MR M P WEST v PERCY COMMUNITY CENTRE [2016] UKEAT 0101_15_2001

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2016] UKEAT 0101_15_2001Case No Appeal No. UKEAT/0101/15Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NL
Between
MR M P WESTAPPELLANTPERCY COMMUNITY CENTRERESPONDENT
Before
Mr Justice Langstaff Ms K Bilgan Mr J R RiversDate 20 January 2016
[1]APPEARANCES For the Appellant MR TOM WOODWARD (Solicitor) Scott-Moncrieff & Associates Ltd Solicitors 88 Kingsway Holborn London WC2B 6AA For the Respondent MS KATHERINE REECE (Representative) Peninsula Business Services Ltd The Peninsula Victoria Place Manchester M4 4FB SUMMARY UNFAIR DISMISSAL UNFAIR DISMISSAL - Reasonableness of dismissal On three occasions over three days, the Claimant was thought to be having inappropriate and excessive physical contact with the young children (aged 7-8) at an after school hours club which he was employed to run. The employer genuinely thought that he had broken a policy that provided for limited physical contact only and dismissed summarily. The Claimant accepted that the children had sat on his lap (in two cases) and he had held the child in the third but said that his actions were within the policy. The Employment Judge was dismissive of this point in a way that showed he did not properly consider it. Nor did he consider the policy sufficiently - had he done so, he would have seen it allowed for some flexibility as to the occasions on which contact would be acceptable, and that the Claimant was contending that on at least two of the occasions that what he did was within it and the third contact was so fleetingly brief as to be of no significance. He argued that the employer had not taken into account the circumstances and the fact (as he alleged) that other staff at the club also permitted children to sit on their laps. There was some support for this in investigations which the employer undertook after a disciplinary hearing that resulted in dismissal so that the Employment Tribunal wrongly considered that there had been no investigation, but(a) given the consequences of the decision for the future career of the Claimant the investigation should have been thorough and was not,(b) the employer erroneously appeared to declare that if there was a breach there was no room for mitigation yet the Employment Tribunal did not examine this, and(c) if it was not uncommon for such to happen there would be good grounds for thinking a sanction short of dismissal might have been the most that a reasonable employer could have imposed, the appeal was allowed and the matter remitted to a fresh Tribunal for determination of the claim. THE HONOURABLE MR JUSTICE LANGSTAFF Introduction For reasons expressed in a decision of 1 December 2014 Employment Judge Livesey at Bristol dismissed the complaint that the Claimant had been unfairly dismissed. The Facts[2]In summary, the facts taken from the Tribunal are these: that the Claimant was a qualified teacher with a BA in Early Years Education who was employed as a Play Services Leader by the Respondent. In that capacity he ran an after school club for primary school children. On 7 January a seven- to eight-year-old boy (X) and his sister (Z) had in the morning found their mother unconscious, and X had had to call for medical assistance. Nonetheless, they came to school in these somewhat distressing circumstances. Both were on the Child Protection Register. In the after school club that day the Claimant, who we infer knew of those circumstances, allowed or encouraged child X onto his lap, holding him in a way that shocked the school's Financial Officer, who saw and who reported this occurrence (see paragraph 4.8 of the Tribunal Judgment).[3]That having been reported, a second concern was raised in respect of the Claimant's behaviour two days later, on 9 January. This concerned another child, Y. The circumstances of that were said by the reporting party to be that when she happened upon the club, which was held in the school itself, the Claimant was sitting at a table playing Monopoly. He had child Y sitting on his lap with his arm around her waist, both smiling, and they carried on playing notwithstanding her presence. She said that she had hesitated because she did not wish to talk to the Claimant about X in front of the children, and was "really taken back by Y being in that position". There was some exchange between the two, during which the Claimant did not move, according to her, so she went over to another employee to speak to her.[4]Following this, when those matters were investigated, it came to light that the Claimant had on 7 January also had handled and held X's sister, Z. His account there was that he thought she was going to faint and therefore held her, to enable her to be put down to bed.[5]The circumstances were investigated by a Mr Pitt. He had in mind in particular a policy that the school had adopted as it was advised to do, known as Policy 32. The relevant part of that was headed "Physical Contact". It reads as follows:
"? Where physical contact is necessary (e.g. first aid being administered) be sensitive to the situation ? When a child is upset, try to seek ways to provide comfort & support without unnecessary or excessive physical contact e.g. have the child sat next you instead of on your lap [sic] ? Where physical contact is unavoidable ensure that another adult is present, e.g. during first aid treatment ? Horseplay & violent games must be avoided ? As a general rule there should be no need for an adult to adjust clothing of children. It is sometimes necessary to assist with personal care for children, particularly changing nappies, helping with changing of clothes after an accident …"
[6]The more general context within which this particular policy sat was before the Employment Judge. That was guidance published by the Department to provide for safer working practices for adults who worked with children and young people in educational settings. At page 17, paragraph 15 of that guidance, under the heading "Physical Contact", is said:
"There are occasions when it is entirely appropriate and proper for staff to have physical contact with pupils, but it is crucial that they only do so in ways appropriate to their professional role. A 'no touch' approach is impractical for most staff and will in some circumstances be inappropriate. When physical contact is made with pupils this should be in response to their needs at the time, of limited duration and appropriate to their age, stage of development, gender, ethnicity and background. Appropriate physical contact in schools will occur most often with younger pupils. It is not possible to be specific about the appropriateness of each physical contact, since an action that is appropriate with one child in one set of circumstances may be inappropriate in another, or with a different child. Staff should therefore, use their professional judgement at all times. Physical contact should never be secretive, or for the gratification of the adult, or represent a misuse of authority. If a member of staff believes that an action could be misinterpreted, the incident and circumstances should be recorded as soon as possible in the school's incident book and, if appropriate, a copy placed on the child's file. …"
[7]We accept the argument advanced to us by Mr Woodward on behalf of the Claimant that that policy does not constitute an absolute prohibition on the touching of children. Far from it: it is clear to us that within its wording it recognises that there will be occasions when physical contact is necessary - indeed, the Government guidance would suggest it can be unavoidable - but rather that it should be neither unnecessary nor excessive. The particular example given is to sit a child next to an adult instead of on the adult's lap, but that is under the general request to "try to seek ways to provide comfort & support without [having to do the latter]". Plainly, there is a degree of flexibility in what constitutes a breach of the policy, which entirely depends on the particular circumstances of a particular case.[8]Mr Pitt, who was the manager of the Respondent - an organisation consisting of some 25 employees, some 12 of whom might from time to time have been engaged in the after school club of which we were told - investigated the matters drawn to his attention. Having done so, he considered that there was a need for a disciplinary hearing and convened that to discuss matters of concern, which were described as the Claimant taking part in activities that caused the company to lose faith in the Claimant's integrity, namely:
"… a blatant breach of company rules and procedures with regards to working practices with the children. Further particulars being, that it is alleged that on 07/01/2014 and 09/01/2014 you have allowed children over the age of 4 to sit on your lap which is considered inappropriate and excessive physical contact. The company alleges that these repeated and blatant breaches of this policy amounts [sic] to, if proven, a gross breach of trust."
[9]It goes on to say that if substantiated they would be regarded as gross misconduct and if he was unable to provide a satisfactory explanation the Claimant's employment might be terminated. We interpose there to say we accept also the submission made to us by Mr Woodward that for a teacher to be dismissed on grounds of misconduct relating to child safeguarding issues is undoubtedly a serious event; it is likely severely to blight his prospects of re-employment in his chosen field. For that reason, we accept that it was incumbent upon the employer in considering the allegation that we have summarised to bear in mind the words of Elias J, as he then was, in the case of AvB [2003] IRLR 405 : he called for particular care to be taken in cases in which the consequence of a dismissal could be of the nature we have described. It is incumbent upon an employer to take greater steps the more serious the consequences are for an employee and, it follows, to examine with great scrutiny the circumstances of alleged misconduct where an employee might as a consequence of an adverse decision be prevented from working in his chosen field ever again.[10]The Judge had before him a transcript of the disciplinary hearing on 19 February 2014; just as he had a transcript of the investigatory hearing, also before Mr Pitt. It had not occurred to the Claimant to make any complaint that Mr Pitt was both the investigating officer and the officer who determined whether to dismiss him or not, since he had thought that was entirely to be expected. The Judge, however, picked up the point and considered it in part of his decision.[11]Following the hearing Mr Pitt decided to dismiss the Claimant. The letter giving that decision was dated 24 February 2014. It set out the Claimant's explanations in general terms. It recorded Mr Pitt's reasons for thinking the explanations unsatisfactory, essentially concentrating upon the Claimant's awareness of the policy and rejecting the case that the employer thought the Claimant had made, which, as he understood it, according to the letter, was that the Claimant felt that his duty of care to children outweighed the need to adhere to the policies. The reason he gave for his behaviour with X was that X, having fallen over and chipped his tooth during a day that was in any event distressing for him, was seriously upset. He was bleeding. He needed to be comforted. So the Claimant comforted him, in a way which he thought in his professional judgement to be appropriate, on his lap. Whilst doing so, he sent another member of staff to the Head Teacher to ask her to come; she did, and she thought that what was then happening was inappropriate - but the conduct was plainly entirely open, as indeed the Claimant pointed out.[12]The decision recorded in the letter was that the conduct of the Claimant had resulted in a fundamental breach of his contractual terms that had irrevocably destroyed the trust and confidence necessary to continue the employment relationship, and added that summary dismissal was the appropriate sanction:
"… I have referred to our standard disciplinary procedure when making this decision, which does not permit recourse to a lesser disciplinary sanction."

The Judge was at something of a disadvantage in this respect:

[13]he said that he did not have a copy of the employment handbook referred to before him by the parties. The disciplinary procedure, however, was before him in the papers, we are told. It is perfectly plain to us that this does not prohibit the consideration of mitigation; contrary to the views expressed by Mr Pitt in the letter of dismissal it does permit recourse to a lesser disciplinary sanction. The alternative would be exceptional, and in this context is unarguable.[14]Ms Reece, who appears for the employer, acknowledges the way in which the matter is expressed and accepts those points, if that is what Mr Pitt meant to say; her retort is that it is to misunderstand somewhat clumsily expressed words, which essentially were to the effect that he did not think it appropriate in the particular circumstances to come to the conclusion that a lesser disciplinary sanction should be imposed. We find it difficult to read it in that way.[15]There was an appeal from Mr Pitt's decision to a Mrs Johnney and a Mrs Sobers-Cummins (the former being the Appeal Manager and the Chair of Trustees, the latter being a Trustee) which was heard on 19 March 2014. Again, the Judge had a copy of the transcript of the hearing. They rejected the appeal. The Decision[16]The Judge noted that the issue was one of conduct. He concluded at paragraph 5, materially, as follows:
"5.1. There was no dispute as to the reason for dismissal in this case; it was one which related to the Claimant's conduct and was therefore a fair reason under s. 98 (2). 5.2. Under s. 98 (4), I had to address the three stage test under BHS v Burchell [1980] ICR 303 . As I had pointed out to the Claimant at the start of the hearing, it was not for me to decide whether he had actually committed the acts complained of, but whether the Respondent genuinely and reasonably thought that he had at the time. 5.3. The Claimant had candidly and realistically accepted that the Respondent had genuinely held the belief at the point of his dismissal, but he challenged the reasonableness of that belief. He had clearly conceded that the three events for which he had been dismissed had occurred and that he had known of and understood the Policy. It was therefore difficult to say that the Respondent did not have reasonable grounds to believe the allegations that were made against him. 5.4. He raised two further specific issues during the course of the hearing: first, that the Respondent's contract with the School should not have had an impact upon the decision that was taken in his case. That point appeared to have related to part of Mr Pitt's conclusions at the disciplinary hearing … when he referred to the Respondent's relationship with the School as … "a fundamental customer relationship and source of income for the community centre"
. That matter, however, was not raised with Mr Pitt in cross examination by the Claimant. It was not a matter which was referred to by Mr Pitt in his letter of dismissal either … and I had no sense that it had formed any major part of his rationale for dismissing the Claimant. Even if it had, the fact that an employer receives pressure from a third party in such circumstances would not necessarily have rendered the dismissal unfair; even if such pressure had been present, it did not affect the reasonableness of the Respondent's view as to the Claimant's guilt."[17]He went on to say that he had to consider whether there had been a reasonable investigation and thought there was nothing substantial that went to that. The real issue upon which the decision turned in the eyes of the Judge was the fairness of the sanction that was imposed. As to that he said this (paragraph 5.7):
"5.7. … I was not permitted to impose my own view of the appropriate sanction ( Foley v The Post Office and HSBC v Madden [2000] ICR 1283 ). An employer should consider any mitigating factors which might justify a lesser sanction and the ACAS Guide was useful in that respect; factors such as the employer's disciplinary rules, the penalty imposed in similar previous cases, the employee's disciplinary record, experience and length of service are all relevant. An employer is entitled to take into account both the actual or potential impact of the conduct alleged upon its business."
[18]We note in passing a submission by Mr Woodward with which we do not agree. He argues that having identified the factors in the list set out, the Tribunal had effectively obliged itself to consider each and every one in turn and since it had not considered the disciplinary rules in detail it had committed an error of law. That is to read this passage as saying that the Tribunal in this case would examine each of those matters. We do not read it in that way; rather, the Judge was setting out an indicative list of the sort of things that might in general circumstances be taken into account. That is apparent when he went on in paragraph 5.8, as we shall now record, and thereafter to identify the two particular matters generally within that list upon which the Claimant did rely. It would not, in our view, be an error of law to fail to deal with other matters that might have been referred to by the Claimant but were not, since a Tribunal can hardly be blamed for failing to make a decision on a point that has not been argued before it. As to paragraph 5.8:
"5.8. Here, the Claimant argued, first, that insufficient notice was taken of the significant mitigating factors he raised and, secondly, that the decision to dismiss him was inconsistent with the approach taken in respect of other staff that may have committed the same or similar acts. 5.9. As to the first point, it was undoubtedly the case that the circumstances surrounding child X's distress on 7 January were unusual and extreme. I was told that both he and his sister, child Z, had found their mother unconscious on the morning of 7 January. X had had to call an ambulance to attend her. He then went to school, followed by the Respondent's after-school club where he fell and broke a tooth. On any interpretation, it must have been a very upsetting day for him. However, it cannot be said that 'Policy 32' did not then apply. Even if the Claimant had been justified in failing to keep to it in respect of the peculiar circumstances of child X, child Z had not been in quite the same position and he did not appear to deal at all with the circumstances surrounding his contact with child Y on 9 January. …"
It is unnecessary for present purposes to do more than refer any reader hereafter to the balance of paragraph 5.9. Then the Tribunal turned to say at paragraphs 5.10 and 5.11:
"5.10. I accepted that others could have regarded Mr Pitt's decision to dismiss as having been harsh, but I could not say that it was outside the band of responses available to a reasonable employer in the circumstances set out in paragraph 5.9 above. I could certainly appreciate that a different employer might have issued a final warning and reminded an employee about the terms of the Policy, as the Claimant has argued in this case, but that did not mean that I was in a position to interfere with the decision that Mr Pitt had reached since it was nevertheless a sanction open to a reasonable employer. 5.11. As to the point on consistency, in the absence of any allegation from any other member of staff that someone had committed a similar act, it cannot have been said that Mr Pitt behaved unreasonably in failing to investigate that allegation, which was not raised by the Claimant until the disciplinary hearing."
[19]The Judge looked at the position of Mr Pitt and considered that in the particular circumstances - given the Claimant's lack of complaint, the fact that he thought Mr Pitt's evidence to be good, thoughtful and considered, the lack of any evidence (as Ms Reece puts it) that Mr Pitt was hostile personally to the Claimant and the benefit of a full appeal hearing during which he raised no complaint about Mr Pitt's role - the process had been fair taken overall and the fact that Mr Pitt had been both investigating officer and dismissing officer had not resulted in unfairness in this case despite the breach of the code of practice that that represented. The Appeal[20]The Appellant advances five grounds of appeal against this decision. The first was that the Employment Tribunal failed to analyse the disciplinary policy and its application; secondly, that it failed qualitatively to assess the alleged misconduct, with reference to appropriate considerations in respect of gross misconduct. What those submissions in part involved was a submission by Mr Woodward that it was necessary for a Tribunal when dealing with issues arising under section 98(4) of the Employment Rights Act 1996 ("ERA") to have regard to the nature of the misconduct the employer thought to be established and whether, properly analysed, it amounted to gross misconduct. This is to assert that it is necessary for a Tribunal to conclude that there has been gross misconduct before it can hold a dismissal on the grounds of conduct to have been fair.[21]He argued as a third ground of appeal that there had been a failure to take account of mitigating factors and fourth that there had been an incorrect finding of fact; this is described in the Notice of Appeal as relating to the statement by Judge Livesey at paragraph 5.11 that the Claimant had not asserted that it was fairly normal practice for play workers to have kids sitting on their laps during the sessions until the disciplinary hearing. In fact, that allegation had been made, as the transcript shows, during the course of the investigation. Fifth, Mr Woodward argued that the Judge should not have concluded as he did in respect of the procedural unfairness that related to Mr Pitt wearing two hats; first as investigating officer and secondly as dismissing officer.[22]Ms Reece, for her part, argues that there were ample grounds here for concern; the decision of the Tribunal should be upheld. The policy was one of which the Claimant was fully aware; indeed, he had played a part in its formulation. He knew what it demanded. The reference to children not sitting on laps that we have recited above was clear. That applied even when children were distressed, as was the case with child X. There was no escaping that so far as child Y was concerned there had been a breach. The Claimant appeared in the course of the investigation, disciplinary hearing and appeal to be suggesting that where children wished to climb on his lap, be physically affectionate to him or seek comfort in that way, he could not easily avoid that or dissuade them. That rather placed the responsibility for the behaviour on the child and not upon the adult, which was where it properly belonged. She emphasised that throughout the investigation and disciplinary hearing the Claimant had appeared reluctant to acknowledge that he had done anything untoward or inappropriate although, when challenged directly, a number of the phrases within those documents showed that he did understand that his behaviour might be seen as inappropriate. Discussion[23]We do not accept the point that Mr Woodward made that where conduct is alleged as a ground of dismissal it is necessary according to the authorities that a Tribunal should consider whether the conduct is gross misconduct before it can reach a conclusion as to unfair dismissal. The two concepts, unfair dismissal and gross misconduct, are closely related, but they do need to be kept separate. Unfair dismissal requires a Tribunal to have close attention to the terms of section 98 ERA 1996 . That is statutory. It requires, under section 98(1), the employer to show the reason (or if more than one the principal reason) for the dismissal and that it is either a reason falling within subsection (2), as conduct does, or some other substantial reason. Section 98(4) provides, critically for this case:
"(4) Where the employer has fulfilled the requirements of subsection (1), 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."
That statutory question is answered by a factual inquiry.[24]A gloss has been put upon the approach to section 98(4) by cases such as Burchell , Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 and subsequent decisions so often and so regularly that it has become entirely appropriate for a Tribunal to direct itself by reference to the four-stage test there involved. By contrast, gross misconduct is a contractual concept. Where there is misconduct, an employee may be dismissed, and he may be dismissed either with or without notice: but if without notice, there is likely to be an issue as to whether the misconduct is or is not gross. That is a contractual, not statutory, issue upon which the payment of the sum otherwise due during a notice period would depend if an action for wrongful dismissal were to be brought (no such action was brought in the present case). Whether there has been gross misconduct is a finding of fact dependent upon what actually happened. By contrast, a decision in respect of section 98 depends not upon what happened but upon asking what the employer thought had happened, which is a different enquiry.[25]The absence of a proper consideration whether misconduct is or is not gross may entitle an employee who is about to be subject to disciplinary proceedings to obtain an injunction to restrain them (see the case of West London Mental Health NHS Trust v Chhabra [2014] ICR 194 SC). Mr Woodward reminded us that the action for wrongful dismissal has been considered in cases such as the case of Wilson v Racher [1974] ICR 428. We have to say that particular decision turns upon its particular facts, in relation to whether or not an action for wrongful dismissal - that is, for damages for summary dismissal - could succeed in circumstances in which the employee had used some obscene language when faced with some trivial complaints about his work by his employer. We do not think it has anything to say in the present context.[26]It may be more usual that a dismissal is held fair where there is something that might be described as gross misconduct contractually, and as such within the terms of the employer's disciplinary procedure (especially if that is contractual) it would be held unfair. It may be unusual that a dismissal is held unfair where there is no gross misconduct. But in neither case is the presence or absence of gross misconduct, as such, determinative. Gross misconduct is, rather, a label that is applied by the courts in determining contractual issues, and though it may be a trigger for other actions, to proceed to determine a claim under section 98(4) by asking whether the label is appropriate or not is to take a completely unnecessary step. The question is whether what the employer thought had happened, in the circumstances in which the employer thought the conduct to have occurred, was or was not sufficient to justify the employer's actions so as to be held not unfair within section 98(4).[27]In the course of his submissions in support of this argument Mr Woodward took us to Eastland Homes Partnership Ltd v Cunningham UKEAT/0272/13, an unreported decision of this Tribunal of 7 January 2014, HHJ Hand QC sitting alone. That was an extempore Judgment. It considered the converse case to the present in many respects. In that case an Employment Judge had found that conduct did not amount to gross misconduct and that therefore a claim for unfair dismissal should succeed. The Judge also rejected a claim that there had been wrongful dismissal but did not explain why. In the context of unfair dismissal he did not explain or discuss why it was unreasonable for the employer to have characterised the conduct as gross misconduct, which in that case was completely linked as a matter of fact with the employer's decision to dismiss him. He recognised that Burchell , Jones , Foley , Sainsbury's Supermarkets Ltd v Hitt [2003] ICR 111 , London Ambulance Service NHS Trust v Small [2009] IRLR 563 , Graham v SSWP [2012] IRLR 759, Barchester Healthcare Ltd v Tayeh [2013] IRLR 387 , and JJ Food Service Ltd v Kefil [2013] IRLR 850 did not suggest that any finding as to the reasonableness of the characterisation of conduct as gross misconduct was called for. He concluded nonetheless that it could be said to be part and parcel of all of the circumstances, and it was all of the circumstances that had to be taken into account in reaching a decision under section 98.[28]We do not regard this case as requiring a Tribunal always to consider whether there has been gross misconduct contractually as between employer and employee, and in particular as having to do so before reaching a conclusion in respect of unfair dismissal. Circumstances which would show that an employee was in breach of his contractual obligations to an employer will undoubtedly be of potential relevance. So also will be a situation in which it can be shown that the employee was not in any such breach. However, these are part and parcel of all of the circumstances, by which matters have to be assessed under section 98(4). It was this last point which HHJ Hand was emphasising in Eastland v Cunningham . We do not think that it can be said of this Judge that his conclusion was in error because he did not consider the question of gross misconduct, as such, as a necessary step in reaching his conclusion.[29]That said, we do accept Mr Woodward's argument, which comes within grounds 1 and 2 of the appeal, that the Judge should have done more than he appears to have done in the present case. When he concluded at paragraph 5.1 that the reason for dismissal related to conduct, he did not say what that conduct was. If one were to assume that it was his conduct in having children sit upon his lap, then undoubtedly he accepted the facts in so far as that had occurred. If, however, the issue was whether that constituted a blatant breach of policy in disregard of his obligations, the enquiry would be different. The Judge wrongly, in our view, elided these matters when answering the second of the two Burchell grounds at paragraph 5.3 by holding that it was difficult to say that the Respondent did not have reasonable grounds to believe the allegations because the Claimant accepted that the three events had occurred. What he was accepting was that the physical manifestation was as the employer thought, by and large (though he was saying, we note, that in respect of child Y the observing officer had just happened upon him at the moment that the child had taken his knee, and the incident in total lasted only some 15 or 20 seconds; in other words, it was short lived and of no significance. He had, as it were, got rid of the child off his knee in the next moment).[30]The Judge did not examine the details of the incident with child Z in his Judgment. He did not deal with the Claimant's case, as we have described it, in respect of child Y. There was a conflict, as it seems to us, potentially between that and the contemporaneous report given to the employer, but nothing was clearly said by the employer as to what the employer made of that. Indeed, the Tribunal went on at paragraph 5.9 to say:
"5.9. … Even if the Claimant had been justified in failing to keep to it in respect of the peculiar circumstances of child X, child Z had not been in quite the same position and he did not appear to deal at all with the circumstances surrounding his contact with child Y on 9 January. …"
[31]One is left wondering what precisely the Judge had in mind. Though he did deal with the circumstances surrounding Y, the reference to child Z is delphic. More particularly he did not come to any conclusion as to whether in respect of child X the Claimant was within or without the terms of the policy. The Judge appeared at paragraph 5.9 to think that he was necessarily outside it. This is to take a view of the policy, which appears to have been the view taken by the employer, that it permitted of no real flexibility of exception. As we have indicated, that is not our view. It is not, in our considered opinion, a reasonable view for an employer to take of this policy. It may well be that what the Claimant did departed from the policy. However, it required a finding of fact by the employer, which required some consideration by the employer, and which should have led to some consideration by the Employment Tribunal which is simply absent. The conclusion as to whether the employer had reasonable grounds for the belief it held could not so lightly be dismissed as it was, and we think that the Judge was in error of law in this context to do so. He did not appear to appreciate the width that could be given to the policy.[32]Next, insofar as the appeal argues that sanction was the central issue, the Tribunal did not engage at all with the final words on the first page of the letter of 24 February from Mr Pitt, which said in effect that there was no room for mitigation in the present case. Ms Reece may perhaps be right that he intended this to be read in an entirely different light from that which the words appear to convey to us, but if so, it needed to be explained, since the point about mitigation was put before the Tribunal. Here the central issue turned out to be whether there had been any proper investigation with a view to sanction (as opposed to with a view to asking whether the conduct had been committed) of the Claimant's repeated observations in the course of the investigation and at the disciplinary hearing that it was not uncommon for children to be permitted to sit on staff laps at the club. The Tribunal at paragraph 5.11 dealt with the point on consistency after it appeared to have reached a decision as to whether the sanction of dismissal was open to a reasonable employer (paragraph 5.10) even if in that paragraph it had expressed some doubt perhaps as to what the Tribunal itself would have decided in these particularly unusual circumstances. The sanction would depend, we note, upon both the question of the circumstances of each offence and the question of whether as a matter of some commonality staff did permit children to sit on laps. If the latter is the case, as Ms Reece conceded early in her submissions, then the Claimant might not unreasonably say that others were being treated in a different manner to him or might not unreasonably say that he had not understood the seriousness of his actions and how the employer would interpret the flexibilities permitted by Policy 32.[33]The Judge's reasoning in that paragraph is curious to us. He appears to accept, on the reading of all three of us, that Mr Pitt had not investigated the allegation made by the Claimant that others permitted this sort of behaviour. If what he was saying, which on the face of it appears to be the case, was that someone other than the Claimant would have had to have made an allegation that this was what had happened, then it is difficult to understand it. We do not think that the error in itself as to when the matter was first raised, which was, we acknowledge, an error, since the matter was raised in general terms at the investigation hearing, was material to the reasoning, but we should record that the Tribunal did have in front of it a document, undated, that either was preparatory to the letter that Mr Pitt wrote dismissing the Claimant or was made after that event; in any event, plainly after the disciplinary hearing had concluded. In the course of that document it is plain (see the second page of this document under the heading, "These are the points that Matthew wanted to convey", at point number 3) that he had also alleged that on 9 January 2014 another member of staff had had a child on their lap, indicating, again, that children sitting on laps was not uncommon amongst staff. The note goes on to say, "we did question this member of staff immediately afterwards". We take that to be - and Ms Reece takes the same approach - immediately after the disciplinary hearing, and she said that "she could not remember but it was possible, however it is not something she would normally do". Pausing there, that suggests that it is something that did happen from time to time albeit not as a commonplace. Mr Pitt noted it would have to be dealt with "seriously as a separate matter". There was no general enquiry in the light of that, as one might have expected there to be, as to whether other members of staff also behaved in that way, although there was the question about what other members of staff saw as safeguarding concerns, and there is some inference that they thought that the Claimant having children on his lap was unusual and concerning yet it appears to have been described as a matter that was not uncommon for him. That, however, was not exactly what he was charged with, although it may have had some impact on the decision.[34]In short, bearing in mind the consequences of the decision here, bearing in mind that the Claimant's point that others appeared to have been doing what he was doing, in circumstances in which the papers suggest that others too were generally concerned in running the club such that he could not necessarily be blamed for failing as a manager to regulate the behaviour of those around him (although the Tribunal described him as having run it, we note from the papers that a woman, Sandra, who was the person who the Claimant said had had a child on her lap, may have had an equal share in doing so, and both he and Sandra were said to be subordinate to a Mrs Tonia Eades), we recognise, as the Judge himself at paragraph 5.1 appears inclined to have recognised, that the decision as to dismissal or not was perhaps a close one, and one which needed to have been considered in all of the circumstances. Amongst the matters which the Judge took into account was that the failure to investigate the allegation of similar conduct by others was not unreasonable, because there was no evidence that someone had committed a similar act: but there was indeed material before the Tribunal showing that such conduct might well have happened, and in a case which had to be explored with the care urged by Elias J in AvB he should have looked for some consideration by the employer as to whether there was any general practice actually adopted as to the manner of touching children. Conclusion[35]In summary, our conclusion is that although we do not accept it was necessary to categorise the Claimant's behaviour as gross misconduct before the Judge could find his dismissal to be unfair, grounds 1, 2 and 3 are otherwise made good. The Tribunal did not properly consider the terms of Policy 32, it did not ask clearly what the conduct was for which the Claimant was dismissed, nor appreciate the Claimant's argument that he was within and not without the policy at least so far as child X was concerned. It did not deal with his case that he had told his employer that so far as child Y was concerned the incident was extremely short-lived, and therefore of no particular significance, and therefore consider whether the employer should have dealt with that, and it did not deal appropriately with the questions arising as to mitigation.[36]We see that there is a considerable case to be made on behalf of the employer. We do not wish our decision to be taken as indicating any view as to the conclusion it would be appropriate a Tribunal should reach; indeed, it is not our business to do so. We do, however, consider that, for the reasons we have given, the reasoning of the Tribunal below was inadequate. It has fallen into error of law for the reasons we have given. Disposal[37]We have heard the advocates as to the consequence of our decision. We noted in doing so that the original hearing took one day, and we noted that the view to which the Judge came appears to have been a fairly settled view. We mention those factors, since they are two of the factors to which reference was made by Burton J in Sinclair Roche & Temperley v Heard [2004] IRLR 763 , familiar authority 19 in the bundle of authorities before this court, at paragraph 46.4.[38]We have concluded that in this particular case we think it would be better if the matter were remitted to a fresh Tribunal. There is no particular feature of proportionality which tells against this, especially since the case was and will be short. The facts are, we would have thought, easily comprehensible by a Judge, and not necessarily to be remembered by this Judge. There is a risk of his taking, as it was described by Burton J, a second bite of the cherry. Although there is absolutely no criticism of his conduct of the case and no particular reason to query his professionalism, we do think that the nature of the mistakes, if such they turn out to be, is that he has been too quick in describing matters that were, after all, before him in some detail - especially in detailed transcripts - and although it may be that we have not been helped by the fact that neither counsel was actually at the Tribunal and could tell us a bit more about what happened, we think on balance it is better that the matter goes to a fresh Tribunal for complete rehearing.