APPEARANCES
| For the Appellant |
Mr N HART
(Solicitor)
Messrs Clarke Willmott
No 1 George Square
Bath Street
Bristol BS1 6BA |
| For the Respondent |
Mr D MATOVU
(Counsel)
Hampshire County Council Employment Practice Centre
Athelstan House
St Clements Street
Winchester SO23 9DR |
SUMMARY
Unfair dismissal
Appellant dismissed after internal disciplinary enquiry into allegations of sexual misconduct. The only issue before Employment Tribunal was the reasonableness of the employer's investigation; they had relied almost entirely on evidence compiled by the police and had not re-investigated. The Employment Tribunal found that the investigation was reasonable. Held that the Employment Tribunal had correctly directed itself as to law and had reached a decision on facts which was open to it, having considered A v B. A v B does not require a re-investigation in every case or lay down that an employer in such a case may not rely on the police evidence; whether the employer has in so doing acted reasonably is a matter of fact in each case.
HIS HONOUR JUDGE BURKE QC
The Appeal
- This is an Appeal by Mark Harding against the decision of the Employment Tribunal sitting at Southampton, chaired by Mr Ross and sent to the parties with extended reasons on 1 July 2004. By that decision the Employment Tribunal dismissed Mr Harding's claim that he had been unfairly dismissed by his employer, Hampshire County Council, ("Hampshire"). It is not in dispute that Hampshire dismissed Mr Harding by reason of misconduct and that they had a genuine belief that he was guilty of misconduct; nor is it in dispute that, if Hampshire's belief was a reasonable belief based on a reasonable investigation, dismissal was within the band of reasonable responses open to Hampshire. The dispute or principal dispute before the Tribunal was whether Hampshire had carried out a reasonable investigation; see paragraph 18 of the Tribunal's decision. The Tribunal resolved that issue in Hampshire's favour, and it is their conclusion on that issue which is the subject matter of this appeal.
The Facts
- Mr Harding was employed by Hampshire as a full-time youth project worker from September 2000. He had been previously employed in the same or a similar capacity for some years in the 1990s. He was based at the Point Youth Centre in Fleet and was required to work with young people on a frequent and regular basis. During the spring of 2002 allegations were made about serious misconduct on the part of Mr Harding. It is not necessary to go into great detail for present purposes. The allegations related to three boys; their names and the names of members of their families were rightly anonymized throughout the proceedings. In the case of a boy described as Child A, who was then aged 9, it was alleged that Mr Harding had touched that child's penis through his trousers while at the home of Child D, whose mother was Mr Harding's sister-in-law. In relation to a 12 year old boy called Child B, who was the son of a neighbour of Mr Harding, it was alleged that Mr Harding had sat with him in the bathroom at Child B's house while Child B had a bath. In the case of Child F, a 12 year old boy who was related to Mr Harding, it was alleged that Mr Harding had touched his bottom during a trip to Alton Towers. The police were informed of the allegations; and, on 17 May 2002, Mr Harding was arrested and later interviewed. After interview he was released on bail, to return 2½ months later.
- In due course, after completing their investigations which included further interviews of Mr Harding, the police decided that there was not sufficient evidence to proceed to criminal charges. In the meantime Mr Harding had been suspended from work. In the course of the police investigation, two computers were seized by the police from Mr Harding's home. One was his personal Tiny computer; the other was a Dell laptop issued to him by an organization called UK Youth which runs or ran a radio station called 'Youth FM' for whom Mr Harding had worked from the summer of 1999 into the year 2000. As a result of the police investigation of those computers a fourth allegation was made, namely that the Dell laptop computer had been used to access a number of child pornography sites. No such suggestion was made in respect of the use of the Tiny computer.
- The nature of the police investigation and the evidence which it produced are set out in summary form, but in some detail, by the Tribunal at paragraphs 8-12 of their decision. The children involved in the allegations were interviewed under the special procedures used by trained police officers in such cases. In the case of Child A, a number of other witnesses were interviewed. As to the computer, there was evidence from a computer expert instructed by the police and from a computer expert instructed on behalf of Mr Harding to which the expert engaged by the police responded with a further report.
- Once the police had decided that Mr Harding was not to be charged, the statements and interview records which they had assembled were provided to Hampshire, and they were before the Disciplinary Panel which was subsequently convened and before the Employment Tribunal, and are before us. They contain numerous witness statements, records of the interviews of the relevant children, the reports from the police computer expert and from Mr Harding's computer expert and various summaries compiled by the police. They also contain the transcripts of three interviews of Mr Harding under caution, amounting in all to just under 100 pages of transcript. The police investigation would appear on the face of it manitestly detailed. This is not a case in which it is suggested that they omitted to follow up any particular line or lines of enquiry. Mr Harding was not interviewed by the police about the allegations relating to Child B or Child F. It has not been suggested that the absence of such interviews had any bearing on these proceedings. Mr Harding, throughout, was represented by the same firm of solicitors who have represented him before us and throughout he has denied any wrong doing, any assault on Child A in particular and any attempt to access any child pornography site through his computer.
- The views of the computer experts are summarized, and no one has suggested that the summary is incorrect, in Paragraphs 11 and 12 of the Tribunal's Decision. The police expert, Mr Sampson, did not accept as a matter of probability that the images which were found on the Dell computer could have got there by the innocent processes suggested by Mr Harding's expert, Mr Bolton. Once the decision not to prosecute had been made on 7 November 2002, the day of the final police interview of Mr Harding, Mr Poynter, the Youth Service Manager for Hampshire, met the police investigating officer, Detective Constable McSpadden, on 22 November. On 6 December Mr Harding was interviewed by Mr Poynter in the presence of a friend. Mr Poynter explained that he was carrying out an investigation to see whether there was evidence of gross misconduct. Mr Harding was told that, if the investigations led to the setting up of a disciplinary panel, he would be able to submit whatever evidence he saw fit. He was invited to and did put before to the investigation a witness statement which is dated 10 December 2002. The police papers, or the bulk of them, were released to Mr Poynter on 22 January 2003. Mr Harding's chronology suggests that some documents were released later; but nothing turns on that.
- The Tribunal found that Mr Poynter tried on a number of occasions to arrange a meeting with Mr Harding and his solicitor but was unsuccessful. On 23 May 2003, Mr Harding was informed that Mr Poynter would produce a draft report with supplementary questions in writing. Mr Poynter offered Mr Harding the opportunity to meet him in June to discuss his response to the draft report. Mr Harding declined that offer, but his solicitor did put in a written response to the draft report. The Tribunal found that Mr Poynter then reviewed his draft, made alterations to it in the light of the solicitor's representations and produced a final version in July 2003. That report sets out the allegations and the history in detail. It contains a lengthy review of the information compiled by the police; and it then sets out Mr Poynter's conclusions that there was sufficient evidence to demonstrate that on the balance of probabilities the allegations were all proven and amounted to gross misconduct. Mr Poynter ended his report with these words:
"There is sufficient evidence referred to within this report to demonstrate that Mr Mark Harding's continued employment as a youth worker presents an unacceptable risk to young people and the reputation of Hampshire County Youth Service. It is therefore the conclusion of this investigation that the case be referred to a formal disciplinary hearing with a recommendation that Mark Harding's employment with Hampshire County Youth Service being terminated without notice on the grounds of gross misconduct."
- In Paragraph 14 of their decision, the Tribunal referred to the statement which Mr Harding prepared for Mr Poynter's investigation to which we have already referred. They drew attention to the fact that, on the first page of that statement, Mr Harding said:
"The police were very thorough in their six month investigation."
At the end of that statement, Mr Harding also said,
"The police have investigated this complaint very thoroughly."
- In paragraph 16 of their decision the Tribunal set out a number of specific alleged defects in Mr Poynter's investigation which had been put forward before them on behalf of Mr Harding. They concluded that there were no such defects as alleged for the reasons which they set out. In paragraph 15 the Tribunal said this:
"Mr Poynter's report was clearly an investigatory report and it is quite clear that any decision about whether the Applicant was guilty of a disciplinary offence would have to wait for the formal disciplinary hearing."
- A disciplinary hearing was indeed convened and took place on 1 and 2 October 2003. Mr Harding was represented by Mr Hart, his solicitor who also represented him before the Employment Tribunal, as he has before us. The Panel consisted of Mr Mead, an assistant County Education Officer who was the Chairman, Mr Colenutt, an Assistant Education Officer, and Mr Dyson, an Education Personnel Adviser. The hearing took, as is agreed, a quasi-judicial form; Mr Poynter and Mr Harding gave oral evidence and were cross examined. Mr Hart accepted that he was given full opportunity to cross-examine Mr Poynter about his report and about any shortcomings in his investigation.
- The Tribunal found, at paragraph 17, that the Panel which conducted the hearing looked very carefully at all the allegations and paid considerable attention to all the points made by Mr Harding and by Mr Hart but concluded that Mr Harding was guilty in respect of all of the four allegations. However, as the Tribunal found, the Panel differed from the conclusions expressed by Mr Poynter in his investigatory report in that, whilst satisfied that the allegations in respect of Child B and Child A were true, they regarded what Mr Harding had done in respect of those two children as errors of judgment rather than gross misconduct. However, they regarded the allegations in respect of Child A and the use of the Dell computer as proved on the balance of probability and as constituting gross misconduct. It is clear from the terms of paragraph 17 of their decision that the Tribunal accepted the evidence of Mr Mead and Mr Colenutt to the Tribunal that the Panel had treated each of the four allegations individually and had come to separate conclusions on each in turn.
- As a result of those conclusions of the Panel, Mr Harding was summarily dismissed with effect from 2 October 2003.
The Tribunal's Decision
- Paragraph 18 of the Tribunal's decision demonstrates, and it is common ground, that the thrust of Mr Hart's case on behalf of Mr Harding before the Tribunal, and of Mr Matovu's response of behalf of Hampshire went to the issue of the reasonableness or otherwise of Hampshire's investigation. The Tribunal's decision on that issue is set out at Paragraph 19. The relevant part of that paragraph reads as follows:
"The Applicant's sole ground for contesting that the dismissal was unfair therefore, is that the Respondent
failed to follow the criteria set out by the Employment Appeal Tribunal in the case of British Home Store Ltd v Burchill [1978] IRLR 379 namely that in the case of misconduct the Respondent should carry out a reasonable enquiry into the allegations, should have a genuine belief that the allegations are true and should have reasonable grounds for that belief. We are quite satisfied that the Respondent made all the enquiries that a reasonable employer would have made, including any particular burden that might have been imposed on them by the reasoning of the Employment Appeal Tribunal in the case of A v B. The Respondent to a large extent relied upon the police enquiry. However, the Applicant himself categorized that enquiry as very thorough, as we say in our findings of fact and we are not satisfied that there were any further enquiries that Mr Poynter should have made on behalf of the Respondent. He had an interview with the Applicant and on a number of occasions sought to have a further interview with him but this was refused on the part of the Applicant himself. In his evidence the Applicant identified a number of further enquiries he said should have been made. We have made findings of act about those and we do not consider that the Respondent was under any obligation to make any further enquiries. It was of course open to the Applicant or his solicitor once the police enquiries were complete, to seek to interview any of those involved in the enquiry if they so wished, that they need to produce the decision at the Preliminary Hearing again if they so wished. We have concluded that the Respondent made proper enquiries……"
- It is not necessary to read on further. The Tribunal, in the balance of paragraph 19, went on to find that dismissal was within the band of reasonable responses and, thus, dismissed Mr Harding's claim.
The First Ground of Appeal - Paragraph 15 of the Decision
- Mr Hart on behalf of Mr Harding submits as his first ground of appeal that the Tribunal's conclusions that Mr Poynter's report was an investigatory report and that it was quite clear that any decision about whether Mr Harding was guilty of a disciplinary offence would have to await a formal disciplinary hearing were perverse. He refers to two passages from Mr Poynter's conclusions.
- The first is at the foot of the penultimate page of Mr Poynter's report in these terms:-
"It is the conclusion of this investigation that there is sufficient evidence (as summarized in this report) to demonstrate that on the balance of probabilities the allegations outlined on pages 2 and 3 of this report are proven and that these actions amount to gross misconduct on the part of Mark Harding."
The second is the passage which we have already read into this Judgment at the end of Mr Poynter's report.
- Mr Hart submits that, in effect, Mr Poynter's report was designed to and did have the effect of controlling and dictating the outcome of the Disciplinary Hearing and that it went beyond what was appropriate for an investigatory report. He submits that it was defective also in that it did not seek to reflect the merits of both parties' positions and in particular did not refer to the fact that nothing objectionable was found in Mr Harding's Tiny computer or that the Dell computer had been open to access by many people in the course of Mr Harding's work in addition to Mr Harding himself.
- If of course the Disciplinary Panel had simply read Mr Poynter's report and rubber stamped it, as Mr Hart suggested, without any independent consideration of their own of the material, that would have been a serious error on their part, whether the report was or was not defective; but the report does not purport to be anything more than a report upon the investigations into the allegations made against Mr Harding and an expression by the report's author of the conclusions which he had reached. Mr Poynter specifically expressed in his final conclusion, in the words which we have quoted, the view as his conclusion that the case should be referred to a formal disciplinary hearing; and there is nothing to suggest that he sought to oppose either the setting-up of the formal disciplinary hearing or the way in which the hearing was conducted over two days in a quasi-judicial manner and in which Mr Harding took part and was fully represented. Mr Poynter did not seek to dictate to the Panel, other than by making recommendations in his report which, in our judgement, he was entirely permitted to make, what should be, or would be, the outcome of their deliberations.
- Mr Poynter's report included the whole of the police papers. It did not omit the witness statement of Mrs A who had said that, when first told by Child A of something that had happened, she thought that what had happened was an accident. It did not omit the police interviews in which Mr Harding consistently denied misconduct. Included were witness statements from Catherine Stewart who gave the history of Mr Harding's possession and use of the Dell computer and stated in the course of her witness statement that, in the course of his employment by Youth FM, no concern or complaint had been raised about Mr Harding.
- Similarly, there was a witness statement from Valerie Webster, who was Mr Harding's direct manager with Hampshire and who said there had never been any concern expressed about Mr Harding's work in his 8 years with the Hampshire Youth Service, comprising the immediate employment and his previous employment. It is significant in our judgment that Mr Hart has not suggested that there was any exculpatory part of the evidence assembled by the police which was left out of the material which Mr Poynter considered and which Mr Poynter provided to the Panel together with and as part of his report.
- We have referred to Mr Hart's acknowledgement that, at the Disciplinary Hearing, he had a full opportunity to cross-examine Mr Poynter and to bring out any inadequacies in his report and any factor in the report or the material included with it which needed to be amended or corrected or seen in a different light from that in which Mr Poynter had seen it. It was regarded as important by the Tribunal - and we can well understand why - that the Panel did not follow Mr Poynter's recommendations completely. They differed from him after their hearing in the respects we have already identified, namely that in respect of two of the four allegations they concluded that there was no gross misconduct but only errors of judgment.
- We have no hesitation in these circumstances in reaching the conclusion that the Tribunal's findings of facts about Mr Poynter's Report in paragraph 15 of their decision were supported by evidence and were findings which were open to the Tribunal. We cannot ourselves see any way in which, had we been the Tribunal, we might have reached a different factual conclusion; but that is not the issue; our view is irrelevant; where a finding of fact is attacked as perverse as is this finding in fact, the question is whether that finding was demonstrably wrong. We see no basis for the conclusion that the Tribunal's finding in paragraph 15 of their Decision were demonstrably wrong or wrong at all; and we reject ground one of this Appeal.
Grounds 2 and 3 – Further Investigation by Hampshire
- It is common ground that Grounds 2 and 3 in the Notice of Appeal can and should be addressed together. They are both directed towards the assertion that Hampshire relied wholly upon the police investigation in reaching their conclusion and, apart from seeking to interview and obtaining statements from Mr Harding, Hampshire did not carry out any investigations of their own. Mr Hart submits that, in the absence of any investigations by Hampshire and on the basis of Hampshire's reliance upon the police investigations alone, the Tribunal's findings, at paragraph 19 of their decision that Hampshire had:
"made all the enquiries that a reasonable employer would have made…"
was perverse particularly in the light of the Employment Appeals Tribunal's decision in A v B [2002 IRLR 405] to which we will come in more detail shortly.
- In his reply to Mr Matovu's submissions on this issue, Mr Hart put matters rather differently, he having in the course of his submissions on the first day of the hearing before us accepted that what he was putting forward was an argument based on perversity. In reply he submitted that these grounds of appeal could be summarized by the proposition that, in the context of what is reasonable and of the decision in A v B, it is no longer open to an employer in a case such as this one, involving grave allegations of sexual misconduct with potentially grave consequences, simply to adopt the material provided by a police investigation and that it is wrong in law for an employer to rely only on what was compiled by the police for different purposes than those of a Disciplinary Hearing namely for the purposes of a criminal prosecution.
- In this case, Mr Hart submits, Hampshire ought to have re-investigated in three ways. First of all they should have re-interviewed possibly the children who have been named in the allegations - and Mr Hart accepts that that might have been unwise - but certainly the adult witnesses. Secondly, they should have obtained a report from an independent computer consultant; and thirdly they should have obtained a report from an independent psychiatrist about Mr Harding. This third limb of this submission was not however pursued after it had been raise;.Mr Hart accepted that the point had not been raised in the Notice of Appeal or indeed at any stage; and he accepted that the re-investigation for which he contended consisted of the first two of those three elements.
- We will first consider the relevant authorities in the setting of which Mr Hart's submissions fall to be considered. Before going to A v B we must, as indeed did Mr Hart in his skeleton argument, refer first to the well known and constantly applied principles as to the approach required of an Employment Tribunal in considering the fairness of a dismissal for misconduct set out in British Home Stores v Burchill [1978] IRLR 379, which principles, after a period in which they were temporarily out of favour, were restored to their former prominent position by the Court of Appeal in Foley v Post Office [2000] ICR 1283. Those principles may be summarized in this way that the Employment Tribunal has to ask itself, (i) did the employer genuinely believe that the employee was guilty of the misconduct alleged, (ii) did the employer have reasonable ground for that belief, reached after a reasonable investigation and (iii) was the sanction of dismissal a reasonable sanction in the light of that misconduct?
- In J Sainsbury Plc v Hitt [2003] ICR 111 the Court of Appeal had before it a case in which the majority of the Employment Tribunal had decided that the employers had not carried out a reasonable investigation into the employee's alleged misconduct which consisted of stealing an article found in his locker at work, because other employees who might have had an opportunity to put the allegedly stolen item(s) in the employee's locker had not been interviewed and the possibility of a plant had not been eliminated. The dissenting Chairman of the Tribunal had taken the view that the employers had done all that was reasonably to be expected of them.
- At paragraph 31 of his judgment, Lord Justice Mummery, with whom Lord Justices Parker and Ward agreed, said:
"if the correct approach is taken to the application of the test laid down by the Court of Appeal to the facts of this case, the only conclusion which a reasonable Tribunal could reach is that the investigation in this case was reasonable in all the circumstances. The position is that the Employment Tribunal's decision was legally flawed by the application of the wrong test. If one looks at the findings of fact the position is as stated by the Chairman in his dissenting conclusions…….."
And then the paragraph goes on to deal with the facts and we can go forward in the paragraph to its conclusion which is in these terms:-
"In my judgment Sainsbury's were reasonably entitled to conclude on the basis of judgment of this investigation that Mr Hitt's explanation was improbable. The objective standard of the reasonable employer did not require them to carry out yet further investigations at the time, the majority in the Employment Tribunal in their view, considered ought to have been carried out."
Lord Justice Mummery continued, in paragraphs 32-34, as follows:
"32 - In suggesting further investigations of the kinds that are in paragraph 6 of the Extended Reasons the majority of the Employment Tribunal were in my judgment substituting their own standards of what was an adequate investigation for the standard that could be objectively expected of a reasonable employer. On the decision of this court in Madden that is not the correct approach to the question of the reasonableness of the investigation."
"33 - For the reasons stated the Employment Appeal Tribunal also fell into error in their interpretation of the two cited passage from my judgment in Madden."
"34 – In order to prevent further confusion for which I may be thought to be partly responsible, I should emphasize clearly that, as held by the Court of Appeal in Whitbread v Hall, the range of reasonable responses approach applies to the conduct of investigations in order to determine whether they are reasonable in the circumstances, as much as it applies to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason."
- Those passages demonstrate that the issue which the Employment Tribunal has to consider when examining the reasonableness of an investigation of misconduct by an employer as part of the Burchill tests is not whether there could have been further investigation but whether the investigation which was carried out was reasonable in all the circumstances and, further, that in deciding whether the investigation was reasonable in all the circumstances, the test is whether the investigation was one which fell within the range of reasonable responses. The fact that there might be further investigations which could have been made does not of itself render an investigation unreasonable or outside the band of reasonable responses. It is for the Tribunal to decide on the facts whether an investigation did or did not fall within that band.
- We turn next to A v B. In that case a residential social worker had been dismissed on the basis of an alleged inappropriate relationship with a 14 year old girl in care at a residential home. A v B was similar to this case in that one of the central issues which the Tribunal were there considering was whether there had been a reasonable investigation of the sexual allegation. However, in a number of other important respects the two cases were very different.
- The Employment Appeal Tribunal in A v B allowed the employee's appeal against the Tribunal's findings that dismissal was not unfair. They did so on the basis of the existence of specific defects in the investigation. Firstly, there had been very long delay. The Employment Appeal Tribunal said at paragraph 71:
"In our opinion in this case the delays were so lengthy and the justification for them was so limited that we considered that the Tribunal did err in concluding that they did not render the dismissal unfair and it is particularly so when these delays are combined with the other factors too to which we return."
Delay was not a feature in the present case.
- Secondly, the 14 year old girl around whom the allegations centred was very vulnerable, was taking drugs, had been taken into care and had made a number of statements about the relevant matters which were not consistent with each other. The Employment Appeal Tribunal took the view that particular care was needed in testing and weighing the veracity of her evidence and that in those circumstances it was necessary for the employers to interview members of staff who might have had something valuable to contribute but who were not interviewed, it seems partly because of the delay. (See paragraphs 73-79 and paragraph 81.) Those special circumstances did not apply in this case. Although of course the children in this case were young, there was no evidence of the special difficulties which arose in the case of A v B.
- Thirdly, the Employment Appeals Tribunal expressed the view that it was perhaps of a greater significance that the statements which were taken were not provided to the employee in the course of the disciplinary process. He was only given a précis of those statements. The Tribunal's view was that that failure had not prejudiced the employee was in error of law because the absence of prejudice from an unreasonable investigation was a matter which went to compensation – see paragraph 83. The difficulties of the employee in that case were compounded by the fact that the allegations arose in relation to his field of work but that he had been suspended and therefore did not have any access to those involved in that field. Those factors did not apply in the present case.
- The Employment Appeal Tribunal reversed the Tribunal's findings in those circumstances. At paragraph 59-63, the Employment Appeal Tribunal set out guidance as to the standards to be expected of a reasonable investigation in cases such as these. They said this at paragraphs 59 to 61:
"59 - The lay members of this Tribunal had no doubt from their industrial experience that what would be expected of a reasonable employer carrying out, say, an investigation into a disciplinary matter leaving it at worst to a warning would not be as vigorous as would be expected where the consequences could be dismissal."
"60 - Serious allegations of criminal behaviour, 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 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 whereas it 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 further witnesses. Employees found to have committed the 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 in the process of an investigation would not be reasonable in the circumstances."
Then in paragraph 63 the Employment Appeal Tribunal said this:
"We accept the observations of Mr Pepperell for the Respondent of 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 of a criminal 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."
- Those passages indicate the importance of a careful and conscientious investigation in a case such as that of Mr Harding; such an investigation must consider exculpatory as much as inculpatory material, but the Employment Appeal Tribunal made it clear that, although where there is the risk of loss of employment the standard of reasonableness must be high, the fact that the charges are criminal in nature does not alter that standard.
- There is, in our judgment, nothing in A v B however which supports Mr Hart's proposition (which he accepts is based on A v B and did not apply and could not have been made before A v B; that in cases of the relevant kind, where serious sexual allegations are made the employer cannot rely for the purpose of disciplinary proceedings solely on the results of the police investigation for criminal purposes. What A v B says is that in such cases, where the charges are grave and the potential effects are grave, as we have indicated a careful, conscientious and balanced investigation is necessary. Whether there has been such a careful and conscientious investigation and a balanced investigation, and whether, applying appropriate standard of reasonableness, the employers have acted within the range of reasonable responses is a question of fact for the Employment Tribunal to decide in each case.
- There is no general rule or principle of law laid down by A v B or elsewhere as to whether it is or is not sufficient in any individual case for an employer, where there have been police investigations into the alleged misconduct, to rely upon the product of those investigations and to make no further investigations of their own. The facts of each case are likely to differ in many ways. One police investigation may well produce a much greater volume of material than another. In one case the police may have decided to break off their investigation at an earlier stage and, thus, investigations which might have been carried out will not have been carried out, as is clear to the employer. In another case the police investigations may have dotted every 'i' and crossed every 't' so that there is no room for any further investigations.
- These are all matters of fact to be considered by the individual tribunal before whom the issue of the reasonableness of the employer's investigation is raised; and we reject Mr Hart's submission that some general proposition of law can be derived from A v B beyond that that which we have summarized and that which appears from the words of Employment Appeal Tribunal itself in its judgment in that case. The facts of A v B were very different from this case; in particular the employee was not given the full set of statements made by the principal witness against him, despite the fact that she was very young, vulnerable, involved with drugs and potentially unreliable; and as we have said the employee was suspended which made investigation from his point of view more difficult – these factors did not apply in the present case; although Mr Harding was suspended the relevant witnesses were not in any way connected with Mr Harding's work, but came from within his family or within his neighbourhood.
- In our judgment the Tribunal in this case made no error of law in their approach to the question of the reasonableness of the employer's investigation and in reaching their conclusion on that issue, or at least they made no error of law which is adverse to Mr Hart. Upon a strict examination of their words, it might be thought that they directed themselves to consider reasonableness rather than whether the employers' approach came within the range of reasonable responses; but it is not necessary to pursue that point because, if the Tribunal did err in that respect, it could only be an error in Mr Harding's favour; and the point of course has not been made by Mr Harding on his behalf for that reason. What the Tribunal did do, in our judgment, was to direct themselves correctly and as to the relevant test; and on the facts which they found they concluded upon that test, in paragraph 19 of their decision, that they were satisfied that Hampshire had made all the enquiries that a reasonable employer would have made, including any particular burden which might have been imposed on them by the reasoning of the Employment Appeal Tribunal in the case of A v B. In so doing the Tribunal, who had been taken to A v B expressly, took the guidance to be derived from that decision into account and answered the question as to reasonableness in the light of that guidance.
- In the next sentence the Tribunal expressly referred to the fact that Hampshire had to a large extent relied on the police enquiry; so they were alive to Mr Hart's major point. They then sent out a series of reasons which, when taken together with their findings of fact, adequately explain their view that there was no obligation on Hampshire to make further enquiries; this includes their reference to Mr Harding's own expressions of view that the police enquiry had been a thorough one, to which we have already referred. It is not necessary for us to go into detail about what the various witnesses, who according to Mr Hart should have been re-interviewed, said in their witness statements. The gist is set out in some detail at paragraph 7-10 of the Tribunal's decision.
- There has been no suggestion that any of the witnesses, child or adult, had given any indication (as sometimes occurs in cases of this nature), of any desire to change or correct anything that they had said; had there been such material before the Tribunal, that might well have sparked off an argument that there was an obligation on Hampshire to re-interview; but there was not. As to the computer expert, the material provided by the police contained reports from two independent computer consultants, Mr Sansome and Mr Bolton. The Tribunal set out the gist of their views and the issues which arose between them at paragraphs 11 and 12; and Mr Hart ultimately accepted that he could not suggest to the Tribunal that a further independent computer consultant should have been brought in. It seems to us that there is no basis for the conclusion or the submission that the Tribunal erred in failing to regard the investigation as unreasonable either because of failure to re-interview or as a result of the absence of the bringing in of a third computer consultant.
- On the basis that there was no error of law Mr Hart's case has to be put on the basis of perversity. The modern test for perversity is well known. In Yeboah v Crofton [2002] IRLR 634, Lord Justice Mummery, with whom the other members of the Court of Appeal agreed, speaking of appeals based on perversity, said this at paragraph 93:
"such an appeal ought only to succeed where an overwhelming case is made that the Employment Tribunal reached the decision which no reasonable Tribunal, on a proper appreciation of the evidence and the law, would have reached, even in cases where the Appeal Tribunal has grave doubts about the decision of the Employment Tribunal, it must proceed with great care."
- In our judgment, for the reasons we have set out, this is not a case in which there is an overwhelming case that the Tribunal has reached a decision which no reasonable Tribunal could have reached. There was, plainly, manifest and substantial evidence before the Tribunal on which it was open to the Tribunal, acting reasonably, to reach the conclusion that they reached; and on that basis Grounds 2 and 3 of Mr Harding's Notice of Appeal must fail.
Ground 4 - The Tribunal's reference to the ability of Mr Harding and his solicitor to interview witnesses and call them to the Disciplinary Hearing.
- Mr Hart submits that, in saying as they did in the passage of paragraph 19 of their Decision (which we have already read into this judgment), that it was open to Mr Harding and his solicitor to seek to interview those involved in the allegations and to produce witnesses at the Disciplinary Hearing, the Tribunal erred in law by putting or seeking to put an onus on Mr Harding to produce evidence. That, submits Mr Hart, was contrary to the fundamental principle that it was for Hampshire to prove their case and not for Mr Harding to prove anything.
- In our judgment, paragraph 19 of the Tribunal's decision has to be read as a whole. In that paragraph the Tribunal, having identified the issue and correctly directed themselves as to the relevant test save as to the application of the range of reasonable responses test in relation to investigation, found as a fact that there had been a reasonable investigation and that Hampshire were not obliged to make any further enquiries. They then went on to say that, if there were further enquiries which might have been made, it was open to Mr Harding or his solicitor to make them. That was, as we see it, a view based on common sense and reality. It is not suggested that Mr Harding and his solicitor should have done so; the Tribunal were not saying that there were further enquiries which should have been made but it was for Mr Harding's side to make them. They had already concluded that Hampshire's investigation was reasonable, applying the necessary objective standard; they simply went on to say that it was open to Mr Harding and his solicitor to put more information before them if they had chosen to do so. That was not, in our judgment, putting or seeking to put any onus on Mr Harding or seeking to devolve onto Mr Harding any part of Hampshire's obligations in relation to the investigation, which obligations the Tribunal had already judged to have been appropriately discharged.
- Accordingly, we see no error of law on the part of the Tribunal in this respect either, nor is there any basis for a conclusion that the Tribunal's view as to the reasonableness of the investigation was vitiated or rendered perverse by virtue of the particular sentence now under examination. There was, in our judgment, as we have already said, ample material upon which the Tribunal were able to find that the investigation was reasonable or within the range of reasonable responses appropriate to the case; in the absence of any error of law and in the absence of any perversity, this Ground of Appeal must also fail.
Ground Five
- Ground Five in the Notice of Appeal is accepted to be a summation or rounding off, of Grounds 1-4. It is not suggested by Mr Hart that any independent arguments arise there from; and therefore we have no need to, and will not, give it any separate consideration.
Result
- For these reasons the Appeal is dismissed.
