Appeal No.  UKEAT/0436/05/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 September 2005
						          Judgment delivered on 19 December 2005

Before
HIS HONOUR JUDGE J BURKE QC
MR D WELCH
PROFESSOR P D WICKENS OBE

WEST YORKSHIRE MAGISTRATES COURTS SERVICE	APPELLANT

MR F SMITH	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR F SUTCLIFFE
(Solicitor)
Messrs Ford & Warren
Solicitors
Westgate Point
Westgate
Leeds
West Yorkshire
LS1 2AX	

For the Respondent	MR M LEACH
Consultant	

SUMMARY

Unfair dismissal claim.  At end of hearing Tribunal gave brief and reasons for conclusion that no reasonable employer could have regarded dismissal as appropriate.  Subsequently after being asked to give written reasons the Tribunal wrote to the parties informing them that they now felt they had to consider whether the employer reasonably believed in the misconduct and offered a further hearing.  The employers accepted the offer; and after a further hearing the Tribunal concluded that the dismissal was unfair (a) for the sanctions reason (b) because the employers could not reasonably have believed in the misconduct.

The appeal was based on an attack on this procedure and on the Tribunal’s reasoning for their conclusions.  The procedural point is perhaps interesting and, hopefully, unusual; we held that the procedure fell within what is permitted by Hanks & Ace Hugh Productions [1979] IRLR 32.  The other points had nothing in them.  Appeal dismissed.
.

HIS HONOUR JUDGE BURKE QC

The Nature of the Appeal

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1.	Mr Smith was employed by West Yorkshire Magistrate Courts Services as a security officer. He had been continuously employed in that or a similar role by those employers or their predecessors since June 1992. He had a clean disciplinary record. In January 2004 there occurred an incident when he placed a colleague, known as Ben, in a headlock. The employers concluded that this was serious misconduct and, after a disciplinary hearing and appeal, Mr Smith was dismissed with effect from 4 August 2004. He claimed that he had been unfairly dismissed; the Employment Tribunal, sitting in Leeds and chaired by Mr Grazin, found in his favour; their reasons were eventually set out in a written judgment promulgated on 20 June 2005. The employers now appeal against the Employment Tribunal's conclusion. There are two separate thrusts to the appeal; the first is directed against the procedure followed by the Tribunal; the second is directed at the substance of the Tribunal’s conclusion.

The Facts
2.	The Tribunal were unable to conclude whether Ben had made a contemporary formal complaint about Mr Smith's action; four weeks later another employee mentioned to Mr Smith's line manager, Mr Gee, that Mr Smith had "put Ben in a headlock to demonstrate something without his permission." Three weeks later Ben was interviewed by a Ms Gregory who recorded Ben as saying that Mr Smith had put him in a headlock "to show the others how it was done", that he (Ben) was very upset by this but had decided not to make a complaint. On the same day Ben completed an incident report in which he said that Mr Smith "had headlocked me so strongly that I really felt pain."

3.	A week later Mr Gee spoke to Mr Smith about this incident; he told Mr Smith that what
he had done was inappropriate and would not be tolerated.  Mr Smith "admitted this", apologised and told Mr Gee that it would not happen again. The Tribunal took the view that, at the end of that conversation, Mr Smith reasonably believed that the matter was, as a result of this conversation, closed.

4.	However, five weeks later, three months after the incident itself, Mr Gee wrote to Ms Standley, his District Service Manger, suggesting that there were grounds for disciplinary action against a number of members of the relevant security team, including, arising from the headlock incident, Mr Smith. Ms Standley carried out an investigation; she interviewed Ben who described being held in a headlock tightly; he said that the incident occurred in the course of a discussion between the security employees about a self-defence training course which Mr Smith had not attended and that Mr Smith had wanted the others present to know that he could do what he thought might be needed in a confrontation with a member of the public and demonstrated it. Ms Standley recorded that Ben had suffered pain and humiliation but thought that Mr Smith might have been playing around.  A week later Ms Standley spoke to Mr Smith who said:

"I was demonstrating an incident on level l. 1 put him in a headlock. 1 didn't squeeze.”

He also said that Mr Gee had told him that the headlock should have been done in private, not "where we were". The reference to "where we were" was, we understand, a reference to the fact that the incident occurred in an area to which the public had access; but it appeared to have been clear that, at the relevant time, no-one other than Ben, Mr Smith and one or two other employees was or were present or in the vicinity.

5.	Another employee, Mr Wynn, said:
"We were talking about the course. FS said the easiest way to stop someone was to put them in a headlock and then walk them out of the building. FS demonstrated on Ben.""

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Mr Wynn went on to say that Ben was not in pain and that:
""he was laughing all the time. I don't think he picked on Ben. I remember thinking I don't know what all the fuss was about. There was a lot of fuss about nothing.""

Another employee, Mr Dean, said that he saw Mr Smith grab Ben and put him in a headlock and that Ben was visibly upset but decided not to take it any further.

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6.	Ms Standley concluded that there was "sufficient reason" to warrant a formal disciplinary hearing, which took place on 2 August 2004; Mr Smith was represented by a colleague, Ms Lawton; and the hearing was conducted by a Ms Ogilvie, the employers’ Service Director. Mr Smith's case was put on the basis that he was demonstrating a headlock in the context of a discussion with colleagues about self-defence training and that he had no intention of causing pain and no malicious intent. There was evidence in the form of two letters from colleagues that Mr Smith had carried out similar demonstrations of headlocks as part of their overall training. Ms Ogilvie concluded that Mr Smith had been guilty of gross misconduct and would be dismissed. She summarised the reasons for her conclusion in this way:

“This incident constitutes actual physical violence against a member of staff and this is gross misconduct.

There are no mitigating circumstances.

Whilst it is acknowledged that you admitted the incident, you have shown no remorse until the incident was raised with you by your Line Manager. You then apologised to Keith Gee but not to Ben Hitimana. In the disciplinary hearing you stated you regretted the incident and that you would apologise to Benson but had not done so due to the investigation."

7.	Mr Smith appealed; the appeal was heard on 29 September 2004 by Ms Collins, the employers' Director of Services (presumably she was senior to Ms Ogilvie, the Services Director). The Tribunal found at paragraph 20 of their judgment that Ben, who was called to give evidence at the appeal hearing but not at the original hearing, told Ms Collins that Mr Smith had not told him that he was to be placed in a headlock and that he had suffered pain. He said:
"Yes.  He demonstrated to feel pain you have to “lock”: it tightly. KD was there because [the Claimant] was demonstrating. KD had done some training so he would have known that it hurt".

Ben went on to say that the headlock had been demonstrated on his training course. He was asked, if it had been demonstrated on the course, why would Mr Smith do it again and responded that Mr Smith had not been on the course, that it had been talked about for a few days and that in his opinion Mr Smith wanted to demonstrate that he knew it. He said, however, that he had not asked Mr Smith to demonstrate the manoeuvre. Mr Smith said that, when some years previously he had attended a self defence course in connection with his security job, he had been taught the headlock technique and that that is what he had been demonstrating to Ben on the occasion under examination.  

8.	It seems that in the course of the appeal Mr Smith also told Ms Collins that he had used the headlock technique on a member of a public a few weeks earlier. The Tribunal found that in doing so, Mr Smith had acted properly to restrain a member of the public who was repeatedly head-butting him. No complaint was made to the employers about that incident; and it had not been investigated. We were told that Ms Collins had informed the Tribunal that it would have to be investigated; and the Tribunal found that this earlier incident was taken into account by Ms Collins in reaching her decision.

9.	Ms Collins thought it necessary to make further investigations into the issue as to whether the use of a headlock was authorised. The results were equivocal; one source said they were prohibited; another said that they were used but not taught. The Tribunal found as facts at paragraph 23 that Ms Collins did not seek to investigate whether Mr Smith's assertions that he had been taught the headlock technique in the course of his training was true. They found that Ms Collins came to the conclusion that the incident involved an act of physical violence which was equal to an assault and was not a demonstration. They quoted Ms Collins as saying in her witness statement (at paragraph 29/30):

"29 Frank's representative kept saying that the headlock was only a demonstration yet she went on to say that Frank accepted that it could not be taken lightly and that it was a serious incident and should be dealt with. She then later went on to say that Frank accepted that some form of disciplinary action was appropriate but that the appropriate sanction should not be dismissal. In my view, to say it was only a demonstration, but to go on to say that some form of disciplinary action was appropriate seemed to be contradictory. I did not consider that this had been a demonstration, and after reviewing the reasons given for dismissal at the dismissal hearing, I felt that no other sanction would be appropriate.
30 In my view, if Frank was accepting that he had behaved inappropriately and committed this serious incident which he acknowledged should be dealt with and could not be treated lightly, he could not argue for a lesser sanction by maintaining he had only been demonstrating the technique and that he did not apply any pressure."

These were the reasons upon which Ms Collins dismissed the appeal.

10.	The Respondents' disciplinary procedure included, as an example of behaviour which might lead to dismissal for gross misconduct:-. 

"(a) physical violence -actual or threatened".

Ms Collins' evidence was that she dismissed the appeal on the basis that Mr Smith had been guilty of such gross misconduct for the reasons we had set out.

The Tribunal's conclusions

11.	The Tribunal concluded, of course, that the reason for the dismissal was misconduct; we say "of course" because that was never in dispute. They then directed themselves that they had to determine whether the employers' actions fell within the range of reasonable responses which a reasonable employer might have been adopting. They directed themselves, at paragraphs 38 and 39 of their judgment, in strong terms, to apply the range of reasonable responses test and not to substitute their own views for those of the employers.

12.	It is clear from the evidence of Ms Collins that she saw the central issue before her as whether or not the incident involved a demonstration; she said that if what Mr Smith had done was a demonstration, no sanction would be appropriate and that she considered these to have been an act of physical violence equal to an assault. Mr Sutcliffe on behalf of the employers is recorded, at paragraph 31 of the Tribunal's judgment, as having accepted that the real issue was whether what happened was an assault or a demonstration; and before us Mr Sutcliffe, who appeared again on behalf of the employers, did not suggest that he had not so accepted.

13.	Having directed themselves as we have set out, the Tribunal came to the conclusion), at paragraph 41 of their judgment, any reasonable employer would inevitably have concluded that the incident involved a demonstration, albeit one carried out without prior consent on the part of Ben and that no reasonable employer would have concluded that the incident was one involving physical violence, actual or threatened and had therefore involved in gross misconduct within the disciplinary procedure. The Tribunal further concluded, at paragraph 43, that dismissal was outside the range of reasonable responses to what Mr Smith had done. For those two reasons they held that the dismissal was unfair. 

Procedure

14.	We now need to say something about the procedure adopted by the Tribunal. At the start of the hearing it was agreed between the Tribunal and the parties that the only issue was whether the sanction of dismissal was within the range of reasonable responses to the incident and that no or no other aspect of the tripartite test in British Home Stores v Burchell [1978] IRLR 379 was relevant. It was also made clear that no question of contributory conduct on the part of Mr Smith was for determination at the hearing; and Mr Smith was not asked to give evidence as to the headlock incident or its background. However, as is clear from what we have said earlier in this judgment, there was evidence before the Tribunal as to what Mr Smith and others had said about the incident and what was said on his behalf in the course of the disciplinary proceedings. The evidence and submissions were completed in one day, 14 March 2005, at the end of which the Tribunal announced their conclusion that Mr Smith had been unfairly dismissed and gave brief oral reasons for that conclusion. The Tribunal were asked by Mr Sutcliffe to put their reasons into writing. When the Tribunal came to do so, it seemed to them or to the chairman that their considerations would need, in addition, to embrace one of the tripartite Burchell issues, namely whether the employers had acted within the band of reasonable responses in concluding that the conduct in question amounted to physical violence rather than a mere demonstration. In a letter of 29 March 2005 to the parties' representatives the chairman set this out and indicated that the Tribunal felt it proper to allow the parties an opportunity, if they wished at a further hearing, to put forward further arguments upon that issue, particularly in the light of the evidence of Ms Ogilvie and Ms Collins which, the Tribunal said the letter, had gone to all Burchell issues. Mr Sutcliffe chose to take up that opportunity; as a result the Tribunal reconvened on 16 May 2005; and both parties addressed further arguments based on the evidence which had previously been given. It is not in dispute that, at the start of this reconvened hearing, the Tribunal assured the parties that their earlier oral judgment was not final and that the parties were, using an analogy or metaphor which Mr Sutcliffe regarded as appropriate -not unreasonably as it seems to us “in extra time”; in other words they were being given a further opportunity to address the Tribunal before the Tribunal finally made up their minds on the merits. In a letter to the Tribunal in response to the Tribunal's letter of 29 March Mr Sutcliffe expressly said:
"3	The witness statements of Helen Ogilvie and Julie Collins deal with the three elements of the Burchell case and their reasons for deciding as they did that Mr Smith's actions amounted to "physical violence -actual or threatened" under the Respondent's disciplinary procedure "
He did not suggest in that letter or to the Tribunal at the reconvened hearing that the evidence of Ms Ogilvie and Ms Collins did not address or cover the three aspect of the Burchell test or that the employers needed or wished to call any further evidence.

15.	Subsequent to the promulgation of the Tribunal's written reasons Mr Sutcliffe asked that the Tribunal's oral acceptance at the reconvened hearing that the parties were "in extra time" should be incorporated into their reasons; the Tribunal declined to do so. There was, in our judgment, no need for the Tribunal to do so. It was clear to all at the second hearing that the Tribunal were seeking further submissions on a point which they now considered to be relevant to their decision but which had not been considered relevant at the original hearing and were therefore giving the parties a further opportunity to address the Tribunal on this new point; the arguments at the reconvened hearing may also have addressed the sanction issue; but that issue had in event been fully addressed at the original hearing.

16.	Mr Sutcliffe’s skeleton argument contended that the procedure we have described constituted a breach of natural justice because the Tribunal reached their conclusion on a different basis from that which had been the subject of an argument in the first day without the parties having the opportunity to present evidence and address arguments on the Burchell issues and that that breach of natural justice was not cured by the further hearing. That process, he submitted, both in his skeleton and orally, was one which it was not open to the Tribunal to adopt. He relied on and indeed based his arguments to us principally on the decision of the Employment Appeal Tribunal in Hanks v Ace High Productions Ltd [1979] IRLR 32. In that case the employee claimed a redundancy payment; the Tribunal at the end of the hearing announced orally that she was entitled to payment; but before that decision was put into writing and formally promulgated the chairman wrote to the parties expressing the view that further argument on the law was desirable and the Tribunal would be reconvened to hear further submissions. The EAT, presided over by Phillips J, had to decide whether the Tribunal were “functus officio” i.e. had exhausted their jurisdiction or whether the Tribunal had power to recall the matter for further argument as they sought to do. It concluded that the practice in the High Court and County Court, whereby a decision is not complete or perfected until the judgment or order have been entered or drawn should apply also to the Employment Tribunal which has, therefore, acted within its jurisdiction in proceeding as we have described. Mr Sutcliffe acknowledged the continuing validity of the principle in Hanks; but he submitted that that principle was hedged with conditions, as set out in paragraphs 12 and 13 of the judgment of the Employment Appeal Tribunal in these words:
"12
In the first place it is essential, if it is to be exercised, to inform the parties precisely and in detail what it is that the Industrial Tribunal requires to be done at the further hearing. That in this case was not originally done, but perhaps it has substantial been made good by the note of evidence. Secondly, in several appeals we have indicated that we hear a lot of appeals which are somewhat pointless in the sense that there is obviously an error or omission which could perfectly well have been remedied, either by a review, or by a recall of the decision before it was perfected, and where all we can do is to allow the appeal and remit the case, perhaps six months later, to be heard on the point. It is that class of case, where the error or omission is obvious and comes to light soon after the hearing and before the order is drawn up, which is suitable to be dealt with in this way, rather than by way of review. Putting the matter negatively, it would obviously be wrong to make use of the power, in effect to rehear the case, or merely to hear further argument on matters of fact with the possibility of changing the mind of the Tribunal on the facts, when already a clear decision has been reached upon them. It is intended for the plain omission which can be put right, or the simple error which can be put right and matters of that sort.
13
In other words, in summary, the power exists.  It should be used carefully, sparingly and no as a matter of course”.

"
Mr Sutcliffe relied specifically on the penultimate sentence in paragraph 12:  “This was a case, he submitted; which a Tribunal had already reached the clear decision for further hearing was, as it turned out, futile; the proper way for the Tribunal to have proceeded would have been by way of a review.”

17.	We do not accept these submissions.  Mr Sutcliffe was not able to point us to any indication that the Tribunal had made up their minds on the issue as to reasonable belief in misconduct before the letter inviting the parties, if they wished, to address the Tribunal on that issue at a reconvened hearing was sent.  The letter does not so indicate; there is nothing to support any suggestion that the Tribunal were not genuinely concerned about that issue and did not act genuinely and consciously in inviting the parties to deal with it. Mr Sutcliffe expressly eschewed any suggestion that the invitation was a sham or charade or that the Tribunal were not open, at the reconvened hearing, to persuasion upon the issue which had caused them to put that invitation forward. Indeed, the agreement that the parties were “in extra time" was itself a recognition that the Tribunal's decision had not been fully reached; to continue the metaphor, the final whistle had not been blown. Mr Sutcliffe submitted that, with hindsight, it was impossible to change the Tribunal's mind; but in the absence of any indication that the Tribunal were not acting genuinely in offering the parties "extra time" or that they had already made up their minds on the new issue, that submission amounts to no more than a complaint by Mr Sutcliffe that he did not, as it turned out, succeed in persuading the Tribunal on the issue which he had been invited to address.

18.	As to evidence, in his response to the Tribunal’s letter Mr Sutcliffe expressly stated that both of his witnesses had given evidence on the three elements of the Burchell test; and he did not at the reconvened hearing ask if he could call any further evidence.  Mr Sutcliffe did not before us pursue any suggestion that there had been any unfairness in relation to evidence.  

19.	In our judgment, while it is unfortunate that the Tribunal realised only after they had given brief oral reasons for their decision in favour of Mr Smith that there was another relevant issue, the Tribunal had jurisdiction to act as they did once they had so realised and acted properly and fairly in taking the course we have described. This is not a case in which a clear decision had already been reached on that issue. We agree with the Employment Appeal Tribunal in Hanks that the power to take that course should be used carefully and sparingly; but no doubt the circumstances in which it was exercised here only occur on rare occasions; and we can see no error of law, want of natural justice or unfairness in the exercise of that power in this case.

20.	We should add that the suggestion that a review might have been a better way for the Tribunal to proceed does not, in our judgment, offer any real benefit as compared with the course which the Tribunal took. The Tribunal could not, without giving the parties an opportunity to address the new issue, have decided against the employers on the basis that the employers could not reasonably have treated the incident as one of violence and not a demonstration. If therefore, they said nothing about that issue in their judgment the parties would never have known of the Tribunal's doubts about it and would not have sought a review - which would have been futile anyway because the Tribunal decided against the employers on the sanction issue in any event; and there would have been no purpose in the Tribunal's withholding from deciding the issue and then ordering a review of their own motion; nor would such a course have improved the prospects of the employers by comparison with the course which was taken.

Misconduct

21.	Mr Sutcliffe submitted that the Tribunal erred in law in reaching the conclusion that no reasonable employer could have regarded the incident as one of violence as opposed to one involving a demonstration. He accepted that the employers had approached the decision in the disciplinary proceedings on the basis that the key issue was whether Mr Smith had been demonstrating the headlock or was committing an act of violence expressly made it clear to us that he was not suggesting that, if Mr Smith had been carrying out a demonstration, because that caused pain and humiliation to Ben the incident was one involving violence. He did so, no doubt, because Ms Collins did not reach her decision by that route; 181 her evidence, from which we have already set out the important extract, as did the Tribunal at paragraph 27 of their Judgment was that she considered that there had been no demonstration; and Mr Sutcliffe accepted in his submissions to the Tribunal that the key issue was, indeed, that which we have identified.

22.	Mr Sutcliffe’s argument to us on this issue can be, and indeed he agreed could probably be, divided into these separate points, namely:-
	(1)	that the Tribunal had erred in approaching Ms Ogilvie and Ms Collins' decision that what had occurred was not a demonstration as based on the absence of Ben's consent to what Mr Smith did when their conclusion was based also on Ben's suffering pain and humiliation;
	(2)	that the Tribunal did not have proper regard to the meaning of violence and the effect of the decision of the Divisional Court in Collins v Wilcock [1984] 3ALLER 374;
	(3)	that the Tribunal had impermissibly substituted their own view for that of the employers or had reached a perverse conclusion. 

23.	In support of the first point, Mr Sutcliffe took us to paragraph 31 where the Tribunal record Mr Sutcliffe's submission to them as being that the employers had relied upon three elements, namely lack of consent, pain and humiliation in reaching their conclusion that there had been no demonstration; but when we asked Mr Sutcliffe to show us the evidential basis for that submission, it appeared that no such basis existed. There was evidence before the employer that Ben suffered pain and was upset; but we were not told of or taken to any evidence that Ms Ogilvie or Ms Collins had relied to any important extent on pain and humiliation in reaching their decision that there was no demonstration. 

24.	There is little or nothing to this effect in their witness statement and Mr Sutcliffe did not suggest that either had gone further in their oral evidence.  In contrast to Mr Sutcliffe's argument in the oral evidence of Ms Collins which we have already set out but will repeat she said, in answer to the question "Where do you draw conclusion not demo but act of violence", "Ben did not consent to it. I do not believe Frank Smith told Ben before he carried out manoeuvre. I believe Ben was grabbed. Ben stated he did not have the opportunity to get out of FS's way.  Indicates to me not something he wanted”.  

25.	Whatever Ms Ogilvie had in mind, it is clear that Ms Collins was not considering pain or humiliation but the absence of consent; and the Tribunal were, on the material before them, entitled to conclude that it was the absence of consent which had been the determining factor in the employers’ mind and particularly in the mind of Ms Collins whose conclusions on appeal, which appears to have taken the form of a rehearing, was the final and crucial view.  Accordingly we reject Mr Sutcliffe’s first argument.  

26.	Mr Sutcliffe's second point is that the Tribunal did not pay proper regard to the meaning
of violence. Mr Sutcliffe points out to us that the Oxford English Dictionary gives us the definition of violence, prefacing this definition with the word “law” “unlawful exercise of physical force, intimidation by exhibition of this”.  The dictionary gives us an alternative definition “quality of being violent”.  Violent conduct in treatment, outrage, injury”; but Mr Sutcliffe submits that the former is the correct definition for present purposes.  In Collins v Wilcock the Divisional Court decided that, by taking hold of a woman’s arm in order to detain her so that she could speak to her (and not so as to exercise a power of arrest) a police officer was unlawfully touching her and was committing battery; the officer was therefore not acting the execution of her duty when the woman scratched her.  Robert Goff LJ, giving the judgment of the Court, held at page 378(b) that any touching of another, subject to exceptions such as consent, expressed or implied, reasonable punishment, lawful arrest, self defence and reasonably engaging someone’s attention, is a battery.  Basing himself on this authority and the dictionary, Mr Sutcliffe submitted that the purpose of the provision in the employers’ disciplinary procedure that “physical violence actual or threatened” constituted gross misconduct was the protection of the physical integrity of those with whom employees might come into contact and that if an employee put a colleague into a headlock without consent and thereby caused pain and humiliation, such conduct fell – or at least it was not outside the band of reasonable responses for an employer to conclude that it fell – within the words disciplinary procedure.  

27.	We take the view that the Tribunal made no such error of law as is asserted by Mr Sutcliffe.  The Divisional Court in Collins v Wilcock was not considering the meaning of “physical violence” in an employers’ disciplinary procedure; nor were they considering the meaning either in that context or more broadly of the word “violence”.  It was considering a different issue, namely the lawfulness of the police officer’s conduct; and the general observations as to the unlawful or physical contact in the absence of one the recognised exceptions do not, in our judgment, assist in the present case.  In particular, they are not of assistance because, although, if what Mr Smith was doing was a demonstration without the consent of the person on whom the demonstration was being practised, it undoubtedly involved physical contact which may have constituted a battery, the employers made it clear to the Tribunal that they would not have regarded that conduct as worthy of sanction. We repeat that the employers' approach was that if what Mr Smith did was a demonstration it did not deserve sanction; if it was not it was violence. Yet the logic of Mr Smith's argument based on Collins v Wilcock the dictionary is that, even on Mr Smith's account) the words of the disciplinary procedure would have embraced what he was doing although Mr Sutcliffe maintained that that was not his argument.  We doubt whether a security employee who misguidedly demonstrates a restraint technique upon another security employee in a context of the discussion about such techniques -as was Mr Smith's case -albeit taking the colleague by surprise and hurting him (there was no suggestion that Mr Smith intended to hurt him) could properly be said to have used violence falling within the ordinary meaning of that word in a disciplinary procedure; but we do not need to make a decision as to that because the employers did not consider that such conduct came within the disciplinary procedure.  Their conclusion was that Mr Smith was not demonstrating at all but, in contrast, had used violence upon and had therefore assaulted Ben; it was the reasonableness of that conclusion which the Tribunal had to consider.

28.	That brings us to Mr Sutcliffe’s third point.  He accepted that, at paragraphs 38 and 39 of their judgment, the Tribunal directed themselves clearly and fully as to the need to apply the range of reasonable responses test, confirmed by the Court of Appeal as being the correct test in Post Office v Foley [2000] IRLR 247 and further confirmed in Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23 as applying to each branch of the Burchell test.  He submitted, however, that the Tribunal had failed to follow their own self direction and had reached a conclusion based on what the Tribunal themselves regarded as fair rather than one based on whether the employers' view of Mr Smith's conduct was one which they could reasonably reached.  Alternatively the Tribunal had reached a perverse conclusion.

29.	We see no sign in their judgment that the Tribunal fail to follow their own self direction.  In paragraph 41 they expressed their conclusions on the misconduct issue in these terms:
"... We do not accept that an employer acting reasonably, in all the circumstances, and having regard to the context, on which Mr Leach properly relies, could properly .and reasonably conclude that this incident was not a demonstration merely because there was a lack of prior consent. Any employer looking at the matter reasonably would inevitably have concluded that this was a demonstration, albeit one without prior consent. No reasonable employer would have concluded that it comes within the Respondent's definition of physical violence, actual or threatened."
In these sentences the Tribunal can be seen to have been applying the range of reasonable responses test; that they were so doing is confirmed in our view by their earlier words, in the same paragraph:
"It may well be that [Ms Ogilvie and Ms Collins] reasonably believed that there have been no consent given by Ben before the headlock was applied."
There was ample evidence to support the Tribunal's conclusion. The Tribunal were entitled to take the view that no employer would treat Mr Smith's actions as not being a demonstration because there was a lack of prior consent; and the evidence before the employer that, whether misguidedly or not, Mr Smith was carrying out the demonstration was substantial. Ben himself had said to Ms Standley and, earlier, to Ms Gregory. Kevin Dean so reported to Mr Gee. We have referred earlier to Mr Smith's account. Thus all three people present and David Wynn, as to whose presence we are uncertain, gave a similar account. In our judgment the Tribunal applied the right test and came to a conclusion which was open to them.

30.	Anyone reading this judgment may wonder why we have not mentioned the apparent lack of any evidence of animosity between Ben and Mr Smith or any other evidence of any reason why Mr Smith might assault Ben. We have not done so because we were told that this was not investigated by the employers or the Tribunal and it does not form part of any relevant reasoning.  

Sanction
31.	Even if we had concluded that the Tribunal had erred on the misconduct issue, the employers would still have had to establish that the Tribunal erred in concluding, as they did at paragraphs 42-44 of their that the employers acted outside the range of reasonable responses in deciding the dismissal was the only appropriate sanction if they are to succeed in this appeal. Mr Sutcliffe accepted that, in those paragraphs, the Tribunal were approaching the sanction issue on the hypothesis that the employers had been entitled to treat Mr Smith's action as not a demonstration but as a violent assault; that must have been so because the employers had made it clear that if Mr Smith was only demonstrating no sanction at all was appropriate. On that basis, then, Mr Sutcliffe submitted that an employer is entitled to consider the whole range of sanctions including dismissal, that the disciplinary procedure provided that dismissal was a potential sanction for gross misconduct and that it was for the employers to decide on the appropriate sanction and not for the Tribunal to substitute their view of the appropriate sanction for that of the employers. However, the judgment makes clear that the Tribunal did not substitute their view of the sanction for that of the employers; on this issue, as on the misconduct issue, they correctly directed themselves and applied the range of reasonable responses test. They concluded that the employers' decision as to sanction lay outside the range of reasonable responses for a number of reasons which they have set out in their judgment of the rationality and relevance of which Mr Sutcliffe did not seek to and was not able successfully to impugn. One of their reasons, which appears in paragraph 40 in the context of misconduct rather than sanction but must logically have been in the Tribunal’s mind in considering sanction, was that Ms Collins was influenced by the reference to the earlier incident is when Mr Smith had used a head lock on a member of the public; it transpired that the Tribunal found that he had done so justifiably under sustained attack; but at the time of the disciplinary hearing, the incident, as to which there had been no complaint, had been the subject of no investigation at all.  The Tribunal were plainly entitled to regard Ms Collins’ taking this incident into account and regarding it as relevant to the sanction as unreasonable.  

32.	We do not regard it as necessary to set out in any more detail such arguments as they were before us on the issue of sanction. Having looked and looked again at the reasons given by the Tribunal we are satisfied that they applied the right test on this issue too and that they came to a conclusion which it was open to them to reach.

Conclusion

33.	For the reasons which we have set out this appeal is dismissed.