Appeal No. UKEAT/0539/09/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 March 2010

Before
THE HONOURABLE MR JUSTICE BEAN
MS J L P DRAKE CBE
DR B V FITZGERALD MBE LLD FRSA

SECRETARY OF STATE FOR JUSTICE	APPELLANT

MR L MANSFIELD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR NEIL SHELDON
(of Counsel)
Instructed by:
Treasury Solicitors Office – Litigation & Employment Group
One Kemble Street
London
WC2B 4TS
	
For the Respondent	MR MICHAEL REED
(Representative)
Free Representation Unit
6th Floor
289-293 High Holborn
London
WC1 7HZ	

SUMMARY
UNFAIR DISMISSAL
Reasonableness of dismissal

Where an employee facing disciplinary proceedings is at the same time being investigated by the police the employer’s decision-maker has a wide discretion whether to continue or postpone the disciplinary hearing. In this case the decision to postpone could not be criticised as involving unjustifiable delay.

An Employment Tribunal had confused lack of honest belief in misconduct with lack of reasonable grounds for such belief. Lack of honest belief had not been suggested to the decision-maker who gave oral evidence before the Tribunal. As to lack of reasonable grounds, the Tribunal had fallen into the substitution mindset described by Mummery LJ in London Ambulance Service v Small.

THE HONOURABLE MR JUSTICE BEAN

1.	The Claimant Mr Mansfield was a prison officer at HMP Pentonville.  In April 2006 allegations were made against him of orchestrating violence among prisoners and planting drugs on a particular prisoner.  The first allegation rested principally on evidence of prisoners.  The second which, as will be seen, was the important one for present purposes, rested principally on the evidence of other prison officers.

2.	The Claimant was suspended from duty and on 2 May 2006 the matter was referred to the police.  They conducted various interviews in the ensuing months, including interviewing the two principal witnesses against him, one of whom was described anonymously as Officer 1 and the other as Officer Tester.

3.	The internal investigation which had begun in April 2006 was not proceeded with during the police investigation which led to a prosecution of Mr Mansfield.  The prosecution was originally in respect of both incidents but the orchestration of violence allegation was dropped before the matter was sent to the Crown Court at Wood Green.  That left the drugs allegation; but that too came to an end in the criminal courts when on 30 April 2007 the Crown Prosecution Service offered no evidence against Mr Mansfield.  The judge accordingly entered a verdict of not guilty on that charge.

4.	During the ensuing three months, May, June and July, the matter was not progressed much further, except that on 27 June the Claimant was summoned to attend at Pentonville by appointment to see Governor Nicholas Leader who was by then the “Governing Governor” at the prison.  He was told by Governor Leader that his suspension on the planting of drugs charge would be continued and the papers would be sent to him setting out the allegation under that heading as a disciplinary matter.  The orchestrating violence charge would be dropped. The Governor apparently said that the matter would be concluded within one calendar month and that somebody, either Mr Mansfield on the one hand or Officer 1 and Officer Tester on the other hand, would be sacked.  

5.	On 2 August 2007 terms of reference were issued by Mr Leader to another member of the governor-grade staff, Governor Adebanjo, requiring him to undertake an investigation to establish whether or not the Claimant had approached other staff at the prison to plant or fabricate evidence against prisoners. He was supposed to complete his investigation by 30 August 2007.  In fact he did not apparently begin it until 28 August 2007 and did not report to Governor Leader until 28 October 2007.  He produced a very substantial investigation report.  It included statements from a large number of witnesses.  On the strength of that report Governor Leader wrote to the Claimant to say that the disciplinary charge would proceed.  The Claimant was asked whether he exercised his right to have a full oral hearing and he did.  His suspension was continued. He provided what the Tribunal described as a long list of witnesses who he wanted to attend to give evidence in his court.

6.	Over the following weeks there was correspondence about whether Governor Leader had a conflict of interests which prevented him chairing the disciplinary hearing, and whether Governor Adebanjo had carried out his investigation properly.  These issues were resolved and the disciplinary hearing began on 23 January 2008.  Nothing turns on this, but it had been fixed for a fortnight earlier and postponed at the request of the Claimant’s representatives. It was spread over three days, 23 January, 31 January and 4 February.  

7.	On 6 February Governor Leader, at a meeting with the Claimant, informed him of the decision that the charge was upheld and that he was to be dismissed.  That decision was upheld twice on appeal; firstly an internal appeal conducted by Mr Pascoe, that decision being given on 3 June 2008 and then by the Civil Service Appeals Board, that decision being given on 16 October 2008.  Neither party has sought to give us further information about those two decisions.  It is Governor Leader’s decision to dismiss at which the scrutiny of the Employment Tribunal was directed and which has formed the subject matter of debate before us. But it is worth noting that the Tribunal was the fourth forum in which the case was considered, and we are the fifth.

8.	The claim for unfair dismissal was issued on 27 November 2008 and came before an Employment Tribunal at Watford, chaired by Employment Judge Southam, on 29 and 30 June 2009.  The hearing lasted two days. Evidence was given by Governor Adebanjo, Governor Leader, Mr Pascoe and the Claimant himself.  The material before the Tribunal included a transcript of Governor Leader’s decision and a number of witness statements which were before him.  He had had, as did the Claimant when appearing at the disciplinary hearing, the relevant witness statements taken by the police in 2006 as well as internal witness statements made to the internal investigation, and of course Governor Adebanjo’s report.

9.	The Tribunal, strikingly for a two-day case, spent one and a half days in deliberation.  Their unanimous decision was that the Claimant had been unfairly dismissed.  Their reasons, which run to 23 pages, rest on each of two foundations.  The first is that there had been a lengthy and unacceptable delay in the proceedings leading up to the Claimant’s dismissal; the second was that they had found that Governor Leader did not genuinely believe that the Claimant was guilty of misconduct.  Either of these would be sufficient for the Claimant to succeed; in fact he succeeded on both and the Secretary of State, as representing the Prison Service, appeals against those findings.  We shall deal with each of the two topics in turn.

10.	The first is delay.  We preface what is said about this by reference to a document which was before the tribunal, Prison Service Order 8460.  The relevant paragraphs are as follows:
“5.10 Misconduct may give rise to criminal prosecution as well as disciplinary proceedings.  If evidence of a possible criminal offence comes to light, or if an allegation of a criminal offence is made against a member of staff, it may be necessary to inform the police.  However, subject to paragraphs 5.10 to 5.13 (sic - this seems to be an error for 5.12 to 5.15) below, disciplinary action should generally be pursued even when criminal proceedings are possible or pending.
[…]
5.12 In cases where the police are investigating alleged or suspected misconduct of a potentially criminal nature, care must always be taken to ensure that disciplinary proceedings do not prejudice the criminal proceedings.
[…]
5.14 Disciplinary action must be postponed in circumstances where: 
•	an alleged or suspected criminal offence took place away from the workplace and the investigation initiated by the police; 
•	the investigating officer is unable to obtain evidence relating to any possible disciplinary charge pending the outcome of criminal investigations; or, 
•	the principle evidence comes from a prisoner and the nature of any possible disciplinary charge is identical to the criminal charge.
5.15 However, it will not normally be advisable to postpone disciplinary action in other circumstances.”

11.	The Employment Tribunal at paragraph 22 correctly held that the employer had not demonstrated that in Mr Mansfield’s case, insofar as it related to the allegation of planting drugs, disciplinary action had to be postponed under paragraph 5.14.  It was, therefore, a case to which paragraphs 5.10 and 5.15 applied.  These advise that disciplinary action should generally be pursued even when criminal proceedings are possible or pending, subject to the provisions of 5.12 and 5.14.  Paragraph 5.15 similarly says that it will not normally be advisable to postpone disciplinary action in other circumstances.  On the other hand, paragraph 5.12 does indicate that care should be taken to ensure that disciplinary proceedings do not prejudice a criminal proceeding.

12.	We were referred to two authorities which bear on the issue of delay.  The first is RSPCA v Cruden [1986] ICR 205, a decision of this Appeal Tribunal, Hutchison J presiding.  That case involved what the EAT referred to at page 217 as “a lengthy period of unjustified delay.” They said at page 207 that the employer’s conduct had been deplorable.  They found that the real motive in delay, which was some seven months, was that there were other disciplinary proceedings underway against Mr Cruden. The motive in postponing the fresh proceedings was the hope that there would be sufficiently damning evidence in the first case to result in a dismissal in its own right, see page 209H.

13.	The tribunal found that the employer’s excuses for the delay would not stand examination and seemed to them to be a deliberate attempt to mislead them as to the reasons for delaying a fresh disciplinary case.  In these circumstances the description of the employer’s conduct as deplorable, which the Tribunal gave, was not in the least surprising; nor was the conclusion, upheld on appeal, that the dismissal was unfair. Mr Cruden, however, went away with nothing. It was found that he had in fact committed the misconduct, and both the basic and compensatory awards in his case were nil. 

14.	The other case is A v B [2003] IRLR 405, again a decision of the EAT, this time chaired by the then President, Elias J.  In that case the allegation was that the Applicant, a residential social worker in a local authority children’s home, had had an inappropriate relationship with a 14-year-old girl at the home.  The allegation was made in June 1997.  The Applicant was suspended.  The police became involved in October 1997 and continued to be so for 12 months, although the internal investigation seems to have continued for the first three of those months until January 1998. Shortly after the police investigation concluded the manager investigating the case for the local authority, a Mr Edgar, was involved in a car accident and was off work for four months.  No one was assigned in his place to continue the investigation.  Even when he returned there was what the Tribunal described as an inexplicable delay of a further six months before disciplinary proceedings were launched.  They then took place in December 1999, 2½ years after the investigation.

15.	It is not without significance in our view that counsel for the employee in A v B, Mr Jason Galbraith-Marten, made no complaint about the suspension of investigations for the duration of the police investigation. This is not to say that a concession by counsel makes law, but we note that this Appeal Tribunal did not comment adversely about it, nor express surprise about it.

16.	However, that left a substantial period about which complaint was made.  The police investigation took up one year of the 2½-year period.  In paragraph 71 of their judgment the EAT said,
“In our opinion, in this case, the delays were so lengthy and the justification for them was so limited that we consider that the Tribunal did err in concluding that they did not render the dismissal unfair.  That is particularly so when these delays are combined with the other factors to which we return.”

Those other factors were a failure by the employers to serve witness statements and a further failure to interview some other relevant witnesses.

17.	The Employment Tribunal had described the delays as “extraordinary by any standards” and the EAT did not disagree.  The EAT went on,

“It seems to us that they may have misdirected themselves by considering that the delays would only render the dismissal unfair if they could have been shown in some way to have affected the overall outcome of the hearing.  That would be an error.”

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

19.	Perhaps the ratio of the case is best given in an earlier passage in paragraphs 66 and 68:
“In our opinion, the question whether an employer has carried out such investigations as is reasonable in all the circumstances necessarily involves a consideration of any delays.  In certain circumstances a delay in the conduct of the investigation might of itself render an otherwise fair dismissal unfair.”

20.	Then after a reference to RSPCA v Cruden they continued,
“Where the consequence of the delay is that the employee is or may be prejudiced, for example, because it has led to a failure to take statements which might otherwise have been taken, or because of the affect of delay on fading memories, this will provide additional and independent concerns about the investigative process which will support a challenge to the fairness of that process.”

21.	Mr Michael Reed, for Mr Mansfield, has submitted to us, and we agree, that in considering a delay in a case of this kind one needs to look both at the length of the delay and the reasons for it.  The effect of the two authorities to which we have referred is that, while prejudice to the employee from the delay may be an additional ground of challenge, it is not essential that prejudice should be shown.  Delay may still render the dismissal unfair if it is substantial and there is no good reason for it. This is particularly so where the employer is acting from a deplorable motive as in Cruden, although the principle is not limited to a case of that kind.

22.	We turn to consider the delay in the present case and the Tribunal’s findings about it.  The most substantial period of which complaint is made is the year during which the police investigation was taking place; we shall return to that a little later.  This was followed by a three-month period during which not a great deal happened; what was done in those three months could, as we see it, have been done in about a week.  There was also a short delay amounting to perhaps no more than three or four weeks’ worth in the conduct by Governor Adebanjo of his investigation.  The Tribunal rightly, as we see it, did not attach much importance to that.

23.	Mr Reed realistically accepts that if it were simply a matter of the three-month delay in mid-2007 plus, say, a month of delay by Governor Adebanjo, he would not be able to make out his case.  So, the real question, as we see it, is whether the Employment Tribunal were entitled to take the view that it was unreasonable of the employers not to continue or at least offer to continue the disciplinary proceedings on the planting of drugs allegation during the police investigation.

24.	The Tribunal’s findings about that were as follows:
“23 […] No evidence was presented to us that the police had indicated that the Respondent should not embark on its internal enquiry whilst its proceedings were continuing nor was it apparently put to the Claimant that if he were to participate in an internal enquiry continuing at the same time as criminal proceedings he might feel it necessary to decline to make any comment on the ground that it may prejudice the outcome of the criminal proceedings.
24 Quite apart from the failure of the Respondent to comply with its own procedure, it seems to us that a delay of this magnitude is bound to run the risk that the evidence eventually unearthed by the investigator is going to be unreliable.  That is going to be particularly so where, as in this case, one or other of the participants must have been telling lies.  It will be necessary for the investigator to test the evidence of the principal participants by evidence from others and by timely interviews with the principal participants themselves.
25 We should say also that we recognise that one of the charges did involve the gathering of evidence from a prisoner but that did not apply to the charge that the claimant ultimately faced.  We see no reason why the matters could not have been separated with an internal investigation proceeding straight away in relation to the allegation of planting of evidence whilst leaving the criminal proceedings as regards the other matter and the planting of evidence to take their course.
26 The Tribunal is less concerned about the delays within Governor Adebanjo’s investigation.  He appears not to have taken much action within the first three weeks of the four that he was originally allocated.
27 We have carefully considered the decision of the Employment Appeal Tribunal in A v B and we have considered, in particular, paragraphs 63 to 71 of that judgment.  We regard the delay in this case, caused by the decision not to proceed with the disciplinary processes until completion of the criminal proceedings, as unacceptable.  By his suspension, but in the absence of any disciplinary action, the Claimant was effectively denied the opportunity to gather evidence in support of his defence until a point when it was futile for him to do so.  We note in particular that at paragraph 70 of the decision in A v B that the court held that the delays were so lengthy  and the justification for them so limited in that case, that the Tribunal did err in concluding that they did not render the dismissal unfair.  At paragraph 71 it is said that the Tribunal may have misdirected themselves by considering that the delays would only render the dismissal unfair if they could have been shown in some way to have affected the overall outcome of the hearing.
28 We are bound by the decision in A v B and, since we consider that the delays in this case were so lengthy and the justification for them unacceptable, we are of the view that we are bound to hold that this amounts to procedural unfairness sufficient to render the dismissal unfair.
29 We are, however, bound also to consider section 98A(2) of the Employment Rights Act 1996.  Has the Respondent shown, on the balance of probabilities, that it would still have dismissed the Claimant even if it had conducted the disciplinary investigation promptly after the events of March 2006?  It is impossible for us to say that the same outcome would have resulted.  We do not know what subtle difference might have emerged in the evidence of the principal participants and of the minor witnesses that may have played a part in the decision of the person who would than have held the disciplinary hearing.  Our view (see below) about Governor Leader’s belief is that he did not genuinely believe the Claimant to be guilty of the misconduct alleged.  Had the investigation been undertaken when it should have been, the evidence might well have been stronger against the Claimant than it appears to have been but equally the evidence might have been weaker.  We simply cannot say what the outcome would have been.  The Respondent has not, on the balance of probabilities, proved that, even if it had conducted the disciplinary hearing much sooner, it would still have dismissed the Claimant.  Accordingly, the dismissal is unfair for that reason.”

25.	There are a number of statements here with which we cannot agree.  In paragraph 24 the Tribunal refer to, “the failure of the Respondent to comply with its own procedure.”  This appears to us to be a reference to the presumption indicated in paragraphs 5.10 and 5.15 of Prison Service Order 8460 that disciplinary action should generally be pursued even when criminal proceedings are pending, unless the mandatory postponement provisions of 5.14 apply.  We consider that a decision maker forming a view on whether disciplinary proceedings should be continued alongside a criminal investigation has a wide discretion. It is unusual for a decision to postpone the disciplinary proceedings while continuing to pay the employee to be criticised on the grounds of delay. The Prison Service took into account the advice given in paragraph 5.12 of PSO 8460 that care must be taken to ensure that disciplinary proceedings do not prejudice the criminal proceedings. 

26.	In the present case, the police were gathering evidence against the Claimant both on the planting of drugs charge, which was plainly serious, and also, at least initially, on the orchestrating of violence charge, which was one which depended principally on evidence from prisoners and, therefore, had to be postponed pursuant to paragraph 5.14.  It would, as we see it, have inevitably be viewed as oppressive for the Prison Service to have required Mr Mansfield to take part in late 2006 or 2007 in disciplinary proceedings on the planting of drugs charge, with potential disciplinary proceedings on the other charge being held in abeyance pending the termination of the criminal prosecution, and the criminal prosecution itself hanging over him due to come on the following year. He would, as we see it, inevitably have been advised that it was not in his interests to submit to questioning before Governor Leader in disciplinary proceedings when the prosecution against him was still pending.  

27.	It might be that the employers could have offered him the option. The Tribunal do refer in paragraph 23 of their decision to the possibility that he might be necessary to decline to make any comment on the ground that it might prejudice the outcome of the criminal proceedings. But we take the view that the employer’s decision, that the disciplinary hearing should be postponed while the police were still gathering evidence and while a Crown Court prosecution was under way, was entirely proper. There was no basis on which the Employment Tribunal could hold that it rendered Mr Mansfield’s dismissal unfair, particularly when they were unable to point to any prejudice caused by it or even to say whether it strengthen or weakened the case against him.

28.	Mr Reed has forcefully submitted that in a case where, in the Tribunal’s words, one or other of the participants must have been telling lies, it may be that the recollection of honest witnesses on quite peripheral matters can assist in pointing to which of the main protagonists is the liar.  The Tribunal do make a general reference to the passage of time in paragraph 24, but are no more specific than that.  On the contrary, they say in paragraph 29:
“Had the investigation been undertaken when it should have been, the evidence might well have been stronger against the Claimant than it appears to have been but equally the evidence might have been weaker.  We simply cannot say what the outcome would have been.”

29.	This was not a case where the postponement of the disciplinary proceedings and subsequent discontinuance of the criminal prosecution meant that witnesses were being asked for the first time two years after the incident what their recollection of the matter had been.  The main witnesses were interviewed in 2006.  By the time the matter came before Governor Leader all parties had access to previous statements to the police, to the initial internal investigator Ms Louis in the case of Officer 1 and Officer Tester, and to Governor Adebanjo.  This gave more rather than less ammunition to expose any inconsistencies in their statements.

30.	In any event, the point of principle here is whether the employer’s decision to postpone the disciplinary hearing during the police investigation can properly be castigated as unreasonable. In our view, with respect to the Tribunal, it cannot.

31.	We turn to the second and separate ground about Governor Leader’s state of mind.  The Tribunal said,
“30 There is no doubt that the investigation was thorough.  Governor Adebanjo appears to have interviewed all the relevant witnesses.  His meetings with some of the participants including Officers 1 and Tester were brief whilst his interview with the Claimant was very lengthy, but we cannot say that the investigation was not thorough.
31 Did the investigation reveal evidence sufficient to enable the dismissing officer to hold the reasonable belief that the Claimant was guilty of the misconduct alleged?  This was a case where there was conflicting evidence about the principal events.  There was evidence from Officers 1 and Tester that the Claimant had proposed to them that they should plant evidence near to Prisoner B’s cell.  That evidence was, if it was genuinely believed, sufficient for Governor Leader to hold that the Claimant was guilty of the misconduct alleged.
32 Did Governor Leader believe the Claimant to be guilty of the misconduct alleged?  Our analysis of Governor Leader’s findings and in particular the document [603-615] leads us to the conclusion that Governor Leader was uncertain who was telling the truth.  We have quoted certain passages verbatim and summarised other passages in the findings of fact above.  We have also considered paragraphs 121 to 135 of his witness statement.  In particular, he said, at [607], that he accepted the Claimant’s point that there was no reason for him to approach prison officers in order to plant evidence.  Indeed the proposition put by Officers 1 and Tester is inherently unlikely.  Why, we ask rhetorically, would the Claimant first propose to those officers that they should plant evidence and then, when they refuse to do it, himself immediately go and plant the evidence and tell them that the evidence had been found.  He also noted, however, that there was no reason that he could see why Officers 1 and Tester would invent such an allegation and put if forward.  The Tribunal had no view about who was telling the truth in relation to this matter.  We noted throughout the findings of fact a number of inconsistencies in the evidence presented to Governor Leader.  It appears to us that Governor Leader felt driven to find either that Officers 1 and Tester were telling the truth or that the Claimant was.  Given his acceptance of the Claimant’s proposition that there was no logical reason for him to make the proposal to Officers 1 and Tester, it seems to us that there was no reason for Governor Leader to, as it were, “come down off the fence” and hold that the charges were proved.  There was no real basis for him to do that and he ought, in the circumstances, given his earlier comments, and apparent findings, to have simply said that the case was not proved.  The illogicality of Governor Leader’s findings is underlined by the passage on [612] where he draws the conclusion that he cannot be sure if the drugs that Prisoner A handed to him were the same drugs that he showed to Officers 1 and Tester.  If Governor Leader was prepared to accept that there may have been two separate finds of drugs on 22 March, that is tantamount to accepting that the Claimant was telling the truth, because, on Officers 1 and Tester’s accounts there was only one find of drugs.  It was the find that Prisoner A gave to the Claimant and which the Claimant then placed outside the cell of Prisoner B.  Therefore we consider that whilst there was evidence on which the Claimant could have been found guilty of the misconduct alleged we do not consider that Governor Leader genuinely believed the Claimant to be guilty of that misconduct.  Instead, he felt driven to decide the matter one way or the other when, in effect, he could simply have said that the case was not proved.  It follows that, for that this reason also, the dismissal was unfair.”	

32.	The leading case of British Home Stores v Burchell [1980] ICR 303 held that to defeat a claim for unfair dismissal the employer must show the fact of belief in the employee’s guilt of the misconduct alleged, that it was on reasonable grounds and that it was after reasonable investigation.  Nothing in this case turns on the reasonableness of the investigation because the Tribunal found in emphatic terms that the investigation was thorough.  After that, with respect, they appear to have confused the other two tests.

33.	In paragraph 31 they ask the question,
“Did the investigation reveal evidence sufficient to enable the dismissing officer to hold the reasonable belief that the Claimant was guilty of the misconduct alleged?”

That was indeed the correct question. They answered it:
“There was evidence from Officers 1 and Tester that the Claimant had proposed to them that they should plant evidence near to Prisoner B’s cell.  That evidence was, if it was genuinely believed, sufficient for Governor Leader to hold that the Claimant was guilty of the misconduct alleged.”

So far, no one could quarrel with their findings.

34.	At the beginning of paragraph 32 they ask the question whether Governor Leader believed the Claimant to be guilty of the misconduct alleged.  They say that the analysis of his decision leads them to the conclusion that he was uncertain who was telling the truth.  Then after posing a rhetorical question which indicates that they consider that the proposition put by Officer 1 and Officer Tester was inherently unlikely, and saying that they had no view about who was telling the truth in relation to the matter, they say that there were a number of inconsistencies in the evidence presented to Governor Leader.  They go on:
“Given his acceptance of the Claimant’s proposition that there was no logical reason for him to make the proposal to Officers 1 and Tester, it seems to us that there was no reason for Governor Leader to, as it were, “come down off the fence” and hold that the charges were proved.  There was no real basis for him to do that and he ought, in the circumstances, given his earlier comments, and apparent findings, to have simply said that the case was not proved.”

35.	This seems to us to be substituting their view for Governor Leader’s on the question of whether there were reasonable grounds for believing that the Claimant was guilty of the misconduct alleged.  They then appear to say that, if Governor Leader was prepared to accept that there may have been two separate finds of drugs on 22 March, that was tantamount to accepting the Claimant was telling the truth.  As to that, firstly, that suggests that in their view this was not a case of on which side the decision maker “came down off the fence”: it was tantamount to a finding that Officer 1 and Officer Tester should have been disbelieved and the Claimant believed because of this aspect of the evidence.  We need only say that we disagree.  This was a matter of weighing the evidence plainly within the scope of the decision-maker who had heard the oral evidence as the Tribunal had not.

36.	Then they come to their conclusion that, “While there was evidence on which the Claimant could have been found guilty of the misconduct alleged we do not consider that Governor Leader genuinely believed the Claimant to be guilty of that misconduct.”  At this point they appear to be saying that while there would have been reasonable grounds for a belief in guilt, had it been honestly held, they find that it was not honestly held.  This is a startling finding.  We understand from Mr Sheldon, who appeared for the Secretary of State before the Employment Tribunal, that it was not suggested to Governor Leader that he was a liar or that he had not genuinely formed the belief that the Claimant was guilty of the misconduct. Mr Sheldon’s recollection is confirmed by the extensive and impressive document headed “written submissions” which was apparently a speaking note for the representative who appeared for Mr Mansfield in the Tribunal.  The section headed “No reasonable grounds for belief in the Claimant’s misconduct at the time of dismissal”  makes a number of criticisms of the evidence upon which the Governor made his decision and says, at paragraph 6.3.6:
“Using this flawed and incomplete evidence, Governor Leader could not have reasonable grounds on which to base a belief, to the higher standard of proof required, that the Claimant had committed the alleged misconduct.”

Nothing is said about lack of genuine belief, quite the contrary.  

37.	Having read the transcript of Governor Leader’s oral decision, we find that he did indeed “come down off the fence” and that he had a basis which was open to him to do so.  For example, he found that Officer 1 and Officer Tester in particular answered questions in an open fashion, they did not make repeated reference to statements, they answered in essence without referring to their statements in a way that suggested they had thought through what they were saying.  They answered obviously independently in the way they presented in the room, they gave a degree of clarity about what the key issues were in their mind. He continued at some length to the same effect. By contrast, Governor Leader’s decision criticised certain aspects of the evidence presented on behalf of Mr Mansfield and was particularly critical of one officer, a Mr Tufton, who was called to support his case.  

38.	It is not for us to say whom we would have believed at the disciplinary hearing; it was not, with respect, for the Tribunal either.  If paragraph 32 on its proper construction amounts to a finding that Governor Leader did not honestly believe that Claimant to be guilty of the misconduct alleged then it was a total failure of due process for the Tribunal to have so found without him being carefully cross examined on that basis.  If, on the other hand, as we think more likely, the Tribunal have confused honest belief with reasonable grounds for the belief, then they have fallen into the other trap which the judgments of Mummery LJ in Foley v Post Office [2000] ICR 1283 and London Ambulance Service v Small [2009] IRLR 563 advise employment tribunals to avoid.

39.	In the latter case, Mummery LJ said at paragraph 42 and 43,
“The ET used its findings of fact to support its conclusion that, at the time of dismissal, the Trust had no reasonable grounds for its belief about Mr Small’s conduct and therefore no genuine belief about it.  By this process of reasoning the ET found that the dismissal was unfair.  In my judgment this amounted to the ET substituting itself and its findings for the Trust’s decision maker in relation to Mr Small’s dismissal.  
It is all too easy, even for an experienced ET, to slip into the substitution mindset.  In conduct cases the Claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer.  He has lost his job in circumstances that may make it difficult for him to get another job.  He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question - whether the employer acted fairly and reasonably in all the circumstances at the time of dismissal.”

40.	These observations apply to the present case. For these reasons we are driven to the conclusion that the Secretary of State’s appeal succeeds on both grounds. The finding of the Tribunal must be set aside and the claim dismissed.