Appeal No. UKEAT/0009/08/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1-2 September 2008

Before 
HIS HONOUR JUDGE MCMULLEN QC
MR T MOTTURE
MS B SWITZER

MINISTRY OF DEFENCE	APPELLANT

MR J BOTHAM	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS M WHEELER
(of Counsel)
Instructed by: 
Treasury Solicitors
One Kemble Street
London  WC2B 4TS 	
For the Respondent	MR P MEAD
(of Counsel)
Instructed by:
Messrs Dean Wilson Laing Solicitors
96 Church Street
Brighton
East Sussex  BN1 1UJ	

SUMMARY
UNFAIR DISMISSAL:  Reasonableness of dismissal
The Employment Tribunal did not err when it found the Respondent unfairly dismissed the Claimant, holding him 55% to blame.

HIS HONOUR JUDGE MCMULLEN QC
1.	This case is about reasonableness in a decision to dismiss an employee.  The judgment represents the view of all three members.  We will refer to the parties as the Claimant and the Respondent.

Introduction
2.	It is an appeal by the Respondent in those proceedings against a reserved judgment of an Employment Tribunal chaired by Employment Judge Davey sitting over six days at Southampton, registered, with reasons on 7 May 2007.  The Claimant was represented by Mr Wilson, solicitor who, today, instructs Mr Philip Mead.  The Respondent was represented by Ms Marina Wheeler of Counsel. 

3.	The Claimant claimed unfair dismissal and breach of contract.  The Respondent contended it dismissed him fairly for gross misconduct and so he was not entitled to notice.

The issue
4.	The essential issue was to determine the reasonableness of the Respondent's action in dismissing the Claimant and to decide whether he was entitled to notice.  It decided in his favour on both.  At a subsequent remedy hearing, the Claimant was awarded £69,000 odd for unfair dismissal and wrongful dismissal; the former taking account of the Tribunal's finding at the liability hearing that he was 55 per cent to blame for his dismissal.  A review was conducted but the judgment remained unchanged.  

5.	The Respondent appeals against the judgment on unfair dismissal.  Directions sending this appeal to a full hearing were given at a preliminary hearing by Elias J, President and Members.  Only four of the 22 original grounds were so sent.  We will say more about the relationship between that hearing and ours. 

The legislation
6.	The relevant provisions of the legislation are not in dispute.  The Employment Rights Act 1996 section 98(1) provides that conduct is a potentially fair reason for dismissal.  There is no dispute in this case that that was the reason.  Section 98(4) deals with fairness.  The Tribunal directed itself by reference to the relevant provisions and what we hold to be the leading authorities cited in its reasons, namely, British Home Stores v Burchell [1980] ICR 303 and A v B [2003] IRLR 405.

The facts
7.	It follows from the much restricted Notice of Appeal allowed to come to a full hearing that some of the factual background of this case is not now relevant.  The events in the case took place in 2002 and 2003.  The delay has been caused by procedural appeals.  The Claimant was employed in Germany and the Respondent successfully argued at the Employment Tribunal, the EAT and the Court of Appeal that the Tribunal had no jurisdiction.

8.	The Respondent consented to the Claimant's appeal being allowed in the House of Lords now reported as Lawson v Serco [2006] IRLR 289.  The case was then sent to the Employment Tribunal for a hearing.  The Tribunal found this: 

“1. The Claimant was employed by the Respondent from 1988 until his dismissal on 30th September 2003 and that was the effective date of termination of his employment.  The Claimant was a Youth Worker based with the British Forces in Germany.”  

9.	The actors and their roles in this drama are given by the Employment Tribunal in these terms: 
“2. On behalf of the Respondent, the Tribunal heard evidence from Major General John Moore-Bick, the General Officer commanding British Forces in Germany, Phillip Blackmore, the Civil Secretary (at that time) for Five Division based in Shrewsbury, Jane Myers (at that time) the Personnel Manager for UK based civilians with British Forces in Germany, Shona McMinn (at that time) a Senior Social Work Practitioner and Team Manager for the Joint Response Team of SSFA providing Social Work Services for the MOD with British Forces in Germany, Elizabeth Tanner a member of the Joint Response Team and British Forces Social Work Service, William Rookes the Head of Youth and Community Services in Germany, Maureen O’Brien the Garrison Youth and Community Officer for Gutersloh, John Wolfe the temporary Manager of the Joint Response Team and Social Work Service on behalf of the Respondent.  The Claimant gave evidence on his own behalf.

10.	In addition, Major Linney, Ms O'Brien's Line Manager, gave evidence.  SSAFA is said to be a charity.  Not giving evidence were Girl A and Girl B who were under 16, as are the complainants.  Dr Maas, a German lawyer instructed by the Claimant's solicitors, interviewed them and the guardian of one of them.  Ms Jones was a fellow youth worker of the Claimant. 

Documents
11.	The relevant documents in the case are as follow: 

(a) The Code of Conduct.  
12.	This is described as the Code of Conduct and Professional Guidelines for Youth and Community Staff.  It contains a comprehensive approach for the conduct of staff, particularly those engaged in the care of, and in contact with, young people.  The Code requires adherence to general professional standards to maintain appropriate working relationships, to know when to withdraw if their role is compromised and to report any issues.  There are specific examples, such as staff must not give lifts in cars to individual users of the service.

(b) Discipline.  
13.	Discipline is provided for in the MOD Personnel Manual Volume 5, which extends for some 40 pages.  It has a complicated structure for the separation of the disciplinary hearing from a decision‑making hearing.  The stage of a disciplinary hearing is regulated by section 7 and the following is provided in paragraph 7.3: 
“Neither the record of the hearing, the recommendations or the subsequent deliberations of the deciding officer should make any reference to any unsubstantiated allegations, or suspicions of other offences.” 

(c) The O'Brien interview.  
14.	This took place on 7 January 2003 and is recorded in detail by the Employment Tribunal as it summarised the complaints.  There was, plainly, no love lost between the Claimant, Ms O'Brien and her manager, Major Linney, and the complaints made in that interview by Ms O'Brien extended over a substantial period of time and were found by the Employment Tribunal, in the main, to be gossip.

(d) The McMinn report.  
15.	This was made on 11 April 2003 following interviews with Girls A, B and C, the guardian of A, a number of other people and with the Claimant when he was, for the first time, represented, his previous two interviews being "No comment" on the grounds that he was seeking further advice.

16.	The McMinn report proceeds on the basis of a reference made to the service.  The service is described as The British Forces Social Work Service and Special Investigation Branch.  It has a Joint Response Team which is headed by John Wolfe and its documentation is headed by a crest.  Reference has been made to SSAFA but no document has been shown to us other than this one.

17.	The McMinn report conducted under the aegis of that organisation summarises, initially, the incident which is reported to have occurred on 20 or 21 September 2002.  This relates to the purchase by the Claimant of a mobile phone for A and allegations of inappropriate contact through kissing.

18.	At paragraph 3 there is a detailed summary of the Claimant's history, indicating a number of other accusations against him.  Paragraph 4 includes the Claimant's response to these matters and his denial of certain of the allegations.  Paragraph 5 consists of what is described as a summary of concerns and they are these: 
 “5.1 Two young girls have alleged that Mr Botham has kissed them against their wishes. 
  5.2 Mr Botham is alleged to have bought a young girl a mobile phone without her parent’s knowledge or consent. 
  5.3 Mr Botham has given one young girl money to buy a phone card without knowledge of her parents. 
  5.4 Mr Botham pays young people to undertake household tasks for him, with parents consent. 
  5.5 It is alleged that Mr Botham offered to pay a young girl to have her tongue pierced, without parent’s consent. 
  5.6 On two separate occasions Mr Botham has been observed acting inappropriately by picking up a baby not known to him and holding the baby close. 
  5.7 Concerns have been raised by other Youth Workers stating that Mr Botham does not appear to have professional boundaries with young people. 
  5.8 There are concerns raised by young people stating that they feel uncomfortable around Mr Botham.  They have observed Mr Botham rubbing up against and touching younger girls.
  5.9 Mr Botham’s apparent lack of understanding and knowledge with regard to Youth and Community Policy and Guidelines and Code of Conduct where it clearly states that staff ‘must establish and maintain clear boundaries to relationships that are understood by the individuals’.  ‘This includes ensuring that a proper professional distance is maintained in the relationship and that ‘dependency’ in particular is avoided’.
  5.10 Mr Botham’s apparent lack of professionalism in ensuring that he understands his role as a Youth Worker, his responsibilities in this role not only to the young people he works with but ensuring his own professional safety is a matter of concern.  Mr Botham, it would appear is of the opinion that his procedures were not available to him.  ‘All staff are responsible for seeking out and making themselves familiar with appropriate policies, guidelines, procedures and regulations.’
  5.11 It is also concern, that Mr Botham has not, in my opinion, given satisfactory explanations to the allegations put to him and the fact that Mr Botham, in effect, gave two ‘no comment’ interviews raises my concerns as to why he did that and does he have something to hide.”

The outcome was a recommendation which was this: 
“6.1 In my professional opinion I would have serious concerns if Mr Botham continued to work with young people in light of the above.”

(e) The Claimant's response.  
19.	The Claimant gave a detailed response to the McMinn report, covering 20 pages, including both denials and admissions.

(f) The charge
20.	The Claimant was charged in a letter signed by Mr Rookes who gave evidence as a senior youth and community officer of the Army Welfare Service, and the charges consist of the following: 
“a. a serious breach of the MOD Code of Conduct and Professional Guidelines for Youth and Community Staff dated 1 December 2001 (“the Code”), compliance with which is mandatory for all MOD youth workers in accordance with the Note to paragraph 1 of the Code, and
b. conduct falling seriously below the standard of conduct expected of youth workers as detailed in the National Youth Agency Statement of Principles, and
c. conduct falling seriously below the standard expected of youth workers generally. 

All of these offences fall within the category of gross misconduct for the purposes of paragraph 4.7 of Volume 5 of the MOD Personnel Manual.  Evidence supporting the charges, including the British Forces Social Work Service report dated 11 April 03 and extracts from the Army Welfare Services Youth and Community Policy and Guidelines, is attached.”

These are described by the Tribunal as generic and no resistance has been put up to that depiction.  They are obviously generic, distinguishable from specific, charges such as were the subject of the McMinn report into the allegations made by Girls A and B.

(g) The Hearing Officer report
21.	This was the Blackmore report. Mr Blakemore was, pursuant to the MOD manual, the Hearing Officer.  The Tribunal noted the peculiarity of this system which separates the Hearing Officer from the Deciding Officer and we are told that the system has now been changed.  The Blackmore report is of the hearing which he conducted on 22 July 2003 enuring into his report dated 4 September 2003.  The conclusions which he came to were these: 
“8. Mr Botham’s conduct has fallen seriously below the required standard in the following instances: 
•	At worst he gave (or loaned) a mobile phone to girl A.  At best he aided and abetted his sister in doing the same. 
•	He failed to stop or attempted to stop young people calling at his home (even whilst he was on sick leave).
•	He has admitted to ‘employing’ young people within his home.
•	He failed to inform his line manager of any of the above or of approaches from others. 
•	Inconsistencies in his defence were exposed e.g. denial of young people visiting him at home, only to admit later when challenged about a boy named George, that they did. 

Recommendation
9. I am convinced that Mr Botham is guilty as charged and have real concerns about him working as a Youth & Community Worker in the BFG community.  (Quite rightly he has been suspended.)  He has shown scant regard for his professional guidelines and standards of conduct.  Consequently whilst he remains in our employ I consider that he present a real risk to young people. 

10. My clear recommendation is that Mr Botham should be dismissed from his employment with this Department as soon as possible.” 

In order to simplify matters, the finding by Mr Blackmore in the first four bullet points, as they have been referred to in this case, are not the subject of any challenge; indeed, they are based upon admissions.

(h) The Deciding Officer's report
22.	That report was duly forwarded to the Deciding Officer, Major General JD Moore-Bick, General Officer Commanding the UK Support Command in Germany (“GOC”), and he gave his account following what the Tribunal found to be not a rehearing but a review, again, a depiction not resisted by the Respondent.  He considered, it is plain, far more than was in the McMinn report and the report of the Hearing Officer.  And he came to these conclusions which we set out in full: 
“3. In reaching my final decision I have taken account of the following factors: 
a. that I am presented with a report by a professional Social Worker, Shona McMinn, with experience in child protection issues.  This report concludes that Mr Botham’s behaviour breaches the MOD Code of Conduct and, in view of the matters dealt with in the report, the British Forces Social Work Services would have serious concerns should Mr Botham continue to work with children.  I note that the report was fully endorsed by the Social Worker’s line manager and further note the comments of the Manager of the Joint Response Team, Mr John Wolfe, in that he considered Mr Botham to be a risk to the BFG community.  John represents for me a ‘gold standard’ in child protection issues.  I have known him for 14 years.  His reputation in UK Social Services, Child protection in the Channel Islands and Social work with SSAFA in the Armed Forces is of the highest order.  I also note Miss McMinn’s responses at the disciplinary hearing regarding the sources of the allegations against Mr Botham and the reliability of these sources.  
b. that Mr Botham denied all bar one of the allegations (employing young people to undertake household tasks) contained within the Report and states his behaviour has not been appropriate.  I do however consider there is evidence to the contrary and note he has actually admitted to behaviour that is unacceptable within the relevant codes of conduct.  I also agree with the Hearing Officer’s comments regarding the inconsistencies contained in the evidence provided by Mr Botham and consider this casts considerable doubt on the reliability of his evidence.
c. that Mr Botham denies receipt or knowledge of both the MOD Code of Conduct and the National Youth Agency Statement of Principles.  In his evidence at the hearing Mr Rookes advised that the former document was distributed to Youth Workers, although no signatures of receipt were obtained, and that both documents were held in the appropriate offices.  Even if Mr Botham’s contention that he did not receive his personal copy of the former document were to be believed, I find it difficult to accept that the issue of such a fundamental/core document to the MOD Youth Worker community would have happened without his knowledge.  I also find it difficult to accept that, as a Youth Work professional, who by his own admission maintained an active interest in his professional development and received professional magazines, would also be unaware of the existence of the latter document.  I note that Mr Botham stated he was aware of a code of conduct for his profession, that he followed the code of conduct both during the MOD service and before, and that the contents of the MOD Code of Conduct and Professional Guidelines for Youth and Community Staff were, in the main, in accordance with the procedures he followed as a professional youth and community worker.  I would therefore conclude that Mr Botham was fully aware of the standards expected of a youth worker and on the balance of probabilities was also aware of the two core documents.”

A short summary
23.	A short summary is helpfully provided by Mr Mead and we gratefully adopt it, it not being challenged by the Respondent. The allegations made against the Claimant were generic not specific (para 3).  There was no record of the interviews, no statements and no notes of the interview with the girls A and B in respect of whom it was alleged the Claimant had behaved inappropriately (para 16).  The BFSWS Report of Ms McMinn and an accompanying letter of Mr Wolfe relied upon their professional opinion without placing before the Hearing Officer and direct evidence (para 24).  The recommendation of the Hearing Officer at paragraph 9 and 10 was not supported by the evidential base which the Hearing Officer had dismissed (para 25).  The Deciding Officer accepted the opinion of Mr Wolfe without any evidence of the investigation before him, despite having been put on notice of that fact by the Claimant’s solicitor (para 31).  The allegations against the Claimant were in the most general form and changed with the passage of time (para 33).  It was difficult for the Claimant to understand what the allegations were against him and to marshal his evidence in respect of those allegations (para 33).  There was no attempt on the part of the Respondent to deduce vital documentary evidence of primary issues of fact on which the opinions of Ms McMinn and Mr Wolfe were based (para 33, second paragraph).  The Decision of the Deciding Officer was not in accordance with the evidence and perverse (para 38).  The Hearing Officer had no reasonable grounds upon which to form the conclusion that the Claimant was a real risk to young people, on the basis of the evidence presented and not presented to the Tribunal and upon a failure of the Hearing Officer to adequately investigate any of the issues of primary fact (para 38).  The Deciding Officer did not have reasonable grounds to form a belief of the Claimant’s guilt (para 39).  Dismissal did not fall within the band of reasonable responses even if the dismissal had not been unfair for other reasons (para 40).

The case in detail
24.	As we have said, the Claimant had been employed by the Respondent since 1988.  He had a number of disputes with his supervision.  On 10 June 2002, he went off sick and never returned.  That was because of the reference made to the social workers, their investigation, and his suspension from duty which took place on 10 December 2002, some six days after Ms Myers of the Human Resources department was informed about the social work investigations.  Ms Myers asked for more information about the McMinn report and Mr Wolfe, the manager of the Joint Response Team, said this: 

“The profile is of an employee who must be seen as unreliable and unsafe.  Given the issues that have been raised in the report, it is my opinion that Mr Botham has not shown himself to act appropriately and that the behaviour in question does pose unacceptable levels of risk.  
Any person employed in work with children and young people who has systematically failed to observe correct professional boundaries is by the nature of those boundaries unsafe in a community.  The position of trust must be patrolled and controlled by adherence to the norms and written procedures which protect all involved. 
Should an employee not observe the above and not appear to understand the need for boundaries they are potentially in a risk taking position and therefore by implication and practise create an unsafe situation for vulnerable children and young people. It is my opinion that such a person does pose risks in a community both in BFG or any other community.”

25.	The Deciding Officer's decision was immediate dismissal of the Claimant.  He had an appeal to the Civil Service Appeal Board which, on 16 February 2004, confirmed the dismissal.  We have seen the notes of that hearing but no detailed submissions have been made to us.  We note it appears to be a legalistic tripartite forum, not unlike an Employment Tribunal in its constitution.  

26.	A major feature of the social worker's investigation was Ms O'Brien but the Tribunal did not consider that her account was sufficiently focused and, as we have indicated, was quite critical of it as simply being gossip.  The social workers, however, interviewed Girls A, B and C.  There are no notes or documents in relation to that.  Ms McMinn records what she thought the gist of the accounts was but she was unable, in oral evidence at the Employment Tribunal, to give any information about it.  The absence of any written account of the interviews with the girls features in this case quite prominently.  

27.	Recognising the impact of the McMinn report, an enquiry was directed by Ms Myers to Mr Wolfe.  She saw that, in the absence of any further material, the processing of charges against the Claimant might be affected.  The outcome was that, on advice from above, it was accepted that the Respondent would not go behind the statement by Mr Wolfe that the documents would not be vouchsafed.  The ostensible basis for this was that rules within the child protection investigation community preclude the disclosure of the identity of those concerned for the purposes of a disciplinary hearing: see paragraph 22 of the Tribunal's judgment.  So the material sent to the Hearing Officer did not include any of the primary investigation material and, in particular, notes of interviews with, or a statement by, Girl A or her guardian.

28.	That, too, concerned the solicitors instructed by the Claimant in preparing for the hearing before Mr Blackmore but when these criticisms were pointed out, and requests were made, no further material was forthcoming.  It was thus that Dr Maas was instructed.  Dr Maas then gave an account of what he had obtained by way of statement and interview and his account. It includes an account of the guardian of Girl A, indicates a history of untruthfulness by Girl A and at least one incident of shoplifting by Girl B.  The Claimant's case advanced in the written account of Dr Maas, was that Girl A's evidence was not to be accepted.  Nevertheless, this material, that is, notes of the interview of Girl A, was not before Mr Blackmore for the reasons which the Respondent had accepted, through its HR department (confidentiality), nor was any account of why Mr Blackmore rejected Dr Maas' approach.

29.	The reasoning of Mr Blackmore was held to be conservative.  Whereas this overall complaint against the Claimant had begun in very wide terms, see for example Ms O'Brien, it had been narrowed through the specific allegations in relation to Girls A and B.  Insofar as it was possible to divine those from the generic charges in the charge sheet, the Tribunal was right to regard Mr Blackmore's account as conservative.  For, given the admissions of the Claimant about inappropriate behaviour and his not following the code or, perhaps, his not adhering strictly to the code, Mr Blackmore's acceptance of falling below the standards in respect of the four bullet points was, plainly, correct.  We do not need to say that.  The Tribunal associated itself with those findings, perhaps looking ahead to the finding it would require to make as to contribution, and yet it came to the conclusion that there was a gulf between those findings and Mr Blackmore’s recommendation in paragraph 9.  Thus Mr Blackmore's hearing was flawed.

30.	That recommendation was then passed to the Deciding Officer.  It is common ground that his approach was much wider.  Given that there was material prejudicial to the Claimant going back to 1991 which had not been the subject of any charge against him or which, in the intervening years, had surfaced and had been dismissed, the Tribunal found that Major General Moore‑Bick was wrong to proceed on the wider basis that he did.  It was also a breach of the disciplinary code in the MOD manual since it went, as Mr Mead would put it, off-piste.

31.	Thus, the Tribunal found that while Mr Blackmore was to be credited with a genuine belief in the substance of the material which formed his recommendation, the belief was not formed on reasonable grounds such as to sustain the belief, for there had been no proper investigation.  The Tribunal relied upon the submission made to it, on the Claimant's behalf, that this case was controlled by the judgment in A v B or, at least, was very similar, as to which an issue arose about the non provision of the evidence of the two girls.  The Tribunal found this: 

“36. The similarities between the complainant Miss B and Girl A in the present case, are also remarkable particularly bearing in mind the evidence of Ms McMinn and Ms Tanner, both contended that they believed Girl A and the evidence of Mr Wolfe who expressed his views which inevitably must turn upon the veracity of Girl A without interviewing her and having only spoken to Ms McMinn, seen her report and apparently looked at the file, though not necessarily at the report of the interview with Girl A. 
Ms McMinn sought to reinforce her acceptance of Girl A’s evidence by reference to the failure of Mr Botham to deal with the questions at two interviews.  One of Mr Botham’s problems was that the girls concerned had never been identified and again, we see this problem in A v B.  If anything, the position in Mr Botham’s case, as the matter proceeded is more severe than that in A v B because in A v B a précis of the statements was produced but in this case, statements and/or notes have never been produced at all.  The Tribunal cannot know whether there was anything in the missing documents which would have assisted Mr Botham’s case and it is in this regard, that perhaps the Tribunal has its most difficult decision to make, no explanation has been offered as to why the relevant pages are missing from the Social Work File.  It is acceptable to believe that it is a coincidence that the very papers which had been this subject of the Tribunal’s questioning are the only papers missing when the file is rediscovered?  The Tribunal must take the view that it is unrealistic to presume that this is an innocent coincidence and that, in the very peculiar circumstances of this case, the Tribunal must take the view that the pages have been deliberately removed and the only deduction they can make from that, is that in some way they did not assist the Respondent’s case.  This is clearly no criticism of the Treasury Solicitor, who is patently not at fault but it is not possible, upon the evidence available, to allocate blame.  Even if the Tribunal is wrong in this regard, then the very absence of those documents, could well have deprived Mr Botham of some material which might have assisted him had it been made available.” 

32.	The Tribunal thus found that, as a matter of substance, the decision by the Deciding Officer was outside the band of responses of a reasonable employer in the circumstances facing this one.  As to wrongful dismissal, it seemed to follow from that finding, in the Tribunal's mind, that in the absence of arguments put to it as to breach of contract, there was a breach of contract in the failure to provide him with notice.

EAT procedure
33.	It is necessary at this stage to make some observations about EAT procedure since many of the steps in the Practice Direction and the order of Elias P have not been observed in this appeal.  When an appeal is heard at a preliminary hearing, the papers are not stored by the EAT.  A new bundle has to be produced; there is no memory.  The practical limit on 100 pages is affected by those documents which are prescribed in the Practice Direction, such as judgments and orders of the Employment Tribunal, which are relevant.  A chronology must be produced by the Appellant and agreed, if possible.  There should be a single bundle of authorities.  The preliminary hearing in this case was conducted by the President and Members; there is no judgment.  The practice is that when an appeal is dismissed, or grounds of an appeal are dismissed, reasons are given.  Sometimes, in the debate between representatives or litigants in person and the Bench, grounds of appeal fall away or are withdrawn and it is not necessary to give a judgment.

34.	We are grateful to Mr van der Wal, solicitor instructing Ms Wheeler on behalf of the Treasury Solicitor, for his note of what the President said and we will do the best we can to reconstruct what happened by reference, first, to this: 

“Judgment:  There was essentially three grounds of appeal which related to:  (1) The failure to recognise the independence of SSAF; (2) The decision to dismiss; and (3) J M-B’s approach.  Accordingly, Grounds 1, 10, 15 and 19 would be allowed to proceed.
I appreciate that this may be hard.
Plain that documents were important and it was extraordinary that they were not produced, but they had no bearing on the decision itself and no blame was allocated by the ET.
There was no problem with the ET saying that PB should have considered something if he was going to dismiss.
Also, there was nothing in the Review as the ET were right that they could only look at reviewing their judgment and not a finding.
So far as contribution was concerned, it was a classic question of fact for an ET, I do not think they erred by referring to the Code.  Whilst others may have found higher, 55% was not perverse, and it would not have made much difference anyway due to the statutory cap.
Accept that there is legitimate concern about the [remedy] documents and it would have been desirable for there to have been more.  It was a difficult task but the ET had independent evidence of self-employment which could have been concealed if [the Claimant] wished to do so.  Underlying documents would not have demonstrated anything more clearly.  The ET could have mentioned credibility, but it was implicit in their decision that they did not think the evidence given was false.  Plus, the only other realistic option was to adjourn for further documents but they had experience of the earlier hearing when [they] assessed credibility.
CAT A – Day-and-a-half.”

35.	We understand from Ms Wheeler that the President opened with a provisional view of the Tribunal as to what grounds would stand a real prospect of success and justify a full hearing.  Ms Wheeler withdrew, took instructions, regrouped and did not advance a very substantial number of arguments.  They were dismissed, according to the order.  

36.	What concerns us today are grounds 4 to 7 which are under the headline of “The Decision in A v B”.  This is because the Tribunal relied upon A v B as an important part of its judgment.  It was invited to do so by the Claimant.  It was acknowledged by the Respondent to be an important authority but which was distinguishable.  The impact of it on the facts of this case is as to the loss of the statements or notes of evidence given in interview by Girls A and B.

37.	Grounds 4 to 7 plainly advance the argument that the Tribunal had no basis upon which to make a finding of wrongdoing against the Respondent (Reasons paragraph 36), that the Tribunal acted contrary to the rules of natural justice in deciding such a serious matter without giving the Respondent an opportunity to adduce further evidence and that the full explanation for the failure to adduce the documents was based upon the separation of powers between the social workers and the Respondent.

38.	Ms Wheeler was given to understand from an indication by the President that these grounds need not be pursued.  The EAT regarded the loss of these documents from the file as extraordinary but reached the conclusion that they had no bearing on the Judgment itself and no blame was allocated.  The Tribunal actually says no blame is to be allocated but it is clear to us that the Tribunal is pointing the finger of responsibility at somebody in the Respondent's team, expressly not the Treasury Solicitor.

39.	Ms Wheeler contends that it is unfair for argument to be addressed in relation to A v B when the President has ruled that these grounds are not necessary.  We are most anxious to have understood the President's reasoning since he was the author of the judgment in A v B and, if he took the view that it had no relevance to the decision in the Employment Tribunal, that is valuable material to us.

40.	From the Claimant's perspective, he saw that a ground which he had advanced in the Employment Tribunal and upon which, it has to be said, he succeeded, prevailed in the EAT, too, by reference to the dismissal of grounds under paragraphs 4 to 7 of the Notice of Appeal.  So Mr Mead, too, looks at today's proceedings as unfair if we were to allow an attack on the Tribunal's judgment for following A v B.  

41.	We understand that the additional evidence sought to be adduced was put before the Employment Tribunal for the review but was not considered by it.  We also understand that the material has been given to the Claimant but has not been given to the court for, as Ms Wheeler says, in the light of the indication she was given, there was no need.

42.	What remains, therefore, of this is that if A v B does not determine the outcome, what did the President mean by, "It had no bearing"?  In our judgment, the answer is found in the passage at the end of paragraph 36.  This is a finding, free of authority and A v B and based on a simple rule of natural justice.  If there was documentation and if it related to at least Girl A and Girl B, it might have assisted him; it was not available and that is why we consider the Employment Appeal Tribunal which heard the PH indicated that the additional evidence was not necessary.  We can fully understand why grounds of appeal were targeted upon the pejorative finding.  We use that term since it is a finding, and since the President has so held that someone deliberately removed the relevant papers because they did not assist the Respondent's case.

43.	The upshot is that we will not decide this case on the basis of the finding that there was deliberate removal of the papers.  We will take the view, which we hold to be the view of the President, that if the Tribunal is wrong about deliberately removing documents, the simple proposition advanced in the last sentence of paragraph 36 is sufficient for the ground held by the Tribunal to be sustained.

44.	If we are wrong in our approach, then this matter will have to be considered further so that, in practical terms, that means the application to adduce evidence will need to be made and heard and reconsideration should be given to whether or not grounds 4 to 7 should be advanced at a full hearing.  As we have said, we have been able to decide this case without reference to that particular issue and it must be said that Mr Mead advanced his arguments to us without reference to A v B.

The legal principles
45.	The legal principles to be applied in this case appear to us to emerge from the following authorities.  Misconduct justifying dismissal is a question of fact; see Neary v Dean of Westminster [1999] IRLR 288.  Reasonableness under s98(4) is also a question of fact; see Gilham v Kent County Council (No 2) [1985] IRLR 18 at paragraph 22, per Griffiths LJ.

46.	It is accepted by Ms Wheeler that our statement of the law in Centrewest Buses Ltd v Alas, UKEAT/0502/07 paragraphs 15 to 21 is correct.  

“15.  …In determining whether the dismissal for misconduct was fair under section 98(4) the tribunal was obliged to follow the approach in British Home Stores v Burchell namely did the employer genuinely believe on reasonable grounds after as much investigation as was reasonable that the employee had committed the act of misconduct alleged? It was not the function of the tribunal to substitute its view for that of the employer but to carry out a reviewing function. It was only open to the tribunal to interfere with the decision reached by the employer if it fell outside the range of reasonable responses to these circumstances. The range of reasonable responses test applies to all aspects of the dismissal process: see HSBC v Madden [2000] 1CR 1283, Sainsbury v Hitt [2003] ICR 111.

16. Madden is instructive as to the approach of an Employment Tribunal when considering the allegation of unfair dismissal and reviewing the material which was available to an employer.  See the judgment of Mummery LJ at page 1295A.

17. In considering fairness, the material available at the time of dismissal and at the time of the appeal is relevant.  It is fairness in the whole process which is to be subjected to the test in Section 98(4).  See Taylor v OCS [2006] IRLR 613 CA.  

18. The essential task is to consider the evidence before the manager dismissing and the manager conducting the appeal.  The test is whether or not, on that material, a reasonable employer could have dismissed the Claimant.  If such a putative, reasonable employer could, then the dismissal will be fair.  If the dismissal was outside the band of reasonable responses it will be unfair.  

19. A Tribunal should be very careful not to substitute its own judgment for that of the employer and must also state its conclusions against that standard.  In many cases a reasonable employer will do the same thing as a reasonable Employment Tribunal but there is a distinction; it is an important distinction and must be borne in mind at all times.  

20. Where an allegation of perversity is made, the test to be applied is one of overwhelming strength in asserting that the Tribunal either had no evidence or acted in a way which no Tribunal could act upon the material available.  See Yeboah v Crofton [2002] IRLR 634 CA. 

21. When a Tribunal judgment is set aside, consideration should be given to its remission to an Employment Tribunal, according to the principles set out in Sinclair Roche & Temperley v Heard [2004] IRLR 763 EAT Burton P.  

47.	She further accepts that our statement of the law in London Ambulance Service NHS Trust v Small UKEAT/0395/07 at paragraph 29 is correct.  
“29. In Polentarutti v Autocraft [1991] IRLR 457, the EAT held that “The statute requires a finding that the dismissal was to any extent caused or contributed to by any action of the complainant.”  That is a reference to a claim by an employer that there was contribution.  As Knox J pointed out at para 31, following Morison v Amalgamated Transport & General Workers’ Union [1989] IRLR 361 NICA, “the … concepts … are distinct and each requires a separate consideration and decision”. Similarly, where a claim for breach of contract is made and gross misconduct is alleged, a finding must be made as to whether in fact gross misconduct occurred.  In misconduct dismissals, where contribution is alleged, or where there is a parallel claim for breach of contract, the Tribunal has to make findings as to what occurred, as well as deciding, on the material which was, or should reasonably have been, available to the employer, whether the employer responded reasonably. When there is a criticism of the investigation, the Employment Tribunal must make a finding on what material would have emerged had a reasonable investigation been carried out.  By definition, this would not have been in front of the employer when the decision was made and usually arises at the Employment Tribunal hearing.” 

The principles have been fully explained in both Iceland Frozen Foods and HSBC/Foley (above) and need no further explanation.  The references are paragraphs 52, 53, 79 and 80, per Mummery LJ and paragraphs 83 to 87 per Rix LJ in Foley. 

48.	The question of precise formulation of charges in a disciplinary context, particularly where they touch upon dishonesty or criminality, was set out by the Court of Appeal in Strouthos v London Underground Ltd [2004] IRLR 636 where Pill LJ said this: 

“38. This is not a case, especially as the matter has been raised only during the hearing in this court, in which to attempt to state general principles as to when a disciplinary charge of this kind may be departed from when disciplinary action is taken.  However, it does appear to me to be basic to legal procedures, whether criminal or disciplinary, that a defendant or employee should be found guilty, if he is found guilty at all, only of a charge which is put to him.  What has been considered in the cases is the general approach required in proceedings such as these.  It is to be emphasised that it is wished to keep proceedings as informal as possible, but that does not, in my judgment, destroy the basic proposition that a defendant should only be found guilty of the offence with which he has been charged.”  

49.	Finally, in relation to documentation, the judgement in A v B, to which we have referred, provides useful guidance.

Submissions, discussion and conclusion 
50.	We will take each of the four surviving grounds of appeal together with the Claimant's response and give our conclusions in sequence.  

Ground 1 - reasonableness of the investigation
51.	It is important to look, as a matter of textual analysis first, and then substance second, at the way each of these grounds is framed because a textual analysis in our judgment will, in many cases, provide the answer.  The first ground contends that the Employment Tribunal failed to take any, or any sufficient, account of the social work investigation conducted by SSAFA, a fully independent charitable organisation.  As a matter of language, failing to pay sufficient attention to some fact is not a matter which grounds a question of law.

52.	We will assume, initially, that this is a challenge on perversity grounds.  It cannot be right to say that the Tribunal failed to take any account of the fact, given that paragraph 1 of the judgment indicates, in a number of places, the relationship between the social workers and the Respondent and its various organs, such as the HR department.

53.	It has not been explained to us what the relationship with SSAFA is.  Let us proceed on the basis that the social workers have professional duties to the users of their service and for whom they provide a service to the Respondent.  In their professional responsibilities, they are, like any other professional, bound by their own codes and protocols.  The issue here is whether or not the Respondent has control over the body which we have described as the Joint Response Team.  In our judgment, it plainly did; that is clear from the role played by Mr Wolfe.  He had custody of the social work file.  He was a witness, we assume not compelled, of the Respondent.  During the course of the hearing he gave evidence and then came back with the file some days later and produced it.  He was embarrassed, as a witness for the Respondent, that he could not show the Tribunal the statements or any material relating to Girl A and Girl B.  The fact that he was a witness, not compelled, indicates a degree of control; he had no compunction about producing the social work file to the Employment Tribunal.

54.	It must also be considered, as a matter of substance what the reason is for the reticence of the social workers.  As we have cited, it is based upon the obligation of confidentiality of identity but, in this area of endeavour, as in others, complaints are made against professionals without the necessity to disclose to the outside world the name of any complainant.  It is not necessary for us to consider the fairness or otherwise of a procedure which anonymises complainants, but it could easily be done in this case.  We reject the contention that the Tribunal erred in failing to pay attention to the separation between the social workers and the Respondent.  That disposes of the first two parts of ground one.

55.	The third part is a criticism of the placing of weight on certain material, that is, the Tribunal took no account of the fact that the Respondent had placed weight on the opinion of Mr Wolfe.  The placing of weight on evidence is a matter for the Employment Tribunal; see Eclipse Blinds v Wright [1992] IRLR 133.  In any event, the Tribunal did pay attention to the weight given by Mr Blackmore to the opinion of Mr Wolfe but, far more important, is the criticism by the Employment Tribunal of that approach to the evidence of Mr Wolfe by the GOC. It was he who, without telling the Claimant, reposed such trust in Mr Wolfe, having known him personally for 14 years.  It is hardly likely, in those circumstances, that he was going to treat that matter independently.  The Tribunal has given full reasons for criticising the GOC for his reliance upon Mr Wolfe; it had material upon which to form that view.  It was, in our opinion, correct to do so.

56.	As to the Tribunal not understanding whether it was criticising the social workers or the Respondent, the substance of the fourth part of ground 1; this is misconceived.  The Employment Tribunal is at pains to dissect the tiers of decision‑making and to place responsibility for the unfairness of the dismissal in the hands of the senior officer who made the Decision.  As Ms Wheeler said, "He's not a man who takes orders from anyone”.  The Tribunal recognised that he was the decision‑maker in this case and it was his flawed decision which constituted the unfairness of the dismissal.

Ground 2 - findings in relation to the Hearing Officer
57.	The Tribunal is criticised for incorrectly summarising the evidence of Mr Blackmore.  We have been taken in detail to the written submissions, for there is no agreed note of evidence relating to what Mr Blackmore said for the first time in his oral evidence, about his view on whether the Claimant was grooming young people for sex.  There is a short answer to this: Mr Blackmore's opinion was based upon a perception of risk which had come about as a result of what he had heard of the physical contacts.  It is, as Mr Mead correctly says, a linguistic not a legal, issue as to whether Mr Blackmore said that he believed the Claimant was or could be grooming children for sex.  The point is that he had a fear that that was likely to occur, or that there was a risk of it, and the Tribunal correctly summarised his evidence.

Ground 3 – substitution of view 
58.	This relates to the approach of the Dismissing Officer.  The source of the complaint is the contention that the Tribunal undertook a re-creation of the material before the Deciding Officer.  It is correctly submitted by Ms Wheeler that a Tribunal's job is to review and not to rehear the material before the Deciding Officer.  But, in this case, the Deciding Officer went far beyond the terms of the charge as refined by the Hearing Officer. That is a breach of natural justice as much as it is of the MOD manual.  So while Mr Blackmore had been conservative in narrowing down the issues as to which he could be sure that the recommendation he made was correct, the GOC did not.  He did not see any of the original materials, he relied on his close relationship with Mr Wolfe and the McMinn report, without seeing any of the other material, particularly that shedding doubt upon Girl A's veracity.  This is a criticism which is at the centre of the dismissal process and is the basis upon which the fourth ground arises, as to which we say the following:

Ground 4 - the decision to dismiss
59.	Again, we can take a textuall approach to some of these components.  That the Employment Tribunal failed to consider the context and nature of the Claimant's employment and the application of the Code is misconceived.  A Tribunal is under no duty to rehearse its findings of fact in its conclusions.  We pointed to paragraph 1 of these reasons, which sets out a complete answer to the first part of this ground of appeal.  The context of the Claimant's employment, the nature of it and the requirement to observe relevant codes are all set out clearly.

60.	As to the general view of the Claimant's credibility, the Tribunal had that in mind, too.  It was a matter which was available to the Deciding Officer and the Tribunal considered this matter as a ground upon which the Respondent relied.  We have heard no separate submissions in relation to any professional advice given to the Claimant.  This ground of appeal is dismissed.

Disposal
61.	It follows then that, there being no separate ground of appeal now in play against the finding of wrongful dismissal, the Judgment must be upheld.  If we are wrong in our approach to the above and it is necessary for the Tribunal to reconsider its judgment in the light of a direction on the law relating to misconduct dismissals this would, having heard argument from both Counsel, be a case which could be remitted to the same Employment Tribunal.  This case is now six years on from the relevant events.  There would be great inconvenience to the Claimant in having to prove and argue matters again.  All of the factors in Sinclair Roche and Temperley [2004] IRLR 763 EAT are in play here supporting, if this were our view, a remission to the same Employment Tribunal rather than to a different one.

62.	We would very much like to thank both Counsel and both instructing solicitors for the great help they have given to us in this hearing.  We hope that now, Mr Botham, after so many years of fighting, can be satisfied with the result and we hope that the Ministry of Defence will now take a proportionate view of this matter, being less to blame for his dismissal than the Claimant.  The appeal is dismissed.