[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mars UK Ltd (t/a Masterfoods) v Parker [2006] UKEAT O412_05_1801 (18 January 2006) URL: http://www.bailii.org/uk/cases/UKEAT/2006/O412_05_1801.html Cite as: [2006] UKEAT O412_5_1801, [2006] UKEAT O412_05_1801

[New search] [Printable RTF version] [Help]

APPEARANCES

 

For the Appellant	MR DAVID GRIFFITH-JONES QC and MR ANDREW BURNS (Of Counsel) Instructed by: Messrs Lovells Solicitors Atlantic House Holborn Viaduct London EC1A 2FG
For the Respondent	MR SIMON DEVONSHIRE (Of Counsel) Instructed by: Messrs Ratcliffe Duce & Gammer Solicitors 49 & 51 London Street Reading Berkshire RG1 4PS

SUMMARY

Whether an Employment Tribunal took a permissible approach to determining that a dismissal was unfair, in circumstances in which it did not clearly set out the terms of s.98 of the Employment Rights Act 1996. Whether on the facts it substituted its own view of the occurrence and quality of misconduct for that of the employer. Whether it was appropriate to determine an issue between the parties as to whether the conduct of the claimant had contributed to his dismissal by simply saying it had not done so, without giving any further reasoning to support that view.


 


THE HONOURABLE MR JUSTICE LANGSTAFF

1. In extended reasons promulgated on 3^rd May 2005, an employment tribunal sitting at Reading held that Mr Keith Parker, the claimant, had been unfairly dismissed by Masterfoods (the respondent before the Tribunal, and the appellant before us). The Tribunal dismissed Masterfoods' claim that the claimant had contributed towards his dismissal, but reduced the award payable to the claimant by 10% by reason of his failure to appeal the decision to dismiss him. It awarded him £27,517.14.

The Basic Facts

2. The claimant served the appellants for thirty years as a quality assurance and weighbridge operative. There was only one blemish on his record during that entire period – an admonition in 2000.
3. There was only one operative at a time working at the weighbridge. Drivers coming to collect or discharge their load often had to wait for the department receiving or sending out products to be ready for them.
4. When working at the weighbridge office, the claimant had been reluctant to sign for samples. Some items had gone missing from the weighbridge office.
5. In March 2004 the claimant had a dispute with Masterfoods' dispatch and wrapping co-ordinator (a Mr Raynham) and swore at him. Both he and Mr Raynham complained to Mr Jenkins, the operations shift manager over the incident. Mr Raynham's complaint was, however, also that the complainant had sworn at a foreign lorry driver, and that he understood that the complainant when supposed to be working a night shift had to be woken up in order to serve the needs of a driver (a Mr Gammon).
6. Those accusations led to Mr Jenkins holding investigatory meetings with Mr Raynham, Mr Gammon and a Mr Ward, followed by an investigatory meeting on 17^th May 2004 attended by the claimant. The claimant was accused of using foul and abusive language, being asleep in the tea room during his shift, failing to comply with reasonable requests such as refusing to drive a fork lift truck, failing to carry out his functions such as the processing of samples and an inappropriate attitude to company employees and external parties. He was suspended, told he could not contact employees of the respondent during his suspension and required to attend a disciplinary hearing on 28^th May to answer those charges.
7. Mr Jenkins, the claimant's line manager, conducted the disciplinary meeting. At its conclusion he decided to recommend dismissal. The Tribunal said (at paragraph 3.22):–

"in evidence Mr Jenkins stated the only matters of conduct he relied upon in deciding to recommend dismissal were the evidence from an external driver of an unhelpful response by the claimant, the evidence from Mr Raynham of hearing the claimant swear and the evidence from Mr Peel who he claimed had been asked not to tell the whole truth."

8. A further disciplinary hearing occurred on 18^th August, held by the personnel manager Miss Neeve. As to this the Tribunal said (paragraph 3.20):-

"The purpose of Miss Neeve considering the matter was to consider whether Mr Jenkins recommendation to dismiss was reasonable. Notwithstanding that the allegations with regard to the processing of samples, the refusal to drive a fork lift truck and his contacting Mr Peel during the period of his suspension were dismissed by Mr Jenkins, they were including in the matters considered by Miss Neeve as relevant matters when considering whether Mr Jenkins had made the right recommendation. Miss Neeve considered the recommendation to dismiss was correct. She conceded in evidence she did not consider any other sanction"

9. The recommendation to dismiss was further confirmed by a disciplinary panel, in accordance with the respondent's procedure. The panel contained two senior managers in addition to Mr Jenkins and Miss Neeve: its purpose was to review the recommendation to dismiss.

The Appellant Employer's Case

10. Mr Griffith-Jones, QC, on behalf of the employer argued that the Tribunal had misdirected itself in law as to the test to be applied under section 98 of the Employment Rights Act, substituted its own view for that of the employer, erred in concluding that Mr Parker had not contributed in his own dismissal, and argued that the Tribunal had failed to provide any or adequate reasons for its conclusions.
11. These submissions relied upon the way in which the Tribunal had addressed the issue before it. At paragraph 1.1 it said :-

"We had to decide whether the Respondent" (that is, the respondent before the employment tribunal namely Masterfoods) "had established the reason for the dismissal was conduct, whether they were reasonable in their belief in his misconduct, and whether the decision to dismiss was fair and reasonable in all the circumstances of the case".

12. He argued that this phraseology was not a strictly accurate paraphrase of the statutory test, and expressed in this way was liable to give rise to a real danger that the Tribunal would forget that the statutory test involved two stages :(1) that under section 98 (1) and (2) of the Employment Rights Act 1996, which is that the employer should show what the reason for dismissal was and that it fell within one of the sub paragraphs in section 98 (2) (here, conduct); and (2) that under section 98 (4), where the task of the Tribunal was to determine whether in the circumstances the employer acted reasonably or unreasonably in treating the reason shown as a sufficient reason for dismissing the employee.
13. He pointed out that when the Tribunal returned to the issue in paragraph 6.1 of its decision it said this:-

"In unfair dismissal cases it is for the respondent to show the reason for the dismissal and that it was one falling within section 98 of the Employment Rights Act 1996. [Masterfoods] relied on section 98 (2), conduct. [Masterfoods] had to show, therefore, that conduct was the reason for the dismissal. The conduct does not have to be gross, but it does have to be substantial in relation to the employee and his job and the surrounding circumstances. It has to be conduct justifying dismissal."

14. The Tribunal continued:-

"6.2 We first had to decide whether there was conduct within the meaning of section 98 i.e. conduct justifying dismissal. For the definition of "conduct" we looked at Neary and Neary the Dean of Westminster. Conduct is behaviour sufficient to undermine the trust and confidence which is inherent in the employment relationship so that the employer should no longer be required to keep the employee in his employment. If we found the employer was reasonable in his belief that the claimant was guilty of conduct falling in that category, we then had to decide whether the dismissal was then within the band of responses of a reasonable employer and fair in all the circumstances of this case."

15. The requirement that conduct had to be "substantial…etc" and that it had to "justify dismissal" was, Mr Griffith-Jones pointed out, to insert requirements missing from section 98 (1) & (2). The evaluation indicated by use of the word "substantial", and the value judgement indicated by use of the expression "justifying" would arise if they arose at all under section 98 (4). But the value judgement demanded by section 98 (4) has become whether a decision to dismiss falls within a range of reasonable responses open to an employer in the face of the reason accepted by him as established, and is not to be answered simply by answering the question whether an employment tribunal considers that the conduct in question "justified" dismissal or not.
16. It could be argued, he said, that the Tribunal was here simply eliding the two stages of the test, for in the final sentence of paragraph 6.2 it predicated a decision whether a dismissal was in the band of reasonable responses upon finding first that the employer was reasonable in his belief that the claimant was guilty of conduct falling in that category (i.e. the category of "substantial conduct justifying dismissal") and added the requirement (see the last nine words of the sentence) that not only should it fall within the band of responses of a reasonable employer but also be fair in all the circumstances of the case. This was to include an inappropriate additional element, consisting of some kind of general assessment whether the dismissal was fair.
17. Mr Griffith-Jones continued to argue that this error of self direction had been compounded by the way in which the Tribunal then addressed the facts. Instead of asking "Why did (Masterfoods) decide to dismiss?", answering that question, and then making a decision whether the reason shown related to Mr Parker's conduct, before considering as a second stage whether the decision to dismiss fell within the band of reasonable responses open to an employer faced with conduct of that type, he complained that the Tribunal had in no way set out what Masterfoods actually believed of the guilt of Mr Parker. Instead, it said that "a quick nap during a break could not, it seemed to us, amount to conduct justifying dismissal. In any event it was not a factor Mr Jenkins took into account in deciding to dismiss the claimant."; it held that Masterfoods were not justified in believing that the claimant was being unhelpful towards a driver; that given the environment in which he worked and the lack of direction by Masterfoods with regard to language, the use of swear words was not conduct justifying dismissal, and that Masterfoods was not reasonable in its belief that the claimant had asked Mr Peel to lie for him at the disciplinary hearing. The Tribunal had summarised the matter in what, by Mr Griffith-Jones' submission, was another erroneous self direction, as follows: -

"6.8 It is not for us to substitute our own view for that of the respondent and we have taken pains not to do so. However it seems to us that to justify the dismissal of an employee with such long service, some acts or admissions by him of a serious substance needed to have been established. Ultimately, the question for the tribunal is whether in a particular case dismissal is a reasonable response to the misconduct proved. Doing the best we can for all of the reasons stated above we do not find the conduct established to the tribunal's satisfaction and relied up by [Masterfoods] was, either individually or cumulatively, conduct sufficient to justify dismissal in all the circumstances of this case."

He emphasised the Tribunal's reference, repeatedly, to proof to its own (the Tribunal's) satisfaction. It should properly have referred not to its own response, but rather to the employer's response to that which had been proved to its, the employer's, satisfaction. Thus the act or omission which "needed to have been established" led on to the question whether the dismissal was a reasonable response to "the misconduct proved"- which, though it might as so expressed appear to be neutral as to whom it was proved, links with the next sentence where there is reference to conduct established "to the Tribunal's satisfaction and relied upon by the respondent", thus suggesting that it was for the Tribunal to determine whether misconduct was proved to it, and not to inquire what misconduct had been proved to, or accepted by, the employer.

18. He complained, therefore, that to categorise the employer's belief that the incident in which Mr Parker had failed to process the arrival on site of a driver from one of Masterfood's suppliers as "unhelpfulness towards a driver" was to substitute a view formed by the Tribunal for the view which the employer had actually had. Similarly, the claimant had dealt with an allegation of unhelpfulness towards a driver by suggesting that Masterfoods could not have known whether this was a case of his being unhelpful, or whether instead it was a case in which the department was simply not ready to deal with the driver's load. Mr Parker had never advanced as part of his explanation for his conduct on that occasion that this latter situation might have been the case: the Tribunal accordingly were attempting an evaluation of their own. The description of the sleeping incident was "having a nap in a break", yet Masterfoods' belief was that he had been sleeping on duty. These reasons were not addressed. The Tribunal had assumed that the respondent had given no direction to the effect that employees should not swear: yet Mr Jenkins had given evidence that he himself had told Mr Parker not to do so, and the Tribunal never indicated that they were rejecting his evidence. As to the finding that there was insufficient evidence from which the respondent could reasonably draw a conclusion that the claimant asked Mr Peel to lie for him, it was said that the criticism made by the Tribunal was based upon its assessment of a note of one of Mr Peel's interviews. Yet the employer's view had been formed not on the basis simply of that interview but also on the basis of Mr Jenkins' impression and understanding of that which Mr Peel had said to him.
19. Finally, when the Tribunal came to consider contribution (which had been argued) it simply said: "We do not consider the claimant contributed towards his own dismissal." That simple rejection of an argument gave no reasons. It could not qualify as sufficient explanation of why it was that on this point the claimant had succeeded, and Masterfoods had lost. It fell foul of those principles familiarly set out in Meek v the City of Birmingham District Council [1987] IRLR 250, C.A., and repeated in Tran v Greenwich Vietnam Community [2002] EWCA Civ 553 [2002] IRLR 735, especially per Sedley LJ at paragraph 17.
20. Mr Griffith-Jones did not seek to suggest that the decision was perverse: rather his submission was the Tribunal had been in significant error.

The Respondent's Answer

21. Mr Devonshire, appearing for the respondent claimant, Mr Parker, argued that, despite Mr Griffith-Jones' denial, this was in truth a perversity appeal.
22. Although he accepted that the decision of Neary & Neary v Dean of Westminster was of no assistance (it appears that neither party referred to it in their submissions below) the Tribunal had concluded that the dismissal was unfair not simply substantively, but also procedurally. So far as substantive unfairness was concerned, the question to be asked on appeal was one of substance: had the Tribunal by paraphrasing the statutory test in its own words actually misdirected itself in practice. He submitted not. Each and every one of the paragraphs between 6.3 and 6.9 revealed criticisms of the employer's action which were resolved by conventional standards, properly applied.
23. Moreover, he pointed to the judgement of Lord Justice Pill in Strouthos v London Underground Ltd [2004] EWCA Civ 402 [2004] IRLR 636. The case here was of the dismissal of a long serving employee. As Lord Justice Pill indicated in Strouthos, length of service is a relevant consideration for a tribunal to take into account. Moreover, what a tribunal may decide will depend upon standards published both within and without the organisation in which the employee was employed. Thus both an employer, and the tribunal in its turn, must take account of the ACAS code, which emphasises the need for disciplinary rules, and clarity as to those breaches which might attract the sanction of dismissal. Although Mr Griffith-Jones made a number of points arising from Mr Jenkins' witness statement before the Tribunal, and extracts from the employer's solicitor's notes of discrete parts of the hearing, these did not, and could not reflect the totality of the evidence before the Tribunal. The Tribunal had heard and seen the witnesses. It was entitled to find the facts it did.

The Law

24. It is incumbent upon an employment tribunal to set out its reasoning sufficiently to achieve three main purposes. First, it must say sufficient to inform the parties why they have won or, as the case may be, lost. Secondly, it must set out its reasoning in sufficient detail so that an appellate court has sufficient material with which to review the decision, to ensure there has been no error of law. Thirdly, it must set out sufficient of its reasoning to act as a form of self discipline. Repeating even trite directions as to the law assists in approaching the facts correctly. Quite apart from the cases already referred to above, these points have been emphasised in cases such as Flannery v Halifax Estate Agencies Ltd [2000] 1WLR 377 CA, per Henry LJ, and in Anya v Oxford University [2001] EWCA Civ 405; [2001] IRLR 377. At paragraph 26 of the latter, however, the Court of Appeal said this:-

"The courts have repeatedly told appellants that it is not acceptable to comb through a set of reasons for hints of error and fragments of mistake, and to try to assemble these into a case for oversetting the decision. No more is it acceptable to comb through a patently deficient decision for ……just as the courts will not interfere with a decision, whatever its incidental flaws, which has covered the correct ground and answered the right questions, so should they not uphold a decision which has failed in its basic task, whatever its other virtues."

Thus the task for us is one of substance. It is not to be answered by a pedantic analysis of a tribunal's decision, as though it were a statute or trust deed, although if, in substance, the right questions have not been addressed we must not be shy to uphold an appeal.

25. There is no doubt that the proper starting point in any case of unfair dismissal is to have regard to the words of section 98 Employment Rights Act 1996. It is worth remembering that the "range of reasonable responses" test though now well established as a proper approach for a tribunal to adopt is derived by higher authority from the words of the statute itself, which remain the starting point.
26. Section 98 is familiar territory to employment tribunals. Indeed, it is so familiar that we would not expect a tribunal to have to set out the section before addressing it. In many cases, we would expect that a tribunal might approach the necessary factual and evaluative decisions to be made under it by applying the test either implicitly, or by adopting a casual paraphrase of their own born not out of a failure to grasp what the section requires, but out of familiarity.
27. Such an approach has its dangers, which this case exemplifies. If it is not clear, without analysis, that a tribunal has adopted the "section 98 approach" then it may lead to an appeal. Accordingly, although the paradigm case might be to set out the relevant portions of statute, a tribunal ought in general to refer to section 98, and to make it clear that it is finding first what the reason for dismissal is, secondly that it is a "qualifying reason" within section 98 (2), and only then proceed to evaluate whether a dismissal for that reason is fair or unfair, which depends upon whether in the circumstances the employer acted reasonably or unreasonably in treating that reason as a sufficient reason.
28. In the present case, the Tribunal did not approach its self direction in those terms. Instead, it supplied its own, inadequate, paraphrase of that which section 98 required. It compounded this by referring to a case, (Neary) as to the meaning of "conduct" which was inappropriate.
29. However, we have to ask whether, overall, this Tribunal adopted the approach indicated by section 98 of the Employment Rights Act 1996 to the evidence before it. We have to answer that question not simply by examining the detail of the words used but also by considering them as, as it were, brush strokes upon a broad canvas. It is in contemplating the entirety of the painting that we can see whether or not the three objectives indicated by Meek and subsequent cases have been achieved, and whether this tribunal has wrongly substituted its own view for that of the employer.
30. Despite the careful arguments of Mr Griffiths-Jones, and despite our unease at the inadequacies in the detailed wording, we have come to the conclusion that the Tribunal here were adopting a permissible approach.
31. The direction at paragraph 1.1 seeks to look first at the reason for the dismissal, and whether it was conduct. That complies precisely with section 98 (1). The words "reasonable in their belief in his misconduct" are not to be found in statute. However, in British Home Stores v Burchell [1980] ICR 303 the Employment Appeal Tribunal (Arnold J presiding) said in a passage which has been approved on countless occasions since that:-

"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground that the misconduct in question…..entertained a reasonable suspicion amounting to a belief of the guilt of the employee of that misconduct at that time."

Those words are almost exactly the words used by the Employment Tribunal in paragraph 1.1 of its decision here. The Appeal Tribunal continued:

"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. 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 themselves 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 on the basis of it 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….."

32. The broad expression by the Employment Appeal Tribunal in the Burchell case is, as is the tribunal's self direction in the present case, not a straight recitation from the wording of the statute. It is, however, so well known and so much accepted that we conclude that that was what the Tribunal had in mind paragraph 1.1, and that its direction was adequate. Similarly, where the Tribunal said at paragraph 6.1 that the employer had to show that conduct was the reason for the dismissal the Tribunal was accurately summarising the statute. That was plainly the starting point. The expression to which exception might be taken is the view of the Tribunal that "it has to be conduct justifying dismissal." However, that itself is a summary of what is said in the preceding sentence: "the conduct does not have to be gross, but does have to be substantial in the relation to the employee and his job and the surrounding circumstances."

This links with the last sentence in paragraph 6.2:

"if we found the employer was reasonable in his belief that the claimant was guilty of conduct falling in that category, we then had to decide whether the dismissal was within the band of responses of a reasonable employer and fair in all the circumstances of this case."

We think that the Tribunal here was saying no more than that determination of the question whether a dismissal is fair or unfair depends on whether in the circumstances the employer acted reasonably or unreasonably in treating it as sufficient. The Tribunal had plainly in mind the sufficiency of the reason; that the employer has to have a reasonable belief of guilt and misconduct (an adaptation of Burchell) and that dismissal was an appropriate response by an employer (a question to be answered by asking whether the actions of the employer were reasonable or unreasonable, and not by asking whether the tribunal would think it reasonable itself to take a different course: hence the "range of reasonable responses" test now well established as summarising the proper meaning of section 98 (4)).

33. What is essential is for a tribunal to ask: (a) what reason had the employer proved to be its reason for dismissal? (b) was that reason (in the present case) misconduct? (c) was the employer reasonable in his belief that the claimant was guilty of the misconduct for which they dismissed him? (d) was it within the band of responses of a reasonable employer to dismiss this employee for that misconduct (to the extent to which it was reasonable to believe that he was guilty of it) on taking into account all the circumstances of the case.
34. Although the formulation of the test applied by the Tribunal is not ideal, we think that it sufficiently set out the four essentials we have identified, and did not indicate that the Tribunal was failing to apply a statutory test which must have been familiar to it.
35. We reject the attack upon the Tribunal's approach on being one which entitled it to substitute its own views for that of the employer. First, this is not the test which the Employment Tribunal expressly adopted. At paragraph 6.2 the Tribunal expressly referred to a stage of its reasoning as being to decide whether the dismissal was within the band of responses of a reasonable employer. That is to abjure making its own decision as to what was reasonable. Secondly, at paragraph 6.8 the Tribunal again reminded itself: "It is not for us to substitute our own view for that of the respondent and we have taken pains not to do so." We had initially been troubled by the phrase that followed referring to "conduct established to the tribunal's satisfaction", which might suggest that it was the Tribunal which had to be satisfied of the nature of the conduct, rather than enquiring whether the employer was entitled to be satisfied that the conduct had occurred. However, this passage follows a clear recognition that a tribunal must not substitute its own view. It follows a reference to the range of reasonable responses (asking whether dismissal was a reasonable response to the misconduct proved) which focuses on the employer's view and not that of the tribunal. It follows a phrase in which the words "misconduct proved" relate to that which the employer found proved (the phrase being "...a reasonable response to the misconduct proved..."), and to the tribunal referring in the past tense to acts or admissions being "established": the phrase is "needed to have been established". This indicates that the Tribunal were looking to see what was in the mind of the employer. Accordingly, we think that by the phrase "established to the tribunal's satisfaction" this Tribunal is to be taken in the context of its decision as a whole to be referring to the need for the employer to show a reasonable belief that the acts or admissions of the employee amounted to misconduct, and that the reasonableness of their response had to judged against that which it was reasonable for the employer to conclude amounted to guilt on the part of the employee, to the extent that it did so. Put another way, where, as in the present case, there were a number of allegations some of which it was unreasonable to conclude amounted to misconduct but others in respect of which it might have been, the employers' conduct in dismissing the employee would have to be judged against the full extent of the conduct reasonably regarded by the employer as blameworthy, but to no fuller extent by reference to those additional matters which it was unreasonable of the employer to believe constituted guilt.
36. Accordingly, examining the detail of its language in the context of its decision as a whole neither the inelegance of the language the Tribunal adopted in the approach which it described itself as adopting, nor its failure to remind itself word for word of the test in statute, has been shown to be in itself an error of law,
37. We have now to turn to look at the detailed factual criticisms made by Mr Griffith-Jones of the Tribunal's conclusions at paragraph 6. We have to be alert that the way in which the Tribunal dealt with these might indicate that it did not properly apply the approach required by statute, and by case law since, in particular in relation to substituting its own judgement for that of the employer.
38. Masterfoods complain that Mr Jenkins' evidence was not that he thought this was a case of an employee having a quick nap during a work break, yet the Tribunal characterised it as such; that Mr Jenkins did not have advanced to him, as a reason for justifying unhelpfulness towards a driver, that the receiving department was not ready to deal with that driver's load; that the Tribunal misunderstood the importance of the allegation of swearing which was not the use of the words themselves but the aggression with which they were delivered; and that it came to the conclusion in the respect of Mr Peel which again suggested the Tribunal did not accept Mr Jenkins' evidence, yet it did not say so.
39. Although it is often – indeed, usually – helpful for a tribunal to set out the relevant evidence of a witness, indicating that which they accept and that which they do not, it does not in our view amount to an error of law not to do so. Thus, in general terms, a tribunal which has had the benefit of seeing the witnesses, listening to the full questioning, and evaluating it, is entitled to indicate the facts which it finds (some of which may in effect be accepting that which a witness has said, some of which may be rejecting it) without expressly attributing the finding to an acceptance, or rejection, of a specific witness's evidence.
40. It is plain from what the Tribunal is saying in paragraph 6 that it considered evidence of fact and drew conclusions. It has set out what those conclusions were.
41. We have not had the chairman's notes of evidence put before us. We have been presented with a statement by Mr Jenkins, which was his evidence in chief, and selections from notes made by the appellant's solicitors of that which he said when giving evidence. We think that the points taken by Mr Devonshire on behalf of the claimant are well taken when he says that Mr Jenkins appears to have made concessions in his oral evidence which do not appear from his written witness statement, for instance as to the seriousness of the allegations of sleeping on duty and contacting another employee whilst on suspension.
42. Further, in his skeleton Mr Griffiths-Jones sought to challenge the Tribunal's findings about the "particular ethos and published standards" of Masterfoods, its attitude towards swearing, and its policy on sleeping whilst on duty and/or what Mr Parker knew about these. These were peculiarly questions on which the Tribunal was the best placed to judge having heard from all of the witnesses, including the claimant himself.
43. Since reliance upon perversity is abjured, the detailed points which are made in respect of paragraph 6.3 to 6.6 are in essence attempts to reopen matters which are essentially those of fact. It is sufficient to say that the Tribunal was entitled to conclude that it was relevant to the overall questions it had asked itself to determine in what circumstances the "napping" occurred, and that such "napping" was not relied upon by Mr Jenkins when he took the first decision relating to dismissal; that the allegation of unhelpfulness towards a driver had not been sufficiently investigated; and that no warnings had been given that bad language would not be tolerated, with the inevitable result that the dismissal for bad language would not be a reasonable response. We conclude, too, that it was open to the Tribunal to take the view that Masterfoods lacked reasonable grounds for coming to the conclusion that Mr Parker had asked Mr Peel to lie for him.
44. Nor, in our view, does it invalidate a finding of procedural unfairness that a first recommendation to dismiss should then be followed by not one, but two further meetings internal to the employer. An employer cannot immunise itself from criticisms as to the adequacies of its disciplinary procedures merely because individual meetings are lengthy, and the overall process protracted.
45. It follows that we have taken the view that it is clumsy drafting, rather than a true error of law which has led to the complaints of principle by Masterfoods; that the evidential complaints it makes, whether taken individually or collectively, fall short of perversity, and that the Tribunal was therefore entitled to come to the conclusions it did. We are also satisfied that in relation to this part of the case (which one might term "primary liability") the Tribunal has sufficiently expressed its reasoning.

Contributory Fault

46. At paragraph 5.16, the Tribunal set out a submission on behalf of Masterfoods arguing that there was contributory fault, going to the extent of one hundred percent, in that the claimant contributed to the position he was in "by not coming clean" but instead by lying.
47. The Tribunal recorded their conclusion in relation to contribution in these words, at paragraph 6.11, by saying simply that: "We do not consider the claimant contributed towards his own dismissal." That is a bald conclusion. It is supported by no reasoning, other than that which is implicit. It is not clear to what extent, if at all, the Tribunal thought that the claimant might have been criticised for (a) taking a nap during a break (though it seems likely they would not have criticised him for this, given paragraph 6.3); (b) doing anything which might have indicated unhelpfulness towards a driver, even if the circumstances had not been properly investigated by Masterfoods; (c) swearing, even though swearing was common place at the workplace (paragraph 6.5); (d) the way in which he approached Mr Peel, even though the employer concluded that the employer could not reasonably draw a conclusion the claimant had asked Mr Peel to lie to him and; (e) the extent to which the claimant's contacting an employee during the period of his suspension might have contributed to his dismissal.
48. The same principles apply in respect of contribution as apply to other parts of a tribunal decision, as we have sent out at paragraph 24 above.
49. Mr Devonshire argues (correctly) that a tribunal has to look not at what the employer believes the employee to have done wrong, when assessing contributory conduct, but whether the employee has in fact caused or contributed to his dismissal by his blameworthy conduct. Here there were two aspects to the dismissal: procedural and substantive. As to the substantive, Masterfoods adduced evidence only from the investigating/dismissing officers, and produced no first hand evidence that the claimant had in fact been guilty of the misconduct alleged against him. Secondly, given the evidence placed before it, and having regard to its conclusion that no reasonable employer would have dismissed in the circumstances, the Tribunal was entitled to conclude that no deduction for contribution was appropriate.
50. Although these arguments have force, they do not meet the principal objection raised by the appellant to paragraph 6.11 of the Tribunal decision. That objection is that the reasoning is absent. In our view, so it is. The circumstances in which it will not be an error of law to say simply that there is no contributory conduct, without more, where the issue has been properly raised and argued, must if they exist at all be limited to cases in which it is obvious from the rest of the decision why there is none. That is not the case here.
51. Accordingly, we allow this appeal to the extent only that the Tribunal erred in law by failing sufficiently to indicate why it was it reached the conclusion it did on the issue before it as to contributory fault.
52. We accept Mr Devonshire's submission that given the limited nature of our decision, the matter should be remitted to the same tribunal as heard the original facts. It is best placed to expand upon its reasoning. Although the nature of the reconsideration will be for the tribunal itself to direct, in accordance with proper case management, we would anticipate the parties at least having the opportunity to make detailed submissions as to that which the tribunal should conclude upon this issue. However (without pre-empting the Tribunal's own decision on the matter) we do not regard it as a necessary implication of our decision to remit that the Tribunal is required to rehear any of the evidence it has already considered.
53. To that, limited, extent, we allow this appeal.
54. Finally: we direct that there should be a detailed assessment of the claimant's publicly funded costs.