Appeal No. UKEAT/0042/07/MT

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 2 May 2008

Before
THE HONOURABLE LADY SMITH
MR J M KEENAN MCIPD
DR W SPEIRS

THE CITY OF EDINBURGH COUNCIL	  APPELLANT

MR C WOOD	 RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	Mr D Fairley
(Advocate)
Instructed by:
City of Edinburgh Council  Corporate Services Legal Division
City Chambers
High Street
Edinburgh
EH1 1YJ	
For the Respondent	Mr G Millar
(Solicitor)
Messrs Harper Macleod Solicitors
The Ca'd'oro Building
45 Gordon Street
Glasgow
G1 3PE

SUMMARY

UNFAIR DISMISSAL:  Constructive dismissal

Tribunal found two “stand alone” material breaches, one in respect of penalty imposed for misconduct and one in respect of respondents’ response to claimant’s grievance.  On appeal, EAT satisfied that Tribunal had erred in both respects and reached a perverse decision. The former had been influenced by irrelevant factors and was the result of the Tribunal substituting its own view for that of the reasonable employer; as regards the latter, the Tribunal had failed to allow for a range of reasonable responses being open to the respondents. 

THE HONOURABLE LADY SMITH

INTRODUCTION 
1.	This is an appeal against a judgment of the Employment Tribunal sitting at Edinburgh, Chairman Mr A Worthington, registered on 19 June 2007, finding in favour of the claimant in a claim of constructive dismissal.  We will continue to refer to parties as claimant and respondents.

2.	The claimant was employed by the respondents as a crisis care worker, initially on a series of temporary contracts but as of 11 September 2000, on a permanent contract. He resigned on 12 April 2006.  

BACKGROUND 
The Claimant’s Grievance 
3.	The claimant worked as part of a team of crisis care workers. There was disquiet amongst them about a number of matters, including the person responsible for the management of crisis care, Mrs Bell. There were, essentially, two “factions” within the team.  UNISON wrote to the interim director of the respondents’ department of social work, Mr MacAulay, on 1 December 2004 in respect of the fact that a number of the members of that team considered that the department was failing in the duty of care that it owed its staff. It referred to there having been a promise of an investigation but none having taken place. The claimant went off sick on that date and remained off sick until July 2005.

4.	Whilst off , the claimant wrote to Mr MacAulay by letter dated 3 March 2005 and copied to him a letter he had written to UNISON containing a statement of grievance. His grievance was expressed in general terms.  It was directed against what he referred to as “The Management of Crisis Care”. There were ten points listed which can be summarised as being  the failure to take reasonable steps to ensure his health and safety and the general well being of service users,  failure to keep and provide access to suitable policies and procedures, bullying, victimisation and intimidation of staff and service users, failure to obtain, record and relay accurate information,  failure to provide clear, truthful and unambiguous guidance, support and training, denial of his right to redress and bullying him into accepting their will, over scrutiny of his work, disregard of his health, abuse of the medium of supervision and the making of fraudulent claims and falsification of records for financial or personal gain. His letter to Mr MacAulay included the following summary:
“Having been subject to SEVEN YEARS of personal abuse , witnessed Colleagues and vulnerable Service Users neglected , their Rights violated, abused and choice denied I felt unable to continue to remain passive to the unprofessional , unsafe and degrading Management Style and potentially life threatening situations into which I was being placed on a daily basis.”

5.	No specification of the facts and circumstances to which these generalities related was given in either the letter to UNISON or the letter to Mr MacAulay.

6.	Mr MacAulay replied by letter of 11 March 2005 which included the following:
“I understand that UNISON has invoked the Fair Treatment at Work Policy on your behalf and an assessment of the complaints you and other colleagues have raised will commence within the next week.” 

7.	The respondents’ Gillian Crosby was then appointed to carry out an investigation under the Fair Treatment at Work Policy (“FTW”) into allegations made by the claimant.  By letter dated 29 March 2005, she invited him to a meeting to discuss his concerns.  The claimant responded by email dated 1 April 2005 in which he expressed concern that it was the FTW procedure that was being followed and expressed the view that a meeting with her would serve no purpose other than “damage limitation”.  In response, Gillian Crosby urged the claimant to meet with her and on 7 April 2005, the claimant emailed her indicating his willingness to do so. In that email he stated that he had at no time agreed to his grievance being taken forward “under JUST” the FTW.  He asked what documentation he required to bring to the meeting. Katrina Stuart replied for the respondents in an email dated 11 April 2005 which included the following:
“Firstly, the Department decided that your complaint would be best dealt with under stage 2 of the Fair Treatment at Work Policy – therefore we are currently following this procedure. Gillian is currently carrying out an assessment of the complaint – which has various conclusions (including no action required, management intervention needed or a Disciplinary Investigation). This does not preclude you for (sic) using another Council Policy in the future, if you are unhappy with the outcome of this stage. The outcome will depend on the information and evidence provide (sic) by those involved in this process.” 

8.	The claimant did not consider the respondents’ proposal to approach his grievance in this manner to be appropriate. In an email dated 12 April, he referred to the need to have his complaint addressed “in a manner befitting its seriousness”. Later that day he advised the respondents, by email, that he had an appointment with his solicitor and would not be attending the meeting with Gillian Crosby.  She responded:
“Charley
I am sorry you feel you cannot meet with me. If you change your mind I am happy to make a new time.” 

9.	The claimant did not change his mind about meeting with Gillian Crosby.  It remained his view that his grievance should not be dealt with under the FTW alone.

10.	At no time did the respondents indicate to the claimant that it was their intention to deal with his grievance under the FTW alone.

The Mrs Bell Investigation / Disciplinary Process
11.	By letter to the claimant dated 30 May 2005, Mr MacAulay explained that he had previously thought that UNISON was acting for the claimant but appreciated that was not the case. He explained that the outcome of the FTW assessment was to instruct a disciplinary investigation into allegations made against the manager, Mrs Bell.  The letter included the following:
“Whilst such an investigation is ongoing, I will require to freeze your grievance and ask you to fully engage with the investigating officer who will require to interview you.” 

12.	On 22 June 2005, 11, 13 and 20 July, all 2005, the claimant met with Bill Guthrie and Margaret McDonald, who had been appointed as investigating officers in respect of allegations made against Mrs Bell.  Each of these meetings lasted two hours.  At the outset, they advised the claimant that they acknowledged receipt of his letter to Mr MacAulay dated 3 March 2005 and the copy letter to UNISON attached to it.  In the course of these meetings, they went through each of the ten allegations one by one.  The allegations did not specifically mention Mrs Bell although it is evident that criticisms of her management lay at the heart of them.  They invited him to provide details, examples and evidence to support each allegation.  They began in respect of each allegation without making reference to Mrs Bell.  Although their enquiries were made in the context of investigating allegations against Mrs Bell, their questions were often open and general, such as:
“Can you give us some examples of this ?” (22nd June, in relation to a general allegation of failure to ensure health and safety without specific reference to Mrs Bell)

followed by :  
“Can you give us another example?” 
“Are there any other examples where you feel management did not safeguard your Health and Safety?” (22nd June ) 

 “Do you feel there has ever been an occasion when management have deliberately ignored your Health and Safety and put you at risk?”  (22nd June)

“Were Policy and Procedure Manuals available for staff?” (11th July )

13.	The record of these meetings shows that the allegations set out in his written grievance were often at odds with the nature of his complaint.  For instance, when, regarding his allegation that management had failed to take reasonable steps to ensure his health and safety he said, by way of elaboration, that there was no incident reporting in relation to his safety vis-à-vis dangerous clients, he was asked for examples.  The first he gave concerned difficulties he and a colleague had when an elderly client refused to go into hospital until suitable arrangements were made for his pet cat and they had difficulties in tracing the cat help service.  The second example concerned his having had to visit terminally ill clients alone.  The record contains numerous other examples of there having been a mismatch between the allegation set out in the grievance letter and the facts relied on by the claimant to support it.

14.	Mrs Bell was suspended on 6 April 2005, temporarily redeployed to the Western General Hospital, Edinburgh i.e. out of crisis care, on 18 May 2005 and that redeployment was made permanent by way of sanction with effect from February 2006, as a result of the disciplinary procedure.  The disciplinary process in respect of Mrs Bell continued, however, and had not been concluded as at 7 August 2006.

Complaint / Disciplinary Process in respect of the Claimant 
15.	 In July 2005, the claimant returned to work. 

16.	On the evening of 23 August 2005, the claimant telephoned Jill Biggerstaff, Domiciliary Care Manager.  He wanted to get access to his supervision notes.  She called the Assistant Crisis Care Manager, Duncan Finlayson, called the claimant back and on the basis of what she was advised by Duncan Finlayson, said to contact him the following day. In response, the claimant said:
“Yes get that little fuck to call me in the morning, I asked Sylvia to get them to me two weeks ago.” 

17.	In reference to Duncan Finalyson, who was in a position of seniority as regards the claimant, he also said:
“ ….get that little tow (sic) rag to call me in the morning….” 

18.	Jill Biggerstaff, at a disciplinary investigation interview on 2 December 2005, was asked various questions about the incident including a “closed” question (wrongly described by the Tribunal as being a “leading question”):
“Did you feel concerned?’
to which she replied:
“His tone was aggressive. I was concerned about safety, he had fob access to Shrubhill, but I was more worried for Duncan, on the phone he was very aggressive towards Duncan.” 

19.	Jill Biggerstaff had made a note about the incident when it occurred.  She had not recorded anything about the claimant’s aggressive tone or being concerned about safety in that note.   An hour after the first call on 23 August, the claimant telephoned her again and asked for Duncan Finlayson’s address and telephone number, which she refused to give him.  Duncan Finlayson was informed about the incident and responded by consulting the police at Portobello Police Station to seek advice. 

20.	The claimant, when interviewed about the matter, acknowledged that he had been angry but explained he could not remember speaking in the manner alleged as he had consumed a bottle of wine.  He did acknowledge that it was the type of language he used. 

21.	The claimant was suspended on 2 September 2005.  A disciplinary hearing regarding the matter took place on 8 March 2006.  The outcome was that the claimant was found to have been guilty of:
“grossly indecent , abusive or threatening behaviour towards any person whilst engaged , or purporting to be engaged on Council business.” 
22.	The respondents’ Mr King advised the claimant of the outcome of the hearing by letter dated 10 March 2006.  It was that with effect from 8 March 2006, the claimant should be transferred to the post of social care worker within Residential Care on the same salary, contractual hours and main terms and conditions of employment as already existed.  The job to which he was being transferred did not, however, involve the same availability of overtime hours as Crisis Care nor did it include a vehicle allowance. 

The Claimant’s Resignation 
23.	The claimant began working in his new role, at Clermiston House, on 30 March 2006. He worked there for two days following which he went off sick and by letter dated 12 April 2006, he wrote to the Director of Health and Social Care intimating that he felt he had been left with no alternative but to resign.  His letter of resignation was in the following terms:
“Regretfully, having been left with no alternative, I must with immediate effect tender my resignation and resign my post as Crisis Care Worker/ Social Care Worker.
Attending two shifts (having been redeployed to a Residential Unit) was the last straw in a string of unacceptable acts of behaviours by the Council.
During these shifts I was not given adequate information or support to safely undertake these duties nor was provided adequate or appropriate facilities to attend to my diabetic needs.
With the foregoing in mind I believe that due to the Council’s breach in the implied terms of trust and confidence in my Contract of Employment I am unable to continue any longer in their employ.” 

THE TRIBUNAL’S JUDGMENT 
24.	The Tribunal found that the claimant had been constructively and unfairly dismissed and awarded compensation. 

25.	The Tribunal found that there was no basis for the claimant’s claims of inadequate support in relation to his duties or diabetic needs during the two days that he worked at Clermiston House. At paragraph 100 of their judgment, they state:
“We do not consider that the claimant was left unsupported over the two days in question or that somehow , he was not given adequate facilities to attend to his diabetic needs ……….Accordingly, on the face of it , there is no proper final straw with the result that according to Omilaju , it is unnecessary to examine any earlier conduct of the respondents such as their position in relation to the claimant’s grievances and the claimant’s transfer to the Clermiston Residential Home.” 

26.	The Tribunal did, however, go on and examine the latter two matters but in a different way.  Rather than approaching them as elements in a “last straw” constructive dismissal case, they looked at each separately and considered whether they amounted to “stand alone” material breaches of contract by the respondents which entitled the claimant to resign.  Parties were agreed that that was the only way of understanding what they had done.  It does seem that that is how they approached their determination of the case notwithstanding what they say at paragraph 106:
“Upon that basis, it appears to us that the claimant has established a ‘last straw’ if, in fact, it can be so termed.” 

27.	The “basis” to which they refer comprises the matters referred to above: the sanction of transfer and the claimant’s grievance.

Transfer to Clermiston Residential Home 
28.	At paragraph 124, the Tribunal find that the penalty of transfer that was imposed fell outwith the band of reasonable responses that was open to a reasonable employer. The line of reasoning that led them so to conclude appears to have been as follows. Firstly, that it took over six months to reach a conclusion on the matter and:
“We were given no information about the reason why the disciplinary process took as long as it did, nor does any explanation occur to us. The issues were not that complex, and “justice delayed is justice denied”.” (paragraph 110)

29.	Secondly, that under the respondents’ disciplinary code, gross misconduct would normally attract the sanction of summary dismissal and other types of misconduct normally result in disciplinary action short of dismissal (paragraphs 113 -114).

30.	Thirdly, that the Tribunal did not consider that any reasonable employer:
“was entitled to conclude that the claimant’s use of the words ‘little fuck’ and ‘toe rag’ which he used in the course of his telephone conversation with Jill Biggerstaff ……..could be said to be ‘Grossly abusive’ or amount to ‘Grossly threatening behaviour’.  (paragraph 115)

31.	The Tribunal go on and note that Jill Biggerstaff’s concern about the claimant’s threatening behaviour was something that she only expressed when she was interviewed about the matter. She had not recorded it in her own note. They state:
“The point we make is that Ms Biggerstaff was asked what was essentially a leading question and, as we say , no issue was made about safety concerns for Duncan in the course of contemporaneous note which immediately followed the claimant’s telephone to her.” (paragraph 115)

32.	They make no comment regarding Duncan Finlayson’s own reaction of going to the police to seek advice. 

33.	Fourthly, the Tribunal finds the view that the conduct was gross misconduct to be plainly wrong because of the claimant’s previous good record and the fact that he had drunk a bottle of wine at the time. At paragraph 116 they state:
“Either way, there was no evidence before us that the claimant had ever behaved in this fashion before and, bearing in mind that the claimant had apparently drunk a bottle of wine when he made the telephone call to Jill Biggerstaff, it is apparent to us that Mr King’s view that the phone call or more particularly the content of it, amounted to gross misconduct, is plainly wrong and a decision which no reasonable employer could ever properly have reached.” 

34.	The Tribunal express the view that the matter should have been dealt with as one of the types of misconduct set out in the respondents’ disciplinary code which would not normally lead to dismissal.

35.	Fifthly, they state that they consider that the categorisation of the claimant’s misconduct as gross misconduct “ratcheted up the type of sanction to be imposed” (paragraph 119).

36.	Sixthly, they refer to the allegations that had been made against Mrs Bell and noted that they included:
“the serious allegation of fraud.” (paragraph 121)

37.	They then refer to it not being clear from the papers exactly what allegations were found established against Mrs Bell but add:
“ …it is of interest to note that she , like the present claimant , was not dismissed but transferred away from the Crisis Care Unit. On such information as we have, we do not consider that the claimant’s fault is anything like so great as that of Mrs Bell, and certainly not sufficient to entitle a reasonable employer to transfer the claimant to another unit of employment.” (paragraph 121)

The Claimant’s Grievances:
38.	The Tribunal found, separately, that the respondents had failed to address the claimant’s grievances and that that amounted to a breach of the duty of trust and confidence entitling the claimant to resign and claim constructive dismissal. At paragraph 133, they state:
“On the basis of the present facts and circumstances, we are in no doubt that the respondents have consistently failed, over the period from February 2005 to the claimant’s resignation in April 2006, to afford him the opportunity of properly airing all his grievances and that despite the claimant’s persistent raising of the issue. Indeed, we say that it is possible to go so far as to assert that Mr MacAuley, when he spoke about the claimant’s grievances being ‘frozen’ had made a promise that they would be opened up and dealt with in due course- they never were.” 

39.	The Tribunal recognised that, in the course of their investigations into Mrs Bell, Margaret McDonald and Bill Guthrie held four lengthy interviews with the claimant but their view was, put shortly, that since that was in the context of the Bell investigation, that was not good enough.  They do not appear to have given any consideration to the evidence which they seem to have accepted that the Bell disciplinary process was still ongoing as at 7 August 2006, after the claimant’s resignation.

THE APPEAL 
40.	Mr Fairley presented the appeal for the respondents in a clear and cogent submission.  Noting that the Tribunal had found that there had been two “stand alone” material breaches by the respondent, each entitling the claimant to resign, he submitted that the Tribunal had erred in law in respect of both. 

41.	Regarding the sanction of disciplinary transfer, Mr Fairley submitted that it was plain that the Tribunal had not applied the “range of reasonable responses’ test”, as they were obliged to do (BBC v Beckett [1983] IRLR 43; Gair v Bevan Harris Ltd [1983] IRLR 368; British Home Stores v Burchell [1980] ICR 303; Iceland Frozen Foods v Jones [1983] ICR 17;  Linfood Cash and Carry v Thomson & Ors [1989] ICR 518; Morgan v Electrolux Ltd [1991] ICR 369; Foley v Post Office [2000] ICR 699; Whitbread Plc v Hall [2000] ICR 1283).  When the Tribunal’s reasoning was examined, it was evident that they had substituted their own view as to the severity of the claimant’s admitted misconduct and failed to allow for different employers viewing and reacting to it differently.  Mr King, who determined the appropriate sanction, was particularly well placed to understand what was required regarding issues relating to the workings of the respondents and their members of staff and, in particular in the context of a member of staff using these abusive expressions about a senior manager. Here was a junior employee exhibiting aggression and animus towards a manager who he worked with on a daily basis, so much so that an independent third party, Ms Biggerstaff, was concerned about safety.  All that Mr King had done was to decide to move the claimant into a different environment, away from that manager.  The Tribunal had become embroiled in consideration of whether the misconduct was gross or not and thus unduly concerned about form rather than substance.  The Tribunal’s conclusion that no reasonable employer could have decided as he did was perverse.

42.	Regarding the claimant’s grievance, Mr Fairley submitted, under reference to the case of Abbey National PLC v Fairbrother [2000] IRLR 320, that when considering whether an employer’s conduct was a breach of the implied term of trust and confidence, it ought to be remembered that there was no breach if the employer had reasonable and proper cause for the conduct complained of.  He submitted that it was important to look at the substance of the grievance procedure and look at it as a whole.  It was then necessary to ask whether the employer acted within the range of reasonable responses.  These respondents had to handle a series of complex and multi- faceted problems.  There was the claimant’s grievance.  There were similar grievances raised by other employees.  There was the complaint against the claimant.  There was the matter of Mrs Bell being investigated.  There were two factions amongst the group of employees who worked in Crisis Care.  The claimant refused to meet with Miss Crosby to discuss his grievance.  He had, further, in fact had the opportunity to discuss all ten points of it in the course of his meetings with the investigators in the Bell disciplinary process. 

43.	Mr Fairley referred to the case of GAB Robins (UK) Ltd v Triggs [2007] IRLR 857, a judgment of the Employment Appeal Tribunal handed down in June 2007, after the hearing in the present case, in which Fairbrother and the question of the applicability of the range of reasonable responses test to grievance procedures was discussed and submitted that it could be distinguished since it was a “last straw” case. Fairbrother remained, he submitted, demonstratively correct.  We accepted that the GAB Robins (UK) Ltd case could readily be distinguished in this way.

44.	Mr Millar, for the claimant, very frankly accepted that there was much force in Mr Fairley’s submissions.  He accepted that it was correct to read the Tribunal’s judgment as indicating that they had found that this was not a “last straw” case but one in which there were two separate and independent material breaches by the respondents. 

45.	Regarding the disciplinary transfer, Mr Millar referred to the language used by the Tribunal; they stated that a reasonable employer would not have regarded the claimant’s conduct as gross misconduct.  They had properly considered the appropriate test which was, he accepted, correctly set out in the case of BBC v Beckett.  Regarding their reference to delay, it should be read as an implied criticism.  He referred, in support of a submission that delay was an important factor, to the case of RSPCA v Cruden [1986] IRLR 8.  

46.	Regarding the Tribunal’s reference to the claimant not having conducted himself in such a manner before and to him having drunk a bottle of wine at the time, Mr Millar accepted that there seemed to be some confusion in the Tribunal’s thinking.  Further, he accepted that the Tribunal were in error in drawing inference about Mrs Bell’s case and comparing her sanction with the claimant’s.  He also accepted that a reference by the Tribunal to the case of Fairbrother when considering the matter of the fairness of the penalty, was irrelevant.  

47.	Regarding the matter of the claimant’s grievance, Mr Millar accepted that it was appropriate to stand back and assess what had occurred overall.  However, investigation was just the first stage of the process.  Listening was not enough.  Nor was it legitimate for an employer to say he was investigating an employee’s grievance when he was doing so through the medium of a disciplinary process in respect of another employee.  The Tribunal had, he submitted, properly considered matters.  The conduct complained of was a failure to address the grievance.  The respondents had no reasonable and proper cause for not having done so; they had told the claimant that his grievance was “frozen” not that it was not to be addressed. 

RELEVANT LAW
48.	To find in favour of the claimant, the Tribunal required to be satisfied that the respondents’ response to the claimant’s misconduct or their conduct in relation to his grievance amounted to breach of the implied term of trust and confidence, articulated by Lord Steyn in the case of Malik v BCCI SA [1997] IRLR 462 HL at the end of his speech in wording that reflects the formulation originally to be found in the case of Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347:
“Earlier, I drew attention to the fact that the implied mutual obligation of trust and confidence applies only where there is “no reasonable and proper cause” for the employer’s conduct and then only if the conduct is calculated to destroy or seriously damage the relationship of trust and confidence. That circumscribes the potential reach and scope of the obligation.” 

Sanction for Misconduct: Transfer to Clermiston House
49.	As is explained in the authorities referred to by Mr Fairley, when considering whether or not the respondents were in material breach of contract in deciding to transfer the claimant to Clermiston House as sanction for his misconduct is a matter of considering whether or not that penalty fell within the band of reasonable responses which a reasonable employer could have imposed.  

50.	Further, a Tribunal must not substitute its own view for the view of the employer. The question that it requires to ask itself is:  could this employer, acting reasonably and fairly, reach the view that it did?  It also requires to bear in mind that the employers had the advantage of having an intimate knowledge of the nature and workings of the particular business or undertaking in which the employee worked and of the various members of staff involved (Linfood at p.523–4 as approved by the Court of Appeal in Morgan at p. 373).

Grievance:
51.	I would reiterate the passage at paragraph 30 of the judgment in Fairbrother:
“It is evident that questions of reasonableness arise a constructive dismissal claim at the outset when deciding whether or not the employee has been dismissed at all, since the s.94 right does not fall to be considered unless dismissal is established under s.95. That means that the implied term requires to be examined. It is set out in Malik …………………………..

What is stressed there that has , perhaps, sometimes been overlooked , is that conduct calculated to destroy or seriously damage the trust and confidence inherent in the employer/employee relationship may not amount to a breach of the implied term; it will not do so if the employer had reasonable and proper cause for the conduct in question. Accordingly, the questions that require to be asked in a constructive dismissal case appear to us to be:

1.	what was the conduct of the employer that is complained of ?
2.	did the employer have reasonable and proper cause for that conduct?   
If he did have such cause then that is an end of it. The employee cannot claim that he has been constructively dismissed. If the employer did not have such cause, then a third question arises:
3.	was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?”

52.	In the case of GAB Robins, HHJ Peter Clark suggested that the word “likely” should be read into the third question, after the word “calculated” and the intention having been to reflect the Malik formulation, I agree that he is quite right about that. 
 
53.	Accordingly, the Tribunal required to ask itself whether the respondents’ conduct in relation to the claimant’s grievance fell within the band of reasonable responses.  In particular, they required to avoid simply asking whether more could have been done than was done.  That is not the test.  They required to look at the whole facts and circumstances of and surrounding what was done in relation to it before reaching their conclusion as regards that question. 

Discussion and Conclusions
The Sanction of Transfer:
54.	Having given careful consideration to the Tribunal’s reasoning as expressed in its judgment, we are readily satisfied that it fell into error and reached a decision which was perverse. 

55.	Firstly, in concluding that the respondents were not entitled to regard what the claimant did as gross misconduct, the Tribunal were influenced by two factors which were clearly irrelevant. The first was that the claimant had not behaved in similar fashion before and the second was that he had drunk a bottle of wine at the time (paragraph 116).  Whilst we can see that these are factors which might be relevant when considering mitigation, neither could be relevant when considering the characterisation of the misconduct committed by the claimant. 

56.	Secondly, in considering the matter of penalty, the Tribunal looked at what could be termed “comparative justice”, comparing the claimant to Mrs Bell.  There are, certainly, cases where such an approach is appropriate.  However, the problem here was the Tribunal had no idea of what had been found established against Mrs Bell.  Whilst they refer, at paragraph 121, to there having been a serious allegation of fraud against her, that is the extent of their finding. There is no finding that that allegation was established.  Indeed, the Tribunal accept that their knowledge of Mrs Bell’s case is limited.  They should not, in short, have placed any weight on the fact that Mrs Bell’s sanction (transfer) was the same as the claimant’s and concluded that it was not open to the respondents to impose a similar sanction in respect of the claimant. 

57.	Thirdly, we are satisfied that the Tribunal, notwithstanding its statement that the imposition of the sanction of transfer fell outwith the range of reasonable responses, in fact substituted its own view.  They appear wholly to discount Miss Biggerstaff’s evidence to the disciplinary investigation that not only did the claimant say what he said but he was very aggressive and she had concerns about safety as a consequence.  They do so because she did not include these matters in her note made at the time and because she was asked what they refer to as a leading question.  As we have already explained, it was not a leading question.  Nor do they go so far as to find that the respondents were bound to find her evidence on that matter as lacking in credibility because of it not being included in her note.  Without such a finding, the Tribunal required to approach matters taking account of those aspects of the claimant’s misconduct.  We also note that the Tribunal had no regard to the information available to the respondents to the effect that Duncan Finlayson had been sufficiently concerned by the claimant’s misconduct to seek advice from the police.  

58.	Fourthly, we turn to the Tribunal’s mention of delay in paragraph 110.  We observe in passing that the reference to the cliché “justice delayed is justice denied” seems inappropriate. It is an expression normally applied in circumstances where legal redress which is available to a person who seeks redress is not forthcoming in a timely fashion, which was not, of course, the case here.  The claimant was not seeking redress.  However, assuming that the Tribunal had more general considerations of delay in mind, they do, we agree, appear to have fallen into error.  Whilst we fully accept that, in an appropriate case, it would be open to a Tribunal to find that the response of an employer which would have been reasonable if not delayed, was unreasonable on account of delay, the Tribunal did not make such a finding here.  Their comments go no further than airing an inspecific concern about delay.  The matter is then left hanging and is, accordingly, a concern that should have found no place in their reasoning.

59.	Fifthly, we agree with Mr Fairley that the Tribunal does appear to have been unduly diverted by considerations of form rather than substance.  Much of their focus is on the question of whether the respondents should or should not have characterised the claimant’s conduct as gross misconduct.  It is discussed under reference to the fact that the respondents’ disciplinary code warns that gross misconduct will normally result in dismissal.  We could understand the Tribunal’s concern to draw the distinction if the claimant had been dismissed but he was not.  In any event, their conclusion that the claimant’s conduct did not amount to gross misconduct is fundamentally flawed as having been arrived at by reference to his prior good record and that he had drunk a bottle of wine, as we have already explained.  The overall impression is that this Tribunal , notwithstanding its use of “reasonable employer” terminology did in fact substitute its own views for the way in which the respondents should have regarded the claimant’s misconduct and proceeded then to substitute its own views for the way in which it should sanctioned him.  

60.	Sixthly, the Tribunal failed to stand back and consider the respondents’ decision as to sanction in context.  The decision to transfer appears as entirely understandable in the whole circumstances of there being tension between two factions in Crisis Care, of the claimant bearing considerable animosity towards an employee senior to him who worked there and general unrest in that division, yet the Tribunal has not taken these factors into account. 

The Claimant’s Grievance:
61.	We are not satisfied that the Tribunal were entitled, on the facts of this case, to hold that the respondents had failed to address the claimant’s grievances and that their conduct in relation thereto amounted to a material breach of the implied term of trust and confidence.  We should add that the Tribunal, in any event, find both that the respondents failed to do so (paragraph 134) and that they “failed sufficiently” to do so (paragraph 129).  The latter imports rather a different sense than the former and is indicative of a degree of confusion on the part of the Tribunal regarding the matter.

62.	As regards his grievance being and remaining “frozen” there was an explanation for that.  Firstly, the claimant refused to meet with Ms Crosby to discuss it.  Whilst he was unhappy about it being considered under the FTA procedure, the respondents did seek to make it clear to him that they did not rule out going forward under another procedure and it was never suggested on behalf of the claimant that there was anything inherently unfair or unreasonable about the FTA procedure itself.  The decision to freeze his grievance was not made until after he had refused to attend that meeting.

63.	Secondly, there was a reason for freezing his grievance which subsisted at the time he resigned.  The reason was that the outcome of the FTA investigation that did go ahead was that there required to be a disciplinary investigation into Mrs Bell’s conduct.  At the time he resigned, as was advised in Mr Chatham’s letter of 7 August 2006, that matter had not been concluded. 

64.	Thirdly, in any event, in the course of the Bell investigation, the claimant was given the opportunity to address each and every one of his grievances over a the course of four meetings each of which lasted at least two hours and some of them more than that.  Despite the context being the investigation into Mrs Bell, it is clear from the notes of those meetings that he was able to talk very generally about his concerns and about many matters that did not relate to directly to Mrs Bell.  That said, it is also evident that Mrs Bell lay at the heart of the claimant’s grievance and it was consistent with it that the respondents investigated her conduct. 

65.	The Tribunal has not, unfortunately, considered the discussion in the case of Fairbrother in their reasoning on this issue.  They refer to it in connection with their decision regarding the sanction of transfer but not in relation to their decision on the grievance issue.  They have, accordingly, failed to recognise the relevant question when considering an employer’s response to a grievance intimated by an employee is whether or not he acted within the range of reasonable responses open to him.  What they have done is looked at whether the respondents could have done more and determined that they could have done.  But they have failed to take account of the factors referred to above all of which plainly show, in our view, that the respondents acted within the range of reasonable responses that was open to them regarding the claimant’s grievance. 

Disposal 
66.	In these circumstances, we are satisfied that the appeal should be allowed, the Tribunal’s judgment set aside and there be substituted for it an order dismissing the claimant’s claim.