“45. At the heart of this appeal are the two opposing allegations that the two tribunals, first the ET and then EAT, wrongly substituted their own views of the facts, particularly in relation to what we have called Allegation One, instead of evaluating the facts as found by the dismissing officer of the employer. That is the substance of Grounds 2 and 3 of the Grounds of Appeal, viz that the EAT retried the case on the facts and that a misleading document was introduce at the EAT stage to define “acquaintance” or “acquaintanceship” and Mr Gott’s argument that the EAT was entitled to do what it did because the ET had itself been guilty of “substitution”
“ ... the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case. The facts 9. The Tribunal introduced the parties to us in the following way: “3.1. The Claimant worked for the Post Office division of the Respondent for approximately 30 years. Part of the time he worked under a contract for services as a sub‑postmaster and part of the time as a direct employee under a contract for service. 3.2. The Claimant operated as a sub‑postmaster at Worthing from 18 th December 2004 until 25 th October 2010 when his contract was terminated. He was directly employed by the Respondent, performing the role of counter clerk at Shoreham Post Office, between 22 nd February 2008 and 28 th March 2011. 3.3. This claim relates to his dismissal from his employed position at Shoreham and the reasons for that dismissal were directly linked with what happened at Worthing, leading to termination of his sub‑postmastership. The reason for dismissal was conduct. The Respondent makes no complaint about the Claimant’s conduct in his employed capacity at Shoreham but says that the events which occurred at Worthing were so serious it could no longer contemplate employing the Claimant at Shoreham or, anywhere else within its organisation.” 10. For many years the Claimant operated as a sub-postmaster, but then the burden of much of that work shifted when he took on the position full‑time as a counter clerk at Shoreham. The Claimant left to his wife the duties at Worthing and she committed frauds that the Claimant told the Tribunal and his employers he did not know about. The Tribunal accepted that. The reason for his dismissal was because of what happened at Worthing. His past was unimpeachable at either location, but it was because of the termination of the relationship at Worthing when his wife’s wrongdoings came to light in an audit, that it was felt untenable that he should continue at Shoreham. The charge put against him was this: “3.16. In January 2011 the Claimant was called to a disciplinary meeting by Mrs Kingham (92) [charged with] with failing to meet the Respondent’s ‘conduct standards as a result of your breach of contract as sub-postmaster at West Worthing SPSO. Your outside business contravened Post Office Ltd commercial interests and conflicts with your duty to Post Office Ltd which requires you to avoid any such activities that would compromise this and to ensure that such activities are not (sic) be properly influenced by personal considerations’ . This was alleged to be a breach of the Respondent’s code (27) aimed at protecting its business against outside business activities.” 11. Mrs Kingham sadly was unable to give evidence at the Tribunal, but she upheld that charge. Mr Hartley concedes that that is not an allegation of dishonesty against the Claimant. The Claimant appealed to Mr Garnham. Mr Garnham did give evidence before the Employment Tribunal; he appears to have conducted a rehearing of the matter and did some investigation himself. The central criticism made of the Claimant was that his wife got hold of the official password because he shared his own password with her. He said he had been in touch with the helpline when something went wrong and gained the impression that he could in the circumstances share his password with his wife. The Tribunal thought that was unlikely given the very high importance given to security and password security by the Respondent. That was the issue that it found was not pivotal to the understanding of the case, and it appears to have accepted the Claimant’s recollection of the circumstances. 12. Mr Garnham’s evidence is recorded and the following account is given by the Employment Tribunal: “7.13. The principal criticism the Tribunal has is that it infers Mr Garnham allowed himself to be improperly influenced by what he perceived to be the Claimant’s dishonesty or, at the very least, a strong suspicion such existed and that this impacted on his consideration of penalty. 7.14. The facts were that the Claimant had an exemplary record extending over approximately 30 years. He had never been in disciplinary trouble before. He admitted he shared his password with his wife. She was the effective manager of the Worthing sub post office and a cogent reason was given why the password sharing occurred. She lawfully had her own password and some of the miss‑sold [sic] policies were generated using her own password with the result that she did not depend on knowing the Claimant’s password to undertake her unlawful activities. Disclosing such information to a trusted wife (even if it turns out later such trust was misplaced) is essentially different from disclosing the information to someone at arm’s length who would not otherwise have access to the system. There is nothing in the notes prepared by Mr Garnham to show that he weighed these factors when deciding whether summary dismissal was the correct penalty. It is clear from his note (163) that he attached considerable significance to his perception that the Claimant was implicated in his wife’s actions and that it was ‘inconceivable’ the Claimant was unaware of them and that lack of awareness of the cancellation letters was ‘somewhat unbelievable’. He makes a finding that the Claimant’s ‘integrity has been brought into question’. 7.15. Mr Garnham accepts there was no evidence upon which to reach these conclusions. The Tribunal infers that when deciding whether it was appropriate to impose summary dismissal and reject all other options Mr Garnham allowed himself to be influenced by improper factors and treated the Claimant as being someone who had flawed integrity. Had there been evidence to support that conclusion then, having regard to the nature of the Respondent’s business, summary dismissal would have fallen within the band of reasonable responses and the decision to dismiss would have been unassailable.” 13. The Tribunal therefore went on to consider the case when the challenge to integrity was stripped away and said this: “7.16. When the element of lack of integrity is stripped away, what is left? In the absence of a policy that all managers are summarily dismissed if an employee for whom they are responsible has acted dishonestly the only remaining issue is the sharing of a password. In this case the Claimant shared his password with someone who already had her own password giving her legitimate access to the system and was not therefore being facilitated access which would otherwise have been denied. The Claimant had good ground to repose trust n his wife with whom he shared his password. The Claimant’s wife was in de facto control of the Worthing sub post office, albeit overseen by the Claimant. Until the audit occurred the Claimant was unaware of his wife’s irregular acts with life policies and there was no evidence he knew of the matter or had been complicit in it. By terminating his sub postmastership the Claimant had already been severely punished for sharing the password and falling short on his managerial responsibilities in not detecting the irregularities. Taking into account these factors and if penalty is approached on the basis the Claimant has always acted with integrity, then, even allowing for the nature of the Respondent’s business, summary dismissal in the circumstances of this case falls well outside the band of reasonable responses. 7.17. In reaching this decision the Tribunal has been careful not to substitute its own preferred option but has asked whether any reasonable employer in a similar business to that of the Respondent, acting reasonably, in the circumstances of this case, could dismiss summarily and has concluded unanimously it could not. 7.18. The Tribunal is satisfied on the balance of probabilities that Mr Garnham failed to stand back and give adequate consideration to the appropriateness of penalty. […]”