MR B AFOLAYAN v (1) MRCS LIMITED (2) MR P RHYS-TAYLOR [2008] UKEAT 0553_07_0406

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0553_07_0406Case No Appeal No. UKEAT/0553/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR B AFOLAYANAPPELLANT(1) MRCS LIMITED (2) MR P RHYS-TAYLORRESPONDENT
Before
Mr Justice Nelson Ms V Branny Mr B M WarmanDate 4 June 2008
[1]APPEARANCES For the Appellant MR B AFOLAYAN (The Appellant in Person) For the Respondent MR B UDUJE (of Counsel) Instructed by: Messrs Webster Dixon LLP Solicitors Fourth Floor Thavies Inn House 3-4 Holborn Circus London EC1N 2HA SUMMARY UNFAIR DISMISSAL: Contributory fault Unfair dismissal. Employer appeal body prejudiced the appeal. Could ET properly find that, had it not done so, a fair dismissal would still have occurred? Would the outcome have been the same if other procedural defects had not occurred? Was a nil award/100 per cent contribution a permissible finding? THE HONOURABLE MR JUSTICE NELSON This is an appeal against the Decision of the London (South) Employment Tribunal promulgated on 11 September 2007 in which the Tribunal found that the Claimant was unfairly dismissed but that he contributed 100 per cent towards his dismissal, that his complaint of race discrimination was dismissed and that the Respondent failed to pay holiday pay in the sum of £1,353.88.[2]The matter was appealed by Mr Afolayan, the Appellant, and went through the sift in the ordinary way and was then sent for preliminary hearing in front of the President, Mr Justice Elias. That preliminary hearing was on 4 February 2008. At that hearing leave for certain matters to be advanced in relation to the unlawful and wrongful dismissal claims was permitted but the Appellant then withdrew the remaining appeals, in particular that in relation to racial discrimination.[3]As a consequence of that hearing, with the assistance of the ELAAS representative, Mr Afolayan had drafted for him amended grounds of appeal which encapsulated the matters that had been discussed before Mr Justice Elias at the preliminary hearing.[4]The background to his case is as follows. The first Respondent, MRCS Limited, manages residential care homes for children and young people aged 10 to 18 years on admission. It has some 22 members of staff together with 6 others who work for them on a self-employed basis. The second Respondent was the first Respondent's manager of its children's unit. The third Respondent against whom proceedings were not continued was the manager of the first Respondent's young adult project.[5]A number of the children who are cared for by the first Respondent are disadvantaged children and young people. A substantial number of them have learning difficulties which makes their care difficult for those charged with it. They are young people sent to the first Respondents through Social Services, who have not, at least up to that time, been found to be able to live with a foster family or others. There is of course no question but that such a task, that is looking after such children, can be enormously demanding and difficult and that is acknowledged by the Respondents. It is clear from the information before this Appeal Tribunal that it was commonplace for violent tendencies to be exhibited by the children and young people towards either each other or towards staff. Indeed it appears that it was not uncommon for members of staff to be assaulted and it appears this employee, the Appellant, in particular suffered a high level of assault. He was certainly, on the evidence, assaulted more than most.[6]There was a behaviour management policy which was set up by the Respondents. This policy is set out in various different places in documents within the bundles before this Appeal Tribunal and, in essence, it acknowledges the fact that previous forms of intervention have been unsuccessful in relation to the children and young people who come to the first Respondent; they would have rejected most forms of control. Constructive relationships, particularly between staff and residents, are the primary therapeutic tool within the framework, and with genuine regard for proper development, youngsters are given help, assistance and encouragement.[7]There are specific directions in the behaviour management policy relating to when a young person becomes angry and loses control, and there are various matters which are suggested should be followed in the policy; encouraging him to regulate his breathing, encouraging him to verbally express his feelings, removing the anger trigger, if appropriate, that is the person who is in sight of the anger, encouraging him to make a decision as to how and when he wishes to communicate appropriately.[8]The policy also includes, as we understand it, and has been submitted to us by the Appellant, in accordance with a document which is in his bundle, an injunction to those looking after the children and young people as follows:
"Young people will be encouraged to talk about their feelings when they are very angry."
None of that, the contents that I just referred to in the behaviour management policy, will come as any surprise. Also, "Sanctions may be given if aggressive behaviour is directed at others such as being made to retire to his room, having privileges withdrawn or weekly monetary bonus or pocket money delayed until compliance is achieved."[9]There is a particular passage which is of relevance in the policy. Namely when to involve the police, and that states as follows:
"In the event that carers suspect criminal behaviour is happening or about to happen, that is [and I will take the only relevant example here] assault, the child or young person will be cautioned that the police would be summoned if he does anything illegal. If this warning is ignored the police will be summoned with the prior agreement of a manager."
Obviously this relates to pre-emptive control of behaviour. The policy then deals with physical restraint and the principles therein set out, and the fact that a course is given to employees or, at least, some because it is suggested that this Appellant did not, in fact, complete the course.[10]The Claimant had made a number of formal complaints to his employers. And when I refer to Claimant I also mean Appellant. He had complained about various matters in the past which he said had not been properly dealt with and it is clear that the relationship between him and his employers was not good. The disputes involved, amongst other things, staffing levels which he complained were inadequate.[11]The extent of the problem of the relationship between the Appellant and his employers is demonstrated by the situation which presented itself to the Employment Tribunal when it heard the evidence over many days. It said this, at paragraph 25:
"The level of animosity between the parties made it difficult to determine where the truth lay in respect of much of the detail which was disputed. The documentation was not entirely clear and at times was contradictory in respect of what the policies and procedures were. In the event we have not thought it necessary to resolve each and every dispute between the parties. Both sides have reason to seek an interpretation of rules, procedures and events to suit their version of history."
[12]We would add that the comment, insofar as it relates to the policy, perhaps being not entirely clear and on occasions contradictory is something which this Appeal Tribunal has recognised in the course of seeking to deal with it. It is, in parts, vague, not entirely clear, as the Employment Tribunal said, and there are some inconsistencies. It is, of course, a difficult area and it may well be that there will inevitably be inconsistencies but it also highlights the difficult nature of the task which has to be performed by an employee as to whether in any given situation he is to call the police, use restraint or simply talk and encourage the young person in the hope that such behaviour will restrict any further threat of violence or actual violence.[13]It is the case that on 6 October 2005 the Appellant had a meeting with the Managing Director of the company, a Mr Kevin Henry. At that meeting, as found in paragraph 17 of the Employment Tribunal's Decision:
"… the Claimant and Kevin Henry discussed matters relating to a complaint made by the Claimant arising out of an incident in April 2005. The Claimant alleges that Kevin Henry said to him 'I would rather see you go'. The Claimant's evidence about this was that Kevin Henry's comment was made in circumstances where Kevin Henry was bemoaning the fact that the Claimant had made complaints about two of the managers out of the three managers employed by the 1 st Respondent."
[14]The Employment Tribunal's findings make it clear that they accepted the Claimant's evidence as a whole, and accepted that Mr Henry had indeed said that to the Claimant.[15]The incident which gave rise to the disciplinary proceedings which form the basis of this appeal and against the Employment Tribunal's dealing with it, occurred on 24 November 2005. The Employment Tribunal took as correct as to the incident the statement of Leroy Oke, the co-employee who was actually working at the same time as the Appellant. That statement is set out in detail at paragraph 26 of the Decision. It reads as follows:
"On the night of 24 November, I was on the ground floor attending to two of the young people, while my colleague, Bisi Afolayan went upstairs to unlock both C and D's door. I heard a commotion from upstairs. I could tell that Bisi and C were arguing. When I got up to the top floor I saw D at C's bedroom door. When I came to the door I could glimpse Bisi through the crack of the door but D was obscuring my view. I went past D into C's room where I saw a hot argument occurring between Bisi and C, both of them were squaring up to each other, face to face. I immediately got in between the two of them with a view to separate them. I was shouting 'Bisi! Bisi! What is this about?' I also shouted C's name. Bisi was trying to remove C's hand to prevent him from tearing his clothes as C had a firm grip on Bisi's clothing around the neck area. I managed to separate them, then I said to Bisi, "
Just step out". They were both trying to explain their version of events. Bisi went out, but was standing outside the door. I heard a conversation between him and D though I don't know what it was about. C sat on his bed and I told him to calm down as he was quite agitated. As I was stepping out to hear from Bisi what had happened C got up and I could feel him behind me as if to join me outside. I told C to wait so that I could sort things out by talking to Bisi. He stood still and as I opened the door I saw Bisi standing in the door. As I was about to insist that he stay outside I saw blood on Bisi's face. It was dripping on his clothing and on the floor. Bisi attempted to approach C again, trying to show him what he had done to his face. On closer inspection I saw that there was blood on my hands. C too had blood on his. This was Bisi's blood. I blocked the door and Bisi did not force himself in, though he kept saying, "Look what you've done to my face". I told Bisi to call the Police rather than him coming back into C's room to show him his injuries. When C heard the police were to be called he pushed past us in a violent manner and jumped down the stairs, apparently trying to avoid arrest. Within five minutes C had returned to the house. I told C that there was no point running away, better to stay and explain to the police what had happened. C began apologising when he saw the blood on Bisi's face. He insisted that he was only playing and he was begging not to be arrested. The police came and took photographs of the blood on the wall. C had already cleared up the blood from the floor. The Police arrested C for breach of his ASBO. COMMENT It was evident from the handover meeting that evening that trouble was brewing between C and Bisi."[16]There is also an incident report which is set out at page 243 of the Claimant's bundle which we have been given today. This is the incident report completed by the second Respondent, Paul Rhys-Taylor, the Unit Manager, in which he describes C launching a violent physical attack on male carer, BA:
"BA reported that C punched and slapped him repeatedly about his chest, shoulder and face and attempted to kick him in the groin area. The Police were called. Antecedence C had been attempting to physically attack BA from 1800 for no apparent reason. BA had warned C repeatedly not to do this. Comments C tends to test the boundaries of male staff with a display of confrontational or physically challenging behaviour for reasons still to be clarified. C pushes these boundaries particularly to the extreme with carer BA. C will be allowed to return to the unit 'but an internal investigation will be conducted and a risk management strategy will be developed immediately'."
[17]This statement and indeed the incident report shows that CW assaulted the Appellant by punching him several times causing bleeding to his face and injuries to his face and body. He also, it is clear from the statement of Oke, grabbed the Appellant by his clothing around his neck and had that tightly in this grip when Mr Oke went into the room.[18]No complaint was made against the Appellant at that time by CW, as both the statement and the incident report show. CW did however make a complaint on 5 November 2005, it is recorded by the second Respondent, in which he says that he was only seeking to play with Bisi, that Bisi in fact went into his room after CW had touched his head, put his hand on his face and kicked open his room door, kicked his wardrobe door off the hinges, and the wardrobe fell on CW. CW said he became angry and started punching the Appellant, held him down by his chest and assaulted him when pinning him down. He said he realised things were out of control when Bisi left the room and came back with blood on his face.[19]Those complaints made by the young person, CW, were recorded by Mr Rhys-Taylor on his computer and dated and signed on 5 December 2005, but that document was not in fact given to the Appellant until considerably later as Mr Rhys-Taylor said that it had not, by the time that he initially spoke to the Appellant, been prepared. The Employment Tribunal found that that was wrong and that when the conversation that Mr Rhys-Taylor had with the Appellant occurred the document, contrary to what he said, had already been prepared.[20]Mr Oke was interviewed again on 12 January 2006 but a copy of that interview was not given to the Appellant until just before the Employment Tribunal hearing. The basis for that, according to Ms Oxley, an employee of the Respondent who dealt with the first disciplinary hearing, was because the note of that interview disclosed nothing more than had already been said in the statement which had been handed to the Appellant, that of Mr Oke.[21]The copy of that document, namely the interview with Mr Oke conducted by Shirley Oxley, is in the Appellant's bundle. The passage upon which he particularly relies, and has asked us to pay attention, is the statement with the question and answer to this effect:
"Did CW say at any time that he was hurt in any way? No, up to this date. [That date being 12 January 2006] He had plenty opportunity to say so, all he kept doing was saying he was sorry."
[22]The interview notes also record in more detail a similar account to that given in the statement but with greater detail. It, like the original statement that Mr Oke made, make it clear that it was the Appellant who was assaulted by CW, not the other way round and that the Appellant had pushed his head round CW's door after Mr Oke's arrival saying, "Look what you did to my face". Mr Oke's arrival on the scene, it appears, had enabled him to free himself, that is the Appellant, from the grasp of CW round his neck and Mr Oke then advised the Appellant to send for the police, which he in fact did. It was when the police were sent for that CW ran off.[23]As a result of the assault upon him by CW the Appellant was injured. He went to hospital and he was off work for some three weeks. The Employment Tribunal did not deal in detail with the contents of Mr Oke's interview and its reasons.[24]CW was subsequently prosecuted in the Magistrates Court on 18 January 2006 for his assault on 24 November 2005 on the Appellant. He was convicted and was sentenced to 12 months probation and ordered to pay £50 compensation to the Appellant.[25]On 23 January 2006 the first disciplinary hearing, that is a disciplinary panel hearing, took place. The findings of that panel are set out in a letter of 28 January 2006 from Ms Oxley who was sitting as the independent chair of that panel together with Elaine Arnold, an independent member. Mr Uduje, on behalf of the Respondent, said that the effective and crucial ground for recommending dismissal was absence of any warning to CW that the police might be called and he referred, in particular, to item 3 of the findings of the panel, though in total they were as follows:
"(1) failure to ensure an effective handover; (2) acted in breach of a written risk assessment on the young person, put yourself at risk and your colleague and every other child; (3) the panel were unable to track the progress of the physical assaults against you and any warning you issued to C that the police might be called. You were therefore found to be in breach of the behaviour management policy."
It was, as I say, the third, which Mr Uduje placed before the court as being the crucial reason.[26]As a result of those findings the panel concluded that the Appellant's behaviour had breached the bounds of safe childcare practices as set out in the company's policies and procedures and it therefore recommended that his employment with the first Respondent was terminated forthwith. No mention is made in the panel's findings of any assault on CW by the Appellant.[27]On 13 February 2006, there was an appeal hearing before Mr Kevin Henry, the Managing Director. The Appellant's appeal was dismissed. Central to his case was the allegation that Mr Henry had already made his mind up, as indeed he said and continues to say, had the other members of the employer's staff generally. He said, as is recorded in the findings of the Employment Tribunal, that the appeal hearing was as a consequence a sham.[28]The findings of the appeal hearing are set out in Mr Henry's letter of 17 February 2006. Mr Henry found that the Appellant had breached management policy and also that he had responded to CW's provocation by assaulting him or at least by finding that abuse did occur. He found that gross misconduct had been committed by the Appellant and therefore he was left with no choice but to terminate his employment with immediate effect against the background of the fact that he received a final written warning one year before, lasting for one year, which was still in place.[29]When the matter came before the Employment Tribunal evidence was called from the Appellant himself; from Mr Rhys-Taylor, the second Respondent; from Shirley Oxley, the head of the panel on 23 January 2006; and Mr Henry, the Managing Director who heard the appeal.[30]The Tribunal dealt with the incident itself in its findings, firstly at paragraph 47, by stating that the panel decided to recommend the Claimant's dismissal. Shirley Oxley, in her evidence to the Tribunal stated that she thought there was a serious child protection issue in this case and had concluded that the Claimant had assaulted a child.[31]In paragraph 64 in the conclusion part of its Decision, the Employment Tribunal says:
"The Tribunal is satisfied that the reason that the claimant was dismissed was because of the conclusion of Shirley Oxley and Elaine Arnold that the Claimant was in breach of the Respondent's behaviour management policy."
[32]Then at 65 they continue:
"Shirley Oxley came to the conclusion that the Claimant had been guilty of assaulting a child who was in care and it was because of the conclusion that she arrived at in relation to the incident on 24 November 2005 that she recommended that the Claimant be dismissed."
[33]In paragraphs 75 and 76, the Tribunal find that the Appellant was dismissed for misconduct, that the first Respondent had found that he was guilty of gross misconduct and that they were satisfied that was a permissible view to hold on the evidence and presented to the panel of Shirley Oxley and Elaine Arnold.[34]In paragraph 85, when dealing with 100 per cent contribution, the Employment Tribunal refers to the Claimant's inability to remove himself from the incident which occurred on 24 November 2005 and said that was a breach of the first Respondent's behaviour management standards.[35]When it reached its conclusions the Employment Tribunal said that it accepted that the Appellant had at all times acted in good faith. He had made a qualifying disclosure but that he was dismissed because of conduct, not because he had made such a qualifying or protected disclosure.[36]Secondly, the Tribunal found no procedural error had occurred in the following of the statutory code in schedule 2 of the Employment Act 2002 , as the first panel had recommended dismissal and the fact that it was only after the appeal that a final decision to dismiss was taken did not mean that any error in the steps to be taken under the 2002 Act had occurred.[37]Thirdly, that unfair dismissal under section 98(4) of the Employment Rights Act 1996 was also rejected as the Respondent had established a potentially fair reason for the dismissal, namely misconduct, and that was a permissible view on the evidence[38]Fourthly, there were however two serious flaws however in the procedure at the first panel of 23 January 2006; those being, firstly, the interview of Mr Oke had not been disclosed and, secondly, Mr Oke was not present to give evidence on that date, 23 January. Nevertheless the Employment Tribunal found Mr Oke's evidence was not challenged by the Appellant and his interview would not have altered the outcome. We note, however, that Ms Oxley's evidence that all Mr Oke did was to confirm his original statement was rejected by the Employment Tribunal though they did not spell out precisely why they so rejected her evidence on that, other than saying it contained more detail. In fact, as we have already indicated, Mr Oke's interview on 12 January 2006 gives greater detail of the events and states that CW had not complained of being hurt up to 12 January 2006. His statement alleging that he had been pinned down and assaulted being dated 5 December 2005. The Tribunal further found that the ability to question Mr Oke as a live witness before the panel would not have made any difference.[39]Fifthly, the Tribunal found that the appeal was however not a fair appeal as Mr Henry had prejudged it by his attitude that the Appellant ought to be dismissed anyway. The dismissal which followed the appeal was therefore, the Tribunal found, unfair. Nevertheless the Appellant contributed 100 per cent to his dismissal by his conduct, the Tribunal found. Even if a fair appeal had been carried out it was inevitable that the Appellant would have been dismissed.[40]Accordingly, it concluded that the Appellant was not entitled to recover any damages for unfair dismissal.[41]The amended grounds of appeal which are set out in the bundle and drafted by the ELAAS representative are six in number. They allege, firstly, that the Employment Tribunal failed to identify the basis of the alleged offence justifying dismissal. Paragraph 47, recorded a finding by Shirley Oxley that the Appellant had assaulted a child, however at paragraph 63 it is recorded that the suggested finding was in relation to an unspecified breach of behaviour management policy.[42]The second ground asserts that the Employment Tribunal had evidence before it that the young person had been convicted of an assault on him in respect of the incident but that that was not referred to. That should have been addressed in the findings because any reliance placed on the statement of the young person, if contrary to the evidence of Mr Oke, was not something any reasonable employer could reasonably have done.[43]Thirdly, the amended grounds allege that the Tribunal erred in concluding that procedural errors, in particular the failure to permit cross-examination of Mr Oke, would have made no difference to the outcome.[44]Fourthly, that there was a breach of the statutory code in that the appeal hearing was the only time at which a dismissal took place, and therefore there should have been a further appeal against that, and the absence of such further appeal amounted to an error.[45]Fifthly, the Employment Tribunal erred in law in holding that in all the circumstances of the case and its finding against the Respondent, the Appellant contributed 100 per cent to his dismissal. Such findings were contrary to the law as stated in Kelly-Madden v Manor Surgery [2007] IRLR17.[46]Sixthly, their Decision that the Appellant was not wrongfully dismissed was devoid of any reason. Conclusions[47]We have had had before us the detailed Skeleton Arguments, including a supplementary Skeleton Argument which Mr Afolayan has presented to us today, which sets out little new material but essentially re-presents his arguments better dovetailed into the amended grounds. We adjourned so that we could have an opportunity to read that and give the Respondents' counsel an opportunity to read that as well. It was, in fact, agreed between the parties at the suggestion of the court that the late service of the Appellant's bundle should not disrupt the proceedings but that reference could be made to it by either party as was necessary and that the appeal should go ahead in spite of the fact that that bundle, albeit before the court, had not in fact been served on the Appeal Tribunal.[48]We have found the written submissions of both parties to be helpful and in view of these, and in particular the acceptance of an error in law in relation to ground five of the amended grounds by the Respondent, we asked the Respondent to go first, which he accepted was appropriate in the circumstances. We were greatly assisted by his submissions.[49]In relation to ground one, it was submitted to us by Mr Uduje that the Employment Tribunal were not confused as to the grounds of dismissal but found that there had been a clear breach of the Respondent's policy. Insofar as "assault" was meant it was not an assault as such, but an inappropriate touching in the course of the incident when Mr Afolayan was being attacked. The real finding, he submitted to us, was a breach of the policy and that, in effect, was that set out in the panel's Decision and, in particular, a failure to say to CW that the police might be or were going to be called. It should be noted, it was submitted, that it was actually only after Mr Oke had said, "Call the police" to the Appellant that the police were called. That, in fact, the young person, CW, then left the premises and no longer posed a threat to anyone in them.[50]We have considered those submissions and all the material before us. We are not satisfied that the Employment Tribunal were at all clear in their findings as to what the Respondent's reasons for dismissal were. It was the assault which they referred to in paragraph 65, which amounted to the conduct found by Ms Oxley upon which she based her recommendation that he be dismissed; yet Ms Oxley had not referred to assault in her findings in her letter of 28 January 2006, referring to the panel hearing of 23 January 2006. The breach there related to the management policy not to assault. It was Mr Henry, who had already, on the findings of the Tribunal, prejudged the issue, who found abuse or an assault and it was only in evidence that Ms Oxley apparently said that assault was the reason for dismissal rather than simply breach of management policy.[51]The Respondents' Counsel understandably does not rely on assault by the Appellant per se but, as we have indicated, 'inappropriate touching', whatever in that context this might mean. This is not surprising as there is no evidence whatsoever, apart from later from the man convicted of assaulting the Appellant that it was asserted that the Appellant had actually assaulted him. This is a particularly important area for the Employment Tribunal to be clear about and they quite simply are not. Paragraphs 64, 65 and 85 are not consistent with each other. It seems to us that what the employer found amounted to misconduct is essential for the Employment Tribunal to consider as otherwise no judgment can be exercised by the Employment Tribunal on whether the employer's conclusion to dismiss was one which could permissibly have been open to them. This lack of clarity about findings on what we regard as being absolutely essential parts of the case is, in the view of this Appeal Tribunal, a fundamental flaw in the Decision.[52]We do appreciate that the management policy which the Employment Tribunal itself described as being part of the documentation and contradictory did create its own problems but nevertheless having said that it was imperative that a clear finding was made as to precisely what the employers found was the misconduct which represented gross misconduct, which justified dismissal.[53]The conviction of CW only five days before the panel hearing was, in any event, in our view, relevant. It may have caused a different view on the facts if its significance had been properly weighed in the balance by the Employment Tribunal. It highlighted the need to have oral evidence, at least from Mr Oke, and we are not satisfied that the absence of such evidence would have made no difference. On the contrary, it may have made a significant difference to how the facts were perceived. The Appellant's response to an aggressive physical assault, and this is what was being judged by the Employment Tribunal, not any earlier failures which were not described in any evidence before the Employment Tribunal, was the matter which had to be considered.[54]Such a response will differ according to the person assaulted but on any basis a man who is attacked and bleeding may need some time to compose himself before he decides the police ought to be called. Even someone experienced in dealing with difficult young men. Evidence would have provided the necessary detail of all of the Appellant's activities and responses. The Employment Tribunal were in error in saying that the two procedural failings in relation to the interview document of Mr Oke and Mr Oke's evidence would have made no difference. We uphold therefore all those grounds: one, two and three.[55]As to ground four, we reject the Appellant's contention; there was no failure to follow the correct procedure under the statutory code. The recommendation was in itself a decision and the appeal hearing by Mr Henry did not in itself require a further appeal. Ground four is therefore rejected.[56]As to ground five, Mr Uduje has submitted that although an error has occurred as 100 per cent contribution could not be made in response to a procedural defect, nevertheless the Decision should stand because all the Employment Tribunal was doing was determining that compensation should be nil, taking into account the Appellant's contribution and what was just and equitable in all the circumstances. The case would have been fairly dismissed even if the proper procedure had been followed, Mr Uduje submits. Hence, a nil award is just and equitable, and in considering this he cites to us McLoughlin v Jones [2006] EWCA 1167.[57]We cannot however accept that submission. It is important to note that Mr Henry was found to prejudge the appeal. Furthermore the credibility of Ms Oxley and that of the second respondent in relation to the taking of statements, both as to their date and availability, was questioned by the Employment Tribunal. There was also, as we have indicated, a lack of detailed evidence before the panel and the appeal panel. In such circumstance it is very difficult to say that a fair appeal would have resulted in dismissal without the prejudging; with an open mind and with proper evidence a different result entirely might have been reached.[58]We are satisfied that it is simply not safe to say, and we cannot do so, that a proper procedure and a fair appeal would have resulted in the Appellant's dismissal. Ground five is also therefore established.[59]As to ground six, Mr Uduje submits that the Employment Tribunal have made an error in failing to set up a proper test for wrongful dismissal but it is implicit, he says, when paragraphs 75 and 76 are read in conjunction with paragraph 86 that they were actually considering the proper test. We do not accept that this is so. The proper test should have been set out, even taking into account the well known principle set out in English v Emery Reimbold & Strick Limited [2002] EWCA Civ 605 . We are not satisfied that they did, in fact, in all the circumstances, consider the proper test.[60]We therefore allow the appeal on amended grounds one, two, three, five and six. We reject the appeal on amended ground four.[61]We have heard arguments as to disposal; substitution is not possible on our findings. We are urged by Mr Uduje to send the case back to the same Employment Tribunal whilst the Appellant urges a fresh one. We have noted the principles set out in the case of Sinclair Roche & Temperley v Heard [2004] IRLR 763 , which was cited to us, as set out in Employment Law Practice 2007. We have considered the principles there as cited in the case of Sinclair Roche and taken those into account, particularly proportionality. These are always very difficult decisions for an Appeal Tribunal to make because of the increased cost and wear and tear on all those involved if they have to go back to have a completely fresh hearing.[62]But having taken those principles set out in Sinclair Roche and approaching the matter on the basis of the facts of this case we consider it would be inappropriate to ask the same Employment Tribunal to go over the same ground again. The hearing was a long one, too long the Employment Tribunal found, and several errors were made. In these circumstances it would be difficult for the same Employment Tribunal to bring a truly fresh independent mind to bear upon the matter. The appeal is therefore allowed. The Appellant was, on the basis of the granting of the appeal, unfairly dismissed. The matter is remitted to a fresh Tribunal to hear the question of remedy, including any points as to contribution and what would be just and equitable in the circumstances to be dealt with by that fresh Tribunal.