Lord Justice Clerk

Lord Kirkwood

Lord McCluskey






from the decision of the Employment Appeal Tribunal dated 12 March 2003








Act: Napier, QC; Maclay Murray & Spens

Alt: Mackenzie; Beveridge & Kellas (Mein Mathers Taggart, Aberdeen)

19 March 2004


[1]This is an appeal against a decision of the Employment Appeal Tribunal dated 12 March 2003 by which the EAT allowed an appeal by the present respondent against a decision of the Employment Tribunal dated 3 July 2002. The Employment Tribunal in that decision found that the appellant had been unfairly dismissed by the respondent and awarded him compensation of £32,507.

[2]The respondent has a school in Aberdeen for children with special educational needs. The appellant taught at the school. The school was accustomed to dealing with disruptive and unruly pupils. The staff received tuition in "crisis and aggression limitation and management" (CALM), a technique for controlling violent or disorderly persons.

[3]On 2 March 2000 a 15-year old male pupil (pupil A) left his classroom without permission and encountered the appellant in the corridor. The appellant attempted to escort him to the "quiet room." There followed an incident in which pupil A struggled with the appellant and another member of staff. Pupil A was taken to Aberdeen Royal Infirmary. He was found to have a fracture of the left elbow. That incident led to the appellant's dismissal.

[4]Pupil A made a complaint against the appellant. The Principal of the school, Mrs Jane Arrowsmith, instructed Miss Gina Whitmore, the training manager, to conduct an investigation. Miss Whitmore had discussions with the Principal and Mr John McNally, the social work manager. They agreed that there should be a disciplinary hearing.

The disciplinary proceedings

The first day of the hearing - 31 March 2000

[5]The Principal conducted the hearing. Mr Graham Campbell, an official of the appellant's union, represented him. Mr Campbell was a former teacher with experience of children with special educational needs. Miss Whitmore was unable to attend. With the agreement of Mr Campbell, Mr McNally presented the findings of the investigation.

[6]The conclusions of the investigation were "(a) that [the appellant] used unnecessary force; (b) that he utilised inappropriate physical intervention techniques and (c) that as a result of this incident, [pupil A] sustained two broken bones in his left arm." Conclusion (c) is inaccurate. There was no evidence that pupil A had sustained two fractures in the incident. These findings were not disclosed to the appellant before the hearing.

[7]The respondent called no witnesses and tendered no detailed medical evidence. Mr Campbell was given copies of the witness statements. He pointed out to the Principal that there were a number of inconsistencies and conflicts in them. He said that Mr McNally's findings were merely a series of quotations from the statements and that he could see no causal connection between them and the findings of the investigation. Mr McNally did not specify what "inappropriate physical intervention techniques" the appellant had utilised. As the Tribunal was later to find, on undisputed evidence, when Mr Campbell asked Mr McNally about his findings, there was a reluctance on his part to respond and there were interventions by the Principal to the effect that Mr McNally could not be expected to answer as he was not the investigating officer.

[8]The Principal continued the hearing to allow the appellant to have witnesses questioned on his behalf.

Dr Matheson's report

[9]On 8 May 2000, the respondent's administrative officer, Mrs Audrey Anderson, wrote to the Accident and Emergency Department of Aberdeen Royal Infirmary to request a report from the consultant who was in charge on the date of pupil A's attendance. She requested a report on the possible causes of the injury. She noted that on that date pupil A had been seen by Dr Fiona Mair, who had stated that the injury was caused by "forced hyper-extension of the left arm ... held behind his back." Mrs Anderson asked for clarification as to a number of ways in which the injury could have been sustained. She said that the respondent "would be interested to know in broad terms the level of pressure or impact which would have been required to cause this fracture."

[10]By letter dated 23 May 2000, Dr Alasdair B Matheson, the Senior Consultant in the Accident and Emergency Department, replied in the following terms.

"[Pupil A] attended the Accident and Emergency Department at 11.56 hours on 2nd May 2000 (sic) with a complaint of a painful left elbow and offered the history that one hour earlier his left arm had been twisted up behind his back. On clinical examination he was tender about the radial head and the coronoid process and radiographs showed a fracture of the coronoid process of the ulna and the suspicion of a fracture through the radial head.

I have reviewed these films and would agree that there is a fracture of the coronoid process amounting to a large chip. The injury to the radial head does not appear recent to my eye.

I will, therefore only offer my opinion on the possible mechanism of the coronoid process fracture.

You state that Dr Mair (the examining doctor) had stated that this was due to forced hyper-extension of the left arm. This is not absolutely correct. She, in fact, stated that was the history that was obtained.

While that mechanism might well have produced an injury, a more likely mechanism was the second one you suggested in your letter, i.e. the arm being bent at the elbow and forced, but any sort of twisting action which involved the elbow might well have produced the injury.

You ask also about the degree of force that might be necessary to produce this injury and my opinion is that this could be relatively little were it applied at the end of a longish lever, in other words, at the wrist or the hand of the arm involved."

Although this letter was sent to the respondent on 23 May, the respondent did not furnish a copy of this letter to Mr Campbell until 21 June, the day before the hearing resumed.

The second day of the hearing - 22 June 2000

[11]On this occasion neither Miss Whitmore nor Mr McNally was present. The respondent was represented by its solicitor, Mr R Taggart. The appellant gave evidence. Several witnesses gave evidence on his behalf. Mr Taggart cross-examined them. Mr Campbell challenged Miss Whitmore's findings and conclusions in detail. Miss Whitmore was later to concede at the Tribunal hearing that it had been extremely difficult to assess exactly what had happened because different people saw different things at different times and from different viewpoints.

[12]Throughout the hearing, Mr Campbell maintained that the conclusions reached by the investigating officer had not been satisfactorily explained. He referred to the many inconsistencies in the evidence. He argued that it was impossible to conclude that the appellant's action had been inappropriate or that he had used excessive force. As the Tribunal later found on undisputed evidence, the statements, of three pupils and five members of staff, were contradictory and inconsistent. It was not clear when pupil A's arm had been broken.

The evidence before the Principal

[13]We have been shown, among other productions, the witness statements obtained in the course of the respondent's investigation, the document entitled "Findings of the Investigatory Process as presented by J McNally" that was produced on the first day of the hearing, the minutes of the disciplinary hearing and appeal, and the correspondence between Mrs Anderson and Dr Matheson. The statements exemplify the contradictions and inconsistencies of which Mr Campbell complained. They present a confused picture of the incident in which, in general, the evidence of the pupils is at variance with that of the members of staff; but what is clear, and was undisputed before the Tribunal, is that pupil A kicked the appellant, that the appellant restrained him, and that another teacher, Mr Gordon Smith, came to the appellant's assistance. Pupil B then appeared on the scene and pulled the appellant away from pupil A, leaving Mr Smith alone with pupil A. While the appellant was dealing with pupil B, pupil A overcame Mr Smith and held him on the ground with his arm around his neck. At this stage pupil A had Mr Smith's mobile phone in his hand. When pupil A would not let go of Mr Smith, the appellant took hold of his arm and began to pull him away. By then several other members of staff had appeared on the scene and the incident came to an end.

[14]It appears that on the first day of the hearing the only medical evidence that the school had was a Report from Dr Fiona Mair, to whom we have referred. As is clear from Mrs Anderson's letter of 8 May 2000, the school understood it to be Dr Mair's opinion that the injury was caused by "forced hyper-extension of the left arm ... held behind his back." That was not the case. What Dr Mair had said was that that was the history that was obtained. This was a serious misunderstanding; but Dr Matheson had corrected it before the second day of the hearing.

The Principal's decision

[15]The Principal retired with Mr Taggart to consider her decision. She returned and read a statement which included the following conclusions:

"Having fully considered the evidence contained in the statements, the medical reports and the verbal evidence heard today, I have come to the conclusion that Mr Porter:-

(1)used unnecessary force;

(2)used inappropriate physical intervention techniques;

(3)that as a result of doing so, a pupil at the School sustained a fracture to

his left arm.

I consider that Mr Porter's actions amount to gross misconduct."

She decided that the appellant should be summarily dismissed.

The appeal to the Governors

[16]The appellant appealed to the Governors. On 10 and 30 November 2000 and 10 January 2001 the Appeals Committee of the Governors heard evidence and considered the written statements. Miss Whitmore gave evidence. It emerged that her findings had not been the same as those of Mr McNally. The Committee adhered to the decision of the Principal.

The proceedings before the Tribunal and its decision

[17]The appellant complained that his dismissal had been unfair, both substantively and procedurally. The Tribunal heard numerous witnesses and considered the documents that had been before the Principal. Mr Campbell gave evidence. He gave a detailed critique of the respondent's procedures. He challenged the basis for Miss Whitmore's conclusions, he brought out numerous inconsistencies in the witness statements and he criticised the lack of detailed medical evidence. He was not cross-examined.

[18]The Tribunal was impressed by Mr Campbell. It found him to be a credible and reliable witness, although it appears that the factual part of his evidence was confined to the conduct of the proceedings to date. The Tribunal accepted his submissions and adopted them as the basis of its decision (at pp. 3, 8 and 10).

[19]In brief, the Tribunal accepted that the inconsistencies in the evidence had not been handled properly at the disciplinary hearing. It held that it was not the function of an investigation such as Miss Whitmore had undertaken, to make concluded findings in fact in advance of the hearing, since the appellant had not had an opportunity to comment on the witness statements. The Tribunal rehearsed Mr Campbell's assessment of the procedure and evidence before the Principal (at pp. 7-10) and expressed surprise at the role of the respondent's solicitor at the disciplinary hearing and at the appeal.

[20]The Tribunal commented adversely on the lack of proof that the injury to the pupil had been caused by the appellant's use of excessive force. It favoured the position consistently taken by Mr Campbell that there was no direct connection between the statements and the respondent's findings. It agreed with his submission that it was "impossible to come to any conclusion that suggested that [the appellant's] actions were inappropriate or that he was guilty of using excessive force, or more force than any other member of staff involved ... " (at p. 10).

[21]The Tribunal's overall conclusion was that by reason of the pupil's injury, "the school were determined to find someone responsible" (at p. 11). The Tribunal considered that the Principal had failed properly to evaluate the evidence and that the respondent had not properly considered Mr Campbell's submissions at the disciplinary hearing or at the appeal as, in its view, "a reasonable employer would have done" (ibid). The respondent had been unwilling even to contemplate the possibility that the pupils who gave statements might have been exaggerating (ibid).

These were the Tribunal's key conclusions.

"It was clear that Mr Campbell had considered all of the evidence very carefully indeed, and we considered that by and large his submissions were well founded. He had sifted through the witness statements in detail and pointed out the inconsistencies and conflicts but, in our view, these were not properly addressed by the respondents and by Mrs Arrowsmith in particular. No rationale was given for her findings, she did not appear to have considered Mr Campbell's submissions and there did not appear to have been any proper weighing of the evidence (see page 9 of the Minutes of the Disciplinary Haring on 22 June 2000 at R6). We accepted Mr Campbell's contention that it was just a case of Mrs Arrowsmith saying 'I've heard all the evidence. I consider ... 'and, of course, this mirrored the approach which was taken by Mr McNally in the presentation of this 'Findings' following the 'Investigatory Process'. We also accepted Mr Campbell's evidence that there was marked reluctance on the part of Mr McNally to go through his 'thought processes' (R 6 App 1).

Further, while a number of statements were taken the handover from Ms Whitmore to Mr McNally was not at all satisfactory, and indeed it emerged at the Appeal that her findings had been different from Mr McNally's findings. She had concluded that Mr Porter had used inappropriate techniques; had failed to express any remorse for his involvement in the incident and a child had been injured, whereas Mr McNally found that Mr Porter had used unnecessary force, had utilised inappropriate physical intervention techniques and as a result Pupil A had sustained two broken bones in his left arm. We are also bound to say that in our view it was not the proper function of an Investigatory Process to make such definite findings before all of the evidence had been considered and the applicant and his representations and we noted that these findings were identical, more or less to the findings of Miss Arrowsmith at the Disciplinary Hearing.

Moreover, Mr McNally made these findings without the benefit of a detailed Medical Report which was only obtained after the Disciplinary Hearing on 31 March had been adjourned and, of course, that Report (A27) said, amongst other things, that the force necessary to produce the injury which Pupil A sustained 'could be relatively little'. We were extremely surprised that the respondents had not at the earliest opportunity sought to obtain a detailed Medical Report and that they were prepared to go ahead with the Disciplinary Hearing without one and we were driven to the view, that having regard to the nature of the injury sustained by Pupil A, the School were determined to find someone responsible: there was a preconception that someone had to be 'guilty' and that an answer had to be found for Pupil A's injury. The fact that the respondents were prepared to discipline Mr Porter without a proper Medical Report was indicative of this as were the specific findings by Mr McNally and, in particular his finding that excessive force had been used which he made without the benefit of proper medical evidence. These findings were not altered in any way when the Medical Report (A27) was received and a copy of the Report was only given to Mr Porter's representative on the day before the Hearing, although by that time the School had had it for almost a month. There was no proper weighing or cross referencing of the evidence in our view by Mr McNally and in particular by Mrs Arrowsmith and nor did it appear that the School considered properly Mr Campbell's well founded submissions either at the Disciplinary Hearing or at the Appeal Hearing as in our view a reasonable employer would have done. The respondents did not appear to be willing to even contemplate the possibility that Pupil A and the other pupils who gave statements might have been exaggerating what had happened. Further, neither Ms Whitmore nor Mr McNally were present at the re-convened Disciplinary Hearing on 22 June 2000. Instead the School was represented by a Solicitor, Mr Taggart and we are bound to say that we were surprised that he was involved in the Hearing in such a proactive manner asking questions which normally one would have expected to have been asked by the Chair, and who appeared to approach the matter on the basis that his task was to substantiate Mr McNally's findings. We were not surprised therefore, when Mr Campbell, said at the Tribunal Hearing that he was 'taken aback' when Mr Taggart endeavoured to oppose the evidence which he had led and in effect actively cross examined his witnesses as a Solicitor would do in Court and then retired with Mrs Arrowsmith when she was considering her decision. Mr Taggart also appeared to approach the Appeal in the same manner, endeavouring to substantiate Mrs Arrowsmith's decision and we were puzzled as to why he should, in effect, act as the Principal's agent at the Appeal.

Further, although we heard a great deal of evidence about the use of CALM techniques and we accepted that Mr Porter had been given a measure of training, at the end of the day we were not persuaded that Mr Porter, had in fact, contravened the School's policy in this regard. The picture was further confused when we heard from Mrs Arrowsmith that certain parts of the 'CALM' Manual (R7) were not taught and it did not appear to us that clear guidance had been given to Teachers and the School on the areas of the Manual which were to be disregarded.

We arrived at the view, therefore, that for the reasons stated above, and with reference to Burchell, that the respondents did not have reasonable grounds for their belief in Mr Porter's misconduct and that accordingly, his dismissal was unfair" (at pp. 10-11).

The decision of the EAT

[22]The respondent appealed to the EAT on eleven grounds. The EAT held that the nub of the Tribunal's decision was to be found in the passage that we have quoted. The EAT reached the following conclusions:

"8.We have come quite clearly to the view that the Tribunal has erred in its approach by effectively substituting its own view for that of the employer. The approach of a Tribunal in this type of situation must be simply to determine whether or not the investigation into an alleged incident such as this type, produces sufficient material before the employer to entitle it to conclude reasonably that the incident had in fact taken place in other words, that they had a genuine belief that misconduct had occurred. It is not for the Tribunal, as it has done in this case, to weigh the evidence and reach its own conclusion as if it was conducting the original investigation itself. Accordingly, we consider there is considerable force in a number of complaints by Mr MacKenzie in the passage of the Tribunal's decision which we have quoted, to suggest that they were drawing their own conclusions as to the quality and nature of the evidence which was not their task for the reasons we have set out. Given that approach, while we would not necessarily categorise the decision of the Tribunal in this context as perverse, it certainly goes beyond the scope of what it was required to do and, therefore, we consider its conclusions cannot stand. In our view, the only possible conclusion open to the Tribunal was that the employer had sufficient material before it to entitle it to conclude that misconduct had occurred and such a conclusion was rationally based ...

  • We are most reluctant to order a full rehearing given the length of the original hearing. Equally, if we remit the matter back to the same Tribunal to consider the question of the justification of dismissal, justice may well not be done in view of the fact that the Tribunal had reached certain conclusions of its own which form the basis of this appeal.
  • We have therefore considered the position against the test which is imposed upon this Tribunal, namely, that it cannot substitute its own finding unless it is the only conclusion that is reasonably available. We have determined that upon the evidence, it cannot remotely be said that dismissal was not within the band of reasonable responses open to the employer, having regard to the nature of the assault, the nature of the injury and, most importantly of all, the employment history of the respondent which revealed a previous warning for a similar incident.

12.In these circumstances we consider this is one of the rare cases where this Tribunal, in the interests of justice, is entitled to substitute its own finding for that of the Tribunal."

Submissions for the parties

[23]Counsel for the appellant submitted that the EAT had applied the wrong test. A genuine belief that the appellant had been guilty of misconduct was not sufficient. The procedural errors committed by the respondent entitled the Tribunal to hold that the respondent had no reasonable ground for the belief that the appellant was guilty of misconduct.

[24]Counsel for the respondent accepted that the respondent had to have reasonable grounds for the belief that the misconduct had occurred and that the reasonableness of the respondent's grounds for that belief applied not only to the decision but to the investigation and the assessment of the evidence. The Tribunal had fallen into the trap of substituting its view of the evidence for that of the employer. It had asked itself whether Mr Campbell's submissions were correct. The Tribunal had not set out the legal test or referred to the relevant statutory provisions. It had failed to consider whether the decision of the respondent was within the range of responses open to a reasonable employer in the circumstances. It should have asked itself whether there was evidence on the basis of which a reasonable employer could have found that the employee was guilty of misconduct. The evidence of the complainer, another pupil, and certain members of staff, taken with the medical evidence, entitled the Principal to conclude that there had been misconduct.

[25]Counsel were agreed that if the appeal failed, we should remit the case to the Tribunal to consider whether in all the circumstances dismissal was the appropriate sanction.


The decision of the EAT

[26]In our opinion, the decision of the EAT is erroneous. The EAT misdirected itself in saying that the approach of a tribunal in a case such as this was "simply to determine whether or not the investigation into an alleged incident such as this type, produces sufficient material before the employer to entitle it to conclude reasonably that the incident had in fact taken place, in other words, that they had a genuine belief that misconduct had occurred" (at para 8, supra). That is not an accurate description of the test. The employer may well have a genuine belief that the misconduct has occurred; but the dismissal is fair only if there are reasonable grounds in the mind of the employer on which to sustain that belief (British Home Stores Ltd v Burchell, [1983] ICR 303 (EAT)).

[27]In the light of the Tribunal's narration of the evidence that was before the Principal, it is not clear to us why the EAT should have reached the view that "the only possible conclusion open to the Tribunal was that the employer had sufficient material before it to entitle it to conclude that misconduct had occurred and such a conclusion was rationally based" (para 8) and that "upon the evidence" it could not "remotely be said that dismissal was not within the band of reasonable responses open to the employer" (para 11). The whole burden of the Tribunal's decision, so far as it related to the evidence that was before the respondent, was that there was no proper evidential basis for the finding of gross misconduct.

[28]Furthermore, it appears to us that in deciding the case as it did, the EAT overlooked the findings and conclusions of the Tribunal as to the deficiencies in the respondent's procedures. It therefore failed to consider whether, in the light of the procedural irregularities identified by the Tribunal, the respondent's decision could be said to be reasonable.

[29]We conclude therefore that the EAT decision should be recalled. That, however, is not the end of the matter. Our function is not merely to consider whether the EAT was wrong but to consider whether the Tribunal was right (Scottish Midland Co-Operative Society Ltd v Cullion, [1991] IRLR 261, Lord Justice Clerk Ross at para 10).

The decision of the Tribunal

[30]Section 98(4) of the Employment Rights Act 1996 provides inter alia that

" ... the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)

    • 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
    • shall be determined in accordance with equity and the substantial merits of the case."

It is trite to say that the application of this test involves the objective standard of the reasonable employer. We do not consider that the decision of the Tribunal was vitiated by its failure to quote the section. A specialist tribunal does not have to quote and analyse basic provisions that it has to apply in the many cases that come before it day by day. It is sufficient that its decision discloses that it has applied the correct statutory test. That, in our view, is what the Tribunal did in this case. It referred to section 98(1), (2) and (4) and it listed the cases on that section that counsel had cited. It then referred to British Home Stores Ltd v Burchell (supra, at p. 6).

[31]In British Homes Stores Ltd v Burchell (supra) Arnold J laid down a threefold test of the fairness of a dismissal that has informed all discussion of the subject since. The employer must establish (a) that he believed that the employee was guilty of the misconduct in question; (b) that he had in his mind reasonable grounds on which to sustain that belief; and (c) that at the stage at which the employer formed the belief on those grounds, he had carried out as much investigation into the matter as was reasonable in the circumstances of the case (at p. 304C-F). The requirement of reasonableness on the part of the employer applies throughout the decision-making process (Whitbread plc v Hall, [2001] ICR 699; J Sainsbury plc v Hitt, [2003] ICR 111, Mummery LJ at paras 29-30). It applies in particular to the investigatory process, to the conduct of the hearing itself and to the appraisal of the evidence.

[32]The Tribunal had reliable and undisputed evidence of the disciplinary procedures that had been followed and of the material on which the Principal made her decision. On that evidence the Tribunal was entitled to hold that the respondent had not had reasonable grounds in mind on which to sustain the belief that the appellant was guilty of the misconduct alleged and had not carried out as much investigation into the matter as was reasonable in the circumstances.

[33]On the information before it, the Tribunal was entitled to hold that the statements obtained in the investigation were contradictory and inconsistent (p. 7); that the investigatory process was unfair, not least because the findings were made before the appellant had even seen the evidence and because the crucial findings on the cause of the injury were made without sight of a proper medical report. The Tribunal was also entitled to hold that the Principal did not properly consider Mr Campbell's submissions (p. 10) or properly weigh the evidence. These conclusions demonstrated that the respondent's disciplinary procedures were unsatisfactory from start to finish and were directly relevant to the test of reasonableness that the Tribunal had to apply. We would add that in our view the Principal ought not to have considered her decision in consultation with the respondent's solicitor who, at a stage when the allegation of misconduct remained in issue, had treated the appellant's evidence adversarially and had cross-examined the appellant's witnesses.

[34]Counsel for the appellant based his submissions on the procedural irregularities to which the Tribunal referred; but in our view the Tribunal was also entitled to hold, as in effect it did, that the decision to dismiss was also vitiated by lack of proper evidence.

[35]We accept the submission of counsel for the respondent that an employer who dismisses an employee is not obliged to specify his reasons; but if an employer does not specify his reasons, it is more difficult for him to justify the decision. The Principal gave no reasons for her decision and did not specify on what evidence she based any of her conclusions. The report of Miss Whitmore's investigation, which we have seen, was merely a collection of extracts from the witness statements followed by the conclusions that we have quoted. There was no reasoned analysis of the evidence, which was confused to say the least. There were no findings of primary fact and no assessments of credibility. We have no idea how the Principal interpreted that report or why she rejected Mr Campbell's detailed and reasoned submissions. She did not even mention them.

[36]In our view, the Tribunal was entitled to conclude that the Principal had set out no proper basis for her first conclusion. There was no dispute that the appellant was entitled to use physical restraint in the circumstances of the case. Restraint implies the use of force to some degree. The question for the Principal was not whether the appellant had used force. It was whether there was evidence that he had used "unnecessary" force. The mere fact that the pupil sustained this fracture in the course of the incident was not of itself evidence of unnecessary force. Dr Matheson's letter gave no support to the idea. On the contrary, it was entirely consistent with the appellant's own account. Dr Matheson first of all corrected the misunderstanding in Mrs Anderson's letter about Dr Mair's opinion of the cause of the injury. Then he said that any sort of twisting action which involved the elbow might well have produced the injury. He concluded that the degree of force necessary to produce the injury "could be relatively little." There was nothing in the Principal's decision to show how she arrived at the conclusion that the degree of force used was unnecessary. The Tribunal was entitled to hold that on such evidence the respondent could not reasonably have held that belief.

[37]We have no idea what intervention techniques the Principal thought that the appellant had used. We have no information to suggest that she even considered whether textbook solutions were practicable in the emergency that pupil A had himself created. In our opinion, the Tribunal was entitled to hold that the respondent had not shown that there was any basis on which the Principal could reasonably have come to her second conclusion.

[38]The Tribunal had the Burchell tests in view. It found that the first test was satisfied. It expressly decided against the respondent on the second test and, by the clearest implication, on the third test. It referred to Burchell in concluding that the dismissal was unfair (at p. 11). In our view, the Tribunal applied the objective standard of reasonableness and did not, as the EAT thought, substitute its own view for that of the respondent in the sense of deciding what its members themselves would have decided if they had been in the respondent's place (cf Foley v Post Office, [2000] ICR 1283, Mummery LJ at 1292H-1293C).

[39]We conclude that the decision of the Tribunal that the respondent did not have reasonable grounds for its belief that the appellant had been guilty of gross misconduct was warranted by the evidence and was based on the correct legal test.

[40]That is sufficient to dispose of this appeal. We should add, however, that we are surprised that the EAT, having decided to recall the decision of the Tribunal, should have substituted its own decision instead of remitting the case to the Tribunal for a re-hearing. If the decision of the Tribunal had turned upon a pure question of law, the course taken by the EAT would have been appropriate (O'Kelly v Trusthouse Forte plc, [1983] 3 All ER 456). In this case, however, we find it difficult to see how the EAT could in effect decide that, but for its alleged error, the Tribunal could have reached no other conclusion on the facts than that which the Principal reached. In our view, if its decision had been well-founded, the EAT would have had to remit the case to the Tribunal (cf Post Office (Consignia plc) v Burkett, [2003] EWCA Civ 748). In that event, it would have been appropriate to direct that the case should be re-heard by a differently constituted Tribunal.


[41]We shall allow the appeal, recall the decision of the EAT and restore the decision of the Tribunal.