TESCO STORES LTD v MR C PRYKE [2006] UKEAT 0576_05_1005

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0576_05_1005Case No Appeal No. UKEAT/0576/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
TESCO STORES LTDAPPELLANTMR C PRYKERESPONDENT
Before
His Honour Judge BurkeDate 10 May 2006
[1]APPEARANCES For the Appellant RICHARD POWELL (Counsel) Instructed by: Messrs DLA Piper Rudnick Gray Cary UK LLP Victoria Square House Victoria Square Birmingham B2 4DL For the Respondent SARA BEECHAM (Counsel) Instructed by: Hawkins Russell Jones Gate House Fretherne Road Welwyn Garden City Hertfordshire AL8 6RD SUMMARY Topic Number: The Tribunal found that the employers' dismissal of the employee after his lorry had turned over at a roundabout was unfair because their investigation of the facts had been "fundamentally flawed". Held on appeal that the Tribunal had failed to apply the appropriate tests, in particular the range of reasonable responses test, and had decided on the basis of their own view of what was reasonable on the evidence before them. Held, further, that the Tribunal had made an order for re-instatement without considering contributory fault and erred in law in so doing. Claim remitted for new hearing by different tribunal. HIS HONOUR JUDGE BURKE QC The Nature of the Appeal This is an appeal by Tesco Stores Ltd ("Tesco") against the judgment of the Employment Tribunal sitting at Bedford, chaired by Mr Moore with Mr Holford and Mrs Carvell as lay members and sent to the parties with written reasons on 31 August 2005. By that judgment, the Tribunal found that Tesco had unfairly dismissed the Claimant, Mr Pryke, and decided that a reinstatement order should be made. Tesco appeal against both limbs of the Tribunal's decision.[2]Mr Pryke was employed by Tesco as a lorry driver at their depot at Welham Green, Hertfordshire. He had been employed by Tesco for 15 years and had been a driver for seven years. On 11 June 2004, he was involved in an accident for the first time since he had become a driver. As he was driving around a roundabout near to his depot, where the A414 joined the A1(M), his lorry tipped over onto its side. The police and the fire brigade attended; he was released from his cab by the fire brigade and was taken to hospital where, fortunately, he was found to have suffered only minor injuries.[3]Tesco investigated the accident. As a result, Mr Pryke attended a disciplinary hearing before Mr Warren on 26/27 July 2004 at the end of which he was dismissed because he had driven without due care and attention and because his tachograph disk was missing. Mr Pryke's first stage appeal was heard on 13 September and 4 November 2004 by Mr Rea; the appeal failed. There was then a further appeal, heard by Mr Goodall, on 24 January 2005; that appeal also failed. The Tribunal found that Mr Pryke had been unfairly dismissed because, although Tesco genuinely believed that Mr Pryke was guilty of the misconduct alleged against him, that belief was not based on a reasonable investigation.[4]Having concluded that the dismissal was unfair, the Tribunal then, at paragraph 15 of their judgment, decided that a reinstatement order would be made; they were unable to reach a conclusion as to the hours which Mr Pryke should work in his reinstated employment; but because they took the view that the parties were likely to agree on that detail, they said that they were, by their judgment, promulgating their decision as to reinstatement.[5]Three grounds of appeal are now advanced on behalf of Tesco. They are, in summary, that:(1) The Tribunal's unfair dismissal decision was reached in error of law because the Tribunal substituted their view of what would have been a reasonable investigation and failed to base their conclusion on what was within the range of responses open to a reasonable employer;(2) The Tribunal's reasons for their decision that Mr Pryke had been unfairly dismissed fell short of the standards required by law;(3) The Tribunal's decision to order reinstatement was reached in error of law. We will address those three grounds of appeal in the order in which we have set them out; but before we do so, we need to set out the relevant principles of law. The Law[6]The Tribunal did not set out in a separate section of their judgment the principles of law which they propose to apply. They explained why, at paragraph 14 of their decision, in these terms: "14. There is common ground between the parties on the applicable law and in any event this is not a case which raises complex issues. We have included our references to the law with our conclusions. The dismissal was on grounds of conduct and that is one of the potentially fair reasons provided by S. 98 of the Employment Rights Act 1996. The case turns on the well established principles in British Home Stores v Burchell (1980) ICR 303 , wherein it is provided that we must be satisfied that the Respondents had a genuine and reasonable belief that the Claimant was guilty of the alleged misconduct. A belief is genuine if it is the reason the Respondents had in mind at the point of dismissal but is it only reasonable if it is the product of a reasonable investigation".[7]It is necessary for us, in the context of the arguments before us on this appeal, to set out the relevant principles more fully than did the Tribunal; those principles are both familiar and uncontroversial; they were not substantially in issue before us. We neither need nor propose in this judgment to add to the substantial body of existing authority. It is, however, important to state that, although not expressly referred to in the Tribunal's judgment, the authorities and the principles derived from them set out below were expressly put before the Tribunal by the parties in their closing submissions.[8]As to unfair dismissal, the relevant principles are these:(1) Where an employee is dismissed for misconduct, the Tribunal in determining whether the dismissal is fair or unfair has to decide whether the employer entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct. This involves three elements: (i) first, there must be established by the employer the fact of his belief; (ii) it must be shown that the employer had reasonable grounds for that belief; (iii) the employer must have carried out a reasonable investigation (see British Home Stores v Burchell [1978] IRLR 379 , paragraph 2).(2) The Tribunal is not to determine whether the decision of the employer was objectively reasonable, but whether it fell within the band of reasonable responses which a reasonable employer might have adopted (see Iceland Frozen Foods v Jones [1982] IRLR 439 , paragraphs 24 and 25; Post Office v Foley and HSBC Bank v Madden [2000] IRLR 827 , paragraphs 43-46).(3) The Tribunal must not substitute their view for that of the employer (see: Iceland Frozen Foods , paragraph 24, Foley and Madden paragraphs 52 and 53). It is not necessary that the Tribunal should share the same view as that of the employers; and the Tribunal should not examine the quality of the material which the employer have before them to see whether it was the sort of material which, objectively considered, would lead a certain conclusion (see Burchell , paragraph 2 and Foley , paragraph 53).(4) Those principles apply as much to the question of the reasonableness of the employers' investigation as to the reasonableness of the decision to dismiss; see Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23 in which, at paragraphs 30-32, Mummery LJ, with whose judgment Ward LJ and Parker LJ agreed, said:
"30 In my judgment, the Employment Appeal Tribunal have not correctly interpreted the impact of the decision of the Court of Appeal in Madden. The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason. 31 If the correct approach is taken to the application of the test laid down by the Court of Appeal to the facts of this case, the only conclusion which a reasonable tribunal could reach is that the investigation in this case was reasonable in all the circumstances. The position is that the employment tribunal's decision was legally flawed by the application of the wrong test. If one looks at the findings of fact, the position is as stated by the chairman in his dissenting conclusions. The investigation carried out by Sainsbury's was not for the purposes of determining, as one would in a court of law, whether Mr Hitt was guilty or not guilty of the theft of the razor blades. The purpose of the investigation was to establish whether there were reasonable grounds for the belief that they had formed, from the circumstances in which the razor blades were found in his locker, that there had been misconduct on his part, to which a reasonable response was a decision to dismiss him. The uncontested facts were that the missing razor blades were found in Mr Hitt's locker and that he had had the opportunity to steal them in the periods of his absence from the bakery during the time they went missing. Investigations were then made, both prior to and during the period of an adjournment of the disciplinary proceedings, into the question whether, as Mr Hitt alleged, someone else had planted the missing razor blades in his locker. In my judgment, Sainsbury's were reasonably entitled to conclude, on the basis of such an investigation, that Mr Hitt's explanation was improbable. The objective standard of the reasonable employer did not require them to carry out yet further investigations of the kind which the majority in the employment tribunal in their view considered ought to have been carried out. 32 In suggesting further investigations of the kind set out in paragraph 6 of the extended reasons, the majority of the employment tribunal were, in my judgment, substituting their own standards of what was an adequate investigation for the standard that could be objectively expected of a reasonable employer. On the decision of this Court in Madden, that is not the correct approach to the question of the reasonableness of an investigation"
. See further the decision of the EAT in Grattan plc v Hussain EAT/0802/02,ureported, judgment delivered on 1 July 2003. (5) The employer does not have to carry out a forensic or quasi-judicial investigation; an investigation will not be unfair overall simply because individual components of an investigation might have been dealt with differently or were arguably unfair; (see Santamera v Express Cargo Forwarding [2003] IRLR 273 at paragraphs 35/36).[9]As to reasons, the relevant principles are, perhaps, even more familiar. Mr Powell referred us to Meek v City of Birmingham District Council [1987] IRLR 250 in which Bingham LJ, with whom Ralph Gibson LJ and Sir John Donaldson MR agreed, said at paragraph 8: "8 It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted".[10]In English v Emery Reimbold & Strick Ltd [2003] IRLR 710 , Lord Phillips MR, giving the judgment of the Court, said this at paragraphs 19 and 21: "19. It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon. 21. When giving reasons a judge will often need to refer to a piece of evidence or to a submission which he has accepted or rejected. Provided that the reference is clear, it may be unnecessary to detail, or even summarise, the evidence or submission in question. The essential requirement is that the terms of the judgment should enable the parties and any appellate tribunal readily to analyse the reasoning that was essential to the judge's decision".[11]In High Table Ltd v Horst [1987] IRLR 513, Gibson LJ, with whose judgment Hobhouse LJ and Evans LJ agreed, having set out the central passage from Meek , said this at paragraph 24:
"However, in considering whether the reasons given by an industrial tribunal comply with its statutory obligation, it is very important to keep in mind the issues which the industrial tribunal was dealing with. It has, of course, to reach conclusions on the issues which the statute raises viz, in the present case, have the employers established that the reason for the dismissals was redundancy and, if so, did they act reasonably in treating the redundancy as a sufficient reason for dismissing the employees? But whilst it must consider all that is relevant it need only deal with the points which were seen to be in controversy relating to those issues, and then only with the principal important controversial points (compare what is required in planning decisions: Bolton Metropolitan District Council v Secretary of State for the Environment (1995) 71 P & CR 309). The employers claimed that the reason for the dismissal was redundancy, and I have already expressed my view that that was not disputed by the employees before the industrial tribunal. The dispute lay in whether the employers acted reasonably in the circumstances in treating the redundancy" as a sufficient reason for dismissing the employees, a familiar question for the industrial jury which the tribunal is."
[12]Mr Powell also referred us to the requirements as to a decision set out in Rule 30(6) of Schedule 1 to the Employment Tribunal's (Constitution and Rules of Procedure) Regulations 2004 . He accepted, however, that although it was good practice for a Tribunal to use Rule 30(6) as a matrix for their judgment, especially in present times, when the Tribunal's jurisdiction is much wider and more complex than it was as at the time of the decision in Meek , failure strictly to comply strictly 30(6) did not of itself amount to an error of law. In the light of that acceptance, we do not propose to say anything further about Rule 30(6), the effect of which upon decisions such as Meek may be controversial, in this judgment. Substitution[13]The submissions upon the first ground of appeal involved consideration of the facts under three broad headings. They were (i) loading; (2) the tachograph disk; (3) speed.[14]Before turning to these three heads individually, we ask ourselves how the Tribunal approached the factual issues which they had to decide. We have set out the relevant part of paragraph 14 of the Tribunal's judgment in which the Tribunal referred to the principles in Burchell ; however, as Ms Beecham accepted, the Tribunal did not expressly refer in their decision to the "range of reasonable responses" test, to the specific application of that test to the reasonable investigation issue or to the other principles which we have set out earlier in this judgment. In contrast, in paragraph 13, the Tribunal said, referring to Tesco's conclusions as to Mr Pryke's misconduct:
"These findings were not based on a fair and reasonable investigation" and, at paragraph 14, the Tribunal said: "
We have concluded that the belief was not based on a reasonable investigation".[15]Mr Powell submits that the use of these words and the absence of any reference to the range of reasonable responses test and the other principles to which we have referred indicates that the Tribunal adopted the approach of deciding whether, in their view, the investigation was reasonable and thus, erred in law. Ms Beecham submits that the absence of any reference to the range of reasonable responses test and the other principles does not vitiate the Tribunal's decision and that, when the decision is considered overall, it can be seen that the Tribunal applied the right test, did not substitute their own view for that of the employers and reached a conclusion which was, in law, open to them.[16]In order to decide between these rival submissions, it is necessary to consider the facts in more detail. It was shortcomings in the investigation of the loading issue which, the Tribunal found in paragraph 8, had fundamentally flawed Tesco's investigation. We have, in considering this issue, borne at the forefront of our mind that it is not for us to reconsider or reach our own conclusions upon the facts and that, in contrast, we must look only to see whether the Tribunal, in reaching their conclusions in this area (or in the other two factual areas), did or did not decide that Tesco's investigation fell short of what was required by considering whether it fell within the range of reasonable responses to the material available or reasonably available to them, having regard to the need to avoid requiring of the employers a forensic investigation and to avoid looking only at individual components of the investigation which might have been dealt with differently.[17]We have also reminded ourselves, firstly, that Mr Powell has expressly eschewed reliance on perversity and, secondly, that, as experience tells us, appellants not infrequently in this type of case seek to skirt around the high hurdle which they know confronts them should they rely on perversity by arguing that the Tribunal have substituted their own view for that of the employer. The Loading Issue[18]The loading issue arose because, as the Tribunal found at paragraphs 5 and 8 of their judgment, at the first investigatory meeting on 14 June 2004, Mr Pryke asserted that his lorry had been incorrectly loaded. The Tribunal found that there was a history of poorly loaded vehicles and of "bad load reports" prepared when a lorry reached its destination and the sealed trailer was opened. It was, however, common ground, although the Tribunal did not refer to it, that there was no evidence that alleged poor loading had ever caused an accident during the course of a journey, still less the turning over of a lorry. The evidence of Mr Warren, who had loading experience, conducted the first disciplinary meeting and made the initial decision to dismiss, was that 90% of the vehicles leaving the depot negotiated the roundabout in question, which meant that there were 400 vehicle movements per day or 125,000 such movements per year around that roundabout during the 14 years of the depot's operation. The Tribunal found, at paragraph 4, that as Mr Pryke crossed a smaller roundabout soon after leaving the depot, he felt the load shift but that that slight movement was commonplace and the movement was not remarkable. There was no suggestion of any more dramatic movement or of any difficulty in controlling the lorry before it reached the roundabout where the accident occurred.[19]Photographs which were taken of the trailer after the accident showed that some securing straps had been used but were inconclusive as to whether there had or had not been poor loading.[20]The transcript of the second investigatory meeting, (see page 105 of our bundle) shows that Mr Pryke was asked:
"Do you have a view as to why the vehicle went over?" and answered: "
I don't know, if I was to say anything maybe tyres soft, not my usual unit. First run felt soft to drive. More give going around corners; whether that contributed or not, I don't know"; but he also said at some stage:
"I have heard that two trainees loaded it and the person training them went off for a break before he came back, the vehicle was loaded and sealed"
. He was asked who said that; he replied that he was not willing to divulge that information.[21]It is not in dispute that, nevertheless, Tesco investigated that allegation; and they identified that the only training of loaders on the relevant shift was carried out with a Mr Fowler as the trainer. Mr Fowler was spoken to; he expressed the view to Mr Robertson of Tesco (see page 104 of our bundle) that he was very confident in the ability of the two trainees, whose names he gave. At the third investigatory meeting (the trainee issue having been raised at the second) Mr Robertson said (see page 101 of our bundle):
"I have investigated your query on a trainee loading your vehicle and it appears that the only loader training we have done recently was on week commencing 08/06/04 – two guys were involved in loading your trailer and the trainer is confident in their ability to load and strap a trailer correctly. If you have more information, I can try and dig deeper. Trainees for loading are with the trainer for four days – on the fourth day the loaders are ok'ed to load trailers on their own and are checked at regular intervals"
. It is not suggested that any more information was provided.[22]Although Mr Powell sought to suggest that the loading was not or may not have been carried out by the trainees, the Tribunal Chairman, in response to a question from the EAT, confirmed that Mr Lumb, who had been involved in the investigation and referred Mr Pryke's case for disciplinary proceedings, had, in his evidence, accepted that the lorry had been loaded by trainees; and there is nothing in this point. However, as a result of their investigations, Tesco had learnt at the time of the disciplinary proceedings that the trainer of the two trainees who were training upon loading in the relevant week was confident in the trainees' ability and that their work was regularly checked.[23]Mr Powell submitted that the real issue was not who loaded the trailer but whether it was inadequately loaded, that the evidence available to Tesco at the disciplinary stage was that(i) despite the vast number of trips round the relevant roundabout, none of their lorries had ever tipped over there or tipped over by reason of faulty loading;(ii) there was no evidence that the trailer was inadequately loaded or inadequately loaded in such a way as to cause a lorry to turn over;(iii) they had investigated Mr Pryke's allegation and had established that the trainees, if they loaded the trailer, loaded it on the fourth day of their training, the trainer was confident in their ability and their work was subject to regular checking. What, in these circumstances, did the Tribunal say about the loading issue? They dealt with it at paragraphs 8, 9 and 12 of their judgment as follows: "8. ….The Claimant had raised a suspicion that his vehicle had been loaded by trainees and Mr Lumb had made some enquiries into this matter. He stated that the Claimant's vehicle had been loaded by two people and that the trainer was confident in their ability. He said he would look into the matter further if the Claimant had further information. It is this aspect of the case that fundamentally flaws the investigation. This was a sealed trailer and the Claimant never had the opportunity to examine the load either before or after his accident. An insecure load has the potential to affect the stability of a vehicle. Investigators are under a duty to investigate impartially and to follow up lines of enquiry suggested by the employee. At no stage in this case were the actual loaders ever spoken to or any detailed enquiries made in respect of this aspect of the matter. Photographs were taken of the rear of the trailer at some juncture and they did show the existence of securing straps but we accept the Claimant's evidence that the photographs do not show that they had been used correctly to secure the load. 9. Without waiting for information from the police and without proper investigation of the possibility that an insecure load was material to the accident, Mr Lumb referred the matter to Mr Warren. 12. The Claimant appealed and the appeal was heard by Mr Rea on 13 th September 2004 and 4 th November 2004. He adjourned to obtain information from the Police but reconvened without having done so. However, the Claimant had obtained a report from the police and it appears at pages 176-180 of our bundle. It included the statement of an independent eye witness, a Ms Simkins, who stated that the lorry appeared not to be travelling fast; she did not see the driver swerve as if fighting for control, the lorry just toppled over as if it had become unbalanced. Mr Rea did not contact his witness and did not cause a detailed investigation into the question of an insecure load to be carried out. Even in the face of this evidence he stated that he could not see any reason for the vehicle to overturn other than the fact that the Claimant had been speeding. He further concluded that the Claimant must have removed the tachograph disk himself to conceal that fact that he had been speeding. We have concluded that this was an entirely subjective conclusion and furthermore we note that it was no an allegation with which the Claimant was charged. He concluded that there was nothing to show that the vehicle had been incorrectly loaded".[24]Ms Beecham submitted that the Tribunal had correctly directed themselves, at paragraph 14, to apply the Burchell principles and could be seen to have applied the objective standard of a reasonable employer i.e. the range of reasonable responses test in the passage in paragraph 12 of their judgment which we have just cited, by their reference to "an entirely subjective conclusion", in paragraph 13 by their reference to a fair and reasonable investigation and, in paragraph 14, by their reference to Tesco's belief not being based on a reasonable investigation. Mr Powell's distinction between how the lorry was loaded and who loaded it was unrealistic; the question was whether its loading was the cause of or a contributory factor to the accident; and it was therefore realistic for the Tribunal and properly open to them to take the view that the failure to interview the trainees was important and that Tesco's failure to do so was sufficient to justify the conclusion that Tesco had not reasonably performed the essential obligation to carry out a reasonable investigation. This failure was highlighted, she submitted, by the absence of any evidence from Mr Goodall who considered the final appeal; he was, apparently, unavailable for personal reasons; his witness statement was read by the Tribunal; but it says nothing about the loading issue in any event.[25]Despite the warnings to ourselves, at paragraphs 16 and 17 above, which we have continued to hold in the forefront of our minds, we have concluded that, in this instance, the Tribunal erred in law by deciding the loading issue not on the basis of whether the investigation was one which fell within the band of responses to the situation open to a reasonable employer, but on the basis of the Tribunal's own view as to whether the investigation was reasonable. We reach that conclusion for the following reasons:-(1) As we have said earlier in this judgment, the Tribunal did not expressly direct themselves as to the range of reasonable responses test and its specific application to the reasonable investigation issue or as to the need to avoid substituting their judgment of what was a reasonable investigation for that of the employers.(2) The language used by the Tribunal in paragraphs 12 and 13 indicates that the Tribunal reached their conclusions on the basis of what they regarded as reasonable; the language in paragraph 14 either reflects the same approach or, at best, is equivocal and does not remove the indications given by what the Tribunal had said earlier.(3) The Tribunal's approach to the absence of any interview with the trainees is strong evidence of their erroneous approach. If the Tribunal had applied the range of reasonable responses test, as they should have done, they would had to have considered what were the reasons why Tesco did not speak to the trainees and whether a reasonable employer could, acting reasonably, have decided not to do so. There is no trace in the Tribunal's judgment that they did consider either of these questions. It could not be said that the only reasonable course was to interview the trainees; what memory could they reasonably be expected to have, some weeks after the event, of their loading of one out of many trailers? What could they reasonably be expected to say? Was it realistic to expect that they might say that they had made a serious mistake in relation to Mr Pryke's trailer? Might it not have been regarded by a reasonable employer as sufficient that he had investigated the allegation put forward by his employee, had located the trainer, had been assured by him that trainees were competent and knew that their work was regularly checked? Might not this have been a reasonable approach for an employer who knew that, despite the number of journeys round it, no vehicle had ever come to grief in the relevant way at this particular roundabout or had tipped over because of an unsatisfactory load?(4) The Tribunal do not appear to have looked back at the investigation as a whole and asked themselves whether the investigation fell within the range of reasonable responses as a whole; instead they based their decision on a specific failure to pursue one particular line of investigation. This was of itself a further error of law; see paragraph 8(5) above.[26]We are, of course, not suggesting that, if the correct approach had been adopted, the answer would necessarily have been in Tesco's favour; we should not and do not venture any conclusion on the facts; but we are unanimously of the view that the judgment and particularly the passages to which we have referred demonstrate that the Tribunal erred in law by failing to ask themselves the correct question and by putting forward their own view as to what would have been a reasonable investigation, rather than analysing the investigation which was carried out as a whole in order to seek whether, as a whole, it fell within the range of reasonable responses.[27]While the Tribunal went on to make other criticisms of Tesco's investigation, it was the aspect of the case that we have been addressing which, the Tribunal concluded, fundamentally flawed the investigation. For the reasons we have set out, in our judgment that conclusion cannot stand. The Tachograph Disk[28]In the first disciplinary interview, Mr Pryke said that the tachograph disk was still in the cab of his lorry and that he did not (presumably before he was released from the cab by the fire service) see the police take it. The importance of the disk was, of course, that it would, if available, have shown the speed of the lorry along its journey from the depot to the accident site and, in particular, at the approach to the roundabout at which the accident occurred; and its absence, if unexplained, could give rise to an inference that Mr Pryke, who was in the cab for sometime before his release and was not seriously injured, had removed it so that the truth about his driving would not emerge.[29]The disk had not been located when the investigatory meetings took place. It was initially assumed by Tesco that the police had it (see our bundle page 134). Tesco had information from Mr Stewart, an employee who had attended the scene on their behalf, that he had not taken it from the cab and was told by the vehicle recoverers, On Time Recovery of Waltham Cross, that the police had it.[30]However, at the latest by the time of the disciplinary hearing, it was known that the police said that they did not have the disk (see Mr Warren's decision letter at page 130).[31]At paragraph 10 of that judgment, the Tribunal said:
"10. Also referred was the matter of the missing tachograph. Again at this juncture there had been little investigation into this point. Police, the Fire Service, Tesco personnel to unload the vehicle and the Company who had righted and collected the vehicle had been present at the scene. It would not have been a task of great difficulty for Mr Lumb as the investigator to speak or write to each of the individuals concerned, but he did not do so. He did not arrange for the cab to be searched to see if the missing disk was there."
But, as we have said, by the time of the disciplinary hearing, it was known that the police did not have or denied having the disk, that Mr Stewart had not removed it from the cab and that On Time Recovery did not have it. It is correct that the fire service were not asked about the disk – although it is, perhaps, difficult to see why the fire service might have taken it; and Mr Pryke did not suggest that, when he was released, the fire service had taken the disk.[32]By the time of the final appeal, there was evidence from the police (our bundle page 137) that they had not found the disk despite their searching for it at the accident scene and again when the vehicle was at On Time Recovery.[33]Mr Pryke said in the course of the investigatory meetings that he had been unable to switch off the lorry's engine. It was his case during the course of the disciplinary process that it was not possible to remove the disk while the engine was running and the wheels were in motion. By the time of the final appeal, there was evidence in the form of a letter from Mr Brown, the fireman who had released Mr Pryke, which confirmed that the engine was still running and the vehicle was in gear when he tried to switch it off (our bundle page 144).[34]In his letter rejecting Mr Pryke's final appeal (our bundle page 139) Mr Goodall said:
"You state that as the evidence of the fireman was that as the engine was running, then the tachograph could not have been removed (by yourself). We have further checked this issue with Mercedes and they have told us that a tachograph can only be removed with the engine on and once the fire brigade had turned the engine off, the tachograph could not have been removed"
. Mr Goodall confirmed this in his witness statement (bundle page 96). Mercedes were the manufacturers of the lorry. In both documents, Mr Goodall set out his conclusion that Mr Pryke had probably had the presence of mind to remove the disk.[35]However, after Mr Pryke had been dismissed (but in time for the Tribunal's hearing) it had been discovered that that the information given by Mercedes to Tesco, on which Mr Goodall appeared to have relied, was wrong and that Mr Pryke was correct in asserting that the disk could not be removed by using the eject button when the engine was on and in gear. There was a handbook produced by the manufacturers of the tachograph equipment which said (our bundle page 143), referring to the "drawer" which contained the disk, "it is not possible to open the drawer when the vehicle is in motion or when the vehicle ignition is off." If, after the accident, the engine was running with the vehicle in gear, as Mr Brown described, the vehicle was in effect in motion, albeit lying on its side.[36]At paragraph 13 of their judgment, the Tribunal said:
"13. The Claimant exercised his final right of appeal and the appeal was heard by Mr Goodall on 24th January 2005. By this time the Police had confirmed that they did not have the tachograph disk. There is no evidence however that the cab had been searched or the vehicle recovery company contacted. At this appeal the Claimant produced a letter from a member of the Fire brigade 'attended the scene (Page 322). It confirmed that the vehicle was in gear with the engine running until the Claimant had been freed from the Cab. He confirmed that the ignition key did not stop the engine. We accept the evidence of the Claimant (supported by the relevant handbook) that a tachograph disk cannot be removed from the machine in these circumstances. We can find no substance in Mr Goodall's assertion that the tachograph disk could only be removed when the engine was running. The details at page 321 state the contrary in the clearest terms, 'the eject push button is only active when the ignition is on and the vehicle is stationary'. Mr Goodall dismissed the appeal on the basis that he had concluded that the Claimant was driving too fast and that either he had removed the tachograph disk or that he had not put it in at the outset. These findings were not based on a fair and reasonable investigation"
. Mr Powell submitted, that in that paragraph, the Tribunal could plainly be seen to have put forward their own view of what was reasonable.[37]He submitted, first, that there was evidence before Mr Goodall, to which we have referred, that the police had searched the cab at the site and at the vehicle recoverers.[38]He submitted, secondly, that applying the correct test, it was not for the Tribunal to accept or reject the evidence of Mr Pryke or Mr Goodall as to whether the disk could be removed when the engine was running and the vehicle was in gear; the Tribunal's task was to consider the material before Mr Goodall which was as we have described; and the Tribunal had made the error of forming their view not on the basis of the material which was before the decision maker but on the basis of subsequently obtained material put before the Tribunal which showed that the material before the decision maker was in error.[39]Ms Beecham submitted that the Tribunal were entitled to reach the conclusion that Mr Goodall had based himself on an unfair and unreasonable investigation; Mr Goodall had consulted the manufacturer of the lorry and not the manufacture of the tachograph equipment; and the investigation had not found the correct information which was always available in the handbook kept in the lorries. The Tribunal were, on that basis, considering and expressing their conclusion as to the inadequacy of Tesco's investigation of this issue and were entitled in doing so to take into account material which subsequently emerged as showing what ought to have emerged during the course of an adequate investigation. She accepted, however, that Mr Pryke and his representative had not brought to the attention of Mr Goodall the fact that Mercedes were not the manufacturers of the tachograph equipment or the existence or contents of the handbook.[40]Ms Beecham further submitted that, in any event, the issue as to the disk was unimportant by the stage of the final appeal because, by then, both sides were proceeding on the basis that Mr Pryke's speed at the roundabout where the accident occurred was 20-25 miles per hour, as Mr Pryke had asserted. She referred us to Mr Goodall's dismissal letter (bundle page 139). She drew our attention to other material which, she argued, demonstrated that the Tribunal were entitled to take the view that the investigation did not justify a conclusion that Mr Pryke was driving at excessive speed.[41]We will come to the speed issue later in this judgment. At this stage, we must focus on the narrower issue relating to the missing tachograph disk which Tesco clearly believed to be material to their conclusion as to Mr Pryke's driving and thus to his misconduct and which the Tribunal clearly also regarded as important. The tachograph issue was not treated as of no significance either by Mr Goodall or by the Tribunal; Mr Goodall's decision letter does not indicate that that issue was of no significance; it does say that Mr Warren's view was that to approach the roundabout at the speed given by Mr Pryke in a fully laded vehicle was dangerous; but Mr Goodall cannot be seen to have set aside the potential significance of the missing tachograph disk as an indication that Mr Pryke had been driving at a higher speed than that which he had been willing to accept.[42]As to paragraph 13 of the Tribunal's decision, we prefer Mr Powell's submissions. It was crucial, in circumstances in which, after the disciplinary process was over, evidence which was not put before the decision makers in the course of that process emerged and was put before the Tribunal, which evidence showed that the material before that process on an important issue had been wrong, for the Tribunal to reach their conclusions not on the basis of what was not before that process but on the basis of what was available to it and what ought reasonably to have been made available to it. The correct approach in law required the Tribunal to consider whether for Tesco to consult the manufacturers of the vehicle in order to investigate Mr Pryke's assertion that he could not have removed the disk and to rely upon the answer which that consultation produced, in the absence of any suggestion made on behalf of Mr Pryke that Mercedes were not the manufacturers of the tachograph or could not be expected to provide the correct response about equipment fitted into their lorries or of any suggestion that the handbook contradicted the information obtained from Mercedes, lay outside the range of reasonable responses.[43]The Tribunal, in our judgment, did not adopt that approach. If they had, they would have been bound to decide whether it was reasonable for Tesco's to rely on the information they had obtained and not to discover the relevant handbook for themselves. Paragraph 13 does not reveal that the Tribunal considered those questions; indeed they did not mention at all the fact that Mercedes had been consulted and gave the response which was central to Mr Goodall's conclusion on this issue. Instead, they looked, in the light of the further evidence before the Tribunal, at whether they accepted the evidence of Mr Pryke and rejected Mr Goodall's assertion that the disk could only be removed when the engine was running. The Tribunal were correct to say that the handbook stated the contrary to Mr Goodall's assertion; but they did not consider whether Mr Goodall's belief, as it was at the time of his decision to reject the final appeal, was based on an investigation which fell within the range of reasonable responses. The words "we accept the evidence" and "we can find no substance" in our judgment speak and speak only of the Tribunal's forming their conclusion on the evidence before them and failing to base themselves only on what was or ought reasonably to have been the evidence before Mr Goodall.[44]Accordingly, for these reasons, we conclude that the Tribunal's conclusion on this issue too, was reached in error of law. The Speed Issue[45]The Tribunal addressed the speed issue in paragraphs 11 and 12 of their judgment, referring in paragraph 11 to the disciplinary hearing before Mr Warren, and in paragraph 12 to the first appeal before Mr Rea.[46]We have set out the relevant passages in paragraph 12 at paragraph 23 of in this judgment. At paragraph 11, the Tribunal said:
"11. The Disciplinary hearing commenced on 26th July 2004 and continued on the following day. Mr Warren dismissed him on grounds of negligence at the time of the accident, because he drove without due care and attention and because his tachograph disk was missing. In cross examination Mr Warren admitted that his conclusion was based on the fact that he considered the experience and historical data. He admitted that he had no information or knowledge of the critical speeds for roll over accidents. There is expertise available within the Respondents organisation as they employ a number of driver assessors who undertake the training of drivers, but Mr Warren neglected to obtain information from them. He is not himself a lorry driver and we have no evidence of him having experience beyond the fact that he rode with another driver to and from the scene of the accident twice. We have concluded that Mr Warren's conclusions as to speed are entirely subjective and not based on the evidence"
. The Tribunal referred to the final appeal before Mr Goodall in paragraph 13 but made no reference to speed.[47]The question which the Tribunal had to decide, in relation to speed, was whether the investigation as to that issue fell within the range of reasonable responses and whether the conclusion reached that Mr Pryke was driving too fast was one which, in the light of the investigation, a reasonable employer could have formed. Mr Powell attacked the reliance of the Tribunal, in paragraph 12, on the evidence of the independent witness, Mrs Simkins, and on Tesco's failure to contact her. He drew attention to the fact that, although in her statement, Mrs Simkins said: "The lorry appeared not to be travelling fast", it was never Tesco's belief that Mr Pryke was driving so fast that a member of the public would notice it; the belief was that he had approached the roundabout at an unsafe speed for a fully loaded vehicle; thus, he said, Mrs Simkins' evidence provided no useful information and nothing worthy of further contact in the face of the number of occasions on which Tesco's lorries negotiated the roundabout safely every day, month and year, Mrs Simkins' evidence was unimportant and did not merit further investigation. The Tribunal had, he submitted, in this area too failed to apply the right test and had reached their own judgment of what they thought to be reasonable.[48]Ms Beecham, in contrast, submitted that there was ample evidence to support the Tribunal's conclusions and that the Tribunal had not applied the wrong test.[49]We do not need to resolve these arguments; for it is apparent in our judgment, in the light of our conclusions upon the loading and tachograph disk issues, that the Tribunal's decision cannot stand and that the question whether the dismissal of Mr Pryke was fair or unfair must be remitted for reconsideration by the Employment Tribunal. We say this for two reasons. First, the Tribunal expressly said at paragraph 8 that the failure to investigate the loading issue fundamentally flawed the investigation; but we have concluded that the Tribunal approached that issue in error of law. Secondly, the loading issue and the tachograph disk issue cannot be separated from the speed issue. Although Tesco decided that Mr Pryke had been guilty of misconduct in relation to the tachograph disk, the principal basis for their decision to dismiss was plainly that Mr Pryke was driving too fast with a heavily laden trailer. In the absence of any good explanation of the missing tachograph disk which might, if available, have shown that Mr Pryke was not driving too fast, the facts were such as to cause any employer to be suspicious of excessive speed. If an investigation which fell within the range of reasonable responses did not support an explanation based on poor loading, the facts pointed more clearly towards excessive speed; and if such an investigation reasonably caused Tesco to believe that Mr Pryke had removed the tachograph disk, for that reason too the facts pointed more clearly towards excessive speed. Tesco's belief in excessive speed must, at least in part – and it may be thought to a substantial degree – have been dependent upon or at least affected by their views upon the loading and tachograph disk issues.[50]For these reasons, once we have concluded, as we have, that the Tribunal approached those two issues in error of law, the Tribunal's decision that Mr Pryke was unfairly dismissed cannot survive. We will come later to the nature of the necessary remission. The Reasons Ground of Appeal[51]In the light of the conclusions we have just set out, it is not, in our view, necessary or helpful for us to address this second ground of appeal in any detail; in any event, it played little part in the oral arguments before us. Mr Powell accepted that this ground raised, in effect, the same points as were raised by the first ground of appeal but, as he expressed it, put in terms of reasons.[52]The main thrust of Mr Powell's argument under this head is that the Tribunal did not expressly set out and deal expressly with a number of Tesco's arguments or evidential points. In his Skeleton Argument, he gives three specific examples. The first is that in setting out their conclusion that Tesco's failure to investigate the loading of the trailer with the trainees fundamentally flawed the investigation, the Tribunal did not give adequate reasons. We do not agree; the reasons for the Tribunal's conclusion are sufficiently set out to show to the parties why they won and lost on that issue. They are set out in paragraph 8 adequately to comply with the requirements in Meek and in English . We take the same view in relation to the other two examples set out in Mr Powell's Skeleton. We conclude that there is nothing in this ground of appeal as a free-standing ground of appeal. Reinstatement[53]Despite our decision that the issue of unfair dismissal must be remitted, it is, we believe, necessary for us to respond to the arguments which we have heard about the Tribunal's decision as to reinstatement lest, were we not to do so, and were Mr Pryke to succeed at the remitted hearing, it might be thought that the reinstatement decision remained alive.[54]The parties agree that, perhaps somewhat unusually in a case of this length and weight, the Tribunal asked the parties to deal with reinstatement or re-engagement before the parties knew of the Tribunal's decision on liability. Ms Beecham, who represented Mr Pryke before the Tribunal, tells us that the Tribunal indicated at the outset that they wished to deal with all issues including remedies but as the hearing went on, she and her opponent, Ms Norman, agreed to defer dealing with compensation because of complications in the calculation of loss of pension, loss of share scheme rights and matters of that type, but they agreed to deal with reinstatement and re-engagement. The advocates' written submissions barely addressed the question of reinstatement or re-engagement; but Ms Norman's submissions, at paragraph 18, said that in the event of a finding of unfair dismissal, Tesco would seek to assert that Mr Pryke was at fault, and would address the Tribunal upon that issue in the event that it was necessary to consider remedies.[55]Mr Powell told us that Mr Rea was called to give evidence as to the practicability of reinstatement, in the light of the absence in Tesco of any trust and confidence in Mr Pryke. Neither advocate appears to have addressed the Tribunal orally on the question of contributory fault; Ms Beecham said to us, with admirable frankness, that she and her opponent had both "missed it". However, as we have indicated, Ms Norman had referred to that issue in her written submissions, albeit tangentially.[56]Section 116(1) of the Employment Rights Act 1996 provides as follows:
"(1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account- (a) whether the complainant wishes to be reinstated (b) whether it is practicable for the employer to comply with an order for reinstatement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement."
[57]Mr Powell and Ms Beecham agreed that it was a statutory requirement, pursuant to section 116(1)(c), that the Tribunal, before making an order for reinstatement, should consider whether Mr Pryke had caused or contributed to some extent to his dismissal and, if so, whether it would be just to order his reinstatement. However, the Tribunal do not appear to have considered at all whether Mr Pryke was at fault or, if he was, how that affected or might affect the reinstatement issue. Ms Beecham accepted that Ms Norman had raised the issue of contributory fault in her written submissions and that she could not submit that Ms Norman had waived the requirement that the question of contributory fault be considered before an order for reinstatement was made. She submitted that the Tribunal, by deciding to make an order for reinstatement, must be taken to have rejected Tesco's case that there had been contributory fault on Mr Pryke's part.[58]We cannot see in the Tribunal's decision any indication that they considered contributory fault at all; the fact that they decided that a reinstatement order should be made after Ms Norman had raised, albeit tangentially, the contributory fault issue, could not of itself amount to an indication that they had considered that issue; and if they did and came to a conclusion adverse to Tesco, they certainly gave no reasons for such conclusion – which would of itself render such conclusion bad in law. It is, in our judgment, overwhelmingly likely that they did not consider the issue – for it they had they would surely have said something about it.[59]As Ms Beecham accepted, if the Tribunal could not be taken to have considered and rejected contributory fault, their decision as to reinstatement cannot stand. In our judgment that decision was reached in error of law; the Tribunal failed to consider a relevant issue which they were statutorily required to consider before making an order for reinstatement.[60]For these reasons, we must allow the appeal against the reinstatement order; but this conclusion is, of course, wholly independent of our conclusions upon the unfair dismissal issues. The Result[61]For the reasons which we have set out, the appeal against the Tribunal's decision as to unfair dismissal and as to reinstatement succeed. Mr Pryke's claim that he was unfairly dismissed must be remitted for decision at a new hearing, as must any question of remedies should the need arise.[62]We have considered whether we should remit to the same Tribunal or to a fresh Tribunal in the light of the criteria set out in paragraph 46 of the judgment of the Employment Appeal Tribunal in Sinclair Roche & Temperley v Heard [2004] IRLR 763 . Having considered all of those criteria, we have concluded that this is a case in which the Tribunal expressed strong views about Tesco's investigation and conclusions, yet fell into error of law which fundamentally affected their ultimate conclusion as to the fairness or unfairness of the dismissal. The Tribunal's decision was, in our judgment, seriously flawed. We are unanimously of the view that justice would not be served by a remission to the same Tribunal and that the remission in this case must be to a fresh Tribunal.