Appeal No. UKEAT/0389/06/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 November 2006
Judgment handed down on 20 March 2007

Before
HIS HONOUR JUDGE RICHARDSON 
MS K BILGAN
MRS J  M MATTHIAS

PREMIER FOODS PLC	APPELLANT

MRS R GARNER	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR JOHN SAMSON
(of Counsel)
Instructed by:
Messrs Steeles (Law) LLP Solicitors
3 The Norwich Business Park
Whiting Road
Norwich
Norfolk
NR4 6DJ	
For the Respondent	MR SHAEN CATHERWOOD
(of Counsel)
Instructed by:
Messrs Dawbarns Pearson Solicitors
Chequer House
12 King Street
King’s Lynn
Norfolk
PE30 1ES

SUMMARY

Unfair Dismissal – Reasonableness of dismissal; Procedural fairness/automatically unfair dismissal  

Wide-ranging grounds of appeal concerning the standard DDP, automatic unfair dismissal, unfair dismissal and section 98A(2).  No error of law in the Tribunal’s reasons.  In particular, Tribunal entitled to conclude that where the employer, having decided to impose a final written warning and not to dismiss the employee, later again contemplated dismissing the employee, it should again have complied with the standard DDP.

HIS HONOUR JUDGE RICHARDSON

1.	This is an appeal by Premier Foods plc (“Premier”) against a judgment of the Employment Tribunal sitting at Bury St Edmunds dated 24 May 2006.  By its judgment the Tribunal held that Mrs Rachel Garner had been unfairly dismissed by Premier.

The facts
2.	Mrs Garner was employed by Premier as a quality assurance administrator in a factory in Wisbech.  She was part of a small team.  The team had access to chemicals used in the food manufacturing process.  Fellow members of the team included Mrs Rae, Mr Fischer, Mrs Bromley and Mrs Rodriguez.

3.	In July 2005 Mrs Rae complained that her drink had been spiked.  She had opened a can of Fanta, consumed a little and then left the can while she and Mrs Rodriguez went to do a tour of inspection.   When she returned, three fellow members of the team, Mrs Garner, Mr Fischer and Mrs Bromley, left the room to have a cigarette.  She sipped her drink.  It tasted of chemicals and made her gag.  She suspected the three employees.  Earlier that day Mrs Garner had complained to her about not passing on a message from a personal telephone caller.  None of them admitted spiking her drink, and Mrs Garner denied it.  However she said “You can’t relay a simple message.  Whoever put something in your drink, you deserve it and that is that”.

4.	On 15 July, Premier wrote to the five employees inviting them for interview.  Mrs Garner was told it was an investigatory interview with regard to an allegation that she was involved in the contamination of a colleague’s drink.  She was informed of her right to be represented.  At the interviews Mrs Garner, Mr Fischer and Mrs Bromley all denied involvement.  Mrs Rodriguez, however, said that when she had asked Mr Fischer about the matter he said saccharine had been put in Mrs Rae’s drink – but he did not say who did it.  

5.	In August 2005 Premier invited Mrs Garner, Mr Fischer and Mrs Bromley to attend disciplinary hearings with regard to the allegation that they were involved in contaminating the drink.  They all continued to maintain denials of involvement.  Mr Slight, the manager conducting the hearings, formed the belief that the drink was contaminated by saccharine and that all three were involved.  All three were treated the same.  All were given final written warnings, to remain on file for 12 months.

6.	There the matter would have ended, except that all three appealed.  Appeal hearings were set for 11 October 2005.  They were heard by the general manager, Mr Sloan.  All three attended with a union representative.

7.	At this point it is necessary to emphasise an unusual feature of the case.  The Tribunal found (and there is no cross appeal against this finding) that Premier’s disciplinary policy provided not only that an appeal should be a complete re-hearing but also that sanctions might be increased as well as reduced or overturned.  All three employees were “reminded” of this, as the Tribunal put it, in a letter sent the day before the appeal hearing.   (In argument we were told that it was not a written feature of Premier’s policy).

8.	Mr Fischer’s appeal was heard first.  He changed his account from the one he had given hitherto.  He said that at Mrs Garner’s request he passed the drink to her and she put a teaspoon of saccharine in it.  He regretted (he said) that he had not been truthful before.

9.	Mrs Garner’s appeal was heard next.  She adhered to her existing account despite Mr Fischer’s change of story, of which she learned during the hearing.  Mr Sloan, now that he had the direct evidence of Mr Fischer that she was the person who instigated and carried out the contamination, suspended her immediately on full pay.

10.	Mrs Bromley’s appeal was heard last.   At first she said she had been sitting reading a newspaper and had nothing to do with any contamination.  The hearing was adjourned for a little while.  Mr Fischer was asked what, on his account, were the positions of the different people within the room.  The hearing with Mrs Bromley resumed and she then also changed her story, and said that Mrs Garner got the bottle from Mr Fischer and put the saccharine in it.

11.	On 13 October 2005 Mr Sloan met Mrs Garner again.  He told her that he had decided to dismiss her. He said it was clear that she had added saccharine to Mrs Rae’s drink.  He confirmed his decision by letter bearing the date 13 October.   Mr Fischer and Mrs Bromley were not dismissed.  They were suspended without pay for 5 days.

12.	Premier’s disciplinary policy evidently provided for a further level of appeal.  Mrs Garner appealed.  Her appeal was heard by Mr Taylor, the general manager of a different factory.  Her appeal was heard on 14 November 2005.

13.	At the hearing of the appeal Mrs Garner maintained her denial that she put saccharine in the drink.  She was unwilling positively to point the finger at anyone else.  She suggested, however, that Mrs Bromley had been depressed and had been put under pressure to change her story.  Moreover she suggested that Mrs Bromley had within the last three weeks given a diametrically opposite account to three other employees – Miss Appleton, Mr Rae and a third employee known to her as Agatha.  According to Mrs Garner, she had said to those witnesses that Mr Fischer did it.

14.	Mr Taylor spoke to Mrs Bromley again.  She maintained the account she had eventually given to Mr Sloan.  He did not, however, speak to the three employees Mrs Garner identified.  He said to the Tribunal that in his opinion Mrs Bromley was “the key to it all”.    He did not interview the others because they could not give direct evidence of what occurred, and was not surprised that there would have been an amount of discussion on the factory floor.

The statutory provisions governing unfair dismissal

15.	The provisions governing unfair dismissal are found in Part X of the Employment Rights Act 1996.  Important amendments were made to the 1996 Act by the Employment Act 2002, which provided for a dismissal to be automatically unfair if a new statutory dismissal procedure applied and had not been completed by reason of the employer failing to comply with its requirements.  In Mrs Garner’s case it was common ground that a statutory Dismissal and Disciplinary Procedure applied – the Standard Procedure.  There were therefore potentially two quite different routes to a finding of unfair dismissal: the route which we have just described, found in section 98A(1) of the Act, and the original route found in section 98 of the Act.

16.	Sections 98 and 98A of the Employment Rights Act 1996 provide as follows.
“98 General
(1)     In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—
(a)     the reason (or, if more than one, the principal reason) for the dismissal, and
(b)     that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2)     A reason falls within this subsection if it—
(a)     relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b)     relates to the conduct of the employee,
(c)     is that the employee was redundant, or
(d)     is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.
(4)     Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—
(a)     depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b)     shall be determined in accordance with equity and the substantial merits of the case.
(6)     [Subsection (4)] [is] subject to—
(a)     sections [98A] to 107 of this Act ….

98A Procedural fairness
(1)     An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—
(a)     one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b)     the procedure has not been completed, and
(c)     the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2)     Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.
(3)     For the purposes of this section, any question as to the application of a procedure set out in Part 1 of Schedule 2 to the Employment Act 2002, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under section 31 of that Act.”

17.	By virtue of section 29 and Schedule 2 Part 1 of the Employment Act 2002 the Standard Dismissal and Disciplinary Procedure is as follows.
“Standard Procedure
Step 1: statement of grounds for action and invitation to meeting
1(1)     The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
(2)     The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
Step 2: meeting
2(1)     The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
(2)     The meeting must not take place unless—
(a)     the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and
(b)     the employee has had a reasonable opportunity to consider his response to that information.
(3)     The employee must take all reasonable steps to attend the meeting.
(4)     After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

Step 3: appeal
3(1)     If the employee does wish to appeal, he must inform the employer.
(2)     If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.
(3)     The employee must take all reasonable steps to attend the meeting.
(4)     The appeal meeting need not take place before the dismissal or disciplinary action takes effect.
(5)     After the appeal meeting, the employer must inform the employee of his final decision.”

18.	Part 3 of Schedule 2 sets out general requirements applicable to each of the procedures.  As regards meetings, timing and location must be reasonable, and meetings must be conducted in a manner that enables both employer and employee to explain their cases.

19.	By virtue of Regulation 3(1) of the Employment Act (2002)(Dispute Resolution Regs) 2004 the standard dismissal and disciplinary procedure applies –
“..when an employer contemplates dismissing or taking relevant disciplinary action against an employee ..”

By virtue of Regulation 12(1) of those Regulations –
“If either party fails to comply with a requirement of an applicable statutory procedure, including a general requirement contained in Part 3 of Schedule 2, then …. the non-completion of the procedure shall be attributable solely to that party and neither party shall be under any obligation to comply with any further requirement of the procedure.”

The Tribunal’s reasons
20.	The Tribunal set out its findings of fact and succinctly described the statutory provisions which it had to apply.  It referred in particular to two recent decisions of the Employment Appeal Tribunal which took different approaches to the meaning of “procedure” in section 98A(2) of the Employment Rights Act 1996: Alexander v Bridgen Enterprises [2006] IRLR 422, and Mason v The Governing Body of Ward End Primary School [2006] IRLR 432.

21.	The Tribunal found the dismissal both automatically unfair contrary to section 98A(1) of the 1996 Act and unfair under section 98(4).  As we have already noted, these are different routes to a finding of unfair dismissal.  

22.	The Tribunal’s reasoning for finding that the dismissal was automatically unfair begins with the following passage:
“33.   The Tribunal does not think that this whole matter can be looked at as one continuous process.   Once the claimant appealed against the final written warning and the employer decided that the new information which came out of the three appeals led it to consider dismissal, then it is this Tribunal’s conclusion that that led to the standard procedure for dismissal and disciplinary procedures set out in Schedule 2 to the 2002 Act, being engaged again.  Considering the words of the Regulations, the employer had contemplated dismissing or other disciplinary action.  It was required under the standard procedure to set out in writing the employees’ alleged conduct or characteristics or other circumstances which led him to contemplate dismissing the employee.  The employee should have been invited to discuss the matter.  The meeting must not take place under step 2 unless

(a)   the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it

(b)   the employee has had a reasonable opportunity to consider his response to that information”

23.	The Tribunal then pointed out that the first Mrs Garner knew of Mr Fischer’s statement was at the meeting on 11 October when she was suspended.  The next she knew was that she was required to attend a meeting on 13 October and was told she was dismissed.  The Tribunal went on:
“36.   The Tribunal finds that the employer had not complied with steps 1 and step 2 of the standard procedure.  When the employer knew it was contemplating taking further disciplinary action against the claimant other than the final written warning, it should have started with the step 1 process and invited the claimant to a meeting once she had had all the information communicated to her that led the employer to contemplate dismissing.”

24.	The Tribunal’s reasoning for finding that that the dismissal was unfair under section 98(4) related to the second level of appeal hearing in November.  The Tribunal said:
37   The Tribunal is also critical of the appeal hearing on 14 November 2005.  The respondent chose not to interview Dawn Appleton, Willem Ray and Agatha with regard to what had been said in the factory, which was that Willem had contaminated the drink.  This was even though the claimant had told them that Tracey Bromley had felt pressurised to say that she, the claimant, had done it, and that she had suffered stress and depression after the appeal.  

38   As a result of the above failing with regard to the appeal, the Tribunal cannot be satisfied that when it made the decision to dismiss, the employer had conducted a reasonable investigation.  The claimant’s liability for the incident had, in the Tribunal’s view, been thrown into doubt.  Indeed the one person who had been consistent in their version of events, was the claimant, in stating that she had not contaminated the drink.

25.	The Tribunal went on to consider the impact of section 98A(2) of the 1996 Act.  The Tribunal stated, correctly, that this provision had no application in connection with breach of the statutory procedure.  

26.	Since,  however, the Tribunal had also expressed itself as finding the dismissal unfair under section 98(4) by reason of the failure to interview Dawn Appleton, Willem  Ray and Agatha at the second appeal stage, it went on to consider whether section 98A(2) applied to this failure.

27.	The Tribunal correctly recognised that if it followed the approach in Mason section 98A(2) would have no application: failing to interview certain potential witnesses would not be a “failure by an employer to follow a procedure” as such.  The Tribunal also correctly recognised that if it followed the approach in Alexander failing to interview certain potential witnesses would be a “failure by an employer to follow a procedure”.  The question therefore arose whether Premier had shown that it would have decided to dismiss the employee if he had followed that procedure.

28.	The Tribunal expressed its conclusion on this point as follows –
“43 ….the Tribunal does not find that if the procedural defects had not occurred, ie the respondent had spoken to the named people mentioned by the claimant, that dismissal would necessarily have occurred in any event.  In fact, to the contrary; if the employer had spoken to those individuals and this had cast doubt on whether the claimant had been responsible for the contaminated drink, then dismissal may not have occurred.”

29.	The Tribunal had indicated that it would also give its decision as to whether there should be any deduction under the principles set out in Polkey v Dayton Services [1987] ICR 301, and on the question of contributory fault.

30.	As to Polkey, the Tribunal found that the breach of the statutory procedure was “only a minor technical breach” and not one which would result in any deduction under Polkey principles.  But the Tribunal concluded that if Premier had carried out further investigations there was still a chance that Mrs Garner would have been dismissed.  The Tribunal said:

“Doing the best it can from all the evidence, it assesses this at a 33% chance that the claimant would also have been dismissed and that must be a deduction from any compensatory award.  It arrives at that percentage on the basis that if it had spoken to the others and this had shed doubt on whether or not the claimant had been responsible, then there were other alternatives open to the employer, namely some other disciplinary action, or even they may have found that someone else was responsible”

31.	The Tribunal also found that there should be a reduction for contributory fault.  On any view, the Tribunal found, there was an inappropriate culture of mickey-taking and banter in the department, and by her remark to Mrs Garner when she discovered the contaminated drink she had demonstrated she was part of that culture.  The reduction to the basic and compensatory award was to be 25%.

Automatic unfair dismissal: section 98A(1)
32.	We find it convenient first to consider the question of automatic unfair dismissal pursuant to section 98A(1).  

33.	Mr Samson argued that the Tribunal erred in finding that Premier had not complied with Step 1 and Step 2 of the Standard Procedure.  Step 1 and 2 had been completed in August, and the Tribunal should have made such a finding.  The hearing in October was the step 3 appeal.  There was never a time when the employer ceased to contemplate dismissal, and then started again, so as to attract a fresh duty to commence the procedure.  Dismissal always remained in the mind of Premier, and Premier had expressly reminded Mrs Garner prior to the appeal hearing that the sanction could be increased.   It would, he submitted, fly in the face of the purpose of the Standard Procedure if it were to be “engaged again”, when the intention of the statute was that the procedure should be simple and accessible.   The Standard Procedure does not require a disciplinary or appeal hearing to be adjourned merely because there is some new information which does not affect the grounds for contemplating dismissal.  The mere fact that an employer elects not to dismiss at Step 2 cannot be said to disapply the Standard Procedure.  

34.	Alternatively, Mr Samson argued that the letter dated 10th October amounted to a step 1letter, that the hearing on 11th October was a sufficient compliance with step 2, and the hearing in November complied with step 3.

35.	In any event, Mr Samson argued, since the Tribunal found that the breaches of the statutory procedure amounted only to a “minor technical breach”, which would not attract a Polkey deduction, they could not constitute a finding of automatic unfair dismissal.

36.	On behalf of Mrs Garner, Mr Catherwood supported the decision of the Tribunal.  He emphasised in particular what he described as the obvious unfairness to Mrs Garner of dismissing without a further hearing when she had no opportunity to deal with the change of evidence of Ms Bromley, and no prior notice of the change of evidence of Mr Fischer.  

37.	We were taken by Mr Samson to the leading cases concerning Schedule 2 to the Employment Act 2002, including Shergold v Fieldway Medical Centre [2006] IRLR 76, Canary Wharf Management Ltd v Edebi [2006] IRLR 416, Alexander v Bridgen Enterprises, and Draper v  Mears [2006] IRLR 869.  However, to our mind this case turns on its own special facts.  Our conclusions are as follows.

38.	The feature of this case which is unusual is the existence and exercise of a power by Premier to increase a sanction on an employee’s appeal.  In our experience it is rare for an employer to provide expressly for such a power, and rarer for an employer to contemplate exercising it. 

39.	For many years prior to the introduction of statutory procedures by the Employment Act 2002 employers have had disciplinary procedures applicable to dismissal and other sanctions.  The new statutory procedures are relatively simple and straightforward.   They do not necessarily correspond directly to existing disciplinary procedures.  A Tribunal, in applying section 98A(1), must look to see whether in substance the statutory procedures have been complied with, even if the employer has been operating disciplinary procedures with procedural steps which are differently labelled or differently timed to those in Schedule 2 of the 2002 Act.

40.	The dismissal of Mrs Garner by Premier will have been automatically unfair under section 98A(1) if and only if the standard procedure (which admittedly applied) was not completed, and non-completion was wholly or mainly attributable to failure by Premier to comply with its requirements.

41.	In July and early August Premier undoubtedly contemplated dismissing or taking relevant disciplinary action against Mrs Garner.  The statutory procedure therefore applied: see reg 3(1) of the 2004 Regulations.  Step 1 was completed by writing to Mrs Garner informing her that she was to face an allegation of being involved in the contamination of the drink.  Step 2 was completed by informing her what the basis was for that allegation, giving her a reasonable opportunity to consider her response, holding a meeting, and informing her of the decision and her right of appeal.  All this took place in August.  The decision was a written warning.  

42.	The Tribunal considered that when the employer knew that it was contemplating taking further disciplinary action against the claimant other than the final written warning, it should have started the process again.  Was it correct?

43.	We think the Tribunal was correct.   At the conclusion of stage 2 in August, Premier’s decision was to impose a written warning.  Absent an appeal, that was the end of the process, for no further sanction was possible.   Suppose there had been no appeal, and further information came to light which led Premier again to contemplate dismissing one or more of the employees.  Without doubt Premier would have to commence the statutory procedure again.   The fact that the employee appeals, and Premier’s procedure happens to allow Premier again to contemplate dismissal, does not to our mind alter the position.  If Premier, not having imposed the sanction of dismissal before, again contemplated dismissal the statutory procedure again became applicable and should have been completed.  It would not have been difficult to do so.

44.	We are not deflected from this view by Mr Samson’s submission that this conclusion will make the statutory procedure complex or inaccessible.  As we have said, the unusual feature of this case was that Premier contemplated increasing the sanction on an appeal brought by Mrs Garner.  The procedure which Premier in fact adopted was to our mind unsatisfactory: Mrs Garner was dismissed on 12 October on the basis of evidence from Ms Bromley which she had no opportunity to see or challenge before she was dismissed.

45.	This leads us to Mr Samson’s alternative submission that Premier in fact completed steps 1 and 2 in any event in October.  We disagree with this submission.  We do not think a letter reminding an employee that a sanction may be increased on appeal is sufficient to comply with step 1.   The requirements of step 1 are simple and straightforward, and should be fulfilled according to their terms if an employer again contemplates dismissal.  

46.	Further, in our judgment the Tribunal was fully entitled to find that the meeting on 11 October did not comply with stage 2.  On 11 October Mr Sloan still intended to re-interview Ms Bromley.  Her changed account turned out to be of key importance.  As the Tribunal observed, after the meeting on 11 October the next thing Mrs Garner knew was that she was invited to the meeting on 13 October when she was told she was dismissed.    It is not reasonable to time a stage 2 hearing to be completed in the midst of an investigation, for the employee will not know the grounds on which dismissal is contemplated and will not be able to explain his case.  See Schedule 2, Part 1, paragraph 2(2)(a) and Part 3.

Unfair dismissal under section 98(4)

47.	On behalf of Premier, Mr Samson submitted that the Tribunal’s reasoning in relation to its decision that the dismissal was unfair under section 98(4) was fundamentally flawed.  He criticised the absence of any finding as to whether a potentially fair reason had been established, whether the employer genuinely and reasonably believed that the employee was guilty of misconduct, and whether there were reasonable grounds to sustain that belief.   In his skeleton argument he cited extensively from well-known authorities on the test applicable to section 98(4), and he relied in particular on the absence of any self direction by the Tribunal in respect of Boys and Girls Welfare Society v McDonald [1997] ICR 693 or Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23.  He submitted that the Tribunal may have placed the burden of proof on Premier, incorrectly, having regard to the use of the phrase “The Tribunal cannot be satisfied” in paragraph 38 of the Reasons.

48.	We reject these submissions.  The Tribunal gave itself a succinct and adequate self direction as to the applicable law in paragraphs 25 and 26 of its reasons, where in particular it referred to the considerations set out in British Home Stores v Burchell [1978] IRLR 379.  This is a well-traversed area of law, where it is now very well known that the applicable test is a “range of reasonable responses” test, and we see no reason to doubt that the Tribunal had correct principles in mind.   It is not necessary for a Tribunal to engage in detailed citation of authority.  In paragraph 25 of its reasons the Tribunal specifically and correctly mentioned that it was for the employer to satisfy the Tribunal as to the reason for dismissal, but it did not repeat this formula with regard to section 98(4).  We do not for a moment think that the Tribunal applied a burden of proof, or decided the case on the application of any burden of proof.  We do not think that by using the phrase “the Tribunal cannot be satisfied”, it was making an elementary error about the burden of proof.  It is plain from the Tribunal’s findings of fact that it proceeded on the basis that the true reason for dismissal was a reason relating to conduct.  The Tribunal decided that Premier had not carried out a reasonable investigation, given the issues raised at the final appeal.  There is to our mind nothing fundamentally flawed about its process of reasoning.  

49.	Mr Samson further submitted that the Tribunal’s conclusion that the investigation was not reasonable was a perverse conclusion, or one which was so plainly unjustified that it must have involved the Tribunal in substituting its own conclusion for the conclusion of the employer rather than applying a “range of reasonable responses” test.  He further submitted that when the Tribunal said that it was “critical” of Premier for not doing so, it demonstrated an application of the wrong test.

50.	We have considered this submission with some care.  The persons the Tribunal was persuaded ought to have been interviewed were not direct witnesses of the contamination of the drink.  Nor, however, on Mrs Garner’s account, were they merely purveyors of gossip or discussion in the factory.  On her account they were people to whom Mrs Bromley had recently given a diametrically opposite account to that which she was giving to Premier.  Since Mrs Bromley had already, on any view, changed her story once, and since Mr Taylor considered her evidence to be “the key to it all”, it would have been important to know whether Mrs Bromley had recently given a different account to other employees.  An appeal lies to the Appeal Tribunal only on a point of law.  In our judgment it was not perverse, and was a tenable point of view, for the Tribunal to consider that these employees ought to have been interviewed.   The Tribunal, when saying it was critical of Premier for not interviewing the employees, plainly meant to say that it was unreasonable for Premier not do so: hence its conclusion that Premier had not carried out a reasonable investigation.

51.	Finally, if we understood him correctly Mr Samson was inclined to criticise the Tribunal for reaching conclusions both as regards section 98A(1) (automatic unfair dismissal) and as regards ordinary unfair dismissal.  We do not think the Tribunal fell into error by doing so. On the contrary, if both automatic unfair dismissal and ordinary unfair dismissal are raised and argued at the hearing, it is important that the Tribunal should deal with both and make finding as to both routes.

Section 98A(2)

52.	It is now settled at the level of the Appeal Tribunal that the approach to section 98A(2) set out in Alexander v Bridgen Enterprises is to be followed: see Kelly-Madden v Manor Surgery [2006] UKEAT/0105/06 at paragraph 49.  As we have seen, the Tribunal considered both approaches.  On the Alexander v Bridgen Enterprises approach, it held that the failure to interview the three witnesses was a failure to follow a procedure in relation to a dismissal, but the employer had not shown that he would have decided to dismiss the employee if he had followed the procedure.

53.	On the face of it, this conclusion by the Tribunal is purely a conclusion of fact against which there is no appeal.   Mr Samson, however, submitted that the Tribunal had drawn an inference unwarranted by the facts.  He put it as follows.   If Mrs Bromley was not telling the truth, it would have meant that Mr Fischer and Mrs Bromley had both lied to implicate Mrs Garner even though she was innocent.  It could be no more than a remote possibility that Premier would reach that conclusion by reason of interviewing hearsay witnesses.

54.	This submission is in reality again a submission on grounds of perversity.  We reject it.  We do not consider the Tribunal’s conclusion to be perverse.  It is important to remember that Mr Fischer and Mrs Bromley had not been dismissed, even though they had changed their story and in effect admitted lying earlier, and even though Mr Fischer at least had admitted involvement in the contamination.  If doubt had been thrown on Mrs Bromley’s account, an employer might very well have concluded that it was unfair to single out Mrs Garner for dismissal.   It is clear that on the balance of probabilities the Tribunal did not think Mrs Garner would have been dismissed: this appears not only from paragraph 43 (where the language is somewhat indefinite) but also from the Polkey finding in paragraph 46.
Conclusions

55.	For these reasons the appeal will be dismissed.