross misconduct, you are summarily dismissed and as such you are not entitled to notice or pay in lieu of notice. You have the right to appeal against my decision and should you wish to do so you should write to Mr P Harris Director within 14 days giving the full reasons as to why you believe the disciplinary action taken against you was either inappropriate or too severe."
As we have indicated, a similar letter was sent to Sarah, in her case limited to the incident on 16 April and on 19 May. Two incidents, therefore, in her regard and four in respect of Chris.[11]There was then an appeal before Mr Harris but, although that appeal was said to amount to a re-hearing, or was intended to be a re-hearing, it plainly was not. Although, in practice of course, given that the first disciplinary hearings themselves could not involve and did not involve any oral evidence from the complainants, who were not present and not, of course, available because they were employees of QNS, the appeal, in essence, even if a re-hearing, would only have taken the course of a paper matter, coupled with the oral evidence of the complainants, in any event. But it does appear that Mr Harris indicated that he was only reconsidering the evidence which had already been considered by Mr Warburton, and the dismissals were confirmed.[12]Subsequently a letter was sent by the Department of Health dated 9 August 2004, headed up by reference to what is called the POVA list, and that was a response to a letter from Mr Warburton, and it appears that to include the Claimants, as they did, on the POVA list was what then led to their no longer being able to work with vulnerable adults. And the letter stated:
"If we are to confirm Mrs Jones on the POVA list, the evidence gathered will need to be sufficient for us to form the opinion that Your organisation reasonably considered Mrs Jones to be guilty of misconduct, (whether or not in the course of her employment) which harmed, or placed at risk of harm, a vulnerable adult; That Ms Jones is unsuitable to work with vulnerable adults."
It is thus apparent that the putting of both Claimants on the POVA list was a consequence of the dismissal by the Respondents, and that that dismissal of the Respondents, if to be fair, must have resulted from a conclusion by Mr Warburton, upheld on appeal by Mr Harris, that there was a reasonable belief that the Claimants were guilty of misconduct.[13]When the matter came to the Tribunal, the investigation, which the Tribunal had to make for the purpose of unfair dismissal, was in respect of the Burchell matters to which we have referred. There was also a claim for wrongful dismissal before the Tribunal. At paragraph 42 of the Tribunal's Judgment it said this:
"The Tribunal must stress at this stage, having made its findings of fact, that at no stage in these proceedings has it attempted to decide guilt or otherwise in relation to these two claimants. The two claimants have suffered having very serious allegations made against them which cannot be proved or disproved in the light of the evidence available to the Tribunal. The Tribunal's task has only been to decide whether or not the belief in their guilt by Mr Warburton was reasonably held, and that that view was reached following a proper investigation. The Tribunal appreciates that both claimants would like to have their names cleared. This Tribunal is not in a position to do that."
[14]That was, of course, an entirely sensible and proper approach of the Tribunal in relation to the issue of unfair dismissal. What it did not address was the issue of wrongful dismissal and, if the Tribunal was not to conclude that in fact the Claimants were guilty of the conduct alleged, then they could not find that the Claimants were in fundamental breach of contract or repudiatory breach of contract, and did not so find, as is clear from paragraph 42. The consequence of that is, as Mr Pollard has, although he sought to defend the matter in his Skeleton Argument, accepted before us today, that the Tribunal ought to have made a finding of wrongful dismissal on the basis of their own conclusions.[15]When the matter came forward on the sift at the Employment Appeal Tribunal before Judge Reid QC, he sent the matter for a preliminary hearing, pointing out that there had been no finding on wrongful dismissal. And at the preliminary hearing it was clearly sensible for the issue as to whether the question of summary dismissal, or wrongful dismissal, had been addressed by the Employment Tribunal should be clarified once and for all, pending a full hearing. And the relatively recent procedure, called now the Burns/Barke procedure, was ready-made for such a question, because plainly it would not have been sensible to send the matter to a full hearing with that matter left uncertain when it could be clarified by a question to the Employment Tribunal. Consequently Judge McMullen QC was minded to operate the Burns/Barke procedure by an order of 29 March 2006.[16]Both parties were represented before Judge McMullen unusually, notwithstanding the order of Judge Reid having been that the preliminary hearing would be ex-parte . But, in the circumstances that both parties were represented before him, the opportunity was taken to expand upon the number of questions which would be sent back to the Employment Tribunal, in addition to the obvious one to which I have referred. This is an unusual use of the Burns/Barke procedure and perhaps not normally to be followed because it involved asking a number of hypothetical questions which did not directly arise out of the ambiguity or uncertainty which was facing the preliminary hearing.[17]The questions, if we can summarise them, which went back, included issues such as whether the Tribunal considered contributory fault, and whether the Tribunal considered Polkey , and if so on what basis. There was a roll-up question 7 which, we have been told by Mr Holmes-Milner, was worded by the learned Judge, although all the other questions were sent back by agreement between the parties, and it was simply a consequential question: If the Employment Tribunal is unable to answer any aspect of any of the questions above then a) please say so, and b) set out the findings or alternatively the competing evidence in respect of such a matter. Question 7 did not raise anything new, additional to the earlier questions, which were directed as we have described. We shall return to the answers to those questions later in the Judgment.[18]The issues before us today have been crystallised after very helpful and thorough argument by Mr Holmes-Milner of Counsel (who did not, as indeed did not Mr Pollard, appear below, where the Claimants were represented by Mr Taylor, a Solicitor, and the Respondent by an Employment Consultant, Mr Mason) into two compartments, although both of them would be under the general heading of perversity. He recognises that, in order to succeed in a case of perversity at this Appeal Tribunal, a very high hurdle is set indeed. The issue was most recently addressed in Yeboah v Crofton [2001] IRLR, but of course also in a number of other decisions of the Court of Appeal. Perversity can take many shapes: there can be a conclusion to which no reasonable Tribunal could have come; or there can be a situation in which the Tribunal has failed to take into account an important material piece of evidence, or has taken into account wrongly a piece of evidence which it should not have taken into account, which again was of an important and material kind. The Wednesbury test, of course, is an overriding description of all such cases but in the Employment Appeal Tribunal the Wednesbury hurdle is set considerably higher than in the Administrative Court. It is rare that a case of perversity can and should succeed. The Employment Tribunal is the master of the inference, of the conclusion and of the rationale.[19]The first issues goes to the question as to whether a Tribunal was entitled to find, or did find, that Mr Warburton dismissed the Claimants because he formed a reasonable belief of their guilt of the matters complained of by the agency staff. There are a number of contemporaneous documents which would support a case, which was clearly made below and which was repeated for us by Mr Holmes-Milner, that in fact Mr Warburton was not of that view, but found himself driven to dismiss either by his concerns about, or even as a result of pressure from, POVA or the Department of Health, generally in operation of the POVA list.[20]At the dismissal hearing, the disciplinary hearing, of 19 July at 3pm with Chris, there were agreed minutes, which were in fact signed at the time by Chris. What is recorded in those minutes is, not surprisingly, accepted as accurate in those circumstances by the Tribunal, and it said this:
"Mr Warburton informed Christine that the matter was out of Loppington House's hands and that he is to return to POVA who will conclude the matter. He also informed Christine that in such situations persons were guilty until proven innocent. In POVA law they do not have to prove beyond reasonable doubt."
In the notes of the earlier meeting that day at 9.30am, which he held with Sarah, there is not quite the same note. It simply records:
"Mr Warburton informed Sarah that POVA dictates that situations do not have to be proven beyond reasonable doubt."
[21]There is a note in the papers which is typed up, and whose provenance is not entirely clear, but it appears to be a note of the actual dismissal of Sarah on 22 July. There is no finding by the Tribunal with regard to this note or that it is either accurate or inaccurate, and so it seems to us that the most that we can treat this as is of the evidence as to what it is that Sarah no doubt said in the Employment Tribunal, which she said was her best recollection because she had noted it more or less at the time; and it records Mr Warburton as saying, "I didn't have a choice in this decision, I was ordered to do so by POVA".[22]Those are the contemporaneous documents, coupled with the wording of the letters of dismissal which, although Mr Pollard relies upon them also, are referred to by Mr Holmes-Milner as at least being consistent with the situation in which the Respondent had not formed its own view but was acting in accordance with pressure from outside. It is quite plain that that was an issue that required to be resolved by the Tribunal because it would be essential matter. The issue was, as will be seen, slightly differently interpreted by the Tribunal and turned into a question as to when the decision to dismiss was taken: was the decision to dismiss taken on 19 July at the two meetings or as a result of those meetings, and thus before the POVA relevant multi-party panel meeting on 21 July, or was it only taken after and as a result of that 21 July meeting? But of course the question of timing, important though that is, would only be part of the major question, which is was this Mr Warburton's decision and did he take it because of his own reasonable belief in the guilt of the complainants?[23]We do not have notes of evidence in this case. Of course the practice now at the Employment Appeal Tribunal is not to encourage wholesale notes of evidence, but there is the Paragraph 7 procedure, available to be operated. Mr Holmes-Milner tells me that at one stage there was an informal attempt between the parties to agree some notes of what occurred but that came to nothing. But at any rate there was no application, as there might well have been, to the Employment Appeal Tribunal, whether after a failed attempt at agreement or otherwise, to explore, for example, whether the evidence given below by Mr Warburton was or was not that he dismissed as a result of his decision to do so on 19 July and because of his reasonable belief in the guilt of the complainants, or whether he said something other than that, perhaps as a result of cross examination by reference to the contemporaneous documents to which we have referred. The best we have is a witness statement from Mr Warburton which was, no doubt, put in in chief, and which, we have to assume, certainly we can assume in the light of the conclusions of the Tribunal, was the evidence that he gave, and was indeed part of the evidence which was accepted by the Tribunal, as we shall describe.[24]What he said in paragraphs 19 and 20 of that statement related to Sarah, and to the incidents on 16 April and 19 May, and it is plain that, in relation to those two incidents and to that Claimant, he was saying that he reached the conclusion that there was a very high probability that she did perpetrate the incident as described, as he put it. There is no express reference in his statement to his being of the same state of mind in relation to Chris, but certainly the interpretation which Mr Pollard puts upon the letters of dismissal, to which I referred earlier, is that, albeit not said in full, no doubt because of perhaps even affection for but certainly consideration of the position of, long-standing employees accused by temporary agency employees, the statement that "your actions amount to gross misconduct", with the reference to the allegations only needing to be "probably" by reference to the POVA guidelines, carries with it the inference that he had formed the view that it was probable that the gross misconduct had been perpetrated, as he put it, by the two Claimants.[25]We turn then to the Tribunal's decision against that background. The Tribunal recites the complaints by the four outside agency staff and the investigations carried out by Mr Warburton. At paragraph 22 it points up what was manifestly the central line of thinking of Mr Warburton and certainly of the Tribunal, namely:
"on a purely practical level, the claimant cannot come up with a logical or sensible reason why four agency nurses individually would make up these allegations"
. The Tribunal was unable to find any reason otherwise. And again in the same paragraph:
"It is not therefore a question of asking the claimant to prove her own innocence but more a general question of why on earth these four would conduct themselves in this way, and this is a question which Mr Warburton, as a reasonable employer, was entitled to ask."
[26]In paragraph 24 the Tribunal records the passage at the end of the dismissal interview with Chris on 19 July, which we have already recited. At paragraph 27 the Tribunal records the following:
"At the end of the reconvened disciplinary hearing [that is a reference to the 19 July] Mr Warburton reported his findings to the POVA team, and he gave evidence that, prior to doing so, he had decided that both claimants should be dismissed on the grounds of gross misconduct, and that this was entirely his own decision and not influenced by anyone on the POVA team."
[27]That is a recital of the evidence of Mr Warburton which, albeit that it goes beyond what we have seen in his written witness statement presented in chief, we have no reason to doubt, certainly in the absence of the operation of the Paragraph 7 procedure, was the evidence that he gave before the Tribunal.[28]At paragraph 30 of the Tribunal's decision it sets out what it calls the POVA meeting on 21 July 2004, and it concludes that paragraph as follows:
"The respondent's actions in relation to the claimants were his [that is Mr Warburton's] sole responsibility acting on behalf of Loppington House, but his actions were tempered by the view taken by POVA of the actions they proposed to take in relation to these two Claimants."
And paragraph 32 reads that Mr Warburton "assured the meeting that both individuals would be dismissed following the meeting". There then follows the following paragraph:
"33. This raised an obvious area of concern for the Tribunal that Mr Warburton had not in fact made the decision to dismiss until POVA indicated that both individuals had been placed on the register on the findings of highly probable/proven."
This is, as we understand it, a misunderstanding of what occurred on Monday 21 July. The most that could be said was that they would be placed on the register. "If that were the case then POVA, the group, had influenced his decision to dismiss. Only Mr Warburton could take that decision based on his own findings, and if anything other than that were to have occurred it could be argued that the decision to dismiss was unreasonable. It is clear from the correspondence from POVA that their decision to place Mrs Jones and Mrs Shingler on the list was dependent upon the Respondent's decision to dismiss. [This is a reference to the letter of 9 August 2004, to which we have earlier referred, and again appears to be a misunderstanding of that letter, which may not be of substance.] We are therefore satisfied that the Respondent's decision to dismiss both ladies was not unduly influenced by POVA decision to place them on the POVA list and was based upon an investigation and disciplinary process which the Respondent had followed."[29]Mr Holmes-Milner's submission in relation to those two paragraphs is, for the purposes of this first issue upon which he relies on his appeal, that the Tribunal were thereby concluding that the decision by Mr Warburton was affected by the meeting of the multi-party panel on 21 July, and cannot therefore have occurred until after that meeting, and further was therefore, at least in part, a decision made as a result of pressure from the meeting and not, or at any rate not necessarily, on the basis of a conclusion of his own that there had been the misconduct alleged, particularly given the contemporaneous documents to which we have referred. We shall return to that argument.[30]Finally the conclusion of the Tribunal is set out in paragraph 43 of the Judgment. "In the light of the findings of evidence the Tribunal has reached the conclusion that the decision to dismiss summarily for gross misconduct was within the range of reasonable responses available to the Respondent. The abuse of a vulnerable adult in the care of an individual, if found to have been committed, would justify dismissal. Such conduct could reasonably be found to be gross misconduct. The Tribunal is satisfied that Mr Warburton, on behalf of the Respondent, did believe in the guilt of Sarah Jones and Christian Shingler, and that his grounds for so believing were reasonable. He had carried out as much of an investigation as was reasonable in all the circumstances of the case. We find that he reached this decision reluctantly, as he held these two members of staff in high regard. We do not find he was unduly influenced by the decision taken by POVA. We are further satisfied that procedure leading up to the dismissal of the two Claimants was fair, there was a full investigation into the conduct, and both Claimants were given a fair hearing."[31]On the face of it, that is the clearest possible conclusion by the Tribunal, in accordance with the Burchell test, and, unless there is some basis upon which the Appellant can establish perversity, there cannot even be the beginnings of attack upon it. What Mr Holmes-Milner submits is that, although there is the statement that the Tribunal is satisfied that Mr Warburton did believe in the guilt of Sarah Jones, and that his grounds for so believing were reasonable, it does not go on to say in terms that it was on that basis and for that reason that he dismissed; but that, in any event, one can see that the conclusion that is purportedly set out there is inconsistent with and positively contradicted by the contents of paragraphs 30 and 31 which, at the least, require explaining. He submits that the last sentence of paragraph 30, in which there is a reference to his actions being "tempered by the view taken by POVA", is a finding by the Tribunal that his actions were influenced by POVA, or affected by them. He then points to paragraph 32, which we have read, and to the conclusion that the Respondent's decision to dismiss was "not unduly influenced by the POVA decision", which suggests that, at least in part, it was influenced, and that, at least in that paragraph, there is no firm conclusion that the "obvious area of concern" that is raised by the Tribunal in terms could be alleviated by making a finding that Mr Warburton did indeed dismiss irrespective of anything said by the multi-party panel on 21 July.[32]We were clearly influenced, perhaps tempered, by the submission of Mr Holmes-Milner, difficult though it is for him to put it forward, in two respects: a) the difficulty of establishing perversity, to which we have referred, and b) the firm guidance over and over again by this appeal Tribunal not to treat a Judgment of the Employment Tribunal as holy writ, or indeed as a statute, or to seek to construe it overly technically. But, although we noted those hurdles for Mr Holmes-Milner to surmount, we were willing to listen to his arguments. Having thought about the matter, and had the benefit of helpful and persuasive submissions from Mr Pollard, we are satisfied that there is nothing in Mr Holmes-Milner's submissions in this regard.[33]First, Mr Pollard took us to the Oxford English Dictionary definition of 'tempered'. 'Tempered' appears to be a somewhat strange word, because it can mean almost two entirely opposite things. Certainly, at first blush, the word 'tempered', perhaps by reference to tempering justice with mercy, and by reference to such words as temperate, might be thought to mean 'moderated'. On the other hand it could not here mean moderated or softened, in the context of this sentence in paragraph 30, because, on any view, the actions of Mr Warburton could not be said to have been moderated or softened by the view taken by POVA. It might well mean, as in certain contexts, as Mr Holmes-Milner has said, 'affected'. Perhaps that is what justice being tempered with mercy means. But Mr Pollard persuasively took us to what he called the metallurgical definition of 'tempered', whereby steel is tempered, i.e. is strengthened or fortified. And we are entirely satisfied that, at the very least, this is what the Tribunal may have meant. Indeed we are satisfied that it is almost certainly what the Tribunal did mean by that last sentence, that is that the Tribunal concluded, or was willing to conclude at that stage, that Mr Warburton had made a decision, and that his views as to what to do were fortified or strengthened by what he heard of the meeting of 21 July, not changed or altered.[34]We will not decide the matter simply by reference to this interesting dictionary dispute, and therefore continue to look at the arguments of Mr Holmes-Milner, on the assumption that he may be right in respect of that sentence. Assuming that indeed it could mean 'influenced' by the view taken by POVA, we turn to the conclusion that the Tribunal reached in paragraph 32. We are entirely satisfied that this Tribunal would not have raised what it calls an "obvious area of concern" if it did not, in fact, immediately after discussing the matter, lay those concerns to rest in the paragraph that followed; that was the purpose of airing the concerns. The Tribunal in terms says "if that were the case then POVA, the group, had influenced his decision to dismiss". Although it does not go on to say in terms that is not what took place, we are satisfied that such conclusion is implicit. What the Tribunal said was that it was satisfied that the Respondent's decision to dismiss both ladies, and that implicitly was the decision of Mr Warburton, was not unduly influenced by POVA. An undue influence is an inappropriate influence, and, in our judgment, what that means is that, if there was any influence, it did not affect the decision of Mr Warburton. If it strengthened that decision, in any event, it would not be undue or inappropriate.[35]Again we would not necessarily rest our conclusion in that regard either, i.e. simply on our construction at paragraph 32, but we go to the next matter which persuades us to come down on Mr Pollard's side in this dispute, and that is paragraph 43. It is quite plain that the Tribunal saw nothing inconsistent in what it had stated in paragraph 32, because it went ahead and repeated that conclusion in paragraph 43, which we have already recited, in the same paragraph as its conclusion that it was satisfied that Mr Warburton did believe in the guilt of Sarah Jones and Christine Shingler.[36]Fourthly and lastly, we come to the answer by the Tribunal to the questions posed by the Employment Appeal Tribunal in Judge McMullen's order, and, if we were in any doubt, such answer puts the matter beyond doubt. Somewhat unusually, the Tribunal took the opportunity, in response to what we have called the roll-up question by Judge McMullen, to volunteer something they were not in fact asked. Their answer reads in material part as follows:
"We were satisfied that none of the material regarding the two separate complaints made of POVA [that is a reference to inter-alia to the discussion about NB at the multi-party panel meeting on 21 July] was in the mind of Mr Warburton when he decided to dismiss either Claimant. He had made his decision to dismiss before the POVA meeting. We noted that the POVA investigation covered a wider range of conduct alleged than that relied upon by Mr Warburton in reaching his conclusions. POVA had the evidence of a further witness which was not available to Mr Warburton when he reached his decision… The Tribunal were satisfied that Mr Warburton reached his decision to dismiss reluctantly on the evidence available to him before the POVA meeting. The timing of the decision and the meeting were coincidental. At the meeting he learned of further evidence. That did not impact on the decision he had already reached."
[37]It is somewhat unusual for a Tribunal to volunteer an answer to a question it was not asked. It is all of a part of the somewhat unusual procedure, in any event, here which, as we have indicated, pushed Burns/Barke perhaps beyond the norm. However, as indeed Mr Holmes-Milner accepted in the course of argument, if we were still left, either at a preliminary hearing or, exceptionally, at a full hearing, uncertain as to what the Tribunal had found, we would have been able to operate the Burns/Barke procedure by asking just such a question, namely whether the Tribunal made a finding as to when the decision to dismiss took place and, if so, when and on what grounds and by whom, and if so the Tribunal would have given the answer which it in fact gave voluntarily to question 7. And it puts the matter, in our judgment, beyond doubt. What it also, perhaps concisely, does is emphasise, by repeating what it had said in paragraph 43 as to the reluctance of Mr Warburton, that the use of that word, it seems to us, explains the thinking which lay behind the Tribunal's conclusion, namely that whatever Mr Warburton may have said, out of kindness to the claimants and out of reluctance to dismiss, namely the words about how he was driven to matters by POVA etc. etc., that in fact was simply a way, perhaps inappropriate in personnel terms but understandable in human terms, of expressing what was in fact his conclusion, namely that he had had the reasonable belief that there had been the misconduct alleged. In those circumstances the first issue falls away.[38]We turn to the second issue, which relates to the question of reasonable investigation. The conclusion in that regard is set out in the paragraph which we have recited, and in particular paragraph 43. Once again the hurdle is high for Mr Holmes-Milner to surmount. Various arguments were run at the Tribunal, and were repeated in Mr Holmes-Milner's Skeleton before us, as to respects in which it is suggested that the investigation was not, as described by the Tribunal, full, or as much of an investigation as was reasonable in all the circumstances of case. First it is pointed out, as was known to the Tribunal, that only three of the four agency staff members had been spoken to or interviewed. Second there was delay, apparently unexplained to anyone's particular satisfaction, by QNS in bringing the matter to the attention of the Respondent. Thirdly there was the fact that none of the conduct alleged was recorded in the night logs which were supposed to be kept accurately. The Tribunal, in this regard, made an express finding that "bearing in mind we know the night logs to be inaccurate we are satisfied that they would not have helped in the Claimant's cases in any event". Effectively it amounts to a conclusion that it was not unreasonable of the investigating officer not to have been influenced by the fact that the incidents in question were not recorded in the night logs, when in fact they had been instead reported to the agency staff's own employer QNS.[39]There is, recited in the Tribunal's Judgment, one significant fact, and that is this, in paragraph 24 of the Judgment, by reference to the disciplinary hearing with Chris on 19 July:
"During that it was clarified (as had been on the previous occasions) that Christine Shingler was not on duty on 16 April after 10 o'clock as she had swapped with Sarah Jones."
That is stated as a finding, and that it was known by the Respondent at the time, and consequently, presumably – there is no evidence to the contrary – accepted by the Respondent at the time. No more is made of that matter by the Tribunal.[40]Mr Holmes-Milner has built very considerable significance on that aspect of the case, very persuasively. He points out that, notwithstanding that that was apparently accepted by the Respondent at the meeting on 19 July, when it came to the dismissal letter on 22 July Mr Warburton nevertheless repeated the allegation that "on 16 April it is alleged that you pushed NM aggressively and verbally abused him", and repeated that she had been unable to justify her actions relating to , inter alia, that incident. Consequently the Respondent had ploughed on and dismissed on the basis of an incident which could not have taken place, as they accepted. Now that, of course, is only a statement of fact and, no doubt, as Mr Pollard forcibly said, could be dealt with by saying that in any event there were the other three incidents, as to which the Respondents did have the reasonable belief in misconduct, and so, if they have misstated that they continued to have a reasonable belief of misconduct on 16 April, that would not be material. But the issue which Mr Holmes-Milner raises does not go to the question as to reasonable belief in misconduct - indeed we have already disposed of that aspect on other grounds - either on four occasions or on three. It goes to the question of reasonable investigation.[41]We have the closing submissions of Mr Taylor, the Solicitor who appeared at the Tribunal for the Appellants, and he made a submission as follows:
"In evidence Mr Warburton agreed the rota was wrong as Christine Shingler and Sarah Jones had swapped night duties that day and Sarah Jones, not Christine Shingler, was on call from 10pm that night. He said he was "confused" about the dates. He did not revisit this with Dee Little."
The point then is that, at a time when very serious allegations were being made, with potentially very serious consequences for the complaints, it should have become, did become, apparent to Mr Warburton in the course of those investigations that one of the four allegations being made by Dee Little could not be right.[42]Mr Holmes-Milner says that there are knock-on effects in relation to that. First, if Dee Little is wrong about Chris having committed the incidents of misconduct, of abuse, during the night as she alleged, because she was not on call, then she must also have been wrong in alleging, as she did, that Sarah's behaviour, as to which she made allegations, was only for up to 30 minutes before she went home, because Sarah did not go home, but was the one on call throughout the night that night. If, therefore, Dee Little is mistaken about what happened on 16 April, and indeed as to perhaps which was Sarah and which was Chris, does that not, or might that not, have an important knock-on effect in relation to Dee Little's own evidence in relation to her allegations that on 18 April she witnessed Chris being verbally abusive and physically aggressive again? If she was mistaken, either as to it having happened at all on 16 April, or as to who was Sarah and who was Chris, then, at the very least, she may have been wrong as to what occurred on 18 April. This was a matter which should immediately have flagged up a problem, submits Mr Holmes-Milner, to Mr Warburton, but, as was submitted by Mr Taylor, he did not return to Dee Little for further enquiry to clarify the decision. It may be, had he returned to Dee Little, she may have been able satisfactorily to resolve the apparent inconsistency or incorrectness.[43]The matter does not stop there because, as we pointed out in argument to Mr Pollard, we do not know, nor did the Tribunal, who the fourth person was who was not able to give an interview to Mr Warburton, or not willing to do so, or why. It may be that that person was Dee Little, and consequently it may be that Dee Little would not have been available to have clarified the inconsistency or incorrectness. What effect would that have had on Mr Warburton's investigations? Alternatively it may be that Dee Little was available for interview and that, if tested, she could not resolve the apparent inconsistency, with the effect that Mr Warburton might have been driven to conclude that the benefit of the doubt, at the very least, ought to be given to one or other or both as to what had occurred on 16 April. But then what of the other incidents? What if the witness who was not willing, or able, to have given assistance to Mr Warburton had been Debbie Henfield, who had given, on the face of it, clear evidence as to what had occurred on 8 May and 16 May? Might not Mr Warburton, having doubted evidence, which had actually been tested by him in interview, by Dee Little, have been left in doubt as to whether evidence which he had not been able to test, by Debbie Henfield, might not have been similarly incorrect or inconsistent?[44]We are persuaded that this is a very significant aspect which was, or ought to have been, part of the investigation of Mr Warburton, and that, without the Tribunal addressing that important question, this Tribunal could not have reached the conclusion that there have been full and adequate investigation. We are not saying that the result of that investigation would have led to a conclusion by this employer that it could not be satisfied of the guilt of the two Claimants. It is not for us to speculate. Mr Pollard has submitted that it would have been perfectly appropriate for the Respondent to conclude that, even if they could not be satisfied about one incident, they could and would have been satisfied about the others. That might or might not be so. But what we are satisfied about is that this was a fundamental aspect of evidence which was not addressed by the Tribunal in reaching the conclusion it did that there was full investigation, and, not least because we cannot substitute our judgment as to what the outcome would have been, that we cannot be satisfied what consequence there is to that conclusion.[45]This is not, therefore, one of those cases in which we conclude that a Tribunal was perverse in deciding X and consequently no reasonable Tribunal could have come to any other conclusion other than Y. We simply content ourselves by saying that it was perverse of this Tribunal not to have addressed, and indeed to have disregarded, this fundamental point of evidence, and indeed argument which was put before it by Mr Taylor, and that, without consideration of that evidence, their conclusion was perverse. What their conclusion would be if they had considered that evidence would be a matter for a fresh Tribunal, considering this matter de novo .[46]In those circumstances we are satisfied that this decision should be set aside, and that the matter should, as is common ground between both parties, be sent back to a different Tribunal to resolve the issues of unfair dismissal, it may well be with additional evidence not called on the previous occasion if thought right. We do not in any way shut out any matters which might be thought proper by either side. Mr Pollard has accepted, however, that it is not appropriate to remit the issue of wrongful dismissal to a different Tribunal and that, in the light of the Tribunal's confirmation as to what conclusion it came to and, because it has accepted in its answer to the first question put to by it pursuant to Judge McMullen's order that the Tribunal was not satisfied on the balance of probabilities that the Respondent had proved the actual conduct alleged so as to justify summary dismissal, that the conclusion that the Claimants were wrongfully dismissed should be substituted. To that extent this appeal is allowed, by substituting a conclusion of wrongful dismissal and by remitting the issue of unfair dismissal to be tried by a different Tribunal.