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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Netintelligence Ltd v. McNaught [2009] UKEAT 0057_08_0303 (3 March 2009) URL: http://www.bailii.org/uk/cases/UKEAT/2009/0057_08_0303.html Cite as: [2009] UKEAT 0057_08_0303, [2009] UKEAT 57_8_303

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APPEARANCES

 

For the Appellant	MR S C MILLER, (Solicitor) Messrs MacRoberts Solicitors 152 Bath Street Glasgow G2 4TB
For the Respondent	MR F LEFEVRE (Solicitor) Quantum Claims Employment Division 70 Carden Place Queens Cross Aberdeen AB10 1UP


 


SUMMARY

UNFAIR DISMISSAL

PRACTICE AND PROCEDURE: Perversity

Tribunal's judgment set aside where they had accepted the claimant's evidence on an essential matter despite her solicitor's failure to cross-examine the relevant employers' witness on it, despite other conflicts in her evidence and despite there being matters which called her reliability into question as well as her credibility. Not, though, an error of law for the tribunal to refrain from recalling the respondents' witness of its own motion. Remit to a fresh tribunal.


 


THE HONOURABLE LADY SMITH

INTRODUCTION

1. This is an employers' appeal from the judgment of the Employment Tribunal sitting at Glasgow (Employment Judge Mr WA Muir), registered on 6 June 2008, finding that their employee, who was the claimant before the Tribunal, had been unfairly dismissed. The finding of unfair dismissal was that there had been both automatically unfair dismissal (Employment Rights Act 1996, section 98A(1)) and substantively unfair dismissal (section 94(1) and 98 of the 1996 Act).
2. We will continue to refer to parties as claimant and respondents.
3. The parties were represented by Mr Miller, solicitor and Mr Lefevre, solicitor, before the Tribunal and before us.

BACKGROUND

4. The claimant was employed by the respondents as a Telesales Executive. She was one of 42 such executives who reported to the respondents' Mr Gallagher. Their business involves selling network security. The claimant's task was to obtain orders for the respondents' product.
5. The respondents operated a system whereby a signed acceptance by a customer was required; the respondents would issue a written quotation on a form which had a space on it for "Quote Accepted" and the customer would sign it and send it to the respondents. In addition, in the case of customers who used a purchase order ("PO") system, the customer would prepare such a PO and send it to the respondents. POs would bear the customer's own reference number. Once these formalities were completed, the paperwork would be passed to the respondents' finance department for them to issue an invoice.
6. The claimant was the most successful member of Mr Gallagher's team as at November 2006. The finance department were, by that time, concerned about "aged debts". Further, trading conditions were not strong and it appeared that the sales force were not going to reach target. The finance department instructed an investigation into late payments. So far as Mr Gallagher's team was concerned, that investigation was led by the respondents' Mr Worms. He became concerned about a number of the contracts that had been secured by the claimant. One of these was an apparent contract with East Dunbartonshire Council ("EDC").
7. The claimant had secured a contract for 101 "Ni Enterprise Manager" from EDC at the end of the third week of November 2006, at a price of £2,235. The paperwork involved a quotation for 101 items known as "seats", dated 8 November 2006, signed for EDC on 20 November 2006. The signature is hard to read but the words " HASSAN MOFIDIAN" are printed under it. EDC issued a purchase order for the goods specified in the quotation form on 21 November 2006. Its printed number appears originally to have been 3346. It has, however, been manually altered so as to read "3846".
8. The claimant had had discussions with Mr Patterson of EDC about the possibility of him giving the respondents a further order. He told her that they had about 5,000 computers. He also told her, however, that EDC did not have the funds available to purchase any further products. No funds would be available prior to the Spring of 2007. The claimant was left with the impression that there was a potential for further sales to EDC.
9. The claimant subsequently prepared a quotation dated 30 November 2006 and addressed to EDC for 5000 of the same product as EDC had contracted for on 20 November 2006, at a price of £50,000 (adjusted down from £52,500). She wrote "JAMES PATTERSON" in the space for "Quote Accepted" . There is also a manuscript addition of which the claimant was not the author: "pp. Hassan" . The quotation had not in fact been accepted by the respondents. The Tribunal found, at page 9, paragraph (e):

"The quotation was prepared by the claimant. It bears to be dated 30 November 2006. By this time Mr Gallagher and the claimant had discussed the possibility of accelerating an order for 3,300 seats and he asked the claimant to go to EDC's offices with the purpose of bringing the order forward. All of the handwriting on this quotation form (apart from "pp.Hassan") is that of the claimant. She had taken this document to EDC's offices on 4 December 2006. She altered the number of seats from 3,300 to 5,000 and the adjustment of the price as recorded there reflected the terms of a discussion which she had had with Mr Gallagher on the telephone while she was at EDC's offices. Mr Gallagher wanted a deal done there and then. Specifically he instructed the claimant to obtain the signed order. It mattered not to him who signed it. However, Mr Patterson with whom the claimant was then in discussion, did not have the necessary authority to bind EDC in contract. Mr Patterson advised the claimant that he could not sign the quotation. The claimant nevertheless wrote his name on this document at the section "Quote Accepted". The document was faxed back to the respondents and was given to the claimant with the words "pp. Hassan" having been added. The claimant left this on Mr Gallagher's desk."

10. The claimant went back to EDC's offices on 5 December to try and get a signed quotation from them but neither Mr Patterson nor another person with whom she had dealt there, Margaret McNally, was available to see her. No contract was ever concluded between the respondents and EDC for those 5,000 items.
11. The claimant's visit to EDC on 4 December 2006 to try and get the quotation signed was preceded by "Instant Messenger" electronic exchanges having taken place between the claimant and Mr Gallagher over the period 30 November to 5 December 2006, in the course of which the claimant indicated to Mr Gallagher that she had secured the second of the above orders, Mr Gallagher indicated that he needed EDC's purchase order number for it before it could be added to his figures for that period (something which he was very keen to be able to do) and the claimant, in the afternoon of 5 December, told Mr Gallagher that she had been in touch with EDC and their finance department would be phoning in before 4.30pm with the PO number.
12. The PO number "3846" was handwritten on a piece of paper which was found on the claimant's desk. It was, however, ascertained that EDC's Purchase Order records had not reached that number at that time.
13. Mr Worms ascertained that Mr Patterson and Mr Hassan Mofidian of EDC only had knowledge of the order for 101 items.
14. In the light of these circumstances, the claimant was called to a disciplinary hearing on 20 December 2006. At that hearing, she stated that there was a second order. Margaret McNally of EDC had, she said, authorised the PO in respect of the purchase of 3,300 items and it was James Patterson who had indicated the 5,000 order. She said that the original signed quotation was still with Margaret McNally at EDC. She plainly represented that the sale which Mr Worms had queried and which EDC had indicated did not exist, had in fact been concluded. Reference was also made to the PO number of 3846 that was on the documentation and it being EDC's position that they had only ever ordered 101 items. The claimant nonetheless insisted that it was a valid PO. She said that the respondents need have no worries about the EDC order.
15. The claimant was subsequently dismissed on 21 December 2006 for gross misconduct which included the falsification of the purported EDC order for 5,000 items referred to above. The Tribunal found that dismissal to have been substantively unfair.
16. The claimant intimated notice of her wish to appeal the decision to dismiss her by letter of 9 January 2007. The appeal process was not, however, followed because although the claimant's appeal letter and a reminder, dated 22 January, were sent and received by the respondents, the letters were not passed to their HR and Training Manager as they should have been. In these circumstances, the dismissal was automatically unfair, stage 3 of the statutory dismissal procedure (Employment Act 2002 Schedule 2) not having been followed. The Tribunal also, accordingly, found that the dismissal was automatically unfair and no issue was taken with that finding in the appeal.

The Tribunal's Judgment

17. In addition to the findings to which we have referred in the background section above, in respect of the quotation document relating to the order for 5,000 items, the Tribunal found that Mr Gallagher:

"…knew that this did not constitute an agreement to purchase anything." (page 10, lines 15– 16).

18. Later in the same paragraph, they found that the claimant:

" …did not, however, tell Mr Gallagher that there was no prospect of EDC submitting a purchase order until the 2007 council tax year and that he should 'cool his heels'."

19. Then, at page 11 of the judgment, where they refer to what passed between the claimant and Mr Gallagher at the disciplinary hearing, they state:

"The claimant did not, as might have been reasonably expected, say to Mr Gallagher at this meeting that there had been a huge misunderstanding in relation to an order for 5,000 seats and that there was simply no prospect of the respondents obtaining a purchase order for this amount. As the note … bears to show Mr Gallagher asked the claimant 'who actually authorised the purchase?' He is referring to the purchase of 5,000 seats. There was no such purchase at all. Mr Gallagher was well aware of this."

20. Mr Gallagher did not give evidence that he knew that there was no purchase at all. He was not asked whether or not he knew that. It was not until the claimant gave evidence, after the close of the respondents' case, that it became apparent that that was her case. She said, in the course of her evidence in chief that he was well aware of the reality of the situation. That was not, however, something that had been put to him in cross examination.
21. The Tribunal's assessment of the claimant is set out, at page 22-3 of the judgment:

"The claimant presented in evidence to the Tribunal as being something of a scatterbrain. At certain stages of her cross examination her responses to specific questions put to her by Mr Miller were completely unsatisfactory. She was at times quite unable to provide a straight answer to a straight question and the Employment Judge required to intervene on at least one occasion to tell her that she needed to concentrate on what was being asked of her and to deliver a calm and measured response to questions. That said, however, the Tribunal did not get any sense from her evidence that she was untruthful. Her credibility was not in any doubt. She accepted that from an administrative of point view, she had imperfections and the Tribunal regarded this as probably being the case. She did, however, have a major strength – her ability to obtain business for the respondents and, insofar as EDC was concerned, to tap into a potentially lucrative stream of business."

22. At the appeal hearing Mr Miller advised and it was not disputed by Mr Lefevre that, at one point in the course of the claimant's cross examination, the Employment Judge threw down his pen and exclaimed:

"This is farcical, completely farcical."

23. Whilst the Tribunal refers to the question of credibility in its assessment, it makes no comment regarding the claimant's reliability.
24. To see where and how the Tribunal concluded that Mr Gallagher knew that there was no real purchase order at all (and therefore could not have been misled by anything put before him by the claimant), we turn to page 26 of the judgment, in the discussion section. There the Tribunal state:

"The question for the Tribunal was whether or not Mr Gallagher could reasonably believe that the content of J11-42 amounted to an order in the sense that there was a signed acceptance on behalf of EDC of the respondents' quotation. The Tribunal concluded that Mr Gallagher could not have reasonably entertained that belief. It concluded that he knew or ought to have known that the content of this document was nothing more than a snapshot of the respondents' negotiating position at the material time …" (our emphasis).

25. We observe that despite the Tribunal's conclusion being that Mr Gallagher either knew or ought to have known that the document did not relate to a real order, they, as we have noted, also stated as a factual finding that he did in fact know, a finding which is inconsistent with the allowance for ignorance of the matter that is implicit in the finding that he "ought" to have known. Later on page 26, they state:

"In passing, the Tribunal observe that the claimant's evidence in relation to Mr Gallagher's knowledge of what was going on at all material times that with particular reference to the discussions which she had with him and which have reflected in her handwritten note on J11-42 were not put to Mr Gallagher. Mr Lefevre provides an explanation for this in paragraph 2 on page 4 of his submission. Suffice it to say that the tribunal did not accept his explanation for not having fully put the claimant's case to Mr Gallagher. However, at the end of the day, the Tribunal accepted the claimant's testimony albeit that it was not fully tested with Mr Gallagher. The result is that the respondents have again by a considerable margin failed to satisfy the Tribunal that they entertained a reasonable belief of the claimant's guilt in relation to falsification of either an order or a purchase order in respect of EDC. The decision to dismiss her is therefore substantively unfair."

26. Regarding the Tribunal's reference to Mr Lefevre's explanation for not having cross-examined Mr Gallagher on the matter, in his written submission he stated that when the respondents restricted their allegations of misconduct to two matters (they had originally sought to found on five) he saw no need to ask any more. He added:

"Gallagher had already give answers to questions to which showed an animus against the claimant. She had denied all allegations as per the notes on the disciplinary meeting. I was certainly equipped with the full information from the claimant over two interviews with her in Edinburgh prior to the tribunal hearing and the choice as to range of cross-examination was mine. I had always doubted that the grounds of dismissal were valid or sustainable as such."

27. We note from the findings regarding what passed at the disciplinary hearing that the claimant's denials were to the effect that there was a real order. That, of course, is not consistent with a case that there was no real order and, furthermore, that Mr Gallagher knew that that was so.
28. The Tribunal made a finding of contributory conduct at page 28. It noted that the claimant gave Mr Gallagher the clear impression that the obtaining of a PO number for the 5,000 item order was achievable, that when she told him that EDC were going to phone in with a PO number that was at a stage when what she was discussing with Margaret McNally was the 101 item order, that she should have told Mr Gallagher that there was "no way" the larger order was going to materialise at that stage and that they concluded, at lines 40–47:

"….the claimant had (not) gone as far as deliberately misleading Mr Gallagher but it did feel that she could be blamed for her failure to tell him that, with the best will in the world and recognising his concern in relation to making the sales figures look good to his superiors, EDC were not going to help him out at least for November 2006 sales."

The Appeal

29. For the respondents, Mr Miller submitted that the Tribunal had erred in law in determining that the claimant had been substantively unfairly dismissed. They had arrived at that decision on the basis of a conclusion as to Mr Gallagher's state of knowledge that no reasonable tribunal could have arrived at on the evidence.
30. Mr Miller pointed to the fact that part of Mr Gallagher's reasons for dismissing the claimant was that she had deliberately given the respondents to understand that she had secured an order from EDC that had not in fact been secured at all. He referred to the parts of the Tribunal's judgment set out above where they stated that they did not accept that Mr Gallagher could reasonably believe that the document related to a real order and that they found that he knew that there was no such order at all. Those findings were, from the claimant's perspective, exculpatory. She could not reasonably be accused of falsifying a customer order if her boss knew that the supporting paperwork did not actually amount to an order at all.
31. Mr Miller stated that until the claimant gave her explanation as being that Mr Gallagher did know that there was no real order, no prior notice of that being her position had been given. The Employment Judge, as he put it "seized on" that point when it emerged. He pointed out that the respondents' witnesses had not been cross-examined to that effect. It was not disputed by Mr Lefevre that the point had not been raised before it was spoken to by the claimant.
32. Under reference to the above passage in the Tribunal's judgment at page 26, Mr Miller observed that it was clear that the Tribunal acknowledged that Mr Gallagher should have been challenged with that proposition when he gave evidence and, further, that they regarded the explanation given for the failure to do so as unacceptable. He advised us that in response to an enquiry by the Tribunal he said that he was not minded to move for Mr Gallagher to be recalled; Mr Gallagher was based in Bristol, there would need to have been an adjournment and Mr Miller considered that there was sufficient material available for him to rely on to deal with the credibility of the claimant's assertion about Mr Gallagher's state of knowledge. Mr Lefevre made no such motion either. The Tribunal did not, of its own motion, recall Mr Gallagher to give evidence. Mr Miller observed that it could have done so under its general powers in rule 10 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004.
33. Mr Miller submitted that it was unfairly prejudicial, manifestly unjust and therefore an error of law for the Employment Tribunal to accept the claimant's untested evidence unreservedly, as it did. That was particularly so given that the Tribunal had called the claimant's reliability into question in the above passage at page 22 of their judgment.
34. As an alternative submission, Mr Miller said that the Tribunal erred in law in failing to recall Mr Gallagher themselves when they decided that they rejected Mr Lefevre's explanation for not having cross-examined him.
35. Mr Miller submitted that if he was wrong in either of the above contentions then at the very least the Tribunal were bound to subject the other evidence to a high level of scrutiny, given that there was an evidential gap. It failed to do so. It also, in respect of such evidence as it did analyse, substitute itself for the disciplining officer when, at lines 26–30 of page 26, it found that he could not reasonably regard the paperwork with which he was presented as a formal acceptance of a quotation because of it having been corrupted by the claimant's handwriting.
36. There were two areas of the evidence in particular that required scrutiny, submitted Mr Miller. The first related to the disciplinary hearing. There, the claimant had not said that there was no order. On the contrary, she asserted that there was. Although the veracity of the notes of the hearing relating to the EDC matter had been challenged by the claimant, at the invitation of the Tribunal, the respondents had reopened their case and evidence regarding them was given by the respondents' Leejane Young. The Tribunal found that the note was reasonably accurate. Beyond that, however, they gave no consideration to the conflict between the claimant's position in evidence – they found her to be a credible witness – and what was set out in the notes, which was to the contrary effect.
37. The second related to the PO number. Mr Gallagher had given evidence that the claimant had provided the respondents' finance department with the number 3846 as the PO number for the disputed order. At the time, he noted the similarity between that number and the PO on the genuine, 101 item order. It was 3346. Further, the respondents had established that the EDC PO book had not reached 3846 at the relevant time. Mr Gallagher was aware of that prior to his decision to dismiss the claimant. That matter formed part of his reasons for disbelieving the account given to him by the claimant at the time she was disciplined and dismissed. The Tribunal should have analysed that evidence in its deliberations but it had failed to do so. That was despite the fact that the Tribunal had, when considering whether or not there was contributory conduct, shown that they appreciated the significance of the PO number.
38. These failures in evidence analysis fell foul of the Tribunal's obligation to provide an adequate explanation for its conclusions: Meek v City of Birmingham District Council [1987] IRLR 250; Yeboah v Crofton [2002] IRLR 634.
39. In all these circumstances, Mr Miller submitted that the judgment was rendered perverse and there should be a remit to a freshly constituted Tribunal to determine whether or not the claimant was (substantively) unfairly dismissed.
40. In the course of his submissions, Mr Miller referred to Scottish Shellfish Marketing Group Ltd v Connelly UKEATS/0082/05, Jones and Shingler v Loppington House Ltd UKEAT/0100/06 and Jabil Circuit Ltd v Fleming UKEATS/0069/06, as examples of cases where this Tribunal reviewed employment tribunals' conclusions on the evidence before them. He also referred to ALM Medical Services Ltd v Bladon [2002] EWCA Civ 1085 for the passage at paragraph 19 where Mummery LJ states:

"It was the duty of the tribunal to hear and consider all the relevant evidence from ALM and allow ALM to challenge Mr Bladon's evidence on the relevant issues before finding the facts and reaching a decision ..."

in circumstances where the employers had been prevented by the tribunal from calling relevant evidence which they wished to lead and put to the claimant in cross examination.

41. For the claimant, Mr Lefevre submitted that the appeal should be refused. No-one could reasonably have concluded that the claimant had secured an order from EDC since Mr Patterson's name was printed on the quotation; it was not a signature. The Tribunal was entitled to find that Mr Gallagher did not think that there was in fact any order. Perusal of the document did not allow a conclusion to be arrived at that the claimant was presenting a signed document. Mr Lefevre said that, under reference to the "Instant Messenger" exchanges that he had pointed out that it sadly left him able to conclude that Mr Gallagher knew all that the claimant was doing and why the question of a PO and its number was a critical one. Mr Lefevre sought to persuade us that it was evident from the Instant Messenger exchanges that Mr Gallagher knew that there was no real order.
42. Regarding the disciplinary hearing, Mr Lefevre submitted that whatever was discussed, as a matter of fact , there was no PO.
43. Regarding the matter of the PO number, Mr Lefevre said that it was not until his cross examination of Mr Gallagher that anyone had pointed out that the "3" in the PO number on the order for 101 items had been altered to read "8". Mr Gallagher had not sought to say that he had dismissed the claimant for falsifying that number.
44. Regarding the matter of recalling Mr Gallagher, Mr Lefevre considered that it was not a matter for him and he gave us the impression that he felt that it in fact suited the claimant's case very well indeed if he were not recalled.
45. Mr Lefevre submitted that the Tribunal had dealt adequately with all aspects of the case. They had, in particular, found that the claimant was entirely credible. Any problems with the lack of cross examination did not affect that. The appeal should be refused.

Discussion and Decision

46. This is a perversity appeal. Perversity appeals are not often upheld. Further, the appeal involves looking at a particular point of evidence, namely the effect of a failure to cross-examine, and appeals from the decisions of employment tribunals in respect of such matters are, we recognise, a rarity. However, we are readily satisfied that, in this case, the points advanced by the respondents in submission are all well made and the appeal ought, accordingly, to be upheld.
47. The Tribunal accepted the claimant's evidence that Mr Gallagher knew that she was not in fact representing that the paperwork she put before him was in respect of a real order. There are, however, a number of reasons why that was not a finding which they were entitled to make.
48. Firstly, as the Tribunal themselves recognised, that proposition had never been put to Mr Gallagher. Whilst, at one point in his submissions to us Mr Lefevre seemed to be trying to suggest that in suggesting to Mr Gallagher that he knew what the claimant was doing, he had cross-examined on the matter, we do not accept that that was, in the circumstances, anything like sufficient. The proposition was a serious one. Its effect was to implicate Mr Gallagher as tainted with the same impropriety as the claimant. It could not be regarded as put in cross examination unless it had been clearly put. In any event, Mr Lefevre appeared to accept, before the Tribunal, that he had not crossed Mr Gallagher on the point.
49. Whenever a witness for one party gives evidence on a matter of importance which, if correct, would have been within the knowledge of an earlier witness called by the other party and that witness was not asked about it, the question arises as to whether or not the witness can be believed. The credibility and reliability of the witness will always be called into question in such circumstances and there will require to be clear justification for the fact finder deciding to accept that evidence in such circumstances. It will often be the case that, without knowing what the earlier witness would have said about the matter, the fact finder decides that it cannot, if it is to act in a judicial manner, accept the evidence. We would add that for any fact finder to be entitled to accept evidence, it requires to be satisfied that not only is the witness's evidence on the point credible but also that it is reliable. A witness may be credible in the sense that the fact finder is satisfied that they are honest and doing their best to tell the truth but their evidence may not be reliable for a whole host of reasons which involves looking at how the witness gave her evidence, at conflicts in her evidence, on the clarity of her evidence or the lack thereof and beyond what the witness has said to the whole evidence in the case.
50. What happened here was that the Tribunal recognised the importance of the claimant's evidence about Mr Gallagher's belief. They recognised that he had not been cross-examined about it and that they, therefore, did not know what his position about it was. They did not find Mr Lefevre's explanation for having failed to cross-examine on the point to be a satisfactory one. They recognised that important evidence had not been tested when it could and should have been. They plainly recognised that there was, in short, a problem. They seem to have dealt with it by reminding themselves that they found the claimant to be a credible witness. In doing so, however, they failed to address what should have been their first question which was namely whether, in the circumstances, particularly that Mr Gallagher had not been cross-examined on the matter, it was in fact open to them to accept the claimant's evidence about it. That question should also have been considered under reference to the unsatisfactory way in which she gave evidence in cross examination, to which we have referred and by asking themselves not only whether she was a credible witness but whether or not her evidence on that matter was reliable.
51. We would also observe that the Tribunal ought to have had regard to the fact that the explanation tendered for the failure to cross-examine does not even refer to the claimant's position being that the disputed order was not a reality. It refers, rather, to her denial of the allegations, under reference to the notes of the disciplinary hearing where, as we have noted, far from explaining that the order was not a real one and that Mr Gallagher knew that, the claimant positively asserted that the disputed order did exist and the original signed quotation for it was in Margaret McNally's possession. That is, it calls into question whether the claimant's position had, prior to the statements she made in her evidence, really been that Mr Gallagher knew that the order was not a real one. Judging by what she said at the disciplinary hearing it looks rather as though it was not and that, in turn, calls her credibility into question on the matter.
52. We should say something about the suggestion that the Tribunal could and should have recalled Mr Gallagher. Whilst we recognise that they had the power to do so without application by either party, under rule 10(2)(c), we do not consider that they erred in law in refraining from utilising it. It is a power that is, so far as we are aware, little used by Tribunals, which is not surprising. Employment Tribunals are not inquisitorial bodies; it is not their duty to obtain evidence.
53. This was a case where both parties were legally represented. There was no good reason why the normal orderly presentation of the evidence should not have been followed. It was the duty of the respondents' representative to call all his relevant evidence before closing his case. He called the evidence that he understood was relevant. Mr Gallagher's evidence did not cover the issue of whether or not he knew that the claimant had not secured a real order at all. The respondents' representative could not have been expected to raise it because he did not know at that point that that was her case. The claimant's representative did not fulfil his duty which was to put the point to Mr Gallagher in cross examination; the responsibility to do so is, we agree, in a way a corollary of the tribunal's duty to allow parties to call all relevant evidence as exemplified by the case of ALM Medical Services. Thus, Mr Gallagher's evidence came and went without the point ever being addressed by him. The claimant's adviser could be taken to have understood the risk that the claimant's evidence on the matter would not be accepted because of his failure to cross-examine and he did not, as he could have done, seek to have the witness recalled. It was his responsibility to put the matter to the witness so that it was covered in his evidence. We do not see that there was any duty on the Tribunal to assist by taking the initiative and recalling the witness.
54. We would add that insofar as Mr Lefevre indicated that it suited the claimant's case perfectly well if Mr Gallagher was not recalled, it seemed to us that he had missed the point of the risk he was running that the Tribunal, if acting judicially and appropriately, would be liable to reject the claimant's evidence on the matter of Mr Gallagher's state of knowledge when it had not been put to him.
55. Secondly, the Tribunal also decided that it was not open to Mr Gallagher to believe that the paperwork presented by the claimant was in respect of a real order , given the extent to which it had been "corrupted" by the claimant's handwriting, yet the question for them was not what a reasonable man in Mr Gallagher's position might or should have thought. The question that became relevant once the claimant claimed that he knew the order was not a real one was whether or not he did know that, a question which they could not properly answer without knowing what Mr Gallagher had to say about that proposition.
56. Thirdly, we accept the respondents' submissions regarding the need to submit the evidence about what the claimant said at the disciplinary hearing as compared to her position in evidence before the tribunal to close scrutiny. The very fact that she had not stated at that hearing that there was no real order and, furthermore, that Mr Gallagher knew that was the case, should have alerted them to scrutinise the evidence with great care.
57. Fourthly, we accept the respondents' submissions that the Tribunal required to but did not deal with the evidence about the provenance of the PO number and its implications for the claimant's credibility .
58. For completeness we would add that we do not accept Mr Lefevre's submission that the fact that Mr Patterson's name on the quotation form was printed showed that it was not a signature and that therefore the claimant could not be held to have been seeking to mislead the respondents. There was ample evidence that it was tendered by the claimant as being paperwork which evidenced the placing of a real order, a conclusion which is confirmed rather than weakened by the content of the Instant Messenger reports since they show the claimant giving the clear impression that she is in the course of putting the finishing touches on securing the order, the last step of which is to be the securing of the PO number, which EDC are said to have promised to advise by 4.30 pm on 5 December 2006. Nor, further, can it in our view be said that those reports read as showing that Mr Gallagher knew that the truth was that there was no such order at all.

Disposal

59. In all these circumstances, we will pronounce an order upholding the appeal and remitting to the Employment Tribunal to determine the issue of whether or not the claimant was substantively unfairly dismissed. The remit will be to a fresh tribunal, the circumstances of the perversity being such as to make it appropriate that we do so. Indeed, we did not understand Mr Lefevre to suggest that any remit should involve the same Tribunal membership.