DEVON GROCERS LIMITED v MS AMANDA FINNAN [2007] UKEAT 0061_06_2905

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0061_06_2905Case No Appeal No. UKEAT/0061/06Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
DEVON GROCERS LIMITEDAPPELLANTMS AMANDA FINNANRESPONDENT
Before
Lady Smith Mr P Pagliari Mrs G SmithDate 29 May 2007
[1]APPEARANCES For the Appellant Mr C P Bourne (of Counsel) Instructed by: The Royal Bank of Scotland Mentor Services 2nd Floor Sapphire West 550 Streetsbrook Road Solihull West Midlands B91 1QY For the Respondent Mr J Fraser (Solicitor) Messrs Peterkins Robertson Paul Solicitors 227 Sauchiehall Street Glasgow G2 3EX SUMMARY The Claimant alleged that she had suffered sexual harassment consisting of a single incident of being patted on the bottom by her employer and that she had, over a month later, resigned on account of that incident. Her employer denied that he had done so. There were inconsistencies in her evidence and a witness who could have given relevant evidence was not called. The majority of the Tribunal, without making reference to those inconsistencies or to the absence of that witness concluded that the event complained of had occurred. Further, whilst it was to be inferred that they had rejected the employer's evidence, they did not explain how or why they had done so. On an appeal by the Respondent employer, the Employment Appeal Tribunal upheld the appeal, concluded that it would not be appropriate for it to substitute its own findings and remitted the case to a freshly constituted Employment Tribunal for a rehearing. THE HONOURABLE LADY SMITH Introduction This is an appeal by employers, to whom we will refer as respondents, against a finding of the Employment Tribunal, sitting at Edinburgh, Chairman Mr K McGowan, that the Respondent, to whom we will refer as Claimant, had been discriminated against on grounds of sex and had been unfairly dismissed. The judgment was registered on 16 June 2006. The claims were claims of direct sex discrimination and unfair constructive dismissal.[2]The Tribunal had made awards of £1,500 as damages for discrimination and £1535.85 in respect of unfair dismissal. The Facts[3]The respondents' business is that of retail grocers and florists. They trade from premises in Alva and Alloa. One set of the premises in Alloa is a grocer's shop and there is a florist's shop adjoining it. Their managing director is Mr Saeed Anwar and the manager of one of the flower shops was a Mrs Margaret Rennie. Mrs Elizabeth Fitzpatrick was the manager of the shop in which the Claimant worked.[4]The Claimant was employed in the florist's shop from March 2003. By July 2005, she was engaged to Nicholas Finnan. In the week prior to the 16 July 2005, he, without the Claimant's knowledge, had telephoned Mrs Rennie and told her he did not like the way that Mr Anwar acted towards the Claimant; he was, he said, "too touchy feely". No other specification was given.[5]The Claimant worked on Saturday 16 July. She stayed on after closing time to complete an order for funeral flowers. Mr Anwar came into the shop. He told the Claimant that he had received a text message from her fiancé complaining about her having to work late. He asked her if she minded if he phoned Mr Finnan, which she did not. A telephone conversation then took place between the two men in the course of which Mr Finnan became annoyed and was rude to Mr Anwar.[6]The Claimant completed the flower order by 9pm and Mr Anwar asked her how much he owed her for overtime to which she responded that he could put the money in her following week's wages. The relevant amount was about £26. Mr Anwar gave her the money then and gave her £30 because, as he said: "you're my (or 'a') babe'. As he said these words, he patted the Claimant on the bottom.[7]The Claimant's account of being patted on the bottom by Mr Anwar was accepted by the majority of the Tribunal. However, the minority did not accept that that was a fact which could be found as having been established. That was in circumstances where Mr Anwar had denied touching the Claimant at all although he accepted having spoken the words alleged.[8]The Claimant went home and told her fiancé what had happened. She was upset. The following day she had a recurrence of tendonitis and was signed off work. On Monday 18 July, she spoke to Mrs Rennie on the phone and told her that Mr Anwar had "patted her bottom ". She asked Mrs Rennie not to raise the matter with him despite Mrs Rennie offering to do so. She then called Elizabeth Fitzpatrick and told her that Mr Anwar had "felt her bum and given her a cuddle".[9]Mrs Rennie felt that she had to speak to Mr Anwar about the Claimant's allegation and did so. He reacted with disbelief. She spoke again to the Claimant and told her she had told Mr Anwar what the Claimant had said. The Claimant said:
"you shouldn't have bothered, I wasn't going to say anything."
[10]The following Saturday, Mr Anwar met with the Claimant. He challenged her about her allegation. They agreed that they would draw a line under it and "move on".[11]The Claimant returned to work on Tuesday 16 August. She was off work on the Wednesday, returned to work on the Thursday but began to doubt if she could continue working for Mr Anwar. The Tribunal records:
"The following day she discussed the position with Mrs Fitzpatrick and decided that she could not continue working with him. The Claimant resigned on Friday 19 August."
The Tribunal's Decision[12]The majority found:
"53 …….that taking all the evidence of the Claimant and all the evidence of Mr Anwar and looking at it in the round, they accepted as credible, albeit with some hesitation, the Claimant's account that Mr Anwar had touched her inappropriately (whether by grabbing or patting) on the bottom. They were satisfied that this was supported by the surrounding circumstances. For example, in their view, the fact of the Claimant's husband being about to set up in business makes it likely that the Claimant would have wanted to remain in work as long as possible and her resignation was consistent with an incident having occurred between her and Mr Anwar which made her feel over time, that she could no longer continue working for him. The majority were satisfied that the events which the Claimant described as having happened on 16 July did occur more or less as she described. 54. However, the majority were also of the view that at the time the incident occurred the Claimant regarded as not very significant. 55. In these circumstances the majority held that the Claimant was entitled to an award to injury to feelings. They were satisfied that the facts were materially different from those in Caledonian Motor Group, in that this was a single incident which although unpalatable, was by no means of the most serious nature. In these circumstances the award of compensation for injury to feelings is £1,500."
[13]As regards the claim of constructive dismissal, the majority held that the conduct of Mr Anwar amounted to a material breach of the Claimant's contract of employment entitling her to resign (a conclusion with which the minority agreed on the hypothesis that he had, contrary to the minority's conclusion, patted her on the bottom). They added:
"71…..Although she did not do so immediately, the timing of her resignation was not so far removed from the incident as to break the causal link between them. The Claimant's evidence was that she was going to leave but her departure was precipitated by her loss of trust in Mr Anwar. The Tribunal accepted that ………."
The Claimant's Evidence[14]We note that the Claimant began her evidence by reading out a statement which she had prepared and which had been lodged. The Tribunal as a whole, did not accept that it should only be used for the purpose of explaining the history of the Claimant's employment. At paragraphs 50-52, they record:
"50…….Mr Bourne's position was that it amounted to particulars of her complaint and was apt to be used as a comparison with her oral evidence. 51. We have no hesitation in accepting the position put forward by Mr Bourne. Irrespective of the purpose for which it was lodged, the Claimant said in evidence that it was a statement she had prepared. It is clear that it was prepared in connection with these proceedings. Above all, Mr Fraser began the Claimant's evidence – in – chief by inviting her to read it out. Accordingly, in his mind it seems that it was to constitute the Claimant's evidence – in – chief or at least a substantial part of it. 52. Accordingly, we consider that it entirely proper to compare the Claimant 's oral testimony with what is written there. Whether any discrepancies are significant is, of course, a separate matter."
[15]That statement contained an account of events which differed from the Claimant's other oral testimony in a number of respects. At paragraphs 58 and 59, these are explained by the minority member who comments:
"… there were material inconsistencies between the Claimant's evidence in chief and her typewritten statement. Moreover, the Claimant's explanations in cross examination when the earlier inconsistencies were drawn to her attention were not convincing."
[16]He then sets out a list of those inconsistencies and at paragraph 59 goes on: "There were also other inconsistencies and curiosities." and he then lists them.[17]The statement also contained accounts of events other than that which the Claimant said had occurred on 16 July and which involved Mrs Fitzpatrick either because she had been present or because the Claimant said she had reported matters to her at particular times and also that she had reacted in particular ways.[18]Further, it contained an account of what the Claimant had done and how she had reacted immediately after the alleged incident as follows:
"I was stunned. I quickly wrapped the evening up and left. I was so humiliated and hurt and upset I actually ran to my car. I managed to pull it together and told myself not to tell anyone. However when I got home and spoke to my partner about what had happened between the two of them on the phone, I couldn't keep in what had happened in the shop. I just blurted it out and never really went a day with out talking about it since then. It just made me feel dirty and I kept thinking an extra 4 pounds for a wee feel of your bottom, that's like treating me as a prostitute in a way. Money for a wee feel and why me? Had I done something or said something? Why me and no other members of staff? Why did he not respect me the same as all the other women he works with day in day out. Then I thought well maybe he has and they haven't said anything to keep their jobs just like I had to do. It was awful."
[19]Thus, in her prepared statement, the Claimant gave an account of being immediately traumatised by the event and of her sense of trauma persisting thereafter. Given the majority's finding at paragraph 54, to which we have already referred, it is evident that they did not accept her account of the immediate aftermath. To do so would have been inconsistent with their finding that the Claimant, at the time, regarded the incident as not very significant. The Minority View[20]As is recorded at paragraphs 58 and 59, the minority member, who we understand to have been the Chairman, noted that there were numerous inconsistencies between the Claimant's oral evidence and the content of a typewritten statement which was also referred to in evidence. At paragraphs 60 and 61, the absence of Mrs Fitzpatrick's evidence is noted and the view expressed that she could have given evidence about a number of other matters relevant both to the sex discrimination claim and to the claim that the Claimant had resigned because of Mr Anwar's conduct. At paragraph 67, the minority member explains:
"Although in civil proceedings generally, and Tribunal proceedings in particular, corroboration is not a prerequisite for a fact to be proved, where important issues are (likely to be) in dispute and corroboration is potentially available, in my view it is incumbent upon the person making those allegations (the Claimant in this case, on whom the primary onus of proof lies) to make that evidence available to the Tribunal by calling the relevant witness. 68. It was not entirely clear why the respondents did not arrange for Mrs Fitzpatrick to be here but it seems that they did at least seek her co-operation. However, it appears the Claimant never intended to call Mrs Fitzpatrick, yet sought to rely on matters allegedly witnessed by her and on conversations which she had with the Claimant. 69 In these circumstances, the opinion of the minority is that the adverse inference rebounds on the Claimant and, in what is inevitably a narrow case, that is sufficient matter to enable it to be held that on the balance of probabilities the events of 16 July were not as described by the Claimant."
Mrs Fitzpatrick[21]At a Case Management Discussion that was held on 12 January 2006, Mr Fraser the solicitor for the Claimant who also appeared before us, advised that he proposed to call a maximum of four witnesses. His list did not include Mrs Fitzpatrick. The respondents' solicitor advised that she intended to lead three witnesses including Mrs Fitzpatrick.[22]Despite her not being on the Claimant's list, Mr Fraser gave us the impression that Mrs Fitzpatrick was regarded as a necessary witness for the Claimant and he had proceeded after the Case Management Discussion on the basis of an assumption that the respondents would call her. He did not check with the respondents' solicitor that that was going to happen nor, it seems, did he seek precognition facilities. At no time did he seek to obtain a witness order to secure her attendance notwithstanding that he regarded her as a necessary witness, which surprises us.[23]In the event, Mrs Fitzpatrick was not present at the hearing before the Tribunal. Mr Bourne explained that by that time she no longer worked for the respondents. They had decided not to call her. That appears to have taken the Claimant and Mr Fraser by surprise. Mr Fraser told us that the Chairman asked him on several occasions whether he wished to seek an adjournment to obtain a witness order for Mrs Fitzpatrick. He declined that invitation though, on the Claimant's instructions. She was nervous and anxious and wanted to get the hearing over and done with. He further advised us that it was accepted that by doing so, the Claimant was running the risk of the result being that there would be an adverse finding as regards the Claimant's credibility. Plainly, it was recognised that Mr Fitzpatrick was a material witness who had relevant evidence to give.[24]We would add that it is clear to us that Mrs Fitzpatrick's evidence had the potential to influence the decision that had to be made as to the Claimant's credibility and reliability, in a material way. Whilst she was not present on the evening of 16 July, she had witnessed other events about which the Claimant gave evidence and had been party to significant conversations with her. It is not uncommon to find that a complainer's credibility and reliability is best tested by comparing what he or she has to say regarding matters other than the event complained of with the evidence of other witnesses regarding those matters, particularly if those witnesses are objective and appear to be credible and reliable. The conclusion may then be drawn that if the complainer's evidence on such collateral matters cannot be accepted then it cannot be accepted as regards the main issue either. Had there been conflict between Mrs Fitzpatrick's account of any of the matters about which she could give evidence and the Claimant's account, it may well be that that would have led to the conclusion that her account of what happened on 16 July could not be accepted as credible and reliable. The likelihood of that being the result could have been fortified by the fact that there were also inconsistencies in the Claimant's own evidence, to which we have already referred. There was thus, we agree, a clear risk of an inference adverse to the Claimant being drawn if she did not call Mrs Fitzpatrick as a witness. The Issues 25. The issues that the Tribunal had to determine were issues of fact: 1. did Mr Anwar touch the Claimant in a sexual manner, as alleged, on 16 July? 2. if Mr Anwar did do so, was that why the Claimant resigned? There seems to be no dispute that if it was, then the Claimant was in a position whereby she could properly claim that she had been constructively dismissed. The Appeal[26]For the respondents, Mr Bourne began by observing that the resolution of the case depended on credibility. This was a case in which there was no documentary evidence to assist. As regards the events of 16 July, the only witnesses were the Claimant and Mr Anwar, whose accounts were at variance. It was, accordingly, important for the Tribunal to get what assistance it could from the evidence about the events before and after the incident complained of. These were covered in her written statement and in her other oral evidence. It was significant that the Tribunal, including the majority, had recognised, at paragraph 52, that there was a need to compare what was set out in the written statement with the Claimant's other evidence. That was correct. What was not, however, correct was that the majority had then failed to do so. As was evident from paragraph 53, they had wholly failed to consider the discrepancies and inconsistencies in her evidence. They had done so notwithstanding the fact that they had plainly rejected the account of her being traumatised at the time contained in her statement. They had also failed to say anything about Mr Anwar's evidence. By implication, they had rejected his account that he had not touched the Claimant but why and how had they done so? The reasons they had advanced in support of their conclusion that the Claimant's evidence should be accepted were speculative.[27]Mr Bourne submitted further that the lack of Mrs Fitzpatrick's evidence undermined the Claimant's case, as had been submitted to the Tribunal on behalf of the Respondent. We note the record of that having been done that is contained in paragraph 46 of the judgment. The majority had not, however, referred to it at all. They were bound, in the circumstances, to do so. Indeed, the majority ought to have commented, as had the minority, on all the witnesses. Mr Bourne submitted that it could be inferred that the concerns arising from the inconsistencies in the Claimant's evidence and the absence of Mrs Fitzpatrick's evidence that are set out in the minority member's' judgment must have been raised in discussion amongst the members during deliberations. The absence of any reasons as to why the majority felt able, notwithstanding those concerns, to accept the Claimant's evidence, undermined their conclusion.[28]Mr Bourne also submitted that the Tribunal had failed to provide adequate reasons as to how and why there was a causal link between 16 July and the Claimant's resignation.[29]In short the majority had failed to provide adequate reasons and their decision fell, accordingly, to be set aside. On the matter of the Tribunal's duty to give reasons, he referred to English v Emery Reimbold and Strick Ltd [2003] IRLR 710 .[30]Separately and by way of fallback, Mr Bourne submitted that the decision was perverse. Given the failure of the majority to consider the inconsistencies in the Claimant's evidence and the lack of Mrs Fitzpatrick's evidence, it was not open to them to reach the conclusion that the event complained of occurred. That being so, it was not open to them to conclude that she resigned because of it. In any event, given that they found that the Claimant did not, at the time, regard the event as very significant, it was perverse to conclude that she resigned, over a month later, because of it. According to the record of her evidence in the minority member's judgment, the Claimant did not rely on anything that happened on 16 July as being the operative reason for her resignation. The reasons given which of themselves were inconsistent) related to concern about working alone. For instance, one of the reasons given was that Mrs Fitzpatrick was going to be on holiday the following week. It followed from that if Mrs Fitzpatrick had not been going to go on holiday, she would have been happy to carry on working for the respondents, even although she would still have had to work alone on Saturdays, as she always had done. That is, in that event, she would not have been complained of a fundamental breach of trust. How could the Tribunal, in all the circumstances, have found that there was a breach of trust justifying resignation?[31]As regards disposal, Mr Bourne submitted that there were three options open to this Tribunal. The first was to substitute our own judgment for that of the Tribunal, which he invited us to do. He did so on the basis that it was only open to the Tribunal to find for the Claimant if they had been satisfied on a balance of probabilities that the event complained of had happened. The majority conclusion was flawed for the reasons he had given. Once that was removed, what remained were the findings other than that to the effect that the bottom pat had occurred and the inconsistencies in the evidence, together with the questions raised due to the lack of Mrs Fitzpatrick's evidence. The result was that the Claimant had failed to prove her case and we should so find.[32]The second option was to remit but, so submitted Mr Bourne, if we did that, we would be allowing the Claimant to have a 'second bite at the cherry' which would not be fair.[33]The third option was a Burns/Barke order but that did not seem to be appropriate where there were no missing findings in fact. The problem was the way in which the case had been reasoned, not the absence of a finding in fact.[34]For the Claimant, Mr Fraser submitted that the majority's conclusion should be adhered to. It reflected what they had found. Whilst accepting, as we have noted, that there was a risk of a conclusion adverse to the Claimant being drawn from the absence of Mrs Fitzpatrick's evidence, he referred to the case of LvL [1998] SLT 672, in support of a submission that was not, perhaps, fatal. We note that that case was concerned particularly with the question of whether or not it was always necessary to put a prior inconsistent statement to a witness rather than with the situation which had arisen in the present case. Mr Fraser also submitted, under reference to Chiu v British Aerospace plc [1982] IRLR 56 , Piggot Brothers & Co Ltd v Jackson [1991] IRLR 89, County Council of Hereford v Worcester and Neale [1996] IRLR 168 and BT v Sheridan [1990] IRLR 27 , that the respondents case did not meet the high test for perversity.[35]Regarding the causal link between 16 July and the Claimant's resignation, Mr Fraser submitted that paragraph 71 fell to be read as saying, in effect, that the Claimant's departure was because of what happened on 16 July. The expression "loss of trust" was used a euphemism for 16 th July. Reference was made to the case of Woods v WM Car Services (Peterborough) Ltd [1982] IRLR 413.[36]Mr Fraser accepted that it would have been "better" if the majority had explained their approach to the inconsistencies in the evidence (which he accepted had emerged) and the lack of Mrs Fitzpatrick's evidence but it was not fatal that they had not done so. The case was to be distinguished from that of Anya v University of Oxford [2001] IRLR 377 : there were no analogous events of sexual harassment being relied on here by the Claimant. Her case turned on a single occasion of such conduct, on 16 July. That being so, there was no need for the majority to deal with the evidence about the other events before and after. He relied on the case of Martin v MBS Fastenings (Glynwed) Distribution Ltd [1983] IRLR 17 as being pertinent to the issue. In particular he relied on a passage at paragraph 19 where the Court of Appeal commented that:
"The duty of a Tribunal is to give reasons for its decision. This involves making findings of fact and answering a question or questions of law. So far as the findings of fact are concerned, it is helpful to the parties to give some explanation for them but not obligatory. So far as the questions of law are concerned, the reasons should show expressly or by implication what were the questions to which the Tribunal addressed its mind and why it reached the conclusions which it did, but the way in which it does is entirely a matter for the Tribunal."
The majority's acceptance of the Claimant's account of 16 July could, accordingly, stand.[37]Regarding remedy, Mr Fraser submitted that if the appeal were to be allowed, there should be a remit rather than a substitution of this Tribunal's conclusions. He referred, in support of that submission to Morgan v Electrolux Ltd [1991] IRLR 89, Lewis v John Adamson & Co ltd [1982] IRLR 233 and McLaren v National Coal Board [1988] IRLR 215. It was not, he submitted, inevitable that the inconsistencies and lack of Mrs Fitzpatrick's evidence would cause a properly considering Tribunal to deem that the Claimant's case had failed Discussion[38]The Claimant's cases of sex discrimination and unfair dismissal were both dependent on her establishing that Mr Anwar had, as she alleged, patted her bottom at work on 16 July. There were, as the minority member comments, two acutely conflicting accounts. She said that he had done so. He denied that he had. There were no other witnesses.[39]The Claimant's case could only succeed if she established that, on a balance of probabilities, her account was correct. The Tribunal could not conclude that it was without rejecting Mr Anwar's account, not that that should have led the Tribunal, if properly directing themselves, automatically to the acceptance of the Claimant's account. It would simply have meant that his account fell out of the picture. If Mr Anwar's account was rejected, then the Tribunal required to look at the whole of the evidence and determine whether it enabled them to conclude that the Claimant was credible and reliable in her account of events. That was bound to include all of the Claimant's evidence including the inconsistencies within it. They required to consider whether those inconsistencies led them to doubt the Claimant's credibility and reliability on the main issue and if so whether they could then properly accept what she had to say about it. In circumstances where the majority must have been aware of the concerns that the minority member had regarding those inconsistencies (which were, we note material) if, notwithstanding them, they considered that they could still accept the Claimant's evidence, they required to explain how and why that was so. In the circumstances of this case, we are readily satisfied that any failure to do so was liable to amount to a failure to give an adequate explanation and render the judgment vulnerable to being set aside ( English v Emery Reimbold & Strick Ltd ).[40]Also, in circumstances where apparently relevant evidence has not been led and that evidence appears to have had the potential to have an adverse effect on a Claimant's credibility and reliability, then we consider that a Tribunal requires to consider whether they could properly, despite the absence of that evidence, accept what the Claimant had told them. If they conclude that they can do so then, again, in the circumstances such as those of the present case, they require to explain how and why, notwithstanding the missing evidence they consider that they can properly so conclude. That was particularly so in this case given the circumstances; the witness was apparently regarded as a necessary witness for the Claimant and steps could have been taken to secure her evidence, namely by seeking an adjournment for the service of a witness order, a course of action which was quite deliberately not taken.[41]On considering the approach of the majority, we observe that they make no reference at all to Mr Anwar's evidence. They do not explain how and why they rejected it as, impliedly, they did. Further, they make no reference to the inconsistencies in the Claimant's evidence or to the absence of Mrs Fitzpatrick's evidence. On the face of it, they have taken no account of these matters at all. Yet, for the reasons that we have explained, they required to do so.[42]The majority advance two reasons for their acceptance of the Claimant's account of the events of 16 July. One is that they considered it likely that the Claimant would have wanted to remain in her job as long as possible prior to her husband starting up his own business. There is no finding in fact about that matter. It amounts, accordingly, to impermissible speculation on their part. The second reason given is that her resignation was consistent with an incident having occurred between her and Mr Anwar which made her feel, over time, that she could no longer continue working for him. Even if her resignation was consistent in that way, that does not amount to a conclusion that it was more likely than not that the incident of sexual harassment complained of occurred. We cannot see that either of these reasons afforded support for the conclusion that the incident occurred. Further, we note that the Tribunal's conclusion is imprecise in that it is to the effect that the events occurred 'more or less' as the Claimant described them. That leaves doubt as to what exactly of the Claimant's account they accepted and it seems to us that even if the finding is to be read as an indication that they were satisfied that there was some sort of physical contact amounting to sexual harassment (and that may be unduly indulgent), the Tribunal could not fix compensation or properly address the question of whether the event caused the Claimant's resignation without reaching a clear view as to what did happen.[43]It is striking that, in contrast to the judgment of the majority, the minority member sets out a clear and cogent explanation of his assessment of the evidence of each of the witnesses and the conclusion he reached, namely that the Claimant had not proved on a balance of probabilities that the event complained of had occurred. The reader is left in no doubt as to and can understand how and why, in all the circumstances, he decided as he did. That cannot, unfortunately, be said of the majority judgment.[44]We are satisfied that the appeal succeeds in respect that the majority of the Tribunal evidently failed to take account of relevant material and failed to explain how and why, notwithstanding that material, they decided that the event complained of had occurred. That being so, we do not require to determine the perversity argument advanced and in that respect would confine ourselves to observing that it is difficult to understand how the Tribunal could conclude that the requisite causal link between the event of 16 July and the Claimant's resignation over a month later could be established when she gave conflicting accounts as to what exactly made her decide to leave on 19 August and when, at the time of the event itself, she did not regard it as very significant.[45]That leaves the matter of disposal. We have given careful and anxious consideration to the question of whether or not we can properly determine the case without a remit. We fully understand why Mr Bourne, in the circumstances of this case, felt able to submit that we should do so. The onus was on the Claimant. If the majority's finding in her favour is set aside, that disposes of the finding that the event complained of occurred leaving the minority view intact and it was, as we have observed, cogent and well reasoned. However, to accede to Mr Bourne's submission and, on that approach, decide the case, would involve us assuming that the majority would have agreed with the minority if they had carried out their task in a proper manner. That is an assumption which we could only properly make if, to adopt the words of the Master of the Rolls in McLaren , at paragraph 22, it was "quite clear" that:
"if the Tribunal had directed itself correctly, it must have reached the opposite conclusion."
[46]Notwithstanding the strength of the respondents' case, as is evident from the judgment of the minority member, we do not consider that we could legitimately conclude that the Claimant's case would have been bound to fail if the majority had not erred in the way that it did. The critical decision that had to be made concerned credibility and reliability. Such decisions are peculiarly within the province of the primary finder of fact and it would be unusual for an appellate court to make its own findings in that regard. We will accordingly remit the case to a freshly constituted Tribunal for a rehearing.