Appeal No. UKEAT/0183/12/ZT

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

	At the Tribunal
	On 16 October 2012

Before
HIS HONOUR JUDGE McMULLEN QC
MR J MALLENDER
MR D NORMAN

CIRCLE ANGLIA LTD	APPELLANT

MR N SIMONS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS NADIA MOTRAGHI
(of Counsel)
Instructed by:
Wragge & Co Solicitors
55 Colmore Row
Birmingham
B3 2AS
	
For the Respondent	MS ALISON GURDON
(of Counsel)
(Free Representation Unit)

SUMMARY
UNFAIR DISMISSAL
Reasonableness of dismissal
Contributory fault
The majority of the Employment Tribunal, the Employment Judge dissenting, found the Respondent liable for the unfair dismissal for misconduct of the Claimant, but reduced his compensation by 55%.  The EAT would not intervene once a correct self direction was given and the facts found, given the weight of Court of Appeal authority against such a step. The assessment of contributory fault is for the Employment Tribunal: Hollier v Plysu applied.

HIS HONOUR JUDGE McMULLEN QC

1.	In his majority Judgment in the Court of Appeal Mummery LJ in Fuller v London Borough of Brent [2011] ICR 806 said the following, which is instructive in our case and suffuses it with wisdom:

“26. This is not an easy case. Tribunals with wide legal and practical experience of work situations and of the operation of unfair dismissal law have reached opposite conclusions. The EAT set aside the ET's order, which the Council says was wrong.  This court is asked to set aside the EAT's order, which Mrs Fuller says was wrong.  Perhaps it would not be out of place to make a few general comments about these differences, which lawyers and non-lawyers sometimes find unsatisfactory, even inexplicable.
27. Unfair dismissal appeals to this court on the ground that the ET has not correctly applied s.98(4) can be quite unpredictable.  The application of the objective test to the dismissal reduces the scope for divergent views, but does not eliminate the possibility of differing outcomes at different levels of decision.  Sometimes there are even divergent views amongst EAT members and the members in the constitutions of this court.
28. The appellate body, whether the EAT or this court, must be on its guard against making the very same legal error as the ET stands accused of making.  An error will occur if the appellate body substitutes its own subjective response to the employee's conduct.  The appellate body will slip into a similar sort of error if it substitutes its own view of the reasonable employer's response for the view formed by the ET without committing error of law or reaching a perverse decision on that point.
29. Other danger zones are present in most appeals against ET decisions. As an appeal lies only on a question of law, the difference between legal questions and findings of fact and inferences is crucial.  Appellate bodies learn more from experience than from precept or instruction how to spot the difference between a real question of law and a challenge to primary findings of fact dressed up as law.
30. Another teaching of experience is that, as with other tribunals and courts, there are occasions when a correct self-direction of law is stated by the ET, but then overlooked or misapplied at the point of decision.  The ET judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable.  The reading of an ET decision must not, however, be so fussy that it produces pernickety critiques.  Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid.  […]
41. I add three brief comments.  They do not affect the outcome of the appeal.  They concern the way in which this case came to the ET and was dealt with by it after a three day hearing. 
42. First, when the ET asks a correct question, as this ET did about the reasonableness of the investigation into Mrs Fuller's conduct, it is better for the ET to give a specific answer to it in addition to its discussion of the facts, law and argument on the question.  It should not be left to the parties, or the EAT or this court to have to work out the answer for themselves.  Failing to answer the question could encourage an appeal and false optimism about the prospects of its success.
43. Secondly, it is normally better for an employee undergoing disciplinary action and faced with a possible threat of dismissal to participate in the process by complying with the employer's reasonable requests to provide a statement, information and representations and to attend hearings. I agree with the EAT judgment at paragraph 25 that Mrs Fuller ‘did not assist herself by not attending the meetings’.”

2.	Our case has even more difficulties than Mummery LJ pointed out, because we have in our hands an appeal from a divided Employment Tribunal.  

Introduction
3.	This case is about unfair dismissal for misconduct.  It is the Judgment of the court to which all members appointed by statute for their diverse specialist experience have contributed.  In particular, all three of us have sat on Employment Tribunals and understand the relationship between the lay members and the Employment Judge, to which we will refer in due course.  The parties in the case are Mr Nick Simons, the Claimant, and Circle Anglia Ltd, the Respondent.

4.	It is an appeal by the Respondent in those proceedings against a Judgment of an Employment Tribunal that sat for three days and a further two days in private at London Central under the chairmanship of Employment Judge Ms H Clark.  The Claimant represented himself but today has the advantage to be represented by Ms Alison Gurdon of counsel, giving her services under the aegis of the Free Representation Unit.  The Respondent had been represented by counsel, but different counsel, Ms Nadia Motraghi, represents it today.  The Claimant claimed that he had been unfairly dismissed; the Respondent contended it dismissed him fairly for gross misconduct, but if unfair, then his dismissal was caused or contributed to to the extent of 100 per cent.  

5.	The Employment Tribunal found that he had been unfairly dismissed; that is the Judgment of the majority lay members, Mrs Nathoo and Dr Weerasinghe, but they assessed his contribution at 55 per cent.  Employment Judge Clark, in the minority, would have dismissed the claim, but if she had held it to be unfair would have ordered a 100 per cent contribution at the Respondent’s insistence.

6.	The Respondent appeals against that matter.  The appeal was sent to a full hearing by an appellate Judge without giving any reasons for so doing, thus the best we could do is infer that the Judge considered there were reasonable prospects of success, but in the absence of guidance we have to make our own way, with the assistance of counsel.

The legislation
7.	The legislation is not in dispute.  The Employment Rights Act 1996 section 98(1) provides that conduct, here, is a reason potentially fair for dismissal and section 98(4) deals with fairness (see paragraph 3 of the Tribunal’s Judgment).  Compensation is provided for by sections 122 and 123, and although the provisions are slightly different where conduct is blameworthy a reduction can be made in an award, and if the reduction is significant, that will be a feature in a decision as to whether to order reinstatement.

The architecture of the Judgment
8.	We say first of all that the writing of this Judgment was a trial for the Judge and the members.  Clearly, the legal directions would be given in the first place by the Judge – that is the experience of all three of us – and the lay members are entitled to look to the Judge for guidance on self‑directions on the law.  The writing of the Judgment is in the hands of the Employment Judge, and she signs it.  She has the option to take in passages provided by the lay members, but on this occasion, as in the vast majority, in fact if not all, cases, the lay members were content for the Judge to write the majority Judgment with which she disagreed.  

9.	This Judgment is an exemplary account of the relationship between the parties in the case and of the relevant disputes, and so, just taking an analytic approach to the writing, the Judgment is unanimous in all except about 7 paragraphs of its 69.  The list of issues, the self‑direction at paragraphs 3‑9, the account of the submissions at paragraphs 10 and 11, the unchallenged findings of fact at paragraphs 12‑48 and, with the assistance of counsel by agreement today, also including paragraph 49, albeit under the headline “majority conclusions” (that paragraph properly forms part of the unanimous findings).

10.	The majority Judgment is given at paragraphs 50‑55 and part of paragraph 60; the minority Judgment at paragraphs 56‑59.  Part of paragraph 60 represents a unanimous Judgment, the first seven lines, and the remainder that of the Employment Judge.  Paragraph 61 on remedy is unanimous, as are paragraphs 63‑68 on reinstatement and other aspects of the awards.  The Tribunal divided in relation to contributory fault in paragraph 62.  It reached a unanimous direction on costs at paragraph 69, and we are told that the Claimant’s application for preparation time under that heading was subsequently dismissed and there is no appeal.

11.	So, just standing back and looking at the edifice of this Judgment, 7 out of the 69 storeys are the subject of controversy; the rest of it is accepted by Ms Motraghi as being correct.

12.	Because there is a division at the Tribunal, we must sadly include large tracts of its Judgment in order to portray it, because the finding in favour of the Claimant is attacked on the ground that there were misdirections of law by the majority and the majority’s decision was perverse.  Further, the attribution of a figure of 55 per cent as against what was claimed at the Employment Tribunal of at least 70 per cent constitutes an error of law.

The facts
13.	The Tribunal introduced the parties to us in the following way:

“12. The Claimant was employed by the Respondent from 1st September 2006 following a spell as an independent contractor in the same role.  The Respondent is one of the largest Social Housing Providers in the UK employing over 2,000 staff.  At the time of his dismissal the Claimant was the Assistant Director of Development (Regeneration) earning £70,000 per annum.  The Claimant was effective in his job, was committed to social housing and had a clean disciplinary record.
13. The Claimant’s contract of employment refers to a non‑contractual disciplinary procedure which contained a non‑exhaustive list of examples of gross misconduct – including ‘assault or threatening physical assault and/or any other intimidatory behaviour’ and ‘conduct which seriously damages or destroys Circle Anglia’s trust and confidence in the employee’.  […]
14. The incidents which led to the Claimant’s dismissal came to the Respondent’s formal attention in February 2010 when the Claimant’s senior colleague, Alastair Jones, raised a grievance concerning his behaviour.  Mr Jones alleged that the Claimant had used abusive and offensive language and been aggressive towards him on more than one occasion.  His initial complaint to the Respondent’s HR department was on the same day as the last alleged incident had occurred on the 8th February 2010.  Mr Jones prepared a written record of the allegations on 18th February 2010 having discussed matters with his own line manager, Mr Newbold.  Mr Jones suggested that it was difficult for him to accept that he was being bullied and to admit it to others.  At this time Mr Jones was aware that he had been selected for redundancy by the Respondent following a reorganisation.  The Claimant’s post had not been earmarked for redundancy, but his work load was likely to increase following the loss of other members of staff.” 

14.	The Tribunal noted in detail Mr Jones’ allegation, which fell into four parts.  The Claimant was suspended in respect of the allegations that had been made against him.  An investigation was conducted initially by Ms Whitley, and his main defence to the allegations was that each one was provoked by his excoriator, Mr Jones; as the Tribunal rather weakly put it, there was no mutual respect between the two, who seemed to rub each other up the wrong way.

15.	The Claimant complained about the investigation, and in response Mr Townsend, the group regional operations director, was appointed to investigate.  At this time the Claimant was suffering from work‑related stress.  Mr Townsend conducted the investigation; the Claimant was asked whether the language he used was thought to be appropriate, and the Claimant regretted it, saying it was more appropriate to the bar room, but in a sense he was retaliating.  The Claimant accepted during the course of the investigation that he had used offensive language to Mr Jones.  Mr Jones accepted on his investigation that he too had used some language.  The conclusion of Mr Townsend was that the investigation had been difficult, because there were two versions for each of the incidents, and he went through each one, essentially upholding the complaints in three out of four.

16.	Mr Connell then received the account from Mr Townsend for the purposes of a disciplinary hearing, and points were put forward by the Claimant in order to avoid the consequences of a dismissal.  In the course of his hearing Mr Connell was faced with conflicting evidence between the parties and he was, as the Tribunal held (see paragraph 42) to some extent reliant on Mr Townsend’s investigation.  He did not wholly accept Mr Jones’ account of the events, since in particular Mr Connell found that Mr Jones had thrown a telephone receiver (one of those earmuff‑type receivers) at the Claimant.  He considered various mitigating factors and was not convinced the Claimant would not behave in such a way again.  He decided that the Claimant was guilty as charged in respect of three of the four allegations.

17.	The Claimant was sent a letter on 18 November that extends for seven pages; it is detailed and thorough, outlining the considerations in Mr Connell’s mind.  The Respondent regarded this as being gross misconduct.  He was dismissed.  The Claimant appealed, and the relevant officer, Mr Williams, rejected this on 14 February 2011.

18.	The principal finding by the Tribunal that we have by agreement with counsel attributed to the unanimous Judgment is this:

“49. There is no real dispute in this case that the Claimant was dismissed by reason of his conduct, a potentially fair reason.  By the time of his appeal hearing, the Claimant himself appeared to accept that a final written warning would have been appropriate.  The factual findings which the Respondent was prepared to make concerning the primary allegations were relatively limited as the Claimant admitted the bulk of them.  In relation to those admissions, the Respondent’s belief in the Claimant’s guilt was, therefore, clearly reasonable.  Mr Connell admitted to having made an error in thinking that the Claimant had admitted to calling Mr Jones a ‘cunt’ in August 2009, when the latter accepted only that he had told him to ‘fuck off home’ on that occasion.  There was a nuanced disagreement as to whether the Claimant ‘tossed’ or ‘threw’ a coaster at Mr Jones in February, which was resolved against the Claimant.  Mr Connell had evidence before him from two senior employees, Mr Wells and Mr Garnham, who confirmed that the Claimant had thrown something at Mr Jones, so there was evidence from which Mr Connell was entitled to conclude that the Claimant had thrown the coaster at Mr Jones.”

19.	Where the bench divided appears in the following way:

“50. The majority considered, however, that the conclusion that the Claimant had told Mr Wells to ‘fuck off’ in the course of his altercation with Mr Jones was one which no reasonable employer could have reached.  The Claimant had denied doing so and Mr Wells’ evidence on this issue was extremely tentative – all he said was that, ‘he said ‘fuck off cunt’ and I thought is he saying that to me or what and I saw he was looking at his monitor’.  This was translated in Mr Thompson’s report as ‘Brendan Wells said that Nick Simons said fuck off which he believed was directed at him but Nick Simons was looking at his pc monitor’.  Having reached this view, the Respondent was misled into the conclusion that there was a risk of the Claimant’s behaviour being repeated notwithstanding the fact that Mr Jones had been made redundant and so their relationship difficulties would pose no future problem.  Mr Jones had been the only ‘flash point’ for the Claimant and once this flash point had gone, it was unlikely there would be any repeat of the Claimant’s conduct.  There were no other complaints against the Claimant during his employment by other members of staff.  The erroneous conclusion that the Claimant had directed his abuse at another member of staff apart from Mr Jones created a concern that this sort of behaviour was more likely to happen again and this was critical in the decision to dismiss the Claimant.  This conclusion was entirely at odds with the perfect score he had for his behaviour in his most recent appraisal.
51. Whilst the majority accept that the Respondent genuinely believed in the Claimant’s guilt, the real dispute in the case related to the degree of provocation surrounding the allegations.  This aspect of the investigation fell short and led to conclusions as to the Claimant’s overall culpability which no reasonable employer could have reached.  Mr Townsend’s investigation and subsequent report failed to take a balanced approach to the involvement of Mr Jones in the events under consideration.  Also, neither Mr Townsend nor Mr Connell gave any weight to the fact that the Claimant had complained to his own manager about Mr Jones’ behaviour towards him and had taken the trouble to record one of the incidents in a contemporaneous email to himself before Mr Jones had raised a grievance concerning his conduct.  Mr Townsend report [sic] did not apportion any blame to Mr Jones, who was exonerated when it was clear that, at the very least, he had thrown a telephone towards the Claimant.  The minimisation of Mr Jones’ role in the incidents in question led both Mr Townsend and Mr Connell into error.  In a case in which the background and context of the allegations was extremely important both by way of causation and mitigation, the lack of balance in this respect of the investigation infected subsequent decision making in the case.
52. Following such a partial report, it would have been difficult for Mr Connell to take a balanced view of the evidence in the disciplinary hearing as he did not hear evidence from those interviewed.  Both Mr Townsend and Mr Connell were of the opinion that the recollections of the two cleaners (who supported the Claimant’s version of events in August and December) were unreliable.  They both thought it suspicious that their accounts were almost identical to the Claimant’s and concluded that words had been put into their mouths.  However, this allegation was never put to those witnesses or to the Claimant to give them an opportunity to comment on it.  The only contemporaneous record of the incident in December was taken by the Claimant and this evidence was disregarded by the Respondent.
53. Mr Connell told the Tribunal that he was influenced in deciding to dismiss the Claimant by the fact that the latter raised formal grievances against Mr Townsend, Mr Taylor and Ms Hodds following his disciplinary hearing.  Although it was perhaps unfortunate that the Claimant suggested that all three members of staff had been motivated by malice in the mistakes they had made, some allowance should have been made for the fact that he had been signed off sick for some time and for the stressful nature of the disciplinary proceedings.  The substance of all his grievances had some merit, in that Mr Townsend’s investigation ignored the contributory role of Mr Jones and the management failings of Mr Taylor; Ms Hodds should not have sent out a communication which failed to delete the track changes and Mr Taylor should have taken steps to improve the Claimant’s and Mr Jones’ difficulty working relationship [sic] in December 2010 rather than suggest the Claimant ‘keep his head down’.  Rather than regard any potential relationship difficulties as a reason to dismiss the Claimant, a reasonable employer of the size of the Respondent would have taken steps itself to resolve any such difficulties between staffs which had arisen from a legitimate grievance with mediation, relocation or otherwise.  Not only did the Respondent conclude that the Claimant might repeat his behaviour, but also that he was not contrite about it and both these factors was instrumental to Mr Connell’s decision to dismiss the Claimant.  The majority consider it unreasonable that the Claimant was disadvantaged in his disciplinary proceedings by the fact that he raised legitimate grievances with his employer.  Mr Connell also failed to give the Claimant credit for his letter of apology.  It was clear from Mr Connell’s evidence that he took a dim view of the Claimant’s addressing his apology to Mr Newbold rather than him and this influenced his decision that the Claimant was not contrite for his conduct.
54. The majority share the Claimant’s concerns about the delays in the disciplinary process.  One of the incidents which Mr Connell found proven took place in August 2009 – over a year prior to the disciplinary hearing and over six months before the investigation.  In a case in which accurate recollections were crucial, it was inherently unfair to expect witnesses to recall the precise of detail [sic] of the August incidents in particular and it was clear that they did not.  Once the complaint had been made by Mr Jones, the initial cursory investigation by Corinne Whitley added to the delay before Mr Townsend’s second investigation could start.  The delays in the process together with the partial nature of the investigation lead the majority to conclude that the Respondent’s belief in the extent of the Claimant’s guilt and limited culpability of Mr Jones was not reasonable.  The appeal process did not correct the defects in the investigation and disciplinary hearing.
Penalty
55. Whilst the misconduct admitted by the Claimant did constitute gross misconduct under his contract, it was at the very lowest end of the scale in terms of severity.  The majority find that Mr Connell had minimal regard for the substantial mitigation in this case: the fact that Mr Taylor could and should have taken steps to assist the Claimant and Mr Jones to improve their working relationship; that Mr Taylor should have made it clear to the Claimant in August 2009 that the language he was using was unacceptable in the office environment; the fact that the Claimant had undergone a stressful redundancy process, which was likely to result in an increased workload for him.  Mr Jones’ provocative conduct was ignored as was the fact that there were no complaints from other members of staff about his behaviour.  Mr Connell had insufficient regard for the Claimant’s good disciplinary record over his 5 year employment/engagement and the full marks for behaviour in his appraisal.  Mr Connell’s judgment was clouded by his annoyance at the Claimant’s grievance and that the letter of apology from the Claimant was not directed at him.  The majority conclude that dismissal was a penalty which no reasonable employer could have imposed and, as such, the Claimant’s dismissal was unfair.”

20.	The Tribunal then recorded the findings of the Employment Judge, and she said this:

“56. The minority approaches the conclusions of investigation report [sic] of Mr Townsend with some care, since he had the advantage over the Tribunal (and Mr Connell) that he spoke directly to the witnesses, including Mr Jones.  There is no evidence that Mr Townsend had any improper reason to prefer the account of Mr Jones to that of the Claimant and he highlighted the difficulty he had in the investigation given there were two versions of the events for each of the incidents.  Some criticism can be levelled at Mr Townsend for the conclusions of report, which appeared to completely exonerate Mr Jones of any wrong‑doing in circumstances where there was ample independent evidence that he had, at least, thrown a telephone towards the Claimant.  This has left the Claimant with a sense of grievance and the impression that the outcome of the process was pre‑determined.  It is entirely possible that another investigator might have reached a different set of conclusions or would have given the Claimant’s contemporaneous records more weight, but Mr Townsend’s conclusions could not be described as conclusions which no reasonable investigator could have reached.  In any event, Mr Townsend was not the ultimate decision maker in this case, it was Mr Connell who was required to assess the Claimant’s culpability and on any resultant penalty.  It is clear Mr Connell took an independent view to that of Mr Townsend and was alive to the fact that the Claimant considered the report biased.  Whilst Mr Connell shared Mr Townsend’s concerns about the fact that the difficult relationship between the Claimant and Mr Jones had not been well managed he also acknowledged that there was a degree of misconduct on the part of Mr Jones – to a sufficient extent that he would have recommended disciplinary action had he remained in employment.  He still concluded, however, that the primary culpability lay with the Claimant.  Jill Gundry’s evidence corroborating the Claimant’s assertion that Mr Jones had threatened him was rather tentative and lacked detail.  The two anonymous witnesses who offered supportive evidence to the Claimant were slightly removed from the events in question.  In formal legal proceedings one might have expected any scepticism about their evidence to have been put to them for their comment.  These were not, however, formal legal proceedings, but an internal disciplinary investigation.  The December and February incidents were witnessed in part by two senior members of staff (Mr Wells and Mr Garnham) and they largely corroborated Mr Jones’ account.  The Claimant expected a degree of forensic analysis of evidence which was not appropriate to an internal disciplinary investigation.  Mr Connell accepted aspects of Mr Jones’ account, but not all of it.  That does not necessarily make his factual findings unreliable.  Mr Connell viewed the evidence critically and only found 3 of the 4 allegations proven.  He reached conclusions which did not support the Claimant’s allegations that he had been physically threatened by Mr Jones on the 18th December or taunted by the words ‘Depford [sic] bully’ on the 8th February.  Mr Connell had before him evidence from a senior employee, Mr Wells, who was concerned that the Claimant had told him to ‘fuck off’ after he had urged him twice to ‘leave it’ (referring to the Claimant’s altercation with Mr Jones).  There was, therefore, evidence from which a reasonable employer could have concluded that the Claimant had sworn at Mr Wells.  It may not have been the conclusion every reasonable manager would have reached, but it was one which was open to him in light of the evidence and it is not for the Tribunal to interfere with it with the benefit of hindsight.
57. The Claimant’s primary challenge to the Respondent’s conclusion relates to the degree of provocation he received from Mr Jones and, therefore, to the question of mitigation.  He criticised Mr Townsend for failing to interview Ms Gundry and suggests that the conclusions in his report were biased in Mr Jones’ favour.  As to Ms Gundry, Mr Connell was provided with her evidence by way of an e‑mail by the Claimant, so if any criticism can be levelled at Mr Townsend for failing to interview a member of staff who had left the organisation, it was not a material omission in terms of the Respondent’s ultimate decision.  Mr Townsend responded to all the Claimant’s other requests to interview staff and identified the cause of the series of incidents as far as he was able, describing the 20th August disagreement as the catalyst for the others.
Penalty
58. The Respondent was satisfied that the Claimant’s conduct in being verbally abusive to Mr Jones on 3 occasions, taunting him about his impending redundancy and throwing a coaster at him constituted gross misconduct of a type which was expressly listed as an example in the disciplinary procedure, namely, ‘assault or threatening physical assault and/or any other intimidatory behaviour’.  Hitting someone with an object is technically a physical assault.  In this case it was not a serious assault, but throwing something at a colleague in the context of an angry exchange is clearly intimidatory behaviour.  The repeated use of very foul language directed at a colleague is, at the very least, serious misconduct – the use of the word ‘cunt’ is grossly offensive to most people, although not necessarily intimidatory in nature.  There is also a distinction to be drawn between a tolerance of bad language in normal conversation and an acceptance of abusive language.  As explained above, a finding of gross misconduct is not strictly necessary in this case, since a dismissal for purported gross misconduct can still be fair in circumstances where such a characterisation is wrong.  It is helpful to the limited extent that where an employee has committed an act of gross misconduct, the penalty of dismissal is more likely to be a reasonable one that cases where they have not.
59. The minority is satisfied that Mr Connell took account of the mitigatory factors put forward by the Claimant, which also addressed the factors listed in the Respondent’s own disciplinary procedure.  In light of Mr Connell’s factual conclusions, the degree of provocation by Mr Jones was not significant.  Whilst there was medical evidence suggesting that the Claimant was suffering from stress related symptoms at the time of two of the allegations (in December and February), this medical evidence did not make any causative link between the two or seek to excuse the Claimant’s behaviour on health grounds.  Mr Connell clearly accepted that Mr Taylor should have managed the Claimant’s relationship with Mr Jones better, but did not consider that this produced sufficient mitigation for the Claimant’s behaviour.  The minority is not persuaded by the suggestion that Mr Taylor’s failure to make the Claimant aware that his behaviour was unacceptable in August 2009 is material to this case.  As a senior employee it ought to have been obvious to the Claimant that using abusive language to a colleague in the office was not acceptable.  Mr Connell was well aware that the Claimant had been a good and valued member of staff with an important role to play following the reorganisation, but similarly did not find that sufficient mitigation for his conduct.  Some employers might have been persuaded that Mr Jones’ redundancy had removed a flash point for the Claimant such that it was unlikely that he would have similar outbursts in future.  Some employers would have given the Claimant the benefit of the doubt and issued a final written warning.  However, the Claimant was a highly paid senior professional who had been verbally abusive to a colleague on more than one occasion and physically abusive on one occasion in the full view of other staff.  It will be a rare case in which a decision to dismiss an employee who has committed at least one act of gross misconduct is one which falls outside the band of reasonable responses and even rarer where the gross misconduct is accompanied by other incidents of serious misconduct which occurred on more than one occasion.  This is not such a rare case.  There are certainly criticisms to be made of the Respondent; the initial cursory investigation of Ms Whitley and the delay which this caused; the proposals that Mr Taylor should be involved in the investigation and that Mr Doylend should hear the appeal.  The Respondent corrected those errors in the process and there is no evidence that either Mr Taylor or Mr Doylend influenced the outcome of the disciplinary process at all.  Indeed, Mr Taylor was criticised by Mr Connell in his disciplinary outcome letter, a fact which does not support any conclusion that the former improperly influenced the latter.  The delays in this case were clearly regrettable, but explicable.  The criticisms of the Respondent do not obscure the fact that the primary responsibility for his conduct lay with the Claimant and that conduct was unacceptable for a senior employee working in an office environment.
60. The minority shared the majority’s concern at the apparent influence on Mr Connell of the Claimant grievances against his colleagues Mr Taylor, Mr Townsend and Ms Hodds.  The Claimant had legitimate grievances concerning Ms Hodds and Mr Taylor and he understandably took issue with Mr Townsend’s conclusions.  Had the Claimant received a disciplinary penalty simply for raising legitimate grievances, the fairness of the dismissal might have been compromised.  However, the Claimant not only expressed the grievances in intemperate terms (accusing all three members of staff of being malicious), but also lodged the grievances in the days immediately following his disciplinary hearing at which the substance of his grievances had been aired in the Claimant’s defence of the charges.  Raising the stakes in this manner led Mr Connell to question whether the Claimant was really contrite about his behaviour (as set out in his letter of apology to Mr Newbold) and contributed to Mr Connell’s view that there was a risk that the Claimant would repeat his behaviour.  The Claimant had explained that he couldn’t guarantee he wouldn’t use similar language if provoked again.  The fact that he was displaying a level of hostility towards Messrs Taylor and Townsend and Ms Hodds by accusing them of malice suggests, on balance, it was reasonable of Mr Connell to take account of the timing and fact of Claimant’s grievances in forming his view that there was a danger of the Claimant’s repeating the conduct for which he was disciplined.  It is unfortunate that Mr Connell was not clearer in his decision to partially uphold the Claimant’s grievance concerning Mr Taylor’s management decisions, but this did not undermine Mr Connell’s primary conclusion that the penalty of dismissal was appropriate in the circumstances, a decision which was within the range of reasonable responses to the Claimant’s conduct.  The Claimant’s dismissal was, therefore, fair.  The Claimant did not allege that there were purely procedural irregularities to his dismissal, so it is not necessary for the Tribunal to determine the issue.”

21.	As to contribution, the competing Judgments are as follow:

“62. The Respondent urged the Tribunal to make a finding of at least 70% contribution (in the event the dismissal was found to be unfair).  In reaching its conclusions as to contributory conduct, the majority takes account of the fact that the Claimant admitted to most of the allegations he faced and accepted that a final written warning would be justified.  It follows from the Claimant’s acceptance that a warning would have been appropriate that the Claimant himself accepts that he was guilty of culpable or blameworthy conduct and the majority agrees.  Whilst the majority consider that Mr Jones played a provocative role in the three incidents for which the Claimant was dismissed, the Claimant clearly had a choice as to how to react to that provocation.  He was a senior management employee employed in an office environment and should have appreciated that using abusive and offensive language directed at colleague [sic] was unacceptable.  The majority departs from the Respondent’s view of the Claimant’s culpability in respect of the allegation that he was abusive towards another colleague, Brendan Wells for the reasons set out above.  Further, the majority consider that the Respondent exaggerated the significance of the Claimant’s throwing a coaster at Mr Jones.  Had this been an aggressive act, the Claimant would have picked a larger object or thrown a punch at Mr Jones.  In the view of the majority, the Claimant acted entirely appropriately in reporting Mr Jones’ behaviour to his line manager in December 2009 and had appropriate steps been taken by Mr Taylor at that point to diffuse the difficult relationships, the further conflict between the Claimant and Mr Jones in February might have been avoided.  The majority conclude that the Claimant’s conduct was culpable to the extent that a final written warning as to his conduct would have been apt.  In determining contribution, the Tribunal must confine its consideration to the Claimant’s conduct and for that reason the majority considers that the Claimant contributed to his own dismissal to the extent of 55%.  The minority does not depart from the Respondent’s own finding of culpability and, therefore, considers that the Claimant contributed to his own dismissal to the extent of 100%.”

22.	Instructive also on the substance and on the remedy decisions are what the Tribunal unanimously decided in relation to reinstatement, albeit on the footing that the minority Judge had decided that there was no unfair dismissal, because there is this:

“63. This is particularly so in circumstances where misconduct had been admitted by the Claimant, which, therefore, lowered his prospects of re‑instatement or re‑engagement given the statutory test.  Quite apart from the lack of vacancy for the Claimant, it is abundantly clear that the Respondent has lost trust and confidence in the Claimant and whilst the majority has been critical of the part the Claimant’s grievance played in that loss of trust and confidence, its finding of contribution recognises the Claimant’s partial responsibility for this breakdown in trust and confidence.”

The respective cases
23.	On behalf of the Respondent Ms Motraghi contends that the majority erred in law.  She cleaves to the Judgment of the Employment Judge as being correct, and her primary submission in relation to relief, should she succeed, is that the majority Judgment should be set aside and that of Judge Clark substituted for it.  That implies that the unanimous directions and findings of fact were correctly applied by the Judge and incorrectly by the lay members.

24.	The primary submission on the law is that the majority did not consider the band of reasonable responses.  It did not decide that the band of reasonable responses test applies equally to procedural challenges under the regime for conduct cases set out in British Home Stores Ltd v Burchell [1980] ICR 303 EAT.  She contends that the finding by the majority represents the cardinal sin of an Employment Tribunal in substituting its Judgment for that of the management and deciding that it would not have dismissed the Claimant in the circumstances.  She acknowledges the difficulty of any appellant seeking to challenge a finding on the ground of perversity but contends that this really is a Judgment by a majority that should be set aside.

25.	As to procedural defects, she contends that the majority erred in its assessment of the weight that should be given to certain matters, and she contends there is no suggestion in the Judgment that the Tribunal considered Sainsbury’s Supermarkets Ltd v Hitt [2003] ICR 111.

26.	As to contributory fault, Ms Motraghi contends in her oral submissions to us that, her predecessor having sought at least a 70 per cent reduction, that is what the figure should be, if the finding of unfair dismissal is retained. A reduction of 55 per cent represents an error of law.

27.	Ms Gurdon contends that the majority of the Employment Tribunal directed itself correctly, that the approach to the analysis of the reasons should not be pernickety or fussy, and that the majority reached a permissible conclusion.  She rejects the submission Ms Motraghi made that the Tribunal felt sorry for the Claimant and substituted its Judgment for the employer’s. 55% is fair enough.

The legal principles
28.	The legal principles to be applied in an appeal against a finding by an Employment Tribunal of fair or unfair dismissal in conduct cases have been set out in the following authorities, as outlined in my Judgment in Network Rail Infrastructure Ltd v Mockler UKEAT/0531/11:

“22. As is plain from that Judgment a wealth of authorities lies behind it including the majority of Judgment of Mummery LJ in [Fuller], Bowater v Northwest London Hospitals NHS Trust [2001] IRLR 331, Salford Royal NHS Foundation Trust v Rolden [2010] IRLR 721, per Elias LJ, Gayle v Sandwell & West Birmingham Hospitals NHS Trust [2011] EWCA Civ 924, per Mummery LJ, London Ambulance Service NHS Trust v Small [2009] IRLR 563, per Mummery LJ, Orr v Milton Keynes Council [2011] EWCA Civ 62, Oso v Newham University NHS Trust [2011] EWCA Civ 1425 and in Henderson v LB Hackney [2011] EWCA Civ 1518. The principles have most recently and authoritatively been rationalised in Arriva Trains v Conant UKEAT2011 0043/11 at paras 23-34, in Crawford v Suffolk Mental Health Trust by Elias LJ [2012] EWCA 138.
23. The question of contribution under section 123 is to reflect blameworthy conduct and the Tribunal is to assess it on a percentage basis if it is assessing compensation, and if it is making a percentage decision that will be relevant to the remedies of reinstatement and re-engagement when sought.”

29.	There is in that list of 15 binding authorities of the Court of Appeal and, we dare say, of the EAT (see Conant) a clear message, which is that once a Tribunal has directed itself correctly on the law and has found the facts, it will be rare that an appellate court is entitled to intervene.  

30.	The difficulties identified by Mummery LJ outlined at this outset of this Judgment are compounded where there is a split decision, but we bear in mind what Morison P said in Chief Constable of Thames Valley Police v Kellaway [2000] IRLR 170, which is that just because a decision is split does not indicate any weakness in its findings.  Indeed, we would go further: it shows that there was an articulated disagreement set out with proper reasons that those appointed with specialist experience in employment relations have decided but come to different conclusions.

Discussion and conclusions
Reasonableness
31.	The first issue relates to the directions on the law.  As Ms Motraghi engagingly put it, it looks from the outside as though she wishes to have her cake and eat it, because she acknowledges that the directions on the law apply to the majority and the minority.  That of course is obvious, because the Judge would not direct the Tribunal as a whole in different terms from the direction she gives herself so as to come to an appeal‑proof Judgment on her minority Judgment but one that was open to attack on misdirection of law in the majority.  Quite properly, Ms Motraghi does not advance that submission.  She says it is not the crux, but it did play quite a large part in her submissions, that the Tribunal had not cited Hitt.  She accepts that failure to cite a case is not fatal, but failing to note the principles is.  

32.	The first thing to note, as we discovered during the course of the hearing, is that the Claimant representing himself had put Hitt in his written submissions before the Tribunal, and so had counsel for the Respondent.  So, it cannot be said the case was not before it.  The Tribunal in the four cases it cited mentioned Sandwell and West Birmingham Hospitals NHS Trust v Westwood [2009] UKEAT/0032/09, although in relation to gross misconduct, but we note that Hitt is cited twice in it.  Ms Motraghi accepts the correctness of the directions given in paragraphs 3‑9 of the Judgment, including this:

“4. The degree of formality appropriate in the investigation and disciplinary process will vary depending on the circumstances of the case – factors such as the size of the employer’s organisation and the gravity of the allegations being relevant to the sophistication of the process.  However, the conduct of internal disciplinary proceedings is a management function, not a judicial one and, thus, whilst the rules of natural justice should be observed, an overly legalistic analysis of the steps and employer has taken is not appropriate – the overriding question is whether the decision maker acted fairly and justly.  The ACAS Code of Conduct on Disciplinary and Grievance Procedures may assist in this regard.  The Respondent referred the Tribunal to the case of Santamera v Express Cargo Forwarding t/a IEC Ltd [2003] IRLR [273] as authority for the proposition that the right to cross‑examine witnesses in an internal disciplinary hearing is not necessarily an essential part of a fair disciplinary hearing.”

33.	She accepts that the ACAS Code was written at a time that succeeded Hitt and therefore pays attention to it and that the direction given in that paragraph is correct.  She also accepts that when focussing on whether there was a reasonable band of responses to the investigation conducted by the employer the Employment Judge herself says as we have recorded at the end of paragraph 56 of the Judgment.  This, we observe, is the juxtaposing of the reasonable investigator and the person who conducts an unreasonable investigation, for that is the conclusion of the majority (see the second sentence in paragraph 51 above, which we have cited).  Thus if we are to accept Ms Motraghi’s submission that there is built into the Judge’s direction a reference to the principle in Hitt, so there is in the majority’s.

34.	In any event, Ms Motraghi is, with respect, wrong, because the Tribunal in the language of the Employment Judge directs itself to the band of reasonable responses (see the passage in paragraph 59 above, beginning, “It will be a rare case […]”).  This is, we hold, a direction given to the three members of the Tribunal, and it is correct.  The Judge is also correct in her self‑direction, which again, we infer, applied to the majority, when she said what she does at the end of paragraph 58 as explained above; that is a reference to the labelling exercise that the Tribunal had already considered in its self‑directions in paragraph 5.

35.	Thus we hold that there is no substance in the contention that the Tribunal failed to apply the principles in Hitt; that is, to look, from the perspective of a band of reasonable responses, at whether the investigation conducted by the Respondent into the allegations fell outside it.  This is a respectable disagreement between people who are experienced in looking at how an employer should behave in relation to an investigation.  In our judgment, it was open to the majority to make the finding that it did; there is no error of law in its holding that the investigation was not one that could be relied on by a reasonable employer.  This is to do with Mr Townsend. To some extent the view of the Townsend report is shared by all three members (see the passage beginning, “It is clear […]”, in paragraph 56 of the Employment Judge’s minority Judgment).  Thus the finding as to the investigation is one that was open to it.

36.	The genuineness of the employer’s belief is not contentious. So what really matters in this case is the final stage of any consideration of a misconduct dismissal, which is: was the dismissal within or without the band of reasonable responses, in all the circumstances?  Actual use of the word “mitigation” appears throughout the Judgment.  It is not misplaced.  Once the Claimant had admitted that his behaviour constituted gross misconduct (see paragraph 55) dismissal was not automatic.  This is precisely as the Judge indicated: because the parties talk in language of gross misconduct, it does not lead ineluctably to a fair dismissal.  The statute requires treatment of those matters in section 98(4).  The ascertainment of what is gross misconduct and what is serious misconduct is a question of fact for an Employment Tribunal (see Woods v WM Cars [1981] 347 EAT).  The majority decided that it was at the very lowest end in terms of severity.  It paid attention to a number of mitigating factors.  These are matters that a reasonable employer would consider before dismissing. They included at least two that were not considered by the Judge expressly, although she does mention mitigating factors; these are the insufficient regard had by Mr Connell for the Claimant’s good disciplinary record over his five‑year engagement and his full marks on behaviour at the appraisal.  That, the severity and the recognition of wrongdoing are all matters that would weigh in the mind of a reasonable employer in deciding whether to dismiss.  The majority was entitled to come to the view that in the light of all that material a reasonable employer would not have taken that step and it was unfair to dismiss him.

37.	The Claimant did not present as a blameless person.  He acknowledged that a final written warning would have been apt, and that is precisely the exercise that a Tribunal must go through to decide whether there was on the material presented to Mr Connell it was reasonable in all the circumstances.  The Tribunal majority found not, and in those circumstances that was a decision that was open to it.

Contribution
38.	We then turn to the finding on contribution.  As we have recalled, the initial campaign by the Respondent was a finding of at least 70 per cent.  The majority Tribunal decided it was 55 per cent; the Judge, 100 per cent.  On a simplistic approach, more blame is attributed to the Claimant than the Respondent by both divisions of the Tribunal.  The difficulty facing Ms Motraghi, as she frankly put to us, is found in Hollier v Plysu [1983] IRLR 260 CA, from which it is clear (see paragraph 19) that these matters are obviously ones of impression, opinion and discretion best left to an Employment Tribunal.  The Court of Appeal in that case actually accepted the taxonomy given by Kilner Brown J and members, while not accepting the Judgment, which was to show that where an employee was largely responsible nobody would quarrel with 75 per cent.  In this case it cannot be said, in our judgment, that the majority erred in law in fixing it at 55 per cent as against a submission made to it that the figure should be at least 70 per cent.  This is a difference of 15 per cent.  Using Ms Motraghi’s language, it is over the borderline; that is, we consider to be important that more blame is attributed to Mr Simons than to Circle.  But the difference of 15 per cent cannot be said to be outside the fact‑finding and assessment‑rating of an Employment Tribunal, and so the Judgment of the majority will be affirmed on that basis.

Costs
39.	An application has been made by the Claimant for costs for preparation time.  We reminded Ms Gurdon that the gateway to this has to be through rule 34A, and she chose to advance her case on the basis that this appeal was unnecessary.  We have not troubled Ms Motraghi, but we would not doubt that Mr Simons has put a good deal of preparation time into this, but our jurisdiction is limited.  To say this case was unnecessary is outside the normal meaning of the word.  Yesterday we allowed an application by a Claimant for costs in a misconduct dismissal where the Respondent had failed on appeal, but the word “unnecessary”, we accepted, meant to do with alternative dispute resolution or some other way of dealing with it; we do not think that applies here.

40.	It is open to a party who has been taken with permission to a full hearing to raise an issue of costs, because actually this is the first time when a full consideration of the matter could occur (see J O Sims Ltd v McKee UKEAT/0518/05).  We bear in mind that this case was sent to a full hearing, albeit we do not know the reasons that informed the sift Judge’s thinking. This case divided an Employment Tribunal and there were very substantial reasons.  We do not hold that this was an unnecessary appeal.  The Respondent has come and failed. 

41.	Careful examination of the towering weight of the Court of Appeal authorities on this subject might have made others reconsider, but this appeal is not to be condemned as unnecessary.  Just for the sake of completeness, had it been argued to be unreasonable or unreasonably brought, or misconceived, we would not have accepted that either.