Appeal No.	 EAT/917/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 April 1997
Judgment delivered on 8 May 1997

Before
 THE HONOURABLE MR JUSTICE LINDSAY
SIR GAVIN LAIRD CBE
MR R H PHIPPS

W H SMITH & SONS LTD	APPELLANTS

MR S CASSERLEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR P ROSE
(of Counsel)
Messrs Eversheds
Solicitors
1 Royal Standard Place
Nottingham
NG1 6FZ	
For the Respondent	MR M CRONSHAW
(of Counsel)
Messrs Conrathe Chivers Brown
Solicitors
420-424 Ewell Road
Tolworth
Surrey
KT6 7EH	

MR JUSTICE LINDSAY: On the 22nd September 1994 Mr Casserley, who worked as a packer/driver on the nightshift at Wimbledon News House, was dismissed by his employer, W H Smith & Sons Ltd.   The reason for the dismissal was that the employer believed that Mr Casserley had stolen some company property worth of the order of £100.   Mr Casserley has not admitted that;  he continued to protest it, but that was what the company, after an enquiry, believed.   There were two subsequent internal appeals but the decision stood.   The Industrial Tribunal under the Chairmanship of Mr Adrian N. Keane held that the dismissal was unfair.   Against that decision W H Smith & Sons Ltd appeals to this Tribunal.

	The question which the Industrial Tribunal had before it was one that arose under Section 57 of the 1978 Act.   Sub-section (1) relates to the reason shown by the employer as a reason for the dismissal.   That is as we have said above, a belief in Mr Casserley’s misconduct.   It was plainly a reason falling within sub-section (2) (b).   One therefore moves to sub-section (3).   Did the employer, looking at the matter in accordance with equity and the substantial merits of the case, act reasonably or unreasonably?   There is, on that question, no relevant onus;  it is not, for example, for the employer to prove that he was reasonable or for the employee to prove that the employer was unreasonable.   The industrial Tribunal is to approach the question unassisted by any onus.   But, of course, there is guidance in the cases.   In British Home Stores Ltd -v- Burchell (decided at a time when the legislation cast an onus upon the employer) there occurs the well-known passage:

	“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.   That is really stating shortly and compendiously what is in fact more than one element.   First of all, there must be established by the employer the fact of that belief;  that the employer did believe it.   Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.   And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.   It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.   It is not relevant, as we think, that the tribunal would itself have shared that view in those circumstances.   It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter “beyond reasonable doubt.”   The test, and the test all the way through, is reasonableness;  and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

Leaving aside the reference in that citation to an onus, a reference no longer appropriate, it is to be noted, where misconduct of the employee is asserted, that a belief is to be looked for in the employer that the employee who has been dismissed had committed the misconduct that is to be relied upon as the ground for his dismissal.   That is not here in issue;  the Industrial Tribunal was satisfied that the employer’s belief was genuine;  that there was, in other words, a genuine belief that Mr Casserley had been guilty of misconduct, namely the theft of property belonging to the employer.

	As for Burchell’s second and third requirements, it is often possible, as the Industrial Tribunal here do, to run the two together as a composite second requirement.    The question which the Industrial Tribunal here considered was whether that genuine belief in the employer was based on reasonable grounds after a reasonable investigation.   That, as we shall come to, is the nub of this appeal.

	There is a further requirement deriving not from Burchell but from the reference in the Act to “equity and the substantial merits”.   It is this:  was the dismissal within the range of reasonable responses open to a reasonable employer?   This is a matter that has to be considered by the Industrial Tribunal in the light of all relevant surrounding circumstances.  The Industrial Tribunal held that what the Respondent employer here did fell outside the range of reasonable responses open to a reasonable employer to make to the misconduct that was believed to have occurred.   That was the holding of the Industrial Tribunal on the basis of their finding that there had not been reasonable grounds for the employer’s belief in Mr Casserley’s conduct arrived after a reasonable investigation.   We cannot think that the Industrial Tribunal was proceeding upon the basis that even if the belief in the misconduct had subsisted after a reasonable investigation there would nonetheless have been an unfair dismissal.   Exceptional circumstances would generally be required to be shown if a man, reasonably believed to have stolen an employer’s property, could not, where there had been a reasonable investigation, be, without more, fairly dismissed.   There is no suggestion there were any such exceptional circumstances here and, as we have understood Mr Cronshaw’s argument for Mr Casserley, it is accepted that it is only the want of reasonable grounds for the belief held by the employer after a reasonable investigation that is properly to be regarded as the feature that led to the dismissal being unfair.  Accordingly what is here in issue is the Industrial Tribunal’s approach to the existence of reasonable grounds for the employer’s belief in Mr Casserley’s misconduct and the reasonableness or not of the investigation into that misconduct.

	It is to be remembered, as the Burchell case emphasises, that the Industrial Tribunal was not concerned with an examination of Mr Casserley’s guilt or innocence but of the quality of the grounds which, at the point of dismissal, after the disciplinary hearing it had conducted, the employer had for the employer’s undoubted belief in Mr Casserley’s guilt.   It is not a question to be approached, as would be a criminal trial, on the basis of the adjudicator at that disciplinary hearing being “sure” or holding a view of guilt “beyond all reasonable doubt”.  Moreover, importantly, an Industrial Tribunal hearing a question of this nature has to guard itself against slipping into an answer to the question “What would we, the Industrial Tribunal, have held upon that evidence?”.

	The test proposed by the section 57 (3) is one of reasonableness in the light of equity and the substantial merits of the case.   It has to be borne in mind that disciplinary hearings are not Court hearings.   One commonly does not have a trained adjudicator.   Commonly there is not an independent adjudicator, previously unknown to the parties, but one who is very much involved as a fellow employee, but in management.   It is unusual for experienced or trained advocates to be used.   Nor is there a conventional adversarial system;  whilst the employee is reasonably to be expected to contest his alleged misconduct there is rarely a separate “prosecution” side and the adjudicator’s task is not to oppose the employee so much as fairly to examine whether or not the misconduct has taken place.  Again, seldom do the parties have the weeks or months of professionally-guided preparation that commonly precedes a trial.  Nor can it be assumed that there is an equivalent of the “right to silence” which a forms a familiar part of our criminal law;  here, if a point is fairly put to an employee, the fact that he failed to respond to it or failed to respond to it until later or has responded to it at different stages in inconsistent ways are all factors that an employer is likely quite fairly to be able to take into account.    Nor is the reasonableness of an investigation to be judged against the yardsticks provided by experienced and skilled cross-examiners and patient and thoughtful professional detectives.   An investigation can well be reasonable without being impeccable or exhaustive.  An investigation is not necessarily unreasonable because it can later be seen that some points of actual or potential materiality were not gone into;  plainly there will be cases where the omissions are so serious that the overall reasonableness of the enquiry is put in issue but, short of that, there can be omissions that leave the reasonableness of the investigation unscathed.   Even the most experienced advocates and tribunals often look back and say regretfully “I should have asked” such and such, “I failed to comment on” so and so or “I should have directed the Jury more fully as to” such and such and yet leave a position in which, nonetheless, it can be said that there had been a reasonable enquiry.   As for grounds for a belief, they can be reasonable even if they would have not survived the vigorous testing of a thoughtful agnostic, especially if that agnostic is testing the matter later than did the disciplinary hearing and without the benefit of having seen the employee and witnesses at the time.   More than one view, of course, can often reasonably be held, even of the very same circumstances.    As for the nature of the approach to these issues, in Monie -v- Coral Racing Ltd [1981] ICR 109 at page 122, a case where the reasonableness of the investigation was not in issue but the existence or not of a belief in the employee’s guilt was, Sir David Cairns, at page 122G, said:-

	“Looking at the matter as an ordinary business man would look at it ...”

and, although that observation related to a different point, the notion is a general one.   Reasonableness, at the level of the disciplinary inquiry and in a business context such as the one we are here concerned with, has to be judged having regard to the size of the employer and his resources and so on as mentioned in the Act but not as a meticulous and experienced Judge might look at it but rather as would an ordinary and reasonable business man of a kind appropriate to the employer in question. 

	The Industrial Tribunal turned here to examine the features of the investigation conducted by the employer in this case.   Firstly, and importantly, the Industrial Tribunal found no procedural deficiencies.   It is not said that Mr Casserley, for example, did not have the case against him sufficiently explained to him.  It is not said that he was unrepresented or inadequately represented at the disciplinary hearing.   It is not said that he was put under any unreasonable pressure.   Leaving aside the later appeals after the dismissal on the 22nd September 1994, there had, before that dismissal, been an investigation meeting on the 16th September - a Friday - where Mr Casserley had been accompanied by an official from his Union.   After that there was a disciplinary hearing on the Monday - the 19th September - when Mr Casserley had three Union officials with him.  That hearing on the 19th itself was divided into three parts.   At the end of it the matter was adjourned and there was a further hearing on the 22nd September where Mr Casserley again had the same representation, by three Union officials.   Many witnesses were orally examined or provided written statements or gave evidence in both those ways.  It is not said that Mr Casserley was denied access to any material witnesses or was in any way barred or limited in his approach to them.   The video which was taken, as we shall explain, was offered to him for his viewing but more than once he declined that opportunity.  At various stages Mr Casserley was asked if he or his representatives had anything that they wished to add.   Thus we and the Industrial Tribunal must approach the question of the reasonableness of the investigation on the basis that at a procedural level no material complaint was or could be made.

	Moreover, it is nowhere said that the adjudicator, the member of management who decided Mr Casserley’s fate, a Mr Phelan, was biased or other than fair-minded.   There is no suggestion that he had made up his mind ahead of the hearings or otherwise had a closed mind or that his personal conduct or his conduct of the investigation was otherwise vulnerable to criticism.   It is worth remembering, too, in judging things as they stood at the dismissal on the 22nd September, that Mr Phelan had the advantage of having observed Mr Casserley as he was and other witnesses as they were on that day, a position which the Industrial Tribunal could never be in.  Insofar as nuances in the tone or demeanour of the employee or of witnesses form any part of an adjudicator’s grounds for his belief (and it cannot be said they invariably have to be excluded) it by no means follows that an Industrial Tribunal which sees and hears the same employee or witnesses months later, in the more formal setting of the Industrial Tribunal and after the employee has gained skilled representation and perhaps advice, can accurately or adequately recapture what those earlier impressions had been.

	In the absence of shortcomings of the kind so far addressed, it must therefore have been at a substantive level that the Industrial Tribunal here held that the employer’s belief was not based on reasonable grounds after a reasonable investigation.  To understand how they came to that conclusion requires a look at the matter in some greater detail.   The history of the matter as shown in the facts found by the Industrial Tribunal runs as follows.

	In June 1994 the employer received information that some stickers, goods of a kind which it sold in the course of its business, were on sale in the Wimbledon area at less than half the usual price.   It believed that the stickers had been stolen from its Wimbledon News House premises.   A member of the security staff of the employer, a Mr Derek Geraghty, showed a newsagent in the area a photocopy of a photograph of Mr Casserley and, on the basis of that photograph, the newsagent was said to have identified Mr Casserley as the person who had offered him cartons of stickers at half price, an offer which that newsagent had chosen not to accept.   The employer decided to install a covert camera system.   It did that in June 1994.   On the 16th September 1994 Mr Geraghty and another member of the security staff sat watching the video-picture which the camera was providing for them and at 5.45 a.m. they saw Mr Casserley, an employee, enter the showroom area;  later the video showed him going into the stockroom.    About 11 or 12 minutes later he emerged from the stockroom carrying a carrier bag containing something and with a package under his arm as he left.    Mr Geraghty and the other security man then left their observation post and drove round to the warehouse with a view to apprehending Mr Casserley.   Mr Casserley was seen to place the goods that he was carrying inside his car and get inside his car.   Mr Geraghty and the other (in plain clothes) then drove into the car park and stopped behind Mr Casserley’s car.   Mr Casserley then drove off at speed.   Mr Geraghty tried to follow but his exit was blocked and the matter was then reported, inter alios, to the assistant manager at the warehouse, a Mr Skipsey, later that morning.    A stock check into the presence or absence of stickers in the stockroom was conducted and it was reported that 5 cartons of “Street Fighter” stickers were missing.   Some other stickers of another kind were also said to be missing.   The Industrial Tribunal was satisfied that, given the nature of the employer’s stock records, it was virtually impossible for it to be said whether the other kind of stickers were missing but it was not held that the absence of the “Street Fighter” stickers could not properly have been ascertained.  The matter was then reported in writing by Mr Geraghty to Mr Phelan but in the report itself no mention was made of the earlier identification of Mr Casserley by the newsagent.  The report made by Mr Geraghty suggested that when the Applicant left he was carrying under his arm something that “appeared to be boxes of sticker collections”.   It said that Mr Casserley had reversed his car in the car park into the nearside door of Mr Geraghty’s company car.   It was said that the matter had been reported to the Police (which was the case) and that a search of Mr Casserley’s address had been made (which was not).   The Industrial Tribunal held that in a number respects Mr Geraghty’s written report to Mr Phelan was coloured and misleading.   

	The first investigation began on the 16th September, a Friday;  it was conducted by Mr Skipsey.   It began about 11 p.m. on the evening of Friday the 16th when, as a member of the night shift, Mr Casserley, returned to work.   Mr Casserley, as we noted above, was represented by a member of his Union.  There was no denial by Mr Casserley that he had been into the stockroom but when asked he then gave no explanation to account for his presence in the room or for having stayed there for some 10 minutes.   The timing of the video suggested he was there for about 11 or 12 minutes.   At the end of the interview, which lasted some 18 minutes, he said “Are you going to sack me on Monday, because if you are I wish to bring in someone else to represent me”.   In context that meant that he wished to be represented other than by the fellow-employee Union member who was then with him.   At the end of that interview he was suspended on full pay.   He was told that he would be required to attend a disciplinary hearing to be conducted by Mr Phelan on the Monday, the 19th September.   

	On the 19th September there was a disciplinary hearing before Mr Phelan.   Mr Skipsey made a note.   Mr Casserley had with him three officials from his Union.   He said that he had gone to the showroom area of which the stockroom forms a part to collect a parcel that had been left for him by a colleague, a Mr Skeats.   He said that the parcel contained two pairs of trainers and one pair of track-suit bottoms and some tobacco.   He said that Mr Skeats had given him a note on the 15th September to say where the parcel would be.  The note, he said, indicated that the parcel would be “In the trade counter”, a term which was capable of including both the showroom, the trade counter itself and the stockroom areas.  By this time the video had been seen by Mr Phelan.   Mr Casserley said he had first looked round the showroom, then the customer service offices and then had looked under the trade counter itself but could not find the parcel Mr Skeats had left for him and so he went to the stockroom.  That was the drift of his evidence.   He was in the stockroom, he said, for some 10 minutes.   The video did not film him in that room.   It is a room which not only contained stock but some lockers and tables.   It was dark in the stockroom.   Mr Casserley said he could  not find the light switch.   He explained his driving-off at speed when approached by the security men in the car park by saying he did not recognise the security men, who were in plain clothes, as such but took them to be rogues who were out to get him.   That was why, he said, he had promptly driven off.   Having heard the reference to Mr Skeats the disciplinary hearing broke off so that Mr Skeats could be interviewed, as he was.   Mr Skeats said that he had left one pair of trainers and that they had been left in a shelf on the left hand side inside the stockroom and in full view.   He said that there had been no note left for Mr Casserley but that Mr Casserley had been told by telephone where the goods would be left.   The disciplinary hearing, in the presence of Mr Casserley, then resumed and there was then some discussion as to the inconsistencies between Mr Skeats’ version and what Mr Casserley had said.   It was put to Mr Casserley that Mr Skeats had said that there had only been one pair of trainers to which Mr Casserley said Mr Skeats must have failed to notice what was already in the bag when he, Mr Skeats, had put the trainers in the bag.   Mr Casserley sought to explain the alleged note, given that Mr Skeats had said that there had been no note but rather a telephone call, by saying that the note was a list of what was in the bag.   The matter was adjourned until the 22nd September.

	On the same day as that first hearing, 19th September, Mr Collins, the W.H. Smith team-leader for the trade-counter part of its business at the material time, found that 5 boxes of Street Fighter stickers had “re-appeared” in the stockroom.   Mr Collins later said that they were in a position where they could easily be seen and he said that he knew there was no stock in that position earlier on the Monday the 19th, at 1 p.m..   

	Before the resumed hearing on the 22nd September a number of other employees were approached as to their evidence.  Mr Collins said that there had been no personal items “In this part of the racking” in the stockroom.  Mr Skipsey provided a statement that he had gone into the stockroom at about 11.30 on the Thursday the 15th to check the windows before leaving and that he was there for a minute.   He said the room had been tidied up and that he did not see any trainers or a plastic bag left here.    Mr Peter Hawkes was approached, as was  Mr Peter Lee.   

	At the adjourned disciplinary hearing on the 22nd September one of Mr Casserley’s Union colleague representatives said that he had been informed that 5 boxes of Street Fighter stickers were “back in the building”.   He was asked how he knew that but said only that he had been told.   He did not say by whom.   Mr Casserley, asked about the light switch in the stockroom, said that when he was in the stockroom he did not know where it was and could not find it.   He said that when he entered the stockroom the door had shut on him.   He also said it was “pretty dark” inside.   At the end of the adjourned disciplinary hearing on the 22nd September Mr Phelan concluded by saying that he believed Mr Casserley had stolen company stock and gave reasons which he said caused him real doubt as to Mr Casserley’s version of events.   At the end of the hearing Mr Phelan accordingly dismissed Mr Casserley.   There were later and lengthy appeals which, for the moment, we need not turn to.

	The Industrial Tribunal held that although, as we have mentioned, W.H. Smith had a genuine belief in Mr Casserley’s misconduct, it was based on a variety of items of circumstantial evidence some of which, even when considered together with others, “simply did not implicate the Applicant;  some of the items were given a weight which they did not in fact possess;  and some important lines of enquiry which would have formed part of a reasonable investigation were not, in fact, pursued.”.   The Industrial Tribunal then gave in 9 separate numbered paragraphs the reasons for that conclusion, none of which, it said, was by itself conclusive but which, when taken together, satisfied the Tribunal that the dismissal was unfair.   The Tribunal had correctly drawn its own attention to section 57 of the 1978 Act and, again correctly, had reminded itself “That the Tribunal is not entitled to substitute its own judgment for that of the employer and to ask itself what it would have done in the circumstances”.   There is, however, some real risk, where an Industrial Tribunal sets out to examine the employer’s reasons in great detail, as this Industrial Tribunal does, that that is exactly what it is doing.  It is all too easy for an Industrial Tribunal to examine the reasoning of a disciplinary hearing in close detail and yet to fail to stand back and see that, viewed as a whole, the reasons sustaining the employer’s belief may nonetheless have been reasonable and, moreover, that the investigation which led to that belief cannot be denied that label.   Particularly is there the risk of an error of law if the Industrial Tribunal’s criticisms are themselves vulnerable.   It is Mr Rose’s case on behalf of W.H. Smith that the detailed reasons of the Industrial Tribunal are, indeed, themselves  vulnerable to criticism.   It is difficult for us to deal with this without descending to the detail of the case which is, unfortunately, an inescapably lengthy process.   

	It is important to have in mind that what Mr Phelan said at the point of dismissal at the conclusion of the adjourned disciplinary hearing on the 22nd September 1994 is available in some detail from the notes taken at the time.   In addition, Mr Phelan gave a long written statement, taken at the Industrial Tribunal as his evidence-in-chief, which included in some detail the reasons which he had had in mind at that time for dismissing Mr Casserley.   Of that written statement of reasons the Industrial Tribunal says:-

	“At the end of the disciplinary hearing Mr Phelan expressed his belief that the applicant had stolen company stock.   His reasons for so believing - and for disbelieving the explanation put forward by the applicant - were usefully set-out in paragraph 73 of his witness statement, and may be summarised as follows:”

In the summary that then followed and in their extended reasons as a whole there is nothing to suggest that Mr Phelan’s reasons were not accepted by the Industrial Tribunal to be as they had been stated to be by Mr Phelan, nor is there anything to hint that in the view of the Industrial Tribunal either version of his reasons was disingenuous or untrue.   Had Mr Casserley’s advisers wished to argue otherwise it would plainly have been for them to cross-examine Mr Phelan and then to submit clearly to such effect.   The criticisms by the Industrial Tribunal of the disciplinary hearing and the investigation have to be judged against the background of the Industrial Tribunal’s acceptance of Mr Phelan’s true reasons as being what he had stated them to be.

	The Industrial Tribunal’s first conclusion is that Mr Phelan’s view that Mr Casserley had gone into the stockroom “without authority” was not justifiable as there was no rule that the trade-counter was out of bounds and the showroom was used as a thorough-fare by night managers.   There is room for confusion here as the Industrial Tribunal had decided to use the term “trade-counter” to cover not only the trade-counter itself but also the showroom and stockroom.   But there was not and could not have been any suggestion that the stockroom itself was available as a thorough-fare and, if the Industrial Tribunal was minded to conclude that the stockroom itself was not out of bounds, it would have been preferable if it had dealt in some way with the submission made by Mr Casserley’s own representatives at one of the appeal hearings (and recorded in the papers before the Industrial Tribunal) where it had been submitted on his behalf that he had admitted and that people knew that the stockroom was out of bounds.   The Industrial Tribunal do not deal with that point (although it may be that it had not come to its notice).   In any event, leaving aside the question of authority to enter the stockroom, Mr Phelan’s clear evidence was that Mr Casserley had no reason (meaning no reason relating to his employment) to go into the stockroom, a fair point which was never controverted.

	Next the Industrial Tribunal turned to Mr Phelan’s view that there were inconsistencies between Mr Casserley’s and Mr Skeats’ versions of events.   The Industrial Tribunal was minded to question two of the inconsistencies but left the others without comment.   It is surely striking that when first asked on the subject Mr Casserley made no mention whatsoever of Mr Skeats having left anything for him in the stockroom and had not answered the question as to why he was in that room.   Then he later said that Mr Skeats had left him a note to say where the parcel would be.   Whatever the note said (it was not produced), it led him to search first in the showroom, then in the customer service offices, then under the trade-counter and only lastly in the stockroom itself.   Yet Mr Skeats had said there had been no note but rather a telephone call and that the telephone call had told Mr Casserley that the parcel was in the stockroom.   It was Mr Skeats’ evidence that the parcel was in full view.   If the Industrial Tribunal was minded, as it seems to us was the case, to comment that too much weight was being attached by Mr Phelan to the inconsistencies, they would have needed to have provide some reason why the important inconsistencies we have just mentioned should have been of no or of diminished weight, which they did not.   Moreover, the Industrial Tribunal makes the comment that once Mr Skeats (after Mr Casserley had said there had been two pairs of trainers left for him by Mr Skeats) had, in answer to the question what was in the parcel, said “One pair of trainers”, that it would have been reasonable for him to be asked “Nothing else?”    That comment of the Industrial Tribunal is indicative, as it seems to us, of a wrong approach;  of course it would have been reasonable to ask that but what was relevant was whether it was unreasonable not to do so, a question which the Industrial Tribunal never considered.   One does not prove an investigation is unreasonable merely by proving that it could, so to speak, have been more reasonable.  

	Mr Phelan’s fourth reason in his written statement had been that no one had seen the trainers in the stockroom, nor had anyone seen Mr Skeats leave anything there.   The Industrial Tribunal accepted that was correct.   On the 22nd September itself Mr Phelan had said, giving this as one of his reasons for dismissing, that “No one saw Paul Skeats leave anything, no one saw a bag in a tidy room”.   There was no contrary evidence.   The Industrial Tribunal drew attention to the fact that whereas Mr Phelan had concluded from Mr Collins’ evidence to him that there were no trainers anywhere in the stockroom, Mr Collins had in fact only said there was none where the stickers had been.   The Industrial Tribunal comments that others who had not seen any trainers would not have been looking out for them and that, as for Mr Hawkes and Mr Lee, their evidence by way of written statement had been gathered a week or so later than the events in question.   Of course, things can be noticed even by those who are not looking out for them, especially if they are relatively unusual, and there seems to have been no evidence that Mr Hawkes’ or Mr Lee’s evidence was to any degree impaired by reason of  seven days having elapsed before it was put in written form.   It remained the case, which is what Mr Phelan had said it to be, that no one had seen the trainers in the stockroom, nor Mr Skeats’ leaving anything there.   The Industrial Tribunal was not here asking itself whether the investigation was reasonable nor whether the belief the investigation had led to was supported by reasonable grounds but, improperly in our view, it was testing whether the investigation and beliefs might, had they been even more thoroughly pursued and evaluated, have emerged otherwise than they had.   Moreover, and seemingly critical of the investigation, the Industrial Tribunal makes a point in relation to the use of the word “lunchtime” which, if to be given any weight at all, would involve Mr Skeats meaning by that word a time after 2 p.m., a conclusion which might be thought to be intrinsically unlikely and which in any event had the support of no evidence.   If Mr Skeats had left the trainers in the stockroom at “lunchtime”, as he said, that is to say before 2 p.m., then there was a prospect either that the trainers themselves would have been seen as having been already left there by the witnesses who had had lunch there between 1.30 p.m. and 2 p.m. or, if Mr Skeats had left them between those hours, he himself would have been likely to have been seen whilst leaving them.   There was no good reason why Mr Phelan should not have had in mind real doubt as to whether the parcel had been left as it had been said it had.   

	Next the Industrial Tribunal had turned to a reason of Mr Phelan’s by which (as the Industrial Tribunal puts it) he describes the applicant’s explanation for being in the stockroom without the light on for 10 minutes as “a completely implausible explanation” (the emphasis was added by the Industrial Tribunal).  The Industrial Tribunal was of the opinion that such an extreme view was “unwarranted and unreasonable”.   This point is vulnerable to substantial criticism.   First of all, Mr Phelan’s view had not been that Mr Casserley’s being in the stockroom without the light on for 10 minutes was completely implausible but that he, Mr Casserley, had given a completely implausible explanation for being in the stockroom without the light on for 10 minutes, with the door shut throughout that time, and apparently searching for the light switch and/or the parcel left for him by Mr Skeats.  Mr Casserley had been asked how dark it was in the room and he had said it was pretty dark and the comment was made that it was strange that he had not reopened the door to let light in.   The final form of Mr Casserley’s evidence on the point, when Mr Phelan said “10 minutes in a darkened room searching for a light switch cannot be believed” was “I was just waiting about”.   The Industrial Tribunal refers to evidence that the light switch was often obscured by boxes but Mr Casserley had given no evidence at the time of his having encountered any such difficulty with boxes nor had he explained why he had not reopened the door to let light in.   The Industrial Tribunal says:-

	“It would have been a simple matter for Mr Phelan to have investigated whether the light switch was obscured in this way on the morning of Friday the 16th September 1994 but this was not done”.

Whether it would have been a simple matter was not the question which the Industrial Tribunal should have been considering.   The question it should have asked itself, given that Mr Casserley had not suggested any difficulty in finding the light switch related in any way to its being either obscured or obscured by boxes, was whether it was unreasonable of the investigation not to have looked further into the question.   That was a point which the Industrial Tribunal did not address.    The Industrial Tribunal makes no reference to Mr Casserley’s final form of evidence - “I was just waiting about” in the darkened room - and in the circumstances its view that Mr Phelan’s conclusion was “unwarranted and unreasonable” was a conclusion that did not address the case that was in front of it and which had been before Mr Phelan on the 22nd September. 

	Next the Industrial Tribunal turned to Mr Phelan’s reason that ran as follows:-

	“When he was first questioned ... about why he had been in the stockroom [Mr Casserley] gave no explanation at all;  there was no mention of going in there to collect a parcel left by Paul Skeats.   He just claimed there was no proof he had taken any company stock.”.

That reason was entirely supported by the evidence before Mr Phelan.   The comment which the Industrial Tribunal makes on this point is:-

	“The explanation may have been that the charge was so serious that he wanted legal representation”

It will be noted that the Industrial Tribunal does not find that such was the explanation but that it may have been.   The Industrial Tribunal goes on to say that in his evidence before the Industrial Tribunal Mr Casserley said that he had been accused of taking stock and did not want to incriminate himself without talking to a solicitor.   But that was the position as it emerged at the Industrial Tribunal.   There was, it seems, no evidence that at any stage earlier than the hearing before the Industrial Tribunal Mr Casserley had in any way hinted that his failure to explain why he had been in the stockroom had any connection with the need to talk a solicitor.   It is not as if the reason that he did later come up with, that a parcel had been left there for him by Paul Skeats, was in any way, if true, an incriminatory reason.  The Industrial Tribunal, seemingly by way of criticism of Mr Phelan, said that he simply used the absence of an explanation as a factor against Mr Casserley.   It does not ask itself the question, which in our view it should have done, whether it was unreasonable (or at least a contributory factor towards the unreasonableness of the investigation) that on 22nd September Mr Casserley had not been further pressed as to why he had not given an explanation of why he had been in the stockroom.  It will be remembered that he had been asked to explain his presence there, he had given no answer and that he and his representative were from time to time asked whether there was anything any of them wished to add.   Nothing on this point was added at the time.   

	Next the Industrial Tribunal turns to Mr Phelan’s comment that 5 boxes of stickers had mysteriously reappeared.   Mr Phelan did not say that he had had it in mind that Mr Casserley was in any way associated with their reappearance.   It is described as one of a number of points that bothered Mr Phelan.  Preceded, as it was, by Mr Phelan saying that the stockroom team-leader had been quite satisfied that 5 boxes of “Street Fighter” stickers had been missing on Monday morning and succeeded, as it was, by his remark that earlier in the day the stickers had not been in place where they had been later found, the matter that Mr Phelan was discussing seems more to be addressed to whether the stickers had, indeed, been taken rather than to his attributing their reappearance to Mr Casserley.   The Industrial Tribunal makes the point that the reappearance would have been highly damaging evidence against Mr Casserley had there been any evidence before Mr Phelan that suggested that the applicant or someone else at his behest had returned the boxes.  They make the point that there was no such evidence.   But Mr Phelan’s written statement does not say at any point that he had it in mind that the applicant or someone else at his behest had returned the boxes.   The Industrial Tribunal seems here to hint that Mr Phelan had something improper in mind and then criticises the investigation on that score but without its ever having found that Mr Phelan did in truth have that subject in mind and against evidence, which it accepted, of what was in his mind and which did not include this feature.

	Another criticism of Mr Phelan by the Industrial Tribunal is that he was not told by, and did not enquire of, Mr Geraghty, the security employee, about the circumstances in which the newsagent was said to have identified Mr Casserley as the man who had had stickers for sale.    That would have been highly relevant had that identification formed any part of Mr Phelan’s reasons for believing in Mr Casserley’s misconduct.   He does not mention that reason in his witness statement;  he did not mention it in the oral passage immediately before his dismissal of Mr Casserley on the 22nd September or in the earlier course of the disciplinary hearing.   The Industrial Tribunal, in other words, is criticising Mr Phelan for not making enquiries into the substance supporting a ground which in any event he was not held to have in mind.   Had Mr Casserley wished to assert that Mr Phelan’s mind was coloured by Mr Geraghty’s security report then he would have needed to establish that, as we have mentioned, by cross-examination and by submission to that effect.   There were undoubtedly respects in which Mr Geraghty’s security report was exaggerated or misleading but more relevant was the question how far, if at all, Mr Phelan had been influenced by Mr Geraghty’s report in its exaggerated form.   Mr Phelan’s reasons as given in his witness statement and as were apparently accepted by the Industrial Tribunal attribute no weight whatsoever to any identification of Mr Casserley that was derived from Mr Geraghty’s evidence.   The Industrial Tribunal concluded that there was little, if anything, to suggest that Mr Phelan had been concerned about Mr Geraghty’s report nor to indicate that he recognised that he should treat it with at least a measure of caution.   But, properly regarded, Mr Phelan’s reasons as given in his witness statement and as accepted by the Industrial Tribunal, indicate no reliance by him on Mr Geraghty’s report.  In that case there was no reason why he should have been concerned about it, nor why, for the immediate purposes of the day, should have treated it with caution.   

	We have not attempted to deal with every criticism made by the Industrial Tribunal of Mr Phelan’s reasoning or of his conclusion.   Nor is it necessary to do so;  no one or more of the Industrial Tribunal’s points were held to be determinative but only in aggregate did the Tribunal regard them as requiring the conclusion that it reached.   Mr Rose argued that in any event a number of the criticisms were undermined or countered by what had happened in the course of Mr Casserley’s later appeals.   We have not thought it necessary to look at that as, in our view, the matter is sufficiently clear even looking only at the position as it was at the 22nd September.   Where, as here, there is no plain partiality and no procedural or other shortcoming in the disciplinary process followed by the employer, where the employer has, at the end of his investigation, a genuine belief in his employee’s misconduct and where, therefore, such defects as are asserted depend upon a detailed survey of the facts of the particular case, it is crucial that the survey by the Industrial Tribunal, if to be attempted at all, should itself be full and invulnerable.   Without our attempting to cover all the points we have made above, here at some points the Industrial Tribunal has ruled on the unreasonableness of grounds which Mr Phelan was not held to have in mind (he was not found to have relied upon the reappearance of the stickers or upon any of Mr Geraghty’s exaggerations);  there were rulings critical of his conclusion on some points without the related points in his favour being given their fair weight (the inconsistencies between Mr Casserley’s and Mr Skeats’ versions of events);  weaknesses in Mr Phelan’s reasoning were suggested based not upon evidence as it had emerged at the time of the dismissal but on speculation and on later events (Mr Casserley may not have at first answered why he was in the stockroom because he needed legal representation;  that the light-switch was obscured by boxes was speculation and came out only later than the 22nd September).   There was something of a disposition to approach questions as if there had to be material which showed Mr Casserley to be guilty beyond all reasonable doubt (as to Mr Collins’ evidence about his not seeing any trainers) and at other points the criticisms of the Industrial Tribunal mis-state Mr Phelan’s reasoning (the implausibility of Mr Casserley being for 10 minutes in the dark stockroom included that he had not even opened the door to let light in) and, yet again, the failure of the employer to raise further points at the time is criticised without there being posed the crucial question of whether, even so, the investigation and the emergent grounds for the genuine belief which the employer had were reasonable (the failure to ask Mr Skeats a follow-up question to his answer that the bag contained a pair of trainers).

	We conclude that the Industrial Tribunal substituted its own view for that of the employer and that by failing to look at the matter “As an ordinary businessman would look at it ......” - see Monie supra - it set an unreasonably high standard to be expected of an investigation.   There are, too, errors of law to be found at the particular stages in the detailed analysis as we have set it out.   We hold that there are here errors of law such that the decision of the Industrial Tribunal cannot stand.    The Industrial Tribunal fails to step back from its detailed analysis, itself flawed, to ask itself, especially having in mind that Mr Phelan saw and heard witnesses at the time, whether, looked at, as it should be, through the eyes of a reasonable employer, the employer’s investigation could here fairly be described as reasonable and whether the grounds for the employer’s genuine belief arising out of it could equally be so described.   We do not see ourselves precluded from coming to the conclusion that the Industrial Tribunal erred in law because of its reference to section 57;  the section is for application not for incantation.

	What then to do?   To set-aside the conclusion of this Industrial Tribunal for error of law is one thing;  for us to rule that no Industrial Tribunal properly instructing itself could not by some different route have come to that conclusion or that any Tribunal properly addressing the case could only come to the contrary conclusion would be another.  That would require improper speculation on our part.   In the circumstances, albeit reluctantly, we see it as appropriate to remit the whole matter to a fresh Tribunal.