SALFORD ROYAL NHS FOUNDATION TRUST v MS V ROLDAN [2009] UKEAT 0154_09_0209

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0154_09_0209Case No Appeal No. UKEAT/0154/09/DM UKEAT/0323/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
SALFORD ROYAL NHS FOUNDATION TRUSTAPPELLANTMS V ROLDANRESPONDENT
Before
His Honour Judge McMullenDate 2 September 2009
[1]APPEARANCES For the Appellant MR GILES POWELL (of Counsel) Instructed by: Messrs Hill Dickinson LLP Solicitors 50 Fountain Street Manchester Lancashire M2 2AS For the Respondent MR JONATHAN COHEN (of Counsel) Instructed by: Messrs Woodcocks Solicitors 12/14 Manchester Road Bury Lancashire BL9 0DX SUMMARY UNFAIR DISMISSAL S.98A(2) ERA Polkey deduction Contributory fault The Employment Tribunal erred when if found procedural defects in the investigation by the Respondent of the allegations of the Claimant's misconduct. In any event it ought to have allowed evidence and considered Employment Rights Act 1996 s 98A(2). It wrongly awarded compensation beyond the 6 weeks it found it would take the Claimant to find work, attributing the Claimant's loss to the Respondent's act of dismissal when it was attributable to proceedings brought before the Crown Court and the professional regulator. HIS HONOUR JUDGE McMULLEN QC This case is about unfair dismissal, the repealed regime relating to what is regarded as the reverse Polkey test [1988] ICR 142 HL, Employment Rights Act 1996 s 98A(2) and the assessment of compensation. It also involves Employment Tribunal proceedings when dealing with evidence for the purpose of contributory conduct and the application of Polkey . It is the judgment of the Court, to which all members appointed by statute for their diverse specialist experience, have contributed. We will refer to the parties as the Claimant and the Respondent. Introduction[2]It is an appeal by the Respondent in those proceedings against the judgment of an Employment Tribunal chaired by Employment Judge Cook sitting at Manchester registered with reasons on 27 November 2009 and 7 May 2009, respectively the liability and remedy judgments. The parties were represented by solicitors who today instruct Mr Jonathan Cohen and Mr Giles Powell of Counsel. The issues[3]The essential issue for the Employment Tribunal was whether the dismissal of the Claimant was unfair contrary to section 98 of the Employment Rights Act 1996 . Other issues are not relevant, they having been dismissed or fallen away. The Employment Tribunal decided in the Claimant's favour. It went on to calculate compensation and awarded her, after a 30 per cent deduction for contributory conduct, £20,342.25 and a basic award of £924.[4]The Respondent appeals against both judgments. Directions sending these appeals to a joint full hearing were given in chambers, first by Cox J and, secondly, by Bean J, who had considered the liability judgment as well as the remedy judgment and the opinion given by Cox J at a Rule 3(10) hearing attended by Mr Powell, all of whose arguments were deemed to have reasonable prospects of success. The facts[5]The Tribunal set the scene in this way:
"The claimant is an experienced registered nurse and at the relevant time was employed on the Neuro High Dependent Unit NHDU. It is the respondent's practice to have the ratio of 1 nurse for every 2 patients on the High Dependency Unit. On 22 September 2007 a healthcare assistant "(HCA)"
Keeley Denton who was assisting the claimant in her patient care reported to Sister Lisa Lavin that she had witnessed the claimant ill treat a patient referred to as "PB". After conferring with senior colleagues, Ms Lavin suspended the claimant pending investigation. Before doing this she interviewed the claimant briefly and advised her that serious complaints had been made. However, she did not tell the claimant precisely what these were."[6]The Respondent, a NHS Trust in Salford, runs an intensive care unit where the Claimant was deployed. On 22 September 2007 Ms Keeley Denton, made serious allegations against the Claimant in respect of her actions that day. On 25 September the Claimant was suspended.[7]The allegations related to mistreatment of a patient who was vulnerable, had learning difficulties and was in a separate room within the ICU. A disciplinary investigation was conducted which included an interview with the Claimant on 5 October. On 9 October 2007 the Claimant was given notice of the allegations relating to 22 September 2007 in what we call the charge letter. This amounted to "highly unacceptable behaviour and treatment towards a patient in your care". It was considered to be gross misconduct contrary to the Respondent's rules. They have not been provided to us but it is common ground that they would include mistreatment of a patient resulting in action which could be summary dismissal. She was summoned to a meeting on 12 October 2007 and the case against her was to be presented by the writer of the letter, Ms Sue Pemberton, a lead nurse, and she would be supported by others.[8]The Claimant was employed on 3 July 2003 and Ms Denton had been employed for only a few months. Documents in addition to the ones cited above were disclosed to the Claimant. Prior to this she had seen Ms Denton's complaint. Attached to the charge letter, were also notes of the investigatory meeting conducted by Ms Pemberton taking the form of typewritten notes from manuscript notes. The Claimant duly attended with her representative from the Royal College of Nursing. The finding by Mr Dobson, the Assistant Director of Human Resources, was communicated in the following terms by letter of 18 October 2007:
"Evidence was presented regarding your behaviour towards a patient in your care on 22 nd September 2007 as follows:- i) You threw/discarded cleaning wipes which landed on the patient's face. You claimed the outcome was not intended but made no attempt to apologies to the patient or to retrieve the wipes. In fact you left an inexperienced HCA (Keeley Denton) to deal with the situation. ii) Keeley reported that you had been tapping the patient's foot with a saturation probe with increasing force. Whilst you denied this, you could offer no explanation as to what may have occurred or why Keeley should describe it in such a way. iii) Keeley also reported that you had slapped the patient's hand. Again, you denied this but could offer no explanation. iv) Keeley stated that you had made an abusive gesture (V-sign) to the patient and laughed in his face. You claimed that you had made a similar hand gesture to signify peace and did not mean to offend the patient. v) In (ii) to (iv) above it was reported that you looked around to check if your actions were being observed. You denied acting in such a way. vi) Keeley referred to an earlier incident when you had behaved inappropriately towards a patient but she had not felt confident enough to report it at the time. The panel accepts the evidence as presented by Keeley Denton and reported by Lisa Lavin. We have also reached the conclusion that your own evidence was unreliable and at times inconsistent. Your behaviour towards a highly vulnerable patient is regarded as wholly unacceptable and unprofessional. Your actions fall well below the standards expected of a trained nurse and we did not feel it would be appropriate to recommend redeployment in any capacity. You have been summarily dismissed from your employment with the Trust on the grounds of gross misconduct."
[9]The effective date of termination was 12 October 2007. The decision was made by the panel which was led by Ms Hayley Citrine, the Assistant Director of Nursing Services.[10]The Claimant was dissatisfied with the outcome and so she appealed in a lengthy document submitted on her behalf by her RCN representative. It is important to note that the appeal was against dismissal and appears not to have descended into disputes over the evidence. It was said on the Claimant's behalf :
"Vilma wishes to appeal against the severity of the sanction only not the process and wishes the panel to review the papers and listen to her response to the allegations and seriously consider if there is another avenue to pursue short of dismissal as outlined within the policy detailed below as she has worked for 4 years with a clean unblemished record. It is clearly stated within the policy section 6 Final / Single stage warning (ii) & (iii) that in some cases of serious breaches of expected standards of performance and / or behaviour, a single stage final warning may be used. Which we believe in this case this has been proved and accepted in part with respect to the allegations. Management will issue such warnings for one year. In exceptional circumstances where conduct relates to patients which in this case it does or it is so serious that it cannot be realistically ignored for future disciplinary purposes, the warning may remain active for an indefinite period subject to review at the request of the employee or on annual basis. Which (sic) Vilma acknowledges that this kind of conduct would not be demonstrated again. In section (iv) b it is clear that the organisation has the ability to be clear what the expected standard will be in the future and should there be any deviation from this then this might result in dismissal. Finally it is clear in section 8 Dismissal following Gross Misconduct part d) states as an alternative to dismissal, down grading and / or transfer may be considered as appropriate, Vilma does not believe that this avenue was considered and would like to appeal to the panel to consider this as an alternative to dismissal along with a final written warning and moved to an alternative speciality for a fresh start."
[11]In due course it was submitted to and held by the Employment Tribunal that the Claimant would have achieved new work by 1 December 2007, that is she would have been out of work for about six weeks, other things being equal. On 30 January 2008 her appeal was heard and rejected. The appeal was conducted as a rehearing before a fresh panel. By that we mean, having seen notes of it, that the complainant, Ms Denton, gave her account. She was cross-examined, probably not in a technical sense, by both the union representative and the Claimant herself. The proceedings are expressly described as the consideration of evidence from all. The panel decision was upheld. This was communicated in a letter from the Respondent on 5 February 2008. In particular, it was said as follows:
"The panel accepted the evidence put forward by management and by the witness, Ms Denton. Evidence was given of inconsistency in your own testimony and no evidence provided as to any reason why Ms Denton would falsify her evidence. The panel saw no evidence of any discriminatory behaviour towards you."
[12]That is a reference to a claim of race discrimination which was not pursued. The Claimant is Filipino.[13]The Claimant launched proceedings in the Employment Tribunal. In the interstices between liability and remedy hearings, HHJ Peter Clark rejected the first appeal on the sift holding that matters relating to Polkey , which we hold were to do with section 98A(2) and contribution, could still be dealt with by the Employment Tribunal. Otherwise Judge Clark upheld the claim of unfair dismissal for want of reasonable investigation and that this was an attempt by the Respondent to reargue factual findings. However, as we have indicated, Cox J was persuaded at an oral hearing that the case had merit.[14]The Tribunal refused an application for a review. It refused to postpone the hearing of remedy. At that hearing, it refused to allow evidence in relation to contributory conduct and as to one aspect relating to section 98A(2), that is what we will call the missing documents point. Having considered the procedural state which the case was in, the Employment Tribunal confirmed that the dismissal was unfair and disallowed the application in respect of evidence sought to be adduced principally in the form of a statement from Ms Denton as to the facts of what occurred on the index date.[15]The Tribunal then went on to consider the award of compensation and, so far as is relevant to our appeal, held that the Respondent was responsible for the losses of the Claimant throughout a period of some 14 months. This was the time when the CPS was conducting a prosecution in the Crown Court of the Claimant for her actions on the index date. At the same time no doubt she was on bail and in fact the police had confiscated her passport so she could not work while the Crown Court proceedings were on foot. These were resolved on 26 February 2009 when the Claimant was acquitted. The legislation[16]The relevant legislation is not in dispute. Sections 98(1) and (2) of the Employment Rights Act provide for conduct to be a potentially fair reason for dismissal. There is no dispute that it was here. Section 98(4) deals with fairness including the way in which the Respondent investigated matters of misconduct. The test was correctly stated to be that in BHS Ltd v Burchell [1978] IRLR 379 except for the failure by the Employment Tribunal to note that for the last 29 years there has been no burden on the employer. See West London Mental Health NHS Trust v Sarkar [2009] IRLR 512 and the definitive judgment on the point as long ago as Post Office Counters Ltd v Heavey [1989] IRLR 513. Nothing turns upon that error, however, for there is no dispute that the Respondent believed that the Claimant had committed the misconduct put against her.[17]In a claim where there are said to be procedural irregularities, an Employment Tribunal is required to conduct the exercise under section 98A(2) which provides as follows:
"Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure."
[18]That has been repealed but it was an integral part of an unfair dismissal claim where there ws a criticism of procedure. Section 98A(2) does not apply where there is breach of the statutory procedure but there was not one here.[19]When a Claimant seeks reinstatement or re-engagement as here, an Employment Tribunal is required to consider whether the Claimant caused or contributed to some extent to the dismissal. See section 116. Section 123 provides that the amount of compensation shall be what the Tribunal considers just and equitable and having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer. Contributory conduct is dealt with by section 123(6):
"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."
[20]In the application of the statutory provisions, it is relevant to consider Polkey which provides in an unfair dismissal case where there is a procedural flaw for the dismissal to be held to be unfair yet compensation to be reduced. Section 98A(2) reverses that position where there is a more than 50/50 chance as found by the Tribunal that notwithstanding the procedural defect the dismissal would have been carried out fairly by the Respondent in any event. That provision has been repealed so we are now restored to the pre-2004 position. Generally speaking, in a case before an Employment Tribunal where the parties are told that all issues will be decided, liability and remedy will be dealt with at the same hearing unless another order is given.[21]During the 2002 Act regime, that is 2004-2009, we consider that if the hearing was split into two it was a requirement for section 98A(2) to be part of an initial hearing for it is capable of changing an unfair dismissal to a fair one. Similarly, although contributory conduct is found in the remedy section of the statute, it is good practice for evidence to be called in relation to contributory conduct where this is alleged and the Tribunal can make findings, being scrupulous to separate in its mind its findings as to contributory conduct, which are based on the facts of what occurred from its findings under section 98(4) which are based upon the reasonableness of the Respondent's conduct (see London Ambulance Service NHS Trust v Small [2009] IRLR 563 ) which we drew to the attention of Counsel for their submissions. Mummery LJ, with whom Lawrence Collins and Hughes LJJ agreed, pointed out that the task of the Employment Tribunal is comparatively narrow:
"(43) It is all too easy, even for an experienced ET, to slip into the substitution mindset. In conduct cases the claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer. He has lost his job in circumstances that may make it difficult for him to get another job. He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question- whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal. (47) I would allow the appeal. The ET erred in law in its failure to apply the law correctly. On the issue of liability, the ET should have focused its fact finding on the Trust's conduct of Mr Small's dismissal. Instead, it concentrated on the conduct of Mr Small and it then used findings of fact in order to substitute its views for the grounds on which the Trust actually formed its belief and acted when it took the decision to dismiss. The ET should only have used its findings about the conduct of Mr Small on the separate issue of whether there was contributory fault on his part."
[22]When an employee is charged with a disciplinary offence it is important that she know the offence with which she has been charged. This is an elementary principle of employment law (see Strouthos v London Underground Ltd [2004] IRLR 636 in the judgment of Pill LJ). Arguments, discussion and conclusions[23]With those principles in mind, we turn to the arguments addressed to us. In a very real sense both appeals run together and it is difficult to distinguish some of the points as arising in one as against the other. The first contention is that the Employment Tribunal erred in law in respect of its finding that the unfairness in this case related to procedural defects. That was the sole basis upon which the Tribunal found the employer was responsible. It had failed in the third stage of the Burchell test, that is, it failed to carry out as much inquiry into the circumstances as was reasonable. As part of that it also criticised the way in which the Claimant had been told of the allegations against her and it is that which provides the logical starting point.[24]We note the submission that the judgment in Strouthos was not a necessary part of the decision because the point arose for the first time in the Court of Appeal and Pill LJ said that it was not necessary to provide a ruling. Nevertheless, it does provide very considerable guidance which we intend to follow. Knowledge of the charge[25]The first criticism is that the Claimant did not know. Although this is a regulated caring profession in a public authority, we do not hold that the precision for drafting an indictment is apt for a disciplinary charge, although an indictment was preferred. What is required is that the Claimant should know what is put against her. We have cited from the charge letter. It makes clear the conduct to be examined is regarded as highly unacceptable and falls within gross misconduct. The substance is contained in Ms Denton's letter of complaint. It contains four specific allegations which occurred when the Claimant and Ms Denton were together attending to an aggressive and disabled male. Wet wipes had been thrown by the Claimant at the patient. She then picked up a saturation probe and tapped the Claimant on the foot with it and the taps became harder, four times in total. It outraged the patient who swore at her and her response was to raise two fingers up to his face and to laugh at him. When the patient attempted to bite the Claimant, she hit him on the hand and then hit him harder. There followed, throughout the whole of the shift a series of blows to the patient by the Claimant with the probe, and smacks to his hand. Ms Denton had reported the Claimant as looking through the window which, in the Tribunal's finding, was possibly to avoid detection. An issue arose therefore as to whether the windows in the side room of the ward could be seen through. In addition, Ms Denton recalled a previous occasion two months earlier when the Claimant mimicked a patient to his face, made fun of him and smacked his hand.[26]Was there a defect in the indication to the Claimant about what she was facing? We hold that the Employment Tribunal was wrong to say that the Claimant had not had the benefit of that protection. It will be noted that the investigatory meeting notes were disclosed to her prior to the disciplinary meeting. These are in great detail and make clear what it was the Claimant was facing. These are not simply charges. This is the evidence and it includes an account that the Claimant could not remember the previous incident occurring two months earlier.[27]When the dismissal occurred, the charges were framed for the first time specifically in charge form. These record the evidence as presented and they relate to the events on 22 September 2007. In our judgment there is no substance in the criticism by the Tribunal that the Claimant did not know what she was facing. The allegation by Ms Denton is precise. The finding by the disciplinary panel is in respect only of 22 September 2007 since the Claimant could not remember an earlier incident. Although it is cited it appears to be nothing more than an account of the evidence Ms Denton gave. There is no doubt that the finding by the panel is focused entirely upon 22 September and thus the Claimant was given notice of what she was facing.[28]In any event, since the hearing of the appeal was a rehearing with evidence and cross-examination, as it were, all of the material going before that date is relevant and she certainly then knew the charges in the form in which they appeared on 18 October. The appeal by the Respondent that the Tribunal erred in its application of Strouthos is upheld. Documents[29]The second issue forming the condemnation by the Tribunal of the Respondent relates to missing documents. The documents, it is common ground, take two forms. The first is the initial statement made by Ms Denton which consists of eight lines. This was not produced at the hearing. The Tribunal considered that there may be documentation missing from the paper trail. This document has now been produced. It should have been produced earlier, we agree, but it takes the matter no further. As a result of this short statement, Ms Denton was asked to produce her complaint which was the operative source of the charges. The note says nothing inconsistent with what she says in the complaint and so the absence of this particular piece of paper cannot be said to be a procedural defect. In any event, it is a hesitant finding by the Tribunal that there may be documentation missing.[30]The second part of the documentation are notes by Ms Pemberton of an interview she conducted with Ms Denton. It is now accepted that there never were such notes and so their absence is fully explained. Two points are taken about this. Fundamental in our judgment is the submission of the Respondent that this was never raised as an issue made by the Claimant. With some force, Mr Powell, who did not appear at the first Tribunal hearing, says that if this issue had been raised, the obvious response would have been as above. The second point, of course, is that a document which never existed cannot be said to exhibit a procedural failing. Although the Tribunal was right to consider that the paper trail had a step missing, Ms Denton's first statement, nothing turns on this since the statement which we have read is consistent with the subsequent fuller one. Credibility[31]The third failing related to the credibility of Ms Denton. The Tribunal made a finding that all of the relevant managers believed what Ms Denton told them because she had no reason to lie about this. The essential events were not disputed. There was a dispute between the Claimant and a vulnerable patient. She had made a "V" sign at him, wet wipes had gone on to the patient's face and the Claimant had chastised the patient. There were no other witnesses. What became, in our view, a distraction was the suggestion by Ms Denton that the Claimant had looked twice out of the window, it being implied that she was looking to see if the coast was clear before abusing the patient.[32]The Claimant's case was that all of the windows were covered by blinds or curtains. No- one could see into the side room so there was something wrong with Ms Denton's account of what occurred. The Respondent had failed to conduct interviews with anybody else, including patients, who might have noticed whether the curtains were open or closed and could see any thing in there. The start of this appears to have been an aside uttered by Ms Pemberton in cross-examination that the curtains would have been closed anyway. But in our judgment this is a distraction because there already were witnesses, Ms Denton and the patient himself. She was in the room. There is no need for there to be subterfuge and to consider whether looking out of the window would protect the Claimant. On Ms Denton's account she was a witness in the room seeing all this. It was not suggested which other witnesses should have been brought forward. In those circumstances, the Tribunal's composite finding that there was a lack of proper inquiry is perverse.[33]The procedural aspects of this case, therefore, do not indicate that there was a procedurally unfair dismissal. In any event, the difficulty upon which we have heard no detailed submissions is that, as Mummery LJ pointed out, it is the conduct of the employer which is under scrutiny. The employer's witnesses all accepted the truthfulness of Ms Denton. Given the way in which this matter developed, it was obvious that the solicitor representing the Respondent would wish to draw attention to section 98A(2). The matters which were live before the Tribunal constituted a straightforward fair dismissal. Even if there were procedural defects as identified by the Employment Tribunal, they would have been the subject of further argument. There was no decision by the Employment Tribunal on section 98A(2). Even Mr Cohen accepts that that is a failing by the Tribunal, easily remedied, he says, by the addition of three short lines or, more convincingly, by what was said at the remedy judgment. Remedy hearing[34]Turning then to the remedy hearing, we hold that the Respondent was treated unfairly. As a result of the initial indication given by the Employment Judge, it was entitled to expect section 98A(2) described in shorthand as Polkey , and contribution, to be addressed with evidence. The only evidence sought to be adduced in respect of the former was the evidence as to the missing documentation and this was refused. That was wrong in our view, particularly in the light of the indication given by the Employment Judge which had itself followed the clear indication given by HHJ Peter Clark here.[35]Secondly, evidence was sought to be adduced relating to contributory conduct presciently applying London Ambulance Service v Small before its time. The Respondent knew that it was entitled to produce evidence to show that the conduct occurred, in order to make a finding of contributory conduct under section 123. Such was also required because, unusually, reinstatement and re-engagement were live issues and, as we have indicated, section 116 requires just that. Yet none of this was permitted. That too was wrong and the Respondent had an unfair hearing.[36]The other issues relating to section 98A(2) would be addressed by reference to an argument, not by live evidence, because Mr Powell was content to rely on the material which had gone before and to make submissions on it. The difficulty which faced him was that a decision had already been made that the Claimant was unfairly dismissed. What he was seeking to do was to reverse it pursuant to the reverse Polkey provision. If a Tribunal does not expressly make a decision under section 98A(2), its judgment is incomplete for it has made a decision of unfair dismissal without consideration of the employer's defence. Nevertheless, at a hearing such as this it was open to it, being a three person Tribunal, to review its decision on unfair dismissal in the light of material adduced and argument advanced in respect of section 98A(2). There is force in Mr Powell's submission that at close of play the Tribunal suddenly realised that point, because it then offered him the opportunity to make submissions. By then the innings was over, for he was faced with a decision on unfair dismissal, an inability to produce material to combat it and inability to adduce evidence relating to the facts of 22 September 2007 which was necessary in order to decide sections 116 123. Thus that judgment cannot stand. Loss[37]It is not strictly necessary for us to deal with the short issue relating to loss but since we have heard full argument upon it and since it may come up again on remission, we accept the Respondent's submission that the Tribunal erred in attributing all of the loss to the Respondent. The chronology indicates that by six weeks after the dismissal the Claimant would be in work. However, proceedings had been initiated by what the Tribunal describes as a third party, this is the safeguarding body in place at this Trust, in notifying the police and making a complaint about the Claimant in respect of 22 September. That was out of the hands of the Respondent. The acts of the police in charging and of the CPS in prosecuting her were matters which affected her ability to work but were not the direct consequence of acts attributable to the Respondent. The police could have taken action against the Claimant if the Respondent had acceded to the Claimant's union submission that a lesser penalty than dismissal was appropriate. She would still then have been unable to work, as we understand it, and so we hold that the loss flowing from this would extend only for six weeks. We accept the submission that the Tribunal has made inconsistent findings about the responsibility for the loss in its two judgments.[38]We have been referred to the outcome of this case, which may well be to do with the criminal proceedings, but is actually the judgment of the Nursing and Midwifery Council on 6 August 2009. The regulator accepted the evidence of Ms Denton about the misconduct of the Claimant and although its decisions was not known at the time, Ms Denton has given cogent evidence such as was sought to be adduced by the Respondent at the remedy hearing. Disposal[39]We allow both of these appeals. We will set aside the judgments and we are not prepared to substitute our own judgment, so this matter will be at large. It will go back to an Employment Tribunal. We have considered submissions relating to disposal of this case. This is not a case in which we would send the matter back to the same Employment Tribunal if we were minded to remit it. It cannot correct the significant errors or the appearance of unfairness of its judgments applying Sinclair Roche and Temperley [2004] IRLR 763 EAT. Even though this case took up the hearing time of three days and two days in deliberation there is genuine concern that a fresh hearing would be appropriate.[40]We are asked to consider whether we ourselves would substitute a judgment of fair dismissal in this case. That would not be appropriate either. The findings by the Employment Tribunal will have to be considered again by a fresh Tribunal. We do not have the benefit of seeing the witnesses. Although we do have considerable reservation about having to send this back, that is what we do. In the light of our judgment, however, it may be that the parties can consider a conciliated solution to this matter. After all, on our findings the losses are small and the findings of the regulator will be relevant to contributory conduct and the Claimant will wish to look most carefully with her trade union at those matters. Directions for ACAS conciliation given. and permission to appeal refused [reasons not transcribed]

Cited in 1 later judgment