Appeal No. UKEATS/0008/11/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 14 July 2011

Before
THE HONOURABLE LADY SMITH
MR J KEENAN MCIPD
MRS G SMITH

RENFREWSHIRE WOMEN’S AID 	APPELLANT

MRS MARIE LEWIS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR D CAMERON
(Advocate)
Instructed by:
Messrs S F Wilson & Co Solicitors
28 Moss Street
Paisley
PA1 1BA	
For the Respondent	MR A HARDMAN
(Advocate)
Instructed by:
Corries Solicitors (Scotland) Ltd.
Pentagon House
Washington Street
Glasgow
G3 8AZ	

SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal

Claimant dismissed for gross misconduct – the most substantial factor was that she was found to have been guilty of bullying.  Victim’s grievance re bullying had been upheld but outcome had been that disciplinary procedure was not warranted.  Claimant told she could appeal the outcome of the grievance procedure and then told that she could not do so.  Majority of disciplinary panel were persons who had given evidence in support of victim and against the Claimant in grievance procedure – other, non-hostile, employees could have formed disciplinary panel.  Otherwise, conduct (re: communications with person representing her in grievance and disciplinary procedure) relied on by employer could not have amounted to misconduct and conduct (re: email use) which was misconduct could not have warranted dismissal.  Tribunal found that disciplinary procedure offended natural justice and decision to dismiss was not within range of reasonable responses.  On appeal, Tribunal’s finding upheld.

THE HONOURABLE LADY SMITH 
Introduction
1.	Marie Lewis was employed by Renfrewshire Women’s Aid for over nineteen years.  At the relevant time she had particular responsibility for finance.  She was dismissed on 20 November 2009 for gross misconduct and in a judgment registered on 9 December 2010, an Employment Tribunal sitting at Glasgow, Employment Judge Mr J D Young, found that she had been unfairly dismissed and awarded her the sum of £42,104.

2.	We will, for convenience, continue referring to parties as Claimant and Respondent.

3.	The Claimant was represented by Mr A McBurney, solicitor, before the Tribunal and by Mr D Cameron, advocate, before us.  The Respondent was represented by Mr S Wilson, solicitor, before the Tribunal and by Mr A Hardman, advocate, before us.

Background
4.	The Respondent had nine workers, including the Claimant.  They were all of equal seniority and responsibility and, given their flat governance structure, are referred to in the Tribunal’s judgment as a “collective”.

5.	    On 5 July 2009, Sandra Luke, one of the Claimant’s fellow employees, raised a formal written grievance against the Claimant and another employee, alleging that she was being “bullied and harassed to the extent that my work is being undermined.  This treatment is now affecting my health.”

6.	In their judgment, the Tribunal carefully set out the details of what lay behind the bullying allegation and of the investigations into the grievance carried out by a panel set up by the Respondent.  It is sufficient, for the purposes of this judgment, to note that in the course of those investigations, statements were taken from two of the Respondent’s employees, Ellen Donnelly and Rachel Gilbert, which supported Sandra Luke’s allegations and, further, that at a business meeting on 7 July 2009, Ellen Donnelly had accused the Claimant of being a “liar”.

7.	The outcome of the grievance procedure was intimated to both Sandra Luke and the Claimant by letter of 21 August 2009.  The Claimant was advised that the panel accepted:

-	that she had subjected Sandra Luke to an unacceptable “barrage of questioning”;

-	that she had unacceptably questioned Sandra Luke about her membership of a specific church;

-	that Sandra Luke felt that anger regarding the conduct of a particular event (referred to as “Esther Day”) had been directed solely at her and that had implications for the Respondent’s collective responsibility; and

-	that the Claimant’s refusal to conduct a return to work interview with Sandra Luke (who had been absent through illness) without indicating when that interview could take place was not in keeping with the Respondent’s absence management policy and procedure.

8.	Further, they advised the Claimant:

“The panel does not believe that to initiate Renfrewshire Women’s Aid agreed disciplinary procedure in these circumstances is currently warranted.”

9.	The panel had regard to the Respondent’s Dignity at Work policy and noted, in particular, the following paragraph:
“7.6 Other action 
In less serious situations and/or where the actions are regretted may not require formal disciplinary proceedings.  Further appropriate action required by the investigation panel may include:-
•	An apology from the alleged harasser to the complainant
•	Awareness raising training
•	Support and supervision 
•	Voluntary transfer/rescheduled working arrangements
Where this other action is arranged by the investigation panel after 3 months.  Any reoccurrence of the issues raised by the complainant will result in formal disciplinary proceedings.” 

and made three recommendations which were:

(i)	that Sandra Luke receive a written, unconditional apology from the Claimant  in respect of the above matters;

(ii)	that support and supervision arrangements be reorganised so as to meet the needs of the Claimant and others in the organisation, within 4 weeks;

(iii)	that the Respondent consider voluntary transfer/ rescheduling of working arrangements to suit the Claimant and others, within 4 weeks.

10.	A particular feature of the panel’s findings was that they concluded that the Claimant had not intended to bully or harass Sandra Luke and that the situation that had arisen was “the responsibility of Renfrewshire Women’s Aid collective as a whole and that improved collective organisational structures may have prevented this situation from escalating.” They made various recommendations as to how the Respondent could improve its practices and procedures.

11.	The final paragraph of the letter which advised the Claimant of the outcome of the grievance procedure was in the following terms:

“You have the right to appeal this decision in keeping with RWA’s policies and procedures.  If you wish to proceed with an appeal it must be received in writing within 10 days of receiving this letter.  The appeal will be heard within 10 working days of receiving your appeal notice under RWA’s grievance policy.”

12.	The policy setting out the Respondent’s formal grievance procedure covering, amongst other things, allegations of bullying, was entitled “Dignity at Work Policy” and paragraph 8 provided:

“Appeal 
Either party has the right to appeal.  Appeals will be dealt with in accordance with Renfrewshire Women’s Aid Grievance Procedure.”

13.	The Claimant appealed and by letter dated 3 September 2009, the Respondent acknowledged the appeal, advising that they would be “adhering to the grievance policy” and that they would send her various documents which she had asked for – they did so, by letter dated 11 September.   The Claimant was absent from work through ill health, at that time.

14.	The Respondent then wrote to the Claimant again, by letter dated 16 September in which they advised that Sandra Luke’s complaints had been:

“Put to you with a view to having the matter resolved.  As you have decided not to address the issue and accept the outcomes, it has now been decided that a formal disciplinary procedure should be instituted against you.   The first step in the process is to convene a disciplinary investigation into the outcomes of the grievance raised stating bullying and harassment…. Given the nature of the grievance it is now necessary to inform you that we have decided that you should be suspended with full pay pending conclusion of these proceedings.  The suspension is with immediate effect.”

15.	She was also advised that  if the investigation suggested matters required to proceed further then:

“Formal disciplinary meeting will be convened at a later stage which could lead to your dismissal.”

16.	The Claimant responded pointing out that she had appealed the outcome of the grievance procedure and, in proceeding to disciplinary investigation, the Respondent had “breached my right of due process.”

17.	She was told by the Respondent, by letter of 24 September 2009 that:

“We would point out that you, in fact, were not a party to the grievance process which was raised by a fellow employee.  Accordingly it makes no sense for you to be afforded the right appeal on that process.  The appropriate course of action is to commence investigations in line with the disciplinary process.”

18.	That statement was repeated in a letter from the Respondent to the Claimant dated 20 October 2009.

19.	In the disciplinary procedure which followed, the Claimant found herself facing three allegations, namely, bullying – which was the most important issue - unauthorised access of work emails at home, and breach of confidence.  The latter concerned allegations that the Claimant had made disclosures regarding the qualifications of other employees to the person who had been representing her during the grievance procedure and for part of the disciplinary procedure.

20.	A disciplinary hearing took place on 17 November 2009.  The panel comprised Ellen Donnelly, Rachel Gilbert and Trisha Evans of Dumbarton Women’s Aid.  The Claimant challenged the panel as being tainted by bias, given what Ellen Donnelly and Rachel Gilbert had said in their witness statements in the grievance procedure.  The panel found that the Claimant was guilty of gross misconduct in respect of:

(i)	Unauthorised entry to the Respondent’s computer records;
(ii)	Bullying; and
		(iii)	Serious breach of confidence.

21.	The Claimant appealed.  An appeal panel was formed comprising two employees who had not previously been involved with the Claimant’s case, Eileen Stephenson and Patrice Williams.

22.	The terms of the Respondent’s Disciplinary Policy include:

“ 4.3 Appeal
An employee has the right to appeal against any disciplinary penalty imposed under this procedure….
…
4.3.4 The Panel will meet to consider the appeal within fourteen working days of the date on which the appeal was made or as soon as practicable thereafter.
4.3.5. Notification of the appeal hearing must be made in writing to the employee giving  ten working days notice ( unless otherwise agreed) .  
4.3.6 The Chair of the disciplinary hearing will normally present the employer’s case at the appeal hearing.
4.3.7 No new evidence may be presented at an appeal hearing without the prior agreement of all the parties….”

23.	On 9 December 2009, Ellen Donnelly and Rachel Gilbert met with the appeal panel.  The purpose of the meeting was stated to be to:

“...formally present the employers case (RWA) to the Appeal Panel members prior to the Appeal Hearing of Marie Lewis as per Renfrewshire Women’s Aid Disciplinary Policy.”

24.	At that meeting, those from the Disciplinary Panel:

“….explained to the Appeal Panel why they had come to the conclusion they had come to in relation to the actings of the claimant.”

25.	The Claimant was afforded a hearing before the Appeal Panel on 15 December 2009.  No member of the Disciplinary Panel was present and the Claimant was not told about the meeting that had taken place on 9 December 2009.

26.	The Claimant’s appeal was refused

27.	The Respondent had no written policy relating to email access at home.  Whilst the Tribunal found that their practice was to allow workers to access personal email that was on their system, at home, it was considered inappropriate to access work emails from a home computer (paragraph 33 of the Tribunal’s judgment).  The Tribunal record that the Claimant’s evidence was that she was not clear as to whether or not she thought it was wrong to access work emails at home and the evidence of another employee was she knew of no rule preventing her from doing so (paragraph 32).

28.	The Claimant had accessed 5 work emails at home.  No harm was caused to the Respondent’s computer system as a result of her doing so and there was no leak of confidential information.

29.	Regarding the allegations of breach of confidence, the factual background was that the Claimant had discussed matters relating to certain of the Respondent’s employees having SVQ qualifications with a friend who, at the initial stages, represented the Claimant (in the grievance procedure and for part of the disciplinary proceedings).  She had not mentioned the names of those concerned and the reference to the matter was in connection with her defence of the allegations against her.

The Tribunal’s judgment
30.	In a well reasoned judgment, the Tribunal summarises their reasons for finding that the dismissal was unfair at paragraph 222:

“222. In summary the Tribunal found that the dismissal was unfair because:-
(i)	Having determined the grievance in accordance with clause 7.6 of the Dignity at Work Policy, the respondents were unable to revert to disciplinary procedure on the same issue.
a.	The respondents should have allowed an appeal against the outcomes determined by the grievance panel in terms of their own procedures and not barred the claimant from exercising that right.
b.	Having determined the grievance in accordance with section 7.6 of the Dignity at Work Policy, the respondents acted outwith the band of reasonable responses in dismissing the claimant on the grounds of misconduct for the same behaviour.
c.	The issues of unauthorised use of the computer system and breach of confidence could not be reasonably considered as acts of gross misconduct by a reasonable employer and the respondents acted outwith the band of reasonable responses in dismissing for those reasons.
d.	The procedure adopted by the respondents in the disciplinary procedure was unfair in the appointment of two members whose views were clearly weighted against the claimant.
e.	The procedure adopted in the appeal contravened the respondents own policies and was unfair to the claimant and failed to cure earlier defects.”

31.	At paragraphs 209 – 210, the Tribunal explain why they considered that dismissal was not within the range of reasonable responses:

“209. The disciplinary panel also came to the same view as the grievance panel, namely that the claimant did not intend to bully but the effect on Sandra Luke was the determining issue.  The only additional evidence of bullying came from those who had sat on the grievance panel and who provided comment on the business meetings.  This comment did not add new material to the case against the claimant but reinforced what others had said.  Thus the respondents come to two separate views on the same situation, one where it is regarded as not warranting disciplinary action and the other where a finding of gross misconduct is made and there is a decision to dismiss.
210.	The Tribunal found there to be inconsistency between those two positions.  The Tribunal could not accept that dismissal was within the range of reasonable responses of a reasonable employer when on the one hand the employer decides that the conduct ‘did not currently warrant disciplinary action’ and then decides that dismissal is appropriate; or that the conduct is to be treated as less serious and then go on to treat that conduct under a different part of their procedure as gross misconduct.  The Tribunal found similarities in this case to that of Serker v West London Mental Health NHS Trust [2010] EWCA CIV 289 where similar issues arose.”

32.	It is plain that, contrary to what was suggested at one point in the appeal before us, the Tribunal did not hold that, as a matter of law, it is not open to a disciplinary panel to reach a different view from a grievance panel – they would have been wrong to do so.  Rather, the Tribunal was at pains to explain how and why it was, in the particular circumstances of this case, the Respondent’s inconsistency of approach showed that dismissal was not within the range of reasonable responses.

33.	Regarding the accessing of emails, the Tribunal found that dismissal was not within the range of reasonable responses because there was no evidence of any harm being caused, because the rule about email access was unwritten, because employees had not been warned that breach of the rule could be regarded as gross misconduct or, indeed, that any sanction could result, and that there was confusion as to the precise nature of the rule.

34.	Regarding the allegation of breach of confidence, the Tribunal explain, at paragraph 213, that they :

“Failed to understand how there was any concern by the collective on this issue.  ……the Tribunal failed to see how a frank discussion on the workings of the collective with a person who was to represent the claimant in a charge of bullying could then be claimed to be a breach of confidence.”

35.	The reason why the Tribunal found the Disciplinary Procedure to be unfair is evident from part (d) of their list of reasons in paragraph 222 and was not challenged in the appeal before us.  The Tribunal also, as is noted at part (e) of paragraph 222 found that the appeal procedure was unfair.  They explain their reasons for so concluding in more detail at paragraphs 214 – 216:

“214 The Tribunal also had criticisms of the appeal procedure adopted by the respondents.  The Tribunal accepted that if the Appeal had taken the form of a full rehearing of the case then as it was taken by Eileen Stevenson and Patrice Williams that may have ‘cured’ the bias that the Tribunal saw in the composition of the disciplinary panel.  However within the Disciplinary Policy and after an appeal is lodged then the panel is to ‘meet to consider the appeal” and ‘the chair of the disciplinary hearing will normally present the employers case at the hearing.’  The procedure goes on to state that ‘no new evidence may be presented at an appeal hearing without the prior agreement of all the parties’.  (JP 1.4 paras 4.3.4/4.3.6/4.3.7).  In this case the disciplinary hearing met and heard from the chair of the disciplinary hearing outwith the presence of the claimant.  After that hearing took place and the panel were appraised of the matter by the chair of disciplinary hearing they then invited the claimant to present her case.
215. One of the tenets of natural justice is that the parties should hear the case that is being made against them.  In this case the claimant was not allowed to hear the case against her, which was put by the chair of the disciplinary hearing.  She was not advised of what was to be said or what was said by the chair of the disciplinary hearing; she had no opportunity to correct any statements which might have been made and with which she did not agree; she had no opportunity to question the chair about any of the views which were being expressed;  or express disagreement with the case.
216. The Tribunal did not consider that the respondents own procedure encompassed a position where the appeal panel would hear separately from the chair of the disciplinary hearing outwith the presence of the claimant.  They considered a fair reading of the policy would require the chair of the disciplinary panel (or other nominated person) to present that case at the appeal hearing to which the claimant was invited in terms of JP 1.4 Para 4.3.5.  There is no provision for a split hearing or separate hearings.”

Relevant law
36.	It was not disputed that it had been established that the Respondent genuinely believed that the Claimant was guilty of misconduct or that that conclusion had been preceded by the carrying out of a reasonable investigation: British Home Stores Ltd v Burchell [1978] IRLR 379.  It was for the Tribunal to go on and determine whether or not, in all the circumstances, the dismissal was fair or unfair (Employment Rights Act 1996 s.98(4))  and, in so doing, to avoid substituting its own view for that of the reasonable employer, the test being an objective one: Frozen Foods Ltd v Jones [1982] IRLR 439.

37.	Sarkar v West London Mental Health NHS Trust [2010] EWCA Civ 289, as the Tribunal observed, was similar to the present case.  It is authority for the proposition that where an employer acts inconsistently by, at one stage, treating an employee’s conduct as not warranting dismissal and, at another stage, as warranting dismissal, it is open to an employment tribunal to attach weight to that inconsistency of approach when considering whether or not dismissal was within the range of responses reasonably open to the employer.  The employer in Sarkar,  having decided to follow a procedure which could not have resulted in the employee’s dismissal (their ‘Fair Blame Policy’ (‘FBP’) which involved resolution by negotiation in cases of relatively low levels of misconduct) acted inconsistently and unfairly in, thereafter - when the attempt at using FBP broke down - charging him with gross misconduct and dismissing him.  At paragraph 26, Mummery LJ said:

“The ET were entitled to regard the agreed use of FBP as an indication of the trust’s view that the misconduct alleged against Dr Sarkar was relatively minor and that it was prepared to deal with it under a procedure that could not result in his dismissal.  In my judgment, the ET did not err in law in concluding that it was inconsistent of the trust then to charge Dr Sarkar with, and find gross misconduct based on, the same matters and to dismiss him.  That was a factor to which the ET were entitled to attach weight in applying the range of reasonable responses test.”

The appeal
38.	For the Respondent, Mr Cameron submitted that:

(i)	the Tribunal had erred in concluding that because the Disciplinary Panel and the Grievance Panel had reached different views, that meant that the dismissal was unfair; 

(ii)	that the Tribunal had erred in failing to find that the appeal procedure cured any earlier defects; and 

	(iii)	that they had erred in their conclusion that the Claimant’s accessing of work emails at home did not warrant dismissal.

39.	In support of his first submission Mr Cameron said that the upholding of Sandra Luke’s grievance was an entirely different matter from the determination of the disciplinary allegations against the Claimant, where the issue was whether or not she was guilty of gross misconduct – he did, however, accept that the central issue of fact was the same, namely whether or not the Claimant had subjected Sandra Luke to bullying.  The issues were, he said, different, there were different panels, there were different time frames involved and different policies were involved.  The disciplinary procedure had been involved when the Respondent believed that the Claimant had decided not to accept the outcome of the grievance procedure.  The Respondents were entitled to commence disciplinary proceedings.

40.	Mr Cameron sought to distinguish Sarkar as not involving a grievance procedure.  Both the procedures involved in that case were disciplinary procedures.

41.	Further, Mr Cameron submitted (under reference to paragraph 193) that the Tribunal had wrongly proceeded on the basis that any failure by an employer to follow their own policies and procedures renders a dismissal unfair.  He did, however, accept that, at paragraph 177, the Tribunal stated that an employer’s failure to follow its own procedures may render a dismissal unfair and that paragraph 193 required to be read in context which was that at paragraph 192, the Tribunal explained their concerns.  Those were that the Respondent had chosen to deal with matters under the Dignity at Work Policy paragraph 7.6 which expressly provided that disciplinary proceedings would not ensue absent a recurrence of the same conduct and, accordingly:

“192 ….the Tribunal did not consider that the respondents were entitled to jump to the commencement of disciplinary proceedings – they had chosen to deal with the matter in terms of that paragraph.”

42.	Mr Cameron also submitted that the Tribunal had substituted their own view as to how the Respondent should have proceeded in respect that at paragraphs 185 and 192 they had set out how they considered the Respondent should have proceeded – shortly put, those paragraphs are to the effect that, having started down the route of an appeal against the outcome of the grievance procedure, the Respondent should have followed that through first and only if the Claimant was unsuccessful but refused thereafter to accede to the instruction to apologise would it then have been open to them to consider disciplinary proceedings.

43.	Turning to his second principal submission, Mr Cameron submitted that there was nothing unusual in an appeal officer obtaining information from the person who had decided to dismiss an employee and asking for their rationale in so doing.   It was the Claimant’s appeal.  She knew the case against her.  The Tribunal had failed to concentrate on the process as a whole – Post Office v Marney [1990] IRLR 170; Taylor v OCS Group Ltd [2006] ICR 1602.  On the facts, the appeal had cured any earlier defect.  Mr Cameron did accept that the Respondent’s own policy provided for the chair of the Disciplinary Panel to be present at the appeal hearing and made no provision for there to be a separate meeting between them but adhered to his submission that there was nothing wrong with what had occurred.  He also submitted that the Tribunal had erred in respect that they had approached matters on the basis that the appeal was unfair because it was not a rehearing (Taylor v OCS Group Ltd), an interpretation of their reasoning with which we have to say we cannot agree - whilst, at paragraph 214, the Tribunal  do state that they accepted that if the appeal had been a rehearing then that may have cured the “bias” in the disciplinary panel, they nowhere suggest that the appeal required to be a rehearing; that was simply put forward by them as being one way of curing the bias problem and we can see why it was thought that that might have been a sensible approach.

44.	Regarding the email matter, Mr Cameron submitted that the Tribunal had substituted their own view as to its seriousness and had failed to explain why the Claimant’s conduct could not amount to gross misconduct.

45.	For the Claimant, Mr Hardman submitted that the Tribunal had not erred in their conclusion regarding the inconsistency of the Respondent’s approach to the characterisation of the Claimant’s conduct.   The Respondent had, in the outcome to the grievance procedure, found that disciplinary proceedings were not warranted and reinforced their conclusions by quoting from the relevant part of their own policy.  The Tribunal noted that there was an inconsistency between that approach and what was stated in their letter of 16 September 2009, it troubled the Tribunal and they reached the view that, in the light of it, the dismissal was unfair.  The circumstances were on all fours with those in Sarkar.  Both panels had been considering the same issue and the Tribunal had reached an eminently sensible conclusion.

46.	He submitted that to suggest that the Tribunal had adopted a substitution mindset was not tenable.  They had expressly stated their awareness of the need to avoid doing so and the views advanced at paragraphs 185 and 192 were not examples of their falling foul of that stricture.

47.	Regarding the appeal, Mr Hardman submitted that the Respondent’s approach was, quite simply, wrong.  What had occurred was contrary to the Respondent’s own policy and had resulted in the Claimant not knowing what had been said against her some six days prior to her appeal hearing.  Her fundamental right to natural justice had, as the Tribunal rightly observed, been denied.

48.	Mr Hardman also resisted any suggestion that the Tribunal had approached matters on the basis that the appeal hearing required to be a rehearing.

49.	Mr Hardman submitted that there was no question of the Tribunal having substituted their own view regarding the significance of the email matter and it was also clear that they have given adequate reasons for their conclusions.  The rule was vague and it was manifestly clear that breach of it could not amount to misconduct justifying dismissal.

Discussion and decision
50.	The essential problem for the Respondent in this case was that, having:

(a)	determined, in the grievance procedure that, although the Claimant was found to have engaged in behaviour towards Sandra Luke that was unacceptable and disrespectful, invocation of their disciplinary procedure was not warranted;

(b)	written to the Claimant advising her that she was entitled to appeal against the outcome of the grievance procedure; 

(c)	acknowledged receipt of the Claimant’s appeal letter without, at that stage, demur;

(d)	advised the Claimant in that acknowledgement that they would be adhering to their grievance policy (in terms of which the Claimant had a right of appeal); and 

(e)	sent the Claimant documentation which she requested be sent to her in connection with her appeal against the outcome of the grievance,

some five days thereafter, performed what can only be described as a volte face by writing to the Claimant and telling her she was to be subjected to their disciplinary procedure, that she was being suspended and when she questioned their actions, given that she was in the course of pursuing her grievance procedure appeal, was told, contrary to the plain terms of the Respondent’s own written policy, that she did not have a right of appeal after all.   They had no justification for doing so and matters were then compounded by the outcome of the disciplinary process being that conduct which, in the grievance procedure, they had found not to warrant disciplinary proceedings was found to be gross misconduct.   Minor unacceptable behaviour became misconduct of such severity as to warrant dismissal.  It was not, as Mr Cameron sought to suggest, a matter of the issues considered by the Disciplinary Panel being different from those considered by the Grievance Panel.  The central matter was the Claimant’s conduct towards Sandra Luke and whilst, in the first instance, it was characterised as minor, the same conduct, at the later stage, was characterised as being of the utmost severity.  It is not surprising that the Claimant felt aggrieved.

51.	We cannot accept Mr Cameron’s submissions.  The Tribunal’s conclusions were not the result of error of law.  We accept that, in a particular case, there may be a disparity in outcome as between such procedures and the resultant dismissal may, nonetheless be fair.  But such cases are inevitably fact sensitive and what is plain is that this Tribunal was careful to have regard to and assess the facts in this case, which were as we have summarised them above, all under reference to the correct test in law, namely section 98(4) of the 1996 Act.  They did not proceed on the basis that they required to find the dismissal unfair because the outcome of the disciplinary procedure was different from that of the grievance procedure.

52.	Further, we cannot see that there is any question of their having fallen into the substitution mindset and would refer to the observations that we have already made in that regard.

53.	Regarding the email matter, we reject Mr Cameron’s submissions.  The Tribunal give adequate reasons for their view that it could not warrant dismissal and, on the facts, that was a conclusion that was clearly open to them.

54.	Turning to the procedural irregularities, as we have already noted, no issue was taken with the finding that it was unfair to constitute the Disciplinary Panel so as to include persons whose opinions had, prior thereto, been shown to be “clearly weighted against the claimant”.   This was a case of apparent bias and, in the circumstances, was a serious flaw.  Matters were then, we accept, compounded by the procedure that was adopted on appeal.  We accept that it may be difficult for an employer to insulate an appeal officer from contact with the person(s) who previously determined on an employee’s dismissal but that is not to say that no attempts to accord with the principles of natural justice should be made.  Insofar as it is possible to do so, an employer should seek to conduct all aspects of an appeal procedure so as to accord with those principles.  No doubt it was with them in mind that the Respondent’s Disciplinary Policy was drafted so as to allow for the employer’s ‘case’ normally to be presented at the appeal hearing by the chair of the Disciplinary Panel.  There was no reason for the Respondent to depart from that norm in this case other than that they wholly misinterpreted their own policy.  The result was that a meeting took place between (a) those persons who appeared to be biased against the Claimant and (b) the Appeal Panel, in the absence of the Claimant and without any report of that meeting ever being made to her.  Questions of unfairness are likely to arise if an untainted investigating officer stays behind after an employee leaves an appeal hearing, to discuss the outcome with the panel (see: e.g. Lawton v Park Cake Bakeries UKEAT 90/88) and such questions arise even more forcefully in the circumstances which occurred here.  We fully understand and agree with the concerns which the Tribunal expressed; they were plainly entitled to reach the view that the appeal procedure did not cure the earlier deficiencies in procedure.

Disposal
55.	In these circumstances, we will pronounce an order dismissing the appeal.