Appeal No. EAT/1167/01 ST

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 November 2002

Before
THE HONOURABLE MR JUSTICE ELIAS
MR C EDWARDS
MR A E R MANNERS

A	APPELLANT

B	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised 3 June 2003

	APPEARANCES

For the Appellant	MR J N GALBRAITH-MARTEN
(of Counsel)
Instructed by:
Davies & Partners Solicitors
5 Highlands Court
Cranmore Avenue
Solihull
West Midlands B90 4LE	
For the Respondent	MR E PEPPERALL
(of Counsel)
(Solicitor to the Council)
Ingleby House
11-14 Canon Street
Birmingham B2 5EN	

THE HONOURABLE MR JUSTICE ELIAS

1	In this appeal the Appellant challenges the finding of an Employment Tribunal that he was not unfairly dismissed by his employer.

The Facts

2	The relevant findings of fact can be summarised principally from the findings made by the Employment Tribunal in its Decision.  We set them out chronologically, as did that Tribunal.

3	The Respondents are a local authority.  Part of their functions are to provide residential homes for children requiring residential care.  Mr Edgar was the Manager of one of the Children’s Homes which is the subject of this case.

4	The Appellant was employed as a residential social worker.  He was employed initially in 1995 as a night supervisor but subsequently became a residential social worker.  His duties involved looking after a group of teenage children as part of a team.

5	On Sunday 22 June 1997 Mr Edgar received a telephone call from a colleague who had spoken with a woman claiming that her daughter had run away from home and had been with a Miss B, a minor who was at that time 14 years old and a resident of the children’s home.  The lady claimed that her daughter had stayed at the home of the member of staff employed by the authority.  She gave a description that fitted that of the Appellant.

6	On 23 June 1997 Mr Edgar discussed the matter with various colleagues including the Appellant’s line manager.  The Appellant was interviewed.  He denied the allegation that Miss B and this other young woman had been to his house.

7	On 24 June he was suspended pending an investigation.  He was informed that he should not contact anyone at the Home and nor, of course, the complainant.  That was perfectly proper but it meant that he could not take steps to obtain evidence in his own defence against these allegations.

8	The investigation was carried out by Mr Edgar himself.  He made arrangements to see Miss B but for various reasons he was not able to see her until an interview took place on 25 September.  That was the first interview of Miss B in the disciplinary investigation.  At that stage Miss B denied that she had been to any flat or house with the Appellant.

9	There was then a further interview on the following day, 26 September, at which Miss B told Mr Edgar that the Applicant had taken her to his brother’s shop.  He had smoked a spliff (a marijuana joint) with her on that occasion.  She also recounted two other occasions when she said that she had smoked marijuana with the Appellant.

10	In that interview she also told Mr Edgar that there had been an occasion when she was lying close to the Appellant on the sofa watching television and he was about to kiss her but had been prevented from doing so as a result of the intervention of a third party.  She described another incident when she had gone to a park and the group had split in two.  She had gone with the Appellant to a secluded spot and they had kissed on the lips.  She added that she had twice gone to the Appellant’s house; not in fact on 17 and 18 June 1997, as originally alleged, but after he had been suspended.
11	On 27 September Miss B asked to see Mr Edgar again and at that time she made allegations about another member of staff.

12	On 1 October the Applicant was interviewed in the presence of his Union representative.  He continued to deny the allegations made against him but did admit taking one young person, not Miss B, to the shop of his brother.

13	On the same day (that is, 1 October 1997), following a child protection strategy meeting, the police visited the children’s home and asked for access to papers to consider the possibility of criminal charges.  That investigation took over a year and was not concluded until 16 October 1998 when the police advised the authority that they did not have sufficient evidence to prosecute.

14	Meanwhile, however, the investigation continued, for a while overlapping with the police enquiry.  On 25 November 1997 Mr Edgar interviewed Miss B in the presence of another residential social worker.  This time she said that she had gone to the Appellant’s house on 19 June 1997, something she had previously denied. She said that she had spent a few hours there with another resident smoking marijuana.  She also said that she had in fact kissed the Appellant on many occasions and not simply those she had identified in the previous interview.

15	On 2 December 1997 Mr Edgar was contacted by Miss April Donnelly, a residential social worker.  She recounted information that she had obtained from Miss B who told her that she had in fact had sex with the Appellant.  This of course had not been mentioned before.  Miss Donnelly said that Miss B should speak to the social worker and give details.  Mr Edgar set in train further investigations.
16	On 7 January 1998 Miss B was interviewed in the presence of a residential social worker.  She was told that any statement she made would be made available to the police and she refused to say anything further about the alleged sexual encounter.

17	On 16 January, at a child protection meeting, it was decided that Mr Edgar should no longer pursue the disciplinary investigations because of the ongoing police and child investigations.  That therefore meant that no further steps could be taken until the end of the police enquiries which was on 16 October 1998.  There is no complaint about the investigations being suspended for that period.

18	On 7 November 1998 Mr Edgar was involved in a car accident.  He was, as a consequence, off work for some four months.  There was then, however, a further delay, which the Tribunal described as an “inexplicable delay” between April 1999 and September 1999 when the Respondent decided to convene a disciplinary hearing.

19	Before that hearing they set out various charges which the Appellant had to face.  There were 7 charges in all; 3 of them related to factual matters.  It was alleged that the Appellant had smoked marijuana with Miss B, that he had developed an inappropriate relationship with her, and that he had continued to see her after he had been suspended and had been instructed not to do so.

20	The other charges all flowed from these.  It is said that the consequence was that he had failed to provide an appropriate male role model for a young woman in care; that he had taken advantage of the inappropriate relationship; demonstrating a lack of consistency with his duties as a residential social worker; and had breached the Council’s own professional code of conduct.
21	The disciplinary hearing itself took place on 15 December 1999.  The Applicant was represented by a friend but not a trade union representative.  He confirmed, however, that he was happy to proceed.  The hearing took place over two days.  It was chaired by Mr Woolfenden and Mr Edgar was the investigating officer Miss Walker was there as personnel adviser but she took no further active part in the proceedings.

22	There were a number of documents before Mr Woolfenden.  They did not, however, include all the statements which had been obtained from the witnesses.  For example, they did not include the first two interviews that had taken place with Miss B when she had denied any involvement with the Appellant.  Indeed, Mr Pepperall for the Respondent told the Tribunal that in all there were 9 different occasions when statements had been taken from Miss B.

23	 Mr Galbraith-Marten for the Appellant complained that 4 of these were potentially material and had not been made available to the Appellant, nor indeed to Mr Woolfenden.  In addition, there were two statements from witnesses who dealt with particular incidents which were not disclosed to the Appellant.

24	Furthermore, there was a document which was apparently provided to the Employment Tribunal during the course of the hearing itself (I say a document, it was really a set of documents) which were termed ‘progress sheets’.  They set out certain comments that had been made to social workers by Miss B and they included allegations of sexual impropriety against a number of people, including another care worker at the home.

25	In addition to the statements from Miss B that were before Mr Woolfenden, there were statements from three social workers.  They each recounted an interview they had had with Miss B and they each expressed the view that they were satisfied that she was telling them the truth.

26	They all commented that, to their knowledge, her story was consistent.  They said that they were aware that she had talked of her relationship with the Appellant to a number of people at the care home.  We simply note that it must be difficult for them to know that the story was consistent if they were not parties to those other conversations.  But in any event, it is plain that in certain respects her story had not in fact been entirely consistent at all times.

27	On the basis of that material, and of questioning which took place at the hearing itself, the disciplinary body reached its decision.  The Appellant had at all times denied any impropriety but Mr Woolfenden concluded that the allegations were well founded.  He took the view that the evidence of Miss B was consistent and that there were strong links between each of the various allegations that had been made.

28	The Appellant’s contract was terminated on 16 December 1999.  The effect of the dismissal is that he is no longer able to be employed in this particular field in which he had chosen to make his career.

The Grounds of Challenge Before the Employment Tribunal

29	Before the Employment Tribunal, the Appellant alleged that the dismissal was unfair because the employers had failed to carry out such investigation as was reasonable in all the circumstances.  In particular, it was alleged that:

(1)	The employers had failed to disclose potentially significant evidence to the Appellant which they had gathered during the course of their investigations and had failed to take statements from some witnesses who might have given testimony assisting the Appellant.

(2)	The delays between the date of the allegations and the ultimate disciplinary hearings were some two and a half years, and this delay alone meant the Appellant did not receive a fair hearing.

(3)	There were certain procedural irregularities in the conduct of the hearing itself.

30	The Tribunal rejected all these challenges.  It held unanimously that the employer had carried out a reasonable investigation.  In this context it had to consider a submission, by Mr Galbraith-Marten for the Appellant, that what was reasonable must be commensurate with the nature and gravity of the case, the state of the evidence, and the consequences to the employee, including the fact that he would not be able to continue to work in his chosen field.

31	It appears that the Tribunal understood this submission simply to be that a stricter standard of reasonableness would apply in circumstances where the employee would be almost certainly unable to work in his chosen field again as a consequence of the dismissal.
32	The Tribunal observed, in relation to that:

“We find no authority for the proposition that the standard of investigation must go beyond what is reasonable merely because of the effect of dismissal on the employee, i.e. that in this case there is a real possibility that the Applicant may never be employed as a social worker again.”

33	As to the more specific allegations of conducting a defective investigation, the Tribunal found certain of the complaints substantiated but it did not consider they rendered the dismissal unfair.  The Tribunal accepted that some statements had not been provided by the Appellant and they further accepted that there was no satisfactory reason why they had not been so provided.  But they rejected the submission that this rendered the dismissal unfair by saying:

“We do not find that there was any improper motive involved nor do we find that the Applicant was significantly or materially prejudiced as a result.”

34	Nor, in the Tribunal’s view, was the failure to interview certain potential witnesses a cause for criticism.  There were good reasons why this had not been done, namely the fact of police investigations.  They accepted Mr Edgar’s evidence that by the time he was in a position to take statements from any other potential witnesses, such time had elapsed that there was nothing they could usefully have said.

35	As to the delay, the Tribunal had characterised this as “extraordinarily long by any standards”.  The Tribunal considered the delay was unfortunate and that some of it, as we have already said, was inexplicable.  But it concluded that the delay did not render the decision unfair.  They dealt with this in their decision at paragraph 17 as follows:

“The delay in the conclusion of the process was unfortunate but that of itself does not make the dismissal unfair.  Mr Woolfenden was entitled to conclude after the investigation that the Applicant had not been truthful.  On a balance of probabilities, he found the allegations to have been proved.  On the evidence before him, we are satisfied that Mr Woolfenden was entitled to come to that conclusion.  We conclude that the decision by Mr Woolfenden to dismiss fell within the band of reasonable responses.”

The Grounds of Appeal

36	The Appellant submits that the Tribunal failed to have regard to all the relevant circumstances when approaching the question whether the investigation was reasonable.  They did not give proper weight to the nature and gravity of the charges or the state of the evidence, nor to the adverse effects of the decision on the Applicant’s future career prospects, when considering what constituted a reasonable investigation.

37	Mr Galbraith-Marten submitted that had they adopted the right approach, they would inevitably have been bound to find that there had not been a proper investigation for the reasons we have outlined.  He also alleges that the totality of the delays, part of which the Tribunal accepted was inexplicable, was such that it was simply perverse to find other than that it rendered the dismissal unfair.  

38	He contended that to the extent the Tribunal was saying in paragraph 17 of its decision that the delays did not render the decision unfair because the employer, in any event, had reasonable grounds to dismiss on the evidence before him, this was an error of law.  The question is whether the investigations had been reasonable and that cannot be judged by asking whether there was a proper evidential basis for the decision actually reached.

39	In addition, Mr Galbraith-Marten submitted that it is plain that the statements withheld from the Appellant must have had a material effect on the decision in the sense that, had they been made available to him, he would have had a fuller opportunity to make submissions to Mr Woolfenden, which might have caused Mr Woolfenden (not necessarily would have done) to change his views.  

40	In this connection he highlighted a number of factors which he said showed that the Appellant was plainly prejudiced by the failure to provide the statements.  First, he said that previous statements made by Miss B would have highlighted certain inconsistencies in her evidence.  As we have said, she initially denied the allegations against him entirely.

41	In relation to the sexual allegations, the statement showed a general development from almost kissing, to kissing, to an occasion of sexual intercourse, to sex on a number of occasions.  Some of this would have been clear from the documents disclosed, but by no means all of it.

42	He also pointed out that as far as the consistency of Miss B’s evidence is concerned, she had made a lengthy statement on 5 April 1998 in which she had made an allegation of impropriety by the Appellant in the swimming pool.  More accurately, she alleged that the Appellant had been jealous of her involvement with certain other persons.  In fact that particular complaint was withdrawn at the hearing itself because it was accepted that in certain respects the statement from Miss B was inaccurate.

43	Second, Mr Galbraith-Marten also pointed to the fact that there had been allegations, some very similar allegations apparently, against others, including one other person employed at the Home.  He submitted that had the Appellant been fully aware of this he may have wished to have explored much more fully the tendency of Miss B to make potentially untrue allegations.

44	Third, he referred to certain specific statements that dealt with particular incidents which supported the Appellant and were not shown to him.  For example, one of the allegations was that the Appellant had been in the park and split off from the main group with Miss B and kissed her.  Alison Glover, a member of staff who went on the trip, was interviewed and said that the group had remained together at all times.

45	In another statement another minor, MR, was interviewed about an occasion when it was alleged that she had smoked cannabis with the Appellant.  That was an allegation that had been made by Miss B and MR categorically denied that this had happened.

46	Mr Galbraith-Marten says that the failure to provide the statements was particularly significant because not only were they not provided to the Appellant but they were not available either to Mr Woolfenden.  Instead, in relation in particular to the two specific incidents to which we just made reference, Mr Galbraith-Marten submits that Mr Woolfenden was given positively inaccurate information.  At the disciplinary hearing Mr Edgar informed Mr Woolfenden that Alison Glover “doesn’t recall the group splitting up” in relation to one of those incidents, whereas in fact she had stated categorically and in terms that the group remained together.

47	Perhaps more significantly, when asked whether MR had given any statement in connection with the incident about smoking marijuana, Mr Woolfenden was told that “she wouldn’t discuss anything”.  This was not in fact true.  It is right to say that she was not willing to answer many questions when interviewed, but her statement shows that she did give an answer in relation to the particular incident and it was supportive of the Appellant’s case.

48	Finally, the Appellant apparently asked at the hearing whether similar allegations had been made against anyone else.  Mr Edgar said that no such allegations had been made.  In fact it was pointed out a little later that there had been an allegation that had been sustained against another social worker but it appears that this person was in addition to those people in respect of whom Miss B had already made allegations of sexual impropriety.

49	Mr Galbraith-Marten submitted that n all the circumstances it was inevitably a defective procedure leading to an unfair dismissal to have failed to make these documents available; and that was compounded, he submits, by the fact that certain statements were not taken that ought to have been taken.  In particular he refers to the fact that Miss B had spoken to many people in the care home.  Yet statements had not been taken from them because Mr Edgar had considered that by the time he was able to do so it was too late to obtain those statements so as to give helpful information.

50	Mr Galbraith-Marten submitted that these various matters, taken individually, rendered the investigation unreasonable and the dismissal unfair, but that in any event they certainly did so when taken cumulatively.

51	Mr Pepperall for the Respondent reminded us that it is not for us to decide what we would have done had we been the Tribunal but only to determine whether the Tribunal has erred in law.  He submitted that they had not and that each of their conclusions were carefully reasoned and justified in the circumstances.  In particular, he dealt with the specific allegations as follows.

52	First, he submitted that there was no evidence at all that the Tribunal had failed to apply the proper standard of reasonableness.  They had in terms referred to the case of British Home Stores v Burchell [1980] ICR 303 and accurately set out the requirements of that case.  Moreover, he submitted that in any event the Tribunal was right to conclude that the standard of reasonableness would not vary merely because the employee’s career might be at stake.  It would be no more or less significant than it is where his job is at stake.

53	As to the question of delay, he submitted that the only period of delay for which there may be any legitimate criticism of the Respondent was the period described by the Tribunal as “inexplicable”, which was the period of some 6 months or so from April to September.  He submitted that although the overall process had taken a significant time, there were explanations for that and they had been accepted by the Tribunal.  It could not be said, he submitted, that the conclusions of the Tribunal on this matter were perverse.

54	In relation to the statements, he submitted that the Industrial Tribunal was entitled to conclude that the failure to provide all the relevant statements to the Appellant was not such as to render the decision flawed.  In particular, he pointed out that in fact some of the information that could have been extracted from the statements was made known at the disciplinary hearing.  For example, Mr Woolfenden was told that Miss B had initially denied having any improper relationship or dealings with the Appellant.

55	Furthermore, in relation to the statements from Alison Glover and MR, he submitted that these were not significant statements and that they were not materially misrepresented to Mr Woolfenden, albeit he accepted that the evidence was not accurately relayed to him.  In any event, he says that to the extent that there were errors in relation to their evidence, they would fall far short of the kind of errors that would entitle us to say that overall the Tribunal had erred in law.

56	He also submitted that it was not, in the circumstances, unreasonable to fail to obtain evidence from other potential witnesses.  He identified all the various individuals who had been interviewed for the purposes of this hearing – some of whom had given evidence before the Tribunal – and he submitted that in the circumstances the Tribunal was fully entitled to consider that the investigations had been reasonable and that, in so far as it may have been desirable to have taken statements from a wider number of people, the Tribunal had reasonably accepted the explanations from the Respondents as to why that had not been done.

Our Conclusions

57	We shall consider the grounds separately.  It is trite law, as set down in the Burchell case to which we made reference, recently confirmed by the Court of Appeal in Foley v The Post Office [2000] IRLR 827, that the employer should carry out such investigation as is reasonable in all the circumstances.

The Standard of Reasonableness

58	We accept the submission of Mr Galbraith-Marten, for the Appellant, that the relevant circumstances do in fact include a consideration of the gravity of the charges and their potential effect upon the employee.  As we have said, that was not in fact his principal submission to the Tribunal on this point.

59	The lay members of this Tribunal have no doubt from their own industrial experience that what would be expected of a reasonable employer carrying out, say, an investigation into a disciplinary matter leading at worst to a warning would not be as rigorous as would be expected where the consequences could be dismissal.

60	Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers.  Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.

61	This is particularly the case where, as is frequently the situation and was indeed the position here, the employee himself is suspended and has been denied the opportunity of being able to contact potentially relevant witnesses.  Employees found to have committed a serious offence of a criminal nature may lose their reputation, their job and even the prospect of securing future employment in their chosen field, as in this case.  In such circumstances anything less than an even-handed approach to the process of investigation would not be reasonable in all the circumstances.

62	The Tribunal appear to have considered that the fact that there was a real possibility that the Appellant would never work again in his chosen field was irrelevant to the standard of the investigation.  In our view the Tribunal was strictly in error in saying that it has no significance.  However, it seems to us that it is only one of the very many circumstances which go to the question of reasonableness.

63	We accept the observations of Mr Pepperall, for the Respondent, that the standard of reasonableness required will always be high where the employee faces loss of his employment.  The wider effect upon future employment, and the fact that charges which are criminal in nature have been made, all reinforce the need for a careful and conscientious enquiry but in practice they will not be likely to alter that standard.

The Delays

64	In this case there were unacceptable delays, as the Tribunal found.  The Appellant was suspended on 24 June 1997.  Police investigations took place between October 1997 and October 1998; but even then Mr Edgar continued with his investigations until 16 January 1998.  There was then the four months while Mr Edgar was ill and then the six inexplicable months before the decision to hold the disciplinary hearing was taken.

65	Each of us considers that in this case this timetable demonstrates grossly improper delays in the dismissal procedures.  Even if one allows for the period of the police investigation and the illness of Mr Edgar (and we think there is some force in fact in the observation of Mr Galbraith-Marten that it would have been possible to have found somebody else to take over the disciplinary investigation in his absence), even if one is sympathetic to the Respondent’s desire to have him carry out the investigations, nonetheless there were very lengthy periods when further investigations could have taken place and did not.  There was a period of 9 months even before the police were involved.

66	In our opinion, the question whether an employer has carried out such investigations as is reasonable in all the circumstances necessarily involves a consideration of any delays.  In certain circumstances a delay in the conduct of the investigation might of itself render an otherwise fair dismissal unfair.  

67	This was the view of the Employment Appeal Tribunal in RSPCA v Cruden [1986] ICR 205.  In that case the Industrial Tribunal held the dismissal of an employee of the RSPCA was unfair simply because of the delay of some 7 months in initiating proceedings.  The Tribunal considered there was no good reason for this delay.  They found, nonetheless, that the employee had suffered no prejudice as a result of it.  Even so, the Tribunal considered the decision to dismiss to be unfair and the employer’s appeal to the Employment Appeal Tribunal was rejected.

68	Where the consequence of the delays is that the employee is or may be prejudiced, for example, because it has led to a failure to take statements which might otherwise have been taken, or because of the effect of delay on fading memories, this will provide additional and independent concerns about the investigative process which will support a challenge to the fairness of that process.  

69	In this case the Tribunal found that the delays were not unfair.  The reasons, as set out in paragraph 17 of the decision, appear to be that in any event the decision to dismiss the Appellant was one which was reasonable in the circumstances, given the evidence before Mr Woolfenden.  We accept the submission of Mr Galbraith-Marten that that fact is irrelevant to the question whether delay rendered the investigation unfair.

70	Where procedural challenges are made it will very frequently be the case that the employer can properly and fairly contend that he reached a reasonable decision on the basis of the evidence before him.  But that is no answer to such a procedural challenge.  It does not engage the particular complaint.

71	In our opinion, in this case, the delays were so lengthy and the justification for them was so limited that we consider that the Tribunal did err in concluding that they did not render the dismissal unfair.  That is particularly so when these delays are combined with the other factors to which we return.

72	We bear very strongly in mind that we are not here to substitute our view for that of the Tribunal, but we note that the Tribunal itself commented on the fact that the delays were extraordinary by any standards.  That is plainly right.  It seems to us that they may have misdirected themselves by considering that the delays would only render the dismissal unfair if they could have been shown in some way to have affected the overall outcome of the hearing.  That would be an error.

Failure to gather and make available relevant evidence

73	Before considering these particular matters, it is in our view necessary to bear in mind certain particular features of this case.

74	The allegations that form the basis of the case against the Appellant all derive from the complainant Miss B.  She was at the relevant time young and very vulnerable and appears to be potentially an unreliable witness.  She was taking drugs and was involved in other activities which were the cause of her having to be taken into care.

75	Particular care is necessary in testing and weighing the veracity of her evidence.  That task was made more difficult by the fact that the local authority has a policy (for perfectly understandable reasons) that children in her situation should not be questioned in the disciplinary process.  
76	We recognise that there is a real dilemma for an employer in a situation of this kind.  On the one hand it is plainly highly undesirable to subject a young girl, who may already have been subject to abuse, to questioning from the defendant which could cause yet further distress and even damage to health.  On the other hand, the consequences for the defendant are extremely serious and there is no doubt that the difficulty he faces in convincing a disciplinary body that the allegations are untrue is compounded where he is not able directly to face and challenge the complainant.

77	In this case the effect was that the Appellant had to counter not only the evidence of the complainant herself, given in various statements, but also the evidence from three social workers who had interviewed her and had formed the view that she was telling the truth.  

78	We should add that there was also the evidence of another very experienced and well-qualified social worker who expressed views on the veracity of the complainant’s statements without even interviewing her and merely on the basis of documentary evidence.  We find it extremely surprising that in those circumstances she should be called as an expert, as apparently she was, on the truthfulness of Miss B.  But no specific complaint has been made about that and we say no more about it.

79	It is obvious that once these opinions had been formed by the various social workers it was going to be very difficult for any employee, however innocent in fact, to demonstrate that innocence.  In such cases there is a particular need to ensure that reasonable steps are taken to identify such persons who may be able to give evidence to counter the allegations made against him.

80	Of course the touchstone is always reasonableness.  The recognition that the standard of reasonableness is going to depend upon the state of the case against an employee is found in the decision of the Employment Appeal Tribunal, Wood J giving the judgment, in the case of ILEA & Gravit [1988] IRLR 497.  In the course of his decision Wood J said this:

“…in one extreme there will be cases where the employee is virtually caught in the act and at the other there will be situations where the issue is one of pure inference.  As the scale moves towards the latter end so the amount of inquiry and investigation, including questioning of the employee which may be required, is likely to increase.”

81	In this case we consider the investigation fell short of the even-handed, careful enquiry that is required.  As we have said, certain members of staff, who may have given relevant evidence, were not interviewed at all.  This is because Mr Edgar took the view that as a result of the delays they would not be able to remember anything significant.  It is relevant to note that it is not said that they could not have had anything relevant to say, merely that by the time they might have been interviewed they would not be likely to remember anything, even if it was relevant.

82	Mr Pepperall submitted that it is unlikely that they would have had anything material to add.  He may well be right, but it seems to us that that is not something one can assume.  We know, for example, that there were various statements apparently made to other members of staff by Miss B.  Indeed, it appears that these statements were known to the social workers who appeared at the disciplinary hearing and they relied upon them in stating that her evidence had been credible.  Mr Pepperall may be quite right in submitting that their evidence may well have added nothing to the evidence already available, but the fact is that one simply does not know.

Failure to Provide All Relevant Statements

83	Perhaps of greater significance is the fact that the statements which were taken, and may have been of some assistance to the Applicant, were not provided to him.  In this context we do not accept that it was sufficient, as was done in relation to some of these statements at least, simply to provide Mr Woolfenden of a precis of what was said.  For example, it was not enough, in our view, simply to tell him that Miss B had initially denied the allegations.  There was some material in those statements which might have assisted the Appellant had they been made available to him.

84	If an employer reasonably forms a view that certain evidence is immaterial and cannot assist the employee, then of course a failure to disclose that material will not necessarily render a dismissal unfair.  Ultimately fairness is a broad concept and must be considered in the round.

85	In this case the Tribunal took the view that the Appellant was not materially prejudiced.  We do not think they were entitled to reach that view in the light of the admitted failure by the Respondent to make evidence available.  They appear to have concluded that, even if the relevant information had been provided, it would not have affected the result.

86	If that is what they intended to say then in any event they fell into error.  It is no answer for an employer to say that even if the investigation had been reasonable it would have made no difference to the decision.  That is to resurrect the heresy that was first brought to light by the decision of the Employment Appeal Tribunal in British Labour Pump v Byrne [1979] IRLR 94 and which was finally laid to rest by the House of Lords in Polkey v AE Dayton Services Ltd [1988] ICR 142.  If the investigation is not reasonable in all the circumstances then the dismissal is unfair and the fact that it may have caused no adverse prejudice to the employee goes, at least as the law currently stands, to compensation.

87	We consider that in a case of this kind it is important that the documentation is made available to the employees.  The Appellant might have been able to advance arguments based upon them which could have affected the approach of Mr Woolfenden.  In particular, the fact that Miss B was apparently ready to make allegations against a number of people but she was not consistent in her own evidence about what had occurred; and that in certain respects others had given evidence about particular incidents which were not consistent with her own evidence.

88	We accept that there is no hard and fast rule that statements should always be provided.  Often it is enough for an employee to know the gist of the case against him and in such cases it will not infringe the principles of fairness to fail to provide the detailed evidence: see Hussain v Elonex [1999] IRLR 430.  Hussain was a case where there was a failure to provide the statements of four independent eye witnesses to several incidents; plainly the gist of their failure could be communicated orally.  By contrast, in this case the material, if provided, may have helped to undermine the credibility of the complainant whose evidence was fundamental to the decision.

89	We recognise that there has been a greater consistency in the complainant’s statement relating to drug taking that in respect of the alleged relationship.  The Appellant’s involvement in the former would have been good grounds for justifying his dismissal on its own.  But if Mr Woolfenden had cause to question Miss B’s evidence on the latter, then it might have also had affected his view on the former.

90	Looking at this matter in the round and taking account of the delays, the failure to provide certain statements for which there was no excuse and, although to a more limited extent, the fact that no statements were taken from certain potential witnesses because of the delay, we have come to the clear conclusion that the Industrial Tribunal erred in finding that the investigations were reasonable in all the circumstances.

91	We consider that no reasonable Tribunal properly directing itself in law could have so concluded.  We think that the Tribunal in this case focused too much on whether the defects actually affected the ultimate decision.  In so doing they approached the matter wrongly as a matter of law.  In any event we do not consider this is a case where one can say that the decision would inevitably have been the same, even if the proper procedures had been complied with.

92	Accordingly we consider the only conclusion that could properly have been reached was that the dismissal in this case was unfair.  We will consider representations from the parties as to what steps follow from that.