CORUS UK LTD v MR A M MAINWARING [2007] UKEAT 0053_07_2206

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0053_07_2206Case No Appeal No. UKEAT/0053/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
CORUS UK LTDAPPELLANTMR A M MAINWARINGRESPONDENT
Before
His Honour Judge BurkeDate 22 June 2007
[1]APPEARANCES For the Appellant MR PETER WALLINGTON (of Counsel) Instructed by: HR Law Services Corus UK Ltd Port Talbot Works Port Talbot South Wales SA13 2NG For the Respondent MR PHILIP MEAD (of Counsel) Instructed by: Leo Abse & Cohen 40 Churchill Way Cardiff CF10 2SS SUMMARY Unfair Dismissal: Reasonableness of dismissal / Contributory fault / Constructive dismissal The Claimant was dismissed for misconduct, namely pretending that he was unfit to return to work when video footage showed that he was not so unfit. The Employment Tribunal found that the dismissal was unfair. The Respondent's appeal was allowed; the Employment Tribunal had erred in law in: (i) omitting to refer to the full investigatory meeting before suspension and concluding that the Respondent had a "mindset" to dismiss because they had gone straight from receiving a tip off about the Claimant to suspension; on the evidence they had not done so. (2) criticising the Respondents for not taking a statement from the informant when, on the evidence, the tip off was no more than a trigger for their investigations. (3) criticising the Respondents in relation to the medical evidence on a false basis of fact. (4) failing in the light of Taylor v OCS Group , to consider the effect of the internal appeal hearing. Remitted for rehearing by fresh Tribunal. HIS HONOUR JUDGE BURKE QC This is an appeal by Corus UK Ltd ("Corus") against the decision of the Employment Tribunal, sitting at Cardiff, chaired by Mr Harper and sent with written reasons to the parties on 8 November 2006, that the Claimant before the Tribunal, Mr Mainwaring, had been unfairly dismissed. The Facts[2]Mr Mainwaring was employed by Corus as a crane driver; he had been employed by them or their predecessors for over 30 years. He began in 2002 to suffer from back problems, which, he said, caused him to be absent from work. He was absent in that year for two periods amounting to 137 days; and in 2005 between February and August he had 100 days off work. In late January 2006 he again went off work because of his back condition and was receiving sick pay from Corus. He saw his GP who prescribed medication and physiotherapy. According to his GP he was advised to keep active and perform normal activities as pain permitted and to avoid heavy lifting and sitting in one place for long periods.[3]Corus used as their occupational health advisor the services of a GP who happened to live in the same village as Mr Mainwaring, Dr Bevan. In the course of the disciplinary proceedings to which we will come shortly Mr Mainwaring described him as "brilliant". He saw Dr Bevan regularly during his absence from work, including on 9 and 16 March 2006. By 16 March his condition had improved to the extent that, although he was not yet fit for work, Dr Bevan concluded that he would be able to return to light duties in two weeks' time.[4]However, in early March Corus received an anonymous "tip-off" from someone in Mr Mainwaring's team suggesting that he might be behaving outside work inconsistently with his being genuinely off work for back problems. Corus did not take a witness statement from that person; but they decided to undertake surveillance of Mr Mainwaring; and as a result their Assets Protection Team videoed Mr Mainwaring on three occasions, on 9, 15, and 16 March. The Tribunal saw the relevant video footage which, they said, amounted to less than 5 minutes in all. On 9 March the video showed Mr Mainwaring loading shopping into the boot of his car in a supermarket car park. On 15 March it showed him walking along a street having been to a betting office. On 16 March it showed him unloading shopping from his car at home.[5]The authorisation for this surveillance came from Mr Rainsbury, Corus's Manufacturing Manager in the relevant work area; he read the report of the Asset Protection Team and saw the video footage on 22 March. He said in his witness statement and, no doubt, in evidence that he was unable to interpret i.e. to understand the impact of the video footage; and therefore he sought Dr Bevan's opinion. On 22 March Dr Bevan reported, having confirmed that he had seen Mr Mainwaring on 9 and 16 March and certified him as unfit for work on the former occasion and unfit but able to return to light duties in two weeks on the latter occasion, in these terms:- " 16 March Following the consultation on this date, I confirmed that Mr Mainwaring was still suffering from tenderness in his upper thoracic spine. He was, however, showing signs of improvement so therefore was able to return to work within a fortnight on alternative duties. On the 22 nd March 2006, I was asked to give a statement to Miss Cath Atherton within the HR Department to examine and give my professional opinion of the surveillance video of Mr Mainwaring undertaking various tasks during a period between 9 th & 16 th March. 9 th March Mr Mainwaring is shown in the video to be placing various bags into a car and then later removing them, this included bending and reaching into the car. If he were suffering with back pain, he would not be capable of undertaking these tasks as they would have caused him considerable discomfort and pain. 15 th March Mr Mainwaring is shown walking freely down the street; he showed no obvious signs of back pain, which I would expect in his condition. Following the consultation on the 16 th March, his condition was improving however; he should not be moving as freely as he as [sic] shown in the video. 16 th March Mr Mainwaring is shown shopping at a local supermarket and then later removing various bags from the boot of his car. He is showing no signs of pain. He should not been [sic] carrying these bags even though his condition had improved. On the video, he is shown undertaking a three-point turn in his car. He would have been capable of undertaking this task; if he had power assisted steering in the car. In my opinion if Mr Mainwaring had informed me on both dates when he saw me at the Works Medical Centre at Trostre, that he was capable of undertaking these tasks. I would have recommended that he be fit for work with no restrictions being placed on him with immediate effect."[6]There was evidence that Mr Mainwaring's car did have power steering; and that was not challenged.[7]As a result of Dr Bevan's report, disciplinary proceedings were considered. Although the Tribunal do not refer to this, it is common ground that there was an investigatory meeting on 27 March when Mr Mainwaring and his union representatives were shown the video footage and Dr Bevan's report was read to them. In brief, Mr Mainwaring's response was that he was improving, had been doing exercises and was not prevented by his symptoms from acting as shown in that footage. At the end of the meeting he was suspended pending the outcome of the investigation.[8]The Tribunal also did not refer to the receipt by Corus of a letter from Mr Mainwaring's GP dated 28 March 2006 in which he said:
"The above named has been consulting his GP and the practice physiotherapist since January this year with low back pain. He has had a course of physiotherapy and been taking anti-inflammatory medication. He has been advised to keep mobile and do light exercise to strengthen his back. He is currently fit for light duties. I trust this information is helpful to you."
[9]In the light of what was said at the investigatory meeting and in the GP's letter Dr Bevan was asked to provide a fuller statement. He did so on 30 March. This further report from Dr Bevan is also not referred to in the Tribunal's decision. In the last two paragraphs of that report Dr Bevan concluded:
"On both consultations of the 9 th & 16 th March, he demonstrated poor movement and was in pain. He led me to believe that he was unfit to return to the workplace due to these poor movements and I based my assessment on this information. However on seeing the video, his movement is not restricted, therefore there was no reason why he could not have returned to his workplace during this period. I did advise Marshall on the type of medication he should be taking. He then spoke to his GP who prescribed this medication accordingly. I have no evidence to prove whether he was taking this medication or not. However, if he was taking this medication, he would still not have been able to undertake the tasks shown in the video with the back issues he presented to me on the 9 th & 16 th March."
[10]The Tribunal found at paragraph 5 of their judgment that, as a result of the medical interpretation of the video footage i.e. of Dr Bevan's views, Corus felt that there was a serious situation. Mr Mainwaring was invited to a disciplinary hearing which was conducted on 7 April by Mr Rainsbury. He had with him two union representatives. In essence Mr Mainwaring and his representatives said that the bags he was shown as lifting were not heavy, that he was continuing to exercise and was not shown in the video footage to be doing more than light exercise. After an adjournment of 45 minutes to think about his decision Mr Rainsbury decided to dismiss Mr Mainwaring on the ground that he had dishonestly reported himself as unable to work through illness when he was fit to work.[11]Mr Mainwaring appealed against that decision. His appeal was heard by Mr Gallacher, Operations Manager. The hearing started on 19 April but did not conclude on that day because Mr Gallacher wanted to speak to Dr Bevan and went to see him. He also had a further letter from Mr Mainwaring's GP dated 13 April 2006. When the appeal resumed on 11 May Mr Gallacher said that the further letter from the GP had been reviewed by Dr Bevan who was resolute in his opinion that, if he had seen the video on 9 and 16 March, he would not have signed Mr Mainwaring off as unfit for work. He upheld Mr Rainsbury's decision. The Tribunal's Judgment[12]The Tribunal did not refer expressly to s.98A(1) of the Employment Rights Act 1996 or make any express finding as to the reason for the dismissal. Having set out the facts they directed themselves, at paragraph 10, in these terms:- "Firstly, it is not for the Tribunal to impose its own views. Secondly, it is for the Tribunal to consider the test in British Home Stores –v- Burchell coupled with Sainsbury's supermarkets –v- Hitt . We consider in general terms whether we agree with the submission that the Respondent makes that there was genuine belief after a reasonable investigation. We have to assess whether the reasonable investigation was within a reasonable range of response for an employer."[13]They then continued in paragraphs 10 and 11 as follows:- 10…"Here the Respondent consulted and saw the Claimant as part of the disciplinary investigation before deciding whether or not to start disciplinary proceedings. That of course in itself was completely correct. The Respondent did not see or did not take a statement from the original complainant who worked in the Claimant's team and that statement could have been done on an anonymous basis. It was outside the range of reasonable response for that not to have been done because the Respondent should have considered whether or not there was a reason why this complaint had been made. Were there sour grapes, was there ill-feeling or some other factor? That was not done. What then happened is that the Respondent suspended the Claimant. Mr Williams who represents the Claimant says that the very act of suspension rather than seeing the Claimant at any early stage before the covert surveillance was actioned indicates that there was a mindset in place to consider getting rid of the Claimant. The evidence does support that that is right. The Respondent also in our view acted outside the range of reasonable response in failing to get the Claimant's written permission to approach his GP to obtain a report. It is outside the range of reasonable response not to have considered obtaining the advice of a consultant where the only medical evidence upon which they relied was a GP and not a specialist back doctor. 11. The failure to act within a reasonable range of response in the enquiries that could have been made result in the conclusion that this was not a reasonable investigation and that therefore if there is a failure to have a reasonable investigation it must follow that there cannot be a genuine belief at the end of it. As a result it follows that although the Claimant does not make much criticism of the subsequent procedure the underlying problem as far as the Respondent is concerned is that they were embarking on a course of action which no reasonable Respondent would have embarked." Accordingly they found the dismissal to have been unfair. Grounds of Appeal[14]Mr Wallington has put before us eight grounds of appeal. They are usefully summarised in his skeleton argument as follows (but we have changed the order so as to reflect the order in which we have addressed those grounds). They are:-(1) The Tribunal failed to give proper and sufficient reasons for their decision.(2) The Tribunal took into account an irrelevant consideration, namely the failure of Corus to obtain a statement from the informant whose allegations lead to the investigation of Mr Mainwaring.(3) The Tribunal erred in relying on the suspension of Mr Mainwaring as supporting their conclusion that the dismissal was unfair.(4) The Tribunal erred in law in holding that Corus's decision not to seek a report from Mr Mainwaring's GP and/or from a consultant was outside the range of reasonable responses.(5) The Tribunal failed to consider the effect of the appeal on the fairness of the dismissal. 6) The Tribunal's finding that there was not a reasonable investigation was as the result of a substitution of their own view. (7) The Tribunal erred in law in finding that because the investigation was not reasonable Corus did not have a reasonable belief in the misconduct. (8) The Tribunal's decision was perverse. Insufficient Reasons[15]Mr Wallington advanced four criticisms of the Tribunal's judgment under this head.[16]The first was the absence of any finding as to the reason for dismissal. However, in our judgment it was not, in the context of this case, an error of law for the Tribunal not expressly to state what that reason was. The claim form made it clear that Mr Mainwaring had been dismissed for misconduct – albeit of course, on his case, unfairly. Corus's response stated that Mr Mainwaring had been dismissed for misconduct. There was, in the circumstances of this case, no issue as to what the reason for dismissal had been. While many Tribunals, as a matter of form in such a situation, make an express finding as to the reason for dismissal – and it may be better practice to do so – it is not in our judgment necessary in law to do so when all concerned know and are in agreement as to that reason; and it is understandable that the Tribunal concentrated on what was in issue before them, namely whether it was reasonable to dismiss for the reason of misconduct.[17]Secondly, Mr Wallington pointed out that the Tribunal failed to refer to the statutory test of fairness as set out in s98(4) of the 1996 Act. However the Tribunal did expressly, in paragraph 10, direct themselves to the familiar principles set out in British Homes v Burchell [1978] IRLR 379 and Sainsbury's Supermarkets v Hitt [2003] ICR 111 . They directed themselves to consider whether Corus had a genuine belief (which we regard as intending to include a genuine and reasonable belief – the same wording is used elliptically in paragraph 11) after a reasonable investigation. Their self-direction was brief but adequate. It was not necessary in law for them to set out the terms of s98(4) or to refer to that subsection; they plainly had the relevant principles in mind.[18]Thirdly Mr Wallington submitted that it cannot be seen from the Tribunal's decision that they appreciated that there was, as to reasonableness, no burden of proof on Corus, in contrast to the position which applied when Burchell was decided; but it is not open, in our judgment, to Corus to complain that the Tribunal may have misunderstood the burden of proof when there is no positive indication in the words used by the Tribunal which even suggests that they did.[19]Fourthly Mr Wallington referred to the absence in the judgment of any reference to s98A(2) of the 1996 Act. His argument was that the deficiencies found by the Tribunal in the investigation formed the basis of the Tribunal's conclusion that the dismissal was unfair and, therefore, because those deficiencies were procedural the Tribunal ought to have considered, pursuant to s98A(2), whether Corus had shown that they would have dismissed Mr Mainwaring if proper procedures had been followed.[20]This submission was founded on the decision of the Employment Appeal Tribunal (EAT) (Elias P presiding) in Kelly-Madden v Manor Surgery (2007) IRLR 17 , in which it was held that the words "failure to follow a procedure" in s98A(2) should be broadly construed.[21]Mr Wallington (who did not appear in the Tribunal) accepted that Corus did not rely on s98A(2) before the Tribunal. That is likely to have been because the EAT's judgment in Kelly Madden was handed down on 19 October 2006 and the hearing of Mr Mainwaring's claim took place on 23 October 2006. The EAT, in Mason v Governing Body of Ward End Primary School (2006) IRLR 432 had preferred a narrower definition of the relevant words in s98A(2) which, if correct, would have disabled Corus from succeeding before the Tribunal in an attempt to rely on that subsection; on the other hand the wider approach was preferred in Alexander v Bridgen Enterprises Ltd [2006] IRLR 422 . Before us Mr Mead on behalf of Mr Mainwaring did not seek to argue for the narrower construction; his response to Mr Wallington's point was that it had not been taken before the Tribunal.[22]In our judgment, for Corus now to seek to take the s98A(2) point, on appeal, when they did not take it below, is not permissible. The resolution of that point before the Tribunal must inevitably have involved the Tribunal in making a factual finding as to whether Mr Mainwaring would have been dismissed in any event had proper procedures been followed. There is no such factual finding because the point was not taken before the Tribunal. On familiar principles, set out in Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 and other authorities, it is too late now for the point to be taken at the appellate stage. Even though Corus and their advisors may not have fully appreciated that the point was available to them before the Tribunal and could not be expected to have fully appreciated the impact of the decision in Kelly Madden , the argument for the wider construction of s98A(2) had been supported in Alexander . In any event the point was fact-sensitive; the Tribunal was not asked to make the necessary finding of fact; and the factual issue cannot now be the subject of investigation.[23]For these reasons we are not persuaded that the Tribunal failed in any of the above respects to give proper or sufficient reasons for their decision on the grounds put forward by Mr Wallington.[24]We should add that Mr Wallington included within his submissions as to the absence of proper reasoning the failure of the Tribunal to address or deal with the appellate aspect of the disciplinary process. We are in no sense critical of Mr Wallington for so doing; the various arguments in this appeal overlap to a substantial degree; but we prefer to approach this part of Mr Wallington's submissions as a freestanding point, to which we will come later in this judgment. The Informant[25]Mr Wallington submits that the Tribunal's conclusion that Corus were outside the range of reasonable responses because they failed to take a statement from the informant was an error of law in three respects. First he submitted that Corus did not rely in any way on anything said by the informant in deciding to dismiss; Corus based their decision upon the video footage and upon the medical opinions given by Dr Bevan in the light of that footage. Secondly he submitted that, although the Tribunal directed themselves not to substitute their view for that of the employers, that is in this area precisely what they did; they should have asked themselves if it was open to a reasonable employer to conclude that such a statement need not be sought and did not do so. Thirdly he submitted that the Tribunal's conclusion was perverse.[26]Mr Mead submits that the receipt of information from the informant played a greater part in Corus's decision than merely that of stimulating the investigation by the Asset Protection Team. He relies for this on the dismissal letter which, before reciting the events as Corus believed them to be, said:
"From all the investigations that took place our understanding of relevant events are as follows."
[27]Therein, it is argued, lies a reference to the information provided by the informant and a suggestion that that information was true. The Tribunal was to be taken to have found that that information had some influence upon the decision to dismiss Mr Mainwaring, and in those circumstances the Tribunal were entitled to take the view that no reasonable employer could act upon such information without investigating its accuracy and authenticity.[28]In our view the Tribunal erred in law in finding that Corus stepped outside the range of reasonable responses in failing to obtain a statement from the informant. We do not accept that the words in the dismissal letter which we have set out above include a reference to the information provided by the informant; whatever the informant said was not part of any investigation; it triggered the investigation. There is no finding that those investigations included the substance of the information provided by the informant or that Corus relied on what the informant said in reaching their decision to dismiss. Nothing in the dismissal letter, the notes of the investigatory meeting or the disciplinary meetings so suggests. Paragraph 7 of the claim form, plainly drafted by Mr Mainwaring's solicitors, makes no such assertion. Other than that passage in the dismissal letter – which does not have the effect, in our judgment, for which Mr Mead contended - Mr Mead has not been able to identify any piece of evidence which could form the basis of a conclusion that Corus took the information derived from the informant into account in reaching their decision to dismiss.[29]In those circumstances the absence of any statement from the informant could not be said to have been relevant to the reasonableness of the investigation or of Corus's conclusion. Whether there were sour grapes or there was some other ill-feeling which led the informant to act as he did was immaterial unless the information which he provided played a part in the decision.[30]In those circumstances Mr Wallington's first argument on this part of the case succeeds; and it is not necessary for us to consider his second or third arguments; we would add, however, that if the Tribunal are to be taken to have made a finding of fact that the information was held against Mr Mainwaring as opposed to being the trigger for the investigation which followed that would have been a finding unsupported by evidence and, in that sense, perverse. The Suspension[31]It is logical to consider next Mr Wallington's points which relate to the Tribunal's conclusions as to Mr Mainwaring's suspension; for as we see it they may explain the error made by the Tribunal in relation to the informant. In paragraph 10 of their judgment, the Tribunal, having referred to the communication from the informant, said:
"What then happened is that the Respondent suspended the Claimant" and then based their finding that: "
There was a mindset in place to consider getting rid of the Claimant" on the recorded assertion on the part of Mr Mainwaring's solicitor that suspending Mr Mainwaring rather than seeing him at an early stage before the covert surveillance was indicative of that mindset.[32]Mr Mead, with appropriate professional candour, accepted that Mr Mainwaring's solicitor had not at the hearing made that submission and that, in this part of paragraph 10 of their judgment, the Tribunal had, to put it in plain terms, got the sequence of events wrong. The true sequence of events was that which we have set out earlier in this judgment when summarising the facts, namely that Mr Mainwaring was not suspended on receipt by Corus of the "tip-off" from the informant; he was not suspended until, in the light of the tip-off, Mr Rainsbury had commissioned the surveillance, that surveillance had been carried out, Mr Rainsbury had seen the video footage, had consulted Dr Bevan and had held an investigatory meeting at which Mr Mainwaring was represented. Unfortunately the Tribunal made no reference to the investigatory meeting although it was specifically relied upon at paragraph 11 of Corus's response and in Mr Rainsbury's written statement; they appear to have erroneously believed and to have based the relevant part of paragraph 10 on the view that Corus had gone straight from receipt of the tip-off to suspension of Mr Mainwaring. That was a fundamental error; and that error, in our judgment, wholly undermines their conclusion that there was a mindset in place to consider getting rid of Mr Mainwaring and the general conclusion set out in paragraph 11. That error also goes some way to explain the Tribunal's apparent belief that Corus had in some way relied on the tip off as containing the truth. As we have said, the reality was that, far from suspending Mr Mainwaring immediately on receipt of the tip-off, Corus did not do so until after they had obtained the video footage, consulted Dr Bevan about its impact and then held an investigatory meeting – a wholly different sequence of events from that on which the Tribunal proceeded.[33]Mr Mead submitted that the suspension, in that factual context, was none the less unreasonable and unnecessary because at that time (27 March) Mr Mainwaring was not at work and the possible misconduct which was to be investigated had taken place outside the workplace; albeit the Tribunal were mistaken as to the chronology, they were entitled to regard the suspension as an indication of the mindset on which their decision was based.[34]We do not accept this argument; if there had been misconduct it was not wholly separate from or unconnected to Mr Mainwaring's work or his working ability; furthermore Dr Bevan's conclusions of 16 March were such that, on 27 March, Mr Mainwaring would have been back at work and possibly back at work with the informant within a few days if not suspended. In any event the Tribunal did not criticise Corus for suspending Mr Mainwaring on the basis put forward by Mr Mead but on a wholly different basis which was misconceived; the possibility that the Tribunal might (or might not) have taken an adverse view on the correct chronology, which they did not consider, cannot, in our judgment, enable the consequences of the Tribunal's misunderstanding of that chronology to be avoided. It is, as it seems to us, inescapable that the Tribunal based their substantive conclusions in substantial part on a view of the facts which was simply not supported by the evidence. In so doing they were in error of law. The Medical Evidence[35]The Tribunal appear to have concluded that it was outside the range of reasonable responses for Corus(1) to fail to obtain Mr Mainwaring's consent to their approaching his GP for a report and(2) not to have considered obtaining the advice of a consultant, Dr Bevan being a GP and not a "specialist back doctor".[36]We say "appear to have concluded" because Mr Mead submitted, as will appear below, that there was, in reality, only one criticism of Corus's approach to the medical evidence to be found in paragraph 10 of the Tribunal's judgment.[37]Mr Wallington criticised the Tribunal's conclusions as to the medical evidence on three fronts, namely:-(1) Corus did not fail to obtain the views of Mr Mainwaring's GP; on the contrary they were provided with and had before them at the disciplinary stage the letter from the GP dated 28 March 2006 and, at the appeal stage, the fuller letter from the GP dated 13 April 2006; but although they were before the Tribunal and referred to in Corus's witness statements, the Tribunal referred to neither. It was not open to the Tribunal, on the material before them, to reach the first of the above conclusions.(2) There was no suggestion that Mr Mainwaring had seen his GP since January 2006 (see the second GP letter); but he had seen Dr Bevan on 9 and 16 March (two of the three days of the video surveillance). Although it was Mr Mainwaring's case before the disciplinary hearing and before the Tribunal that there was a conflict of medical evidence, that was not the case; the GP had expressed no views about the impact of the video surveillance; and Mr Mainwaring was only seen by Dr Bevan in the relevant period.(3) There was, further, no basis for the conclusion that it was outside the range of reasonable responses for Corus not to seek a consultant's opinion. GPs and occupational health physicians deal with back problems on a day-by-day basis; Mr Mainwaring had never been referred by his GP to a consultant. Dr Bevan knew Mr Mainwaring well; he was an external advisor in occupational health; there was no evidence that his skills in comparing what Mr Mainwaring had said to him that he could or could not do with what the video footage showed him to be capable of doing was in some way insufficient.[38]Mr Wallington further submitted that it was inconsistent for the Tribunal to conclude that it was outside the range of reasonable responses for Corus not to consult Mr Mainwaring's GP and also that it was outside that range for them not to consult a consultant.[39]Mr Mead relied on Mr Mainwaring's case that there was a discrepancy between what Mr Mainwaring was being advised by his GP – to keep active as far as he could – and Dr Bevan's views as to what the video footage showed and what Mr Mainwaring should have been, if he was properly off work, but was apparently not incapable of doing. Thus the obtaining of the GP notes and the resolution of the conflict of opinion by a consultant were requisite – or at least it was open to the Tribunal to take that view of the facts otherwise, Mr Mead submitted, Dr Bevan was in effect both prosecution and judge.[40]He submitted that the correct interpretation of the relevant passage in the Tribunal's decision was that Corus ought to have obtained the GP's notes relating to Mr Mainwaring and put them before a consultant – in other words there was only one criticism.[41]However, Mr Mead accepted that it had not been suggested in the course of the disciplinary proceedings or before the Tribunal that the video footage should have been put before any other doctor or that the GP's notes ought to have been obtained. We do not accept Mr Mead's ingenious argument that the relevant passage of the Tribunal's judgments contains only one criticism. There is no reference to the GP's notes in paragraph 10 of the judgment; the first criticism is that Corus did not obtain a report from the GP; the relevant words are inconsistent with Mr Mead's suggested interpretation. We have no doubt that the Tribunal's decision can only properly be read as containing the two criticisms which we have described.[42]The first criticism is, in our judgment, flawed. Corus had before them the two letters from the GP which we have identified, both of which were individually put to Dr Bevan so that he had the full picture. The Tribunal appear simply to have overlooked these two documents and the evidence as to how they were considered.[43]The second criticism is, in our judgment, also flawed. We accept that, in the context of a personal injuries claim of substance, forensic examination of an allegation of malingering would probably require consideration by a consultant; but the context of internal disciplinary proceedings is very different; and although some employers, particularly if they did not have the assistance of an external occupational health physician, might no doubt have considered seeking a consultant's view, it could not be said that no employer could be said to be acting reasonably if he did not obtain a consultant's report when he had sought and obtained the advice of an independent occupational health physician. Although the Tribunal used words which gave the impression that they were applying the correct test, they can be seen in reality to have substituted their own view of what Corus ought to have done for that of the employers. If they did not make that mistake, it seems to us to be inescapable that Corus have, in this respect, overwhelmingly demonstrated perversity. The Appeal[44]In Taylor v OCS Group Ltd [2006] IRLR 613 the Court of Appeal laid to rest the supposed distinction, which had long been a source of argument before tribunals and the Employment Appeal Tribunal, between the effect of an internal appeal which took the form of a rehearing and an internal appeal which took the form only of a review. Paragraphs 47 and 48 of the judgment of the Court are as follows:- "47 Although, as we have said, both Whitbread and Adivihalli contain a correct statement of the law, it would be advisable for Whitbread not to be cited in future. The use of the words 'rehearing' and 'review', albeit only intended by way of illustration, does create a risk that ET's will fall into the trap of deciding whether the dismissal procedure was fair or unfair by reference to their view of whether an appeal hearing was a rehearing or a mere review. This error is avoided if ET's realise that their task is to apply the statutory test. In doing that, they should consider the fairness of the whole of the disciplinary process. If they find that an early stage of the process was defective and unfair in some way, they will want to examine any subsequent proceeding with particular care. But their purpose in so doing will not be to determine whether it amounted to a rehearing or a review but to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at the early stage. 48 In saying this, it may appear that we are suggesting that ET's should consider procedural fairness separately from other issues arising. We are not; indeed, it is trite law that section 98(4) requires the ET to approach their task broadly as an industrial jury. That means that they should consider the procedural issues together with the reason for the dismissal, as they have found it to be. The two impact upon each other and the ET's task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss. So for example, where the misconduct which founds the reason for the dismissal is serious, an ET might well decide (after considering equity and the substantial merits of the case) that, notwithstanding some procedural imperfections, the employer acted reasonably in treating the reason as a sufficient reason to dismiss the employee. Where the misconduct was of a less serious nature, so that the decision to dismiss was nearer to the borderline, the ET might well conclude that a procedural deficiency had such impact that the employer did not act reasonably in dismissing the employee. The dicta of Donaldson LJ in Union of Construction, Allied Trades and Technicians v Brain [1981] IRLR 224 at page 227 are worth repetition:
"Whether someone acted reasonably is always a pure question of fact. Where parliament has directed a tribunal to have regard to equity -and that, of course, means common fairness and not a particular branch of the law -and to the substantial merits of the case, the tribunal's duty is really very plain. It has to look at the question in the round and without regard to a lawyer's technicalities. It has to look at it in an employment and industrial relations context and not in the context of the Temple and Chancery Lane."
[45]Accordingly in this case, which was decided some months after Taylor , in considering whether Corus had acted reasonably in dismissing Mr Mainwaring as they did, particularly in circumstances in which criticisms were made of the way in which Corus had carried out the disciplinary process, the Tribunal were bound to consider that process as a whole, including the appellate stage. However paragraphs 10 and 11 of the Tribunal's judgment have no reference at all to the appeal hearing before Mr Gallacher or to the obtaining of the further letter from the GP or to Mr Gallacher's consulting Dr Bevan about it or to Dr Bevan's views as provided to Mr Gallacher. It appears that the Tribunal did not look at the s98(4) question by considering, as they were required by Taylor to do, the whole of the process but focussed on that process up to the dismissal.[46]Mr Wallington conceded that, if the Tribunal had been entitled to find that Corus had acted outside the range of reasonable responses in failing to take a statement from the informant, that flaw would have affected the whole process; but we have already found that the Tribunal were not entitled so to conclude; and in so far as the Tribunal relied on the supposed mindset to "consider getting rid" of Mr Mainwaring, it was incumbent on the Tribunal to consider whether the introduction at the appellate stage of a manager, Mr Gallacher, who did not know Mr Mainwaring and was not, so far as we are aware, alleged or found to have been acting in concert in any way with Mr Rainsbury, affected the fairness of the process as a whole. Nor is there any consideration in the Tribunal's judgment of the extra material available from the GP or provided by Dr Bevan to Mr Gallacher.[47]Mr Mead submitted that the Tribunal had made a clear conclusion as to Corus's mindset from the start, which mindset inevitably infected the whole of the disciplinary process. He compared the position to that which prevailed in ASLEF v Brady [2006] IRLR 576 in which the EAT (Elias J presiding), at paragraph 108, regarded it as highly arguable that a finding that disciplinary proceedings had been commenced in bad faith was incapable of being remedied on appeal and, at paragraph 107, held that a failure to carry out a preliminary investigation could not be remedied on appeal. The second of those two points is, as we have said, conceded by Mr Wallington on the hypothesis which he does not accept, correctly in our judgment, that there was a failure to carry out a preliminary investigation. As to the first point, there was not in this case a finding that the whole disciplinary process was in bad faith; the position in ASLEF v Brady was very different; there the reason adduced by the union for dismissal was found by the Tribunal on the facts not to be the true reason for dismissal, the true reason being the union executive committee's political antipathy to Mr Brady.[48]We agree with Mr Wallington that, on the facts of this case, it was incumbent on the Tribunal to consider at least whether Mr Gallacher was tainted by the mindset which, on the Tribunal's findings, affected Mr Rainsbury. That the Tribunal did not do.[49]Accordingly we conclude that the Tribunal fell into further error by failing in its consideration of the issue of fairness to take into account the appellate aspect of the whole disciplinary process as they were, by law, required to do. Further Issues[50]Mr Wallington conceded in oral argument that the remaining points set out in his skeleton did not add materially to those which we have addressed above. Mr Mead accepted that if we found there to have been an error of law in any of the principal areas of criticism i.e. the informant, the suspension, the medical evidence and the appeal process, this appeal was bound to succeed. In those circumstances we do not regard it as necessary or helpful to go into Mr Wallington's remaining arguments, in particular because, for reasons we shall shortly explain, it is necessary for Mr Mainwaring's unfair dismissal claim to be remitted to a fresh Tribunal. It would be wrong for us to express any views on any contention that, leaving aside the specific arguments to which we have referred, the Tribunal's conclusion as to unfair dismissal was perverse. To do so would require detailed examination of and comments upon the factual findings made by the Tribunal upon the evidence; but the evidence will inevitably need to be presented again before a fresh Tribunal which must and will reach their own factual findings. They should be able to do so without any detailed critique or analysis of the evidence from us where such critique or analysis is not necessary for the determination of this appeal. Conclusion[51]It was common ground before us that, if we were to allow this appeal only on the basis of insufficient reasons, it would be open to us to consider seeking further reasons from the same Tribunal or to remit the case to consider particular aspects to that Tribunal but that if we were to allow the appeal on the basis of any one of the specific grounds which we have addressed – the grounds as to the informant, the suspension, the medical evidence and the appeal – this appeal would have to be allowed and the claim would have to be remitted to the Employment Tribunal for rehearing before a freshly constituted tribunal. In the light of our conclusions the Tribunal's decision cannot stand and such a remission is the only appropriate order. We therefore allow the appeal and remit the claim to the Employment Tribunal in those terms.