Appeal No. UKEAT/0418/11/ZT

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

	At the Tribunal
	On 29 November 2011

Before
HIS HONOUR JUDGE McMULLEN QC
DR B V FITZGERALD MBE LLD FRSA
MS G MILLS CBE

LONDON BOROUGH OF BRENT	APPELLANT

MISS D FINCH	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR EDWARD KEMP
(of Counsel)
Instructed by:
London Borough of Brent 
Legal Services
Town Hall Annexe
Forty Lane
Wembley
HA9 9HD

	
For the Respondent	MR STEPHEN MARSH
(of Counsel)
Instructed by:
CLC Solicitors
101 Chamberlayne Road
London
NW10 3NP	

SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal

The Claimant was dismissed for three reasons connected with misconduct.  She did not advance any other reason, or say these were a pretext for a dismissal on grounds of dishonesty.  The Employment Tribunal erred in rejecting the Respondent’s reasons and finding dishonesty: Wilson and ASLEF v Brady applied.  The Employment Tribunal did not make findings against the Burchell test on the three reasons advanced by the Respondent, one of which was admitted by the Claimant.  Remitted to a fresh Employment Tribunal.

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about unfair dismissal for conduct.  It is the Judgment of the court to which all members, appointed by statute for their diverse specialist experience, have contributed.  We will refer to the parties as the Claimant and the Respondent.  Little introduction is needed to the Respondent which runs Vernon School, since it has featured in the law reports: see Fuller v London Borough of Brent [2011] ICR 806 in a Judgment of the Court of Appeal to which we will return.

Introduction
2.	This is an appeal by the Respondent in those proceedings against a Judgment of an Employment Tribunal sitting at Watford under the chairmanship of Employment Judge Jack, over two days, with Reasons sent on 6 May 2011.  The Claimant represented herself, having had assistance from a solicitor in preparing the claim form and it appears her witness statement too, but she was representing herself at the hearing.  Today, she has the advantage to be represented by Mr Stephen Marsh of counsel.  The Respondent has been represented throughout by Mr Edward Kemp of counsel.

3.	The Claimant claimed she was unfairly dismissed.  The Respondent contended it dismissed her by reason of her conduct, essentially in failing to keep adequate records of financial transactions for which she was given responsibility.  It was no part of the Respondent’s written case that the Claimant was dishonest.

The issues
4.	The issues before the Tribunal were to decide what the reason for dismissal was and to apply s.98(4) Employment Rights Act 1996, together with the learning set out in British Home Stores Ltd v Burchell [1980] ICR 303, as adjusted by the Employment Act 1980.  The Employment Tribunal upheld the claim and awarded a total of £18,163.40.  It declined to reduce the compensation by reason of contributory conduct, under s.122 and s.123, or pursuant to the doctrine in Polkey v A E Dayton Services Ltd [1988] ICR 142 HL.

5.	The Respondent appeals against the finding on liability and on both the decisions in relation to reductions.  Directions sending this appeal to a full hearing were given by HHJ David Richardson, who considered there was merit in all three points.

Legislation
6.	The relevant provisions of the legislation are well-known, but require to be restated as the Employment Tribunal in this case did.  S.98 provides as follows:

“(1) In determining for the purposes of this part whether the dismissal of an employee is fair or unfair it is for the employer to show -
(a) The reason (or if more than one the principal reason) for the dismissal; and
(b) That it is … a reason falling within sub section (2) …
(2) A reason falls within this sub section if it … (b) relates to the conduct of the employee.
(4)	… [W]here the employer has fulfilled the requirements of sub section (1) the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -
(a) depends on whether in the circumstances … the employer acted reasonably or unreasonably in treating it is a sufficient reason for dismissing the employee; and
(b) shall be determined in accordance with equity and the substantial merits of the case.”

7.	Reductions may be made for contributory conduct in respect of the basic and compensatory awards and if a dismissal would have occurred in any event, or according to a sliding scale, there may be a reduction in accordance with Polkey.  A Tribunal has procedural powers to case manage and to decide issues relating to applications for postponement, witnesses and so on (see the 2004 Rules).

The facts
8.	We can take the facts from paragraphs 13 and 14 of the Judgment in Fuller.  They describe the school.  The head teacher at the time of Ms Fuller was Mr Davidson who left.  Miss Finch was engaged by the school in 1995 as a school meals supervisor.  She took on additional duties in 1998 as secretarial assistant.  During the course of her career, there was a very substantial investigation by Deloittes, the accountants, into the financial setup at the school.

9.	As a result there were major changes in the protocols.  The Claimant was line managed by the bursar, Ms P’ng and carried out a large number of duties.  The way in which she was to perform these duties changed as a result of Deloittes, whose recommendation was that the systems at this small school should be made more transparent. Suggestions were made and accepted as to the Claimant’s changes in her duties, including handling dinner money, and so on.

10.	The incoming head, Ms Addington, wanted to send out a Christmas letter.  This is entirely normal.  The Claimant was told that this would be done by Ms Addington, because she wanted to introduce herself to parents in 2007.  In 2008 a letter in similar form was sent by the Claimant.  This is unexceptional.  It is a simple request for help towards giving the children a nice Christmas party.

11.	There was a further investigation by Brent Audit, which revealed difficulties, during the course of which the Claimant was interviewed.  The Claimant was placed on special leave on 2 December and then on 10 December 2008 she was suspended pending a disciplinary investigation.  This investigation was lengthy but no point is taken about that.  It also resulted in an extensive document containing the findings, which run over some 200 pages.

12.	This independent investigation interviewed many people, and it indicated that there were many challenges to management and staff at the school.  The report indicated that the Claimant was responsible for financial irregularities at the school in a number of respects.  The report included an acceptance by the Claimant that the quality of her work could be a cause for concern, and she did not always respond positively to management requests.  The reporter found a pattern of unacceptable behaviour and poor judgement which left her situation open to scrutiny.  There were some outstanding management issues.  The conclusion was that her conduct had breached certain standards and affected the employment contract.

13.	After this report, the head prepared a management case and the case was put to a panel which consisted of Councillor Mitchell-Murray, a member of the Council of Brent, and Mr David Sassoon.  They made the decisions in this case.  They considered the allegations on paper and drafted the dismissal letter.  We set out below the allegation and the panel’s response.  They arise in paragraph 20 of the Tribunal’s Judgment:

“Allegation 1
You have acted outside your authority by sending letters out in the head teacher’s name and signing them on her behalf without her or the Bursar’s prior knowledge or authority.  You have used an outdated letter despite being aware that the procedure for requesting donations for the school had changed in 2007.  In addition there have been financial irregularities where there has been no visible audit trail in relation to the following: List of who the school has written to in relation to requesting donations for Christmas and receipt of monies and vouchers received. 
Findings on Allegation 1.  From the information provided it is evident that you were aware of the changes to the school’s procedures with regards to the issue of requests for donations.  This was discussed with you in 2007 and responsibility for this task lay with the then Bursar Ms P’ng.  You assumed this responsibility in October 2008 in Ms P’ng’s absence without due reference to the head teacher.  It is the decision of the panel that this allegation is substantiated.
Allegation 2
From Christmas 2007 there have been financial irregularities where there has been no visible audit trail in relation to receipt of goods purchased with any vouchers/monies received, monies that are in your possession and have still not been paid into the school account and no clear transparent audit trail to demonstrate the money in and out of the school.
Findings on Allegation 2.  From the information provided including an independent report by Brent Audit in 2007 and by your own admission you received gifts/vouchers from Fenwick’s and John Lewis on behalf of the school for which no records existed.  There was an absence of records and audit trail.  This directly contradicts the requirement for you to maintain accurate records as per your job description and the financial management procedures required by the school.  You are recorded as admitting you did record financial transactions poorly.
It is the decision of the panel that this allegation is substantiated.  It was also concerned to note that you had school money that you paid directly into a school bank account some two weeks after your suspension pending investigation into allegations of financial irregularities.  Money should not be removed from the school site under any circumstances and the chair felt that you should have declared this at the time of your suspension from school.  You are required to return the bank paying in book without delay to the school office.
Allegation 3
School lunch monies have not been paid in since July 2008 and you have failed to follow the correct financial procedures with regard to raising issues to claim back the money and maintain accounts for the Bursar.
Findings on Allegation 3.  The management of the free schools meals system was part of your duties and there is clear evidence presented to support the school’s view that you failed to implement and follow the required procedures for collection and invoicing.  You are recorded as being aware of the school system relating to school meals, had been shown how to use this system but chose not to implement and use it.  This resulted in a lack of invoicing to parents and loss of income to the school.  It is the decision of the panel that this allegation is substantiated.”

14.	The Tribunal considered the allegations separately and holistically and it is appropriate to give the responses of the Tribunal to these allegations which are dealt with in sequence.

“29. The Christmas 2008 letter in our judgment is completely unexceptional.  Even if one takes the Respondent’s case at its very highest (and the evidence we have heard does not justify such a conclusion), it cannot in our judgment justify a dismissal.
30.	Similarly the second allegation in respect of Christmas 2007 there is no evidence whatsoever that gifts had gone missing.  £25 was the money raised by the Claimant’s own efforts at the Christmas concert in 2007.  There was no real evidence of attempts to find the money at the school and there is - importantly - no allegation that the Claimant took the money.  In those circumstances we consider this an allegation of very little weight.
31.	So far as the dinner money is concerned the responsibilities documents given to the Claimant on 9 June 2008 merely says that she need to reconcile the dinner monies.  Billing at the end of term had been the practice up until then.  The Claimant had not had any training on spreadsheets.  The allegation taken in our judgment does not justify the dismissal of a long standing employee.”

15.	Those findings match allegations 1, 2 and 3 as a matter of construction, but there are criticisms of their content (below).  The Overall Judgment of the panel was that there was a clear breach of what it described as “mutual trust and confidence on your part”, but obviously that means that she had broken her position of trust, in relation to financial management.  It said this:

“Overall Judgment
Consequently the panel believes there has been a clear breach of mutual trust and confidence on your part in relation to financial management and the decision is that this constitutes gross misconduct on your part.  In arriving at this decision the panel considered its duty to ensure that financial management systems are robust and transparent and that when dealing with external contacts there are clear records of all transactions in order to safeguard the reputation of the school and members of the school community.  The panel found that owing to your behaviour and the seriousness of the proven allegations it was faced with no other alternative but to recommend your summary dismissal from Vernon House School to the Director of Children’s Services.  Summary dismissal means that you are dismissed with immediate effect and without notice.  Your last day of service with Brent Council at Vernon House School will be 7 July 2010.”

16.	The Claimant had not attended at the panel.  She did, however, attend an appeal and an appeal was heard which led to a letter on 2 December, rejecting the appeal.  The appeal panel noted this.

“The panel considered generally the points that you made in respect of the allegations and noted that at no point did you ever deny the allegations that had been made against you.  The panel considered that you were responsible for serious breaches of the school’s financial regulations and that you knew or should reasonably have known what was expected of you.  The panel found this because it was made very clear from the nature of your job description and as a result of a substantial financial audit that took place in 2007.  You told the panel that nobody, either the Head Teacher or the Bursar, had spoken to you about the results of the audit but the panel rejected that contention.  The panel found it unthinkable that such fundamental review of the school’s financial activities which included yourself as a participant could not have been undertaken without the Head and the Bursar raising various matters with you after the event.  It follows from this that your appeal against dismissal is rejected.  This forms the final part of the disciplinary process.”

17.	On the basis of the findings by the panel and the appeal panel, the Tribunal addressed first the law and then came to its decision.  Under the heading “Decision Procedural Fairness”, the Tribunal said this:

“25. We turn now to the question as to whether there was a fair procedure.  In our judgment the Respondent has in truth dismissed the Claimant on the basis of dishonesty.  There has been an ongoing innuendo made by Ms Addington, both before us and we are sure earlier before the dismissing panels, that the Claimant had misappropriated monies.  If that allegation were made out then it would justify dismissal.  Stealing even small amounts of money will almost invariably justify a dismissal.
26.	However the allegation has never been made expressly and no investigation of such an allegation has been made and in our judgment it would not have been procedurally fair to dismiss on the basis of dishonesty.”

18.	The Tribunal made clear findings that the Claimant is plainly honest, and indeed a jolly person who gets on with people.  It made the finding as to honesty on a number of occasions.  It came to the conclusion that this process was unfair procedurally because what was really being alleged against the Claimant was that she was dishonest and yet this was not put.  Had it been put, a different investigation would have ensued and different findings may have been made, and so this decision to dismiss was unfair.

19.	However, in the alternative, lest it be wrong, it went on to find that the dismissal was, indeed for the reason given by the panel and it is here that the Tribunal makes its decision on the three allegations.  The Tribunal expressly directed itself not to substitute its own views, and that in considering at the end of the three-stage process in Burchell there should be a decision on whether, as a whole, a reasonable employer would have dismissed in the circumstances.

20.	The Tribunal stood back and looked at each of the three allegations and then concluded this:

“34. So in determining the issues we find:
(a)	That the dismissal was procedurally unfair;
(b)	That we make no determination in respect of the genuine belief of the dismissing officers;
(c)	The dismissal was substantively unfair if it was not procedurally unfair.”

21.	It decided there would be no reduction and it is accepted that if the liability decision were set aside, so should be the Polkey and contribution points. The Tribunal said there was no contributory fault and the Claimant would not have been dismissed.  Compensation was assessed in a way which is not subject to appeal.

The Respondent’s case
22.	The principal case advanced by Mr Kemp is that the Tribunal erred in law in failing to make a finding in line with the Respondent’s written case as to the reason for dismissal.  Its case was contained in the allegation letter.  If the Tribunal were to find a different reason it would have to be promoted by the Claimant, not as imposing a burden of proof upon her, but at least an evidential burden to produce material upon which the Tribunal could say that the real reason was an allegation of dishonesty which the Respondent chose not put to her.  It is contended that the only basis upon which the Tribunal found the reason was that there was ongoing innuendo by Miss Finch, that it was put to the panel that this was dishonesty, and that could be inferred from the innuendo at the Tribunal hearing.

23.	The second major contention is that if that were to be the basis, the Tribunal should have made clear findings upon it. The Claimant had not urged an alternative case, even at a low burden of proof.  Somewhat connected to that is an attack on the second alternative ground which is that there was no unfairness in the panel’s decision.  For here, the Tribunal misconstrued the allegations and made findings on only a part of the charges put against the Claimant or on charges that were not made.  Its decision on the band of reasonable responses as a whole, cannot stand.

24.	The investigation is not criticised.  It was long and extensive and there is no finding as to the genuineness of the belief of the decision makers.  Therefore the essential components in Burchell have not been followed.

25.	Further, the Judgment of the Court of Appeal in Fuller has not been complied with for there is no clear finding by the Tribunal on the substantive issues.  The approach of the Tribunal to the dishonesty question taints the findings, both in relation to the primary case and the secondary case. The matter to be set aside and sent to a different Tribunal.

The Claimant’s case
26.	On behalf of the Claimant it is contended that the Tribunal heard evidence from Miss Finch.  There was no evidence from the decision makers, and it had in mind the innuendo which Miss Finch was injecting into the proceedings.  It was open to the Tribunal to make a finding on the nature of dishonesty. The decisions on the allegations were supported by the evidence.

27.	In relation to the contention that the decision maker was not present, it is accepted that an application was made and refused by the Tribunal for a postponement in the light of Ms Mitchell-Murray being extremely unwell, and so the case proceeded without her.

28.	Mr Marsh, in any event, indicates the Claimant represented herself at the Employment Tribunal and cannot be expected to reach the high standards of putting a case on the basis of her alternative case, which is that this was all a pretext.

The legal principles
29.	The legal principles can be derived from the following authorities.  When considering a misconduct dismissal, the test to be applied is Burchell noting that the burden of proving all three matters is no longer on the employer.  It survives in respect of the first which is to show the reason for dismissal that is a genuine belief that the matters put against the Claimant was held.  Each stage of the Burchell process is to be judged against the standard of a reasonable employer: see Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23.

30.	In Fuller, a majority of the Court of Appeal overturned a division of the Appeal Tribunal, which I presided over.  Mummery LJ, giving the majority Judgment, said this:

“26. This is not an easy case. Tribunals with wide legal and practical experience of work situations and of the operation of unfair dismissal law have reached opposite conclusions. The EAT set aside the ET's order, which the Council says was wrong. This court is asked to set aside the EAT's order, which Mrs Fuller says was wrong. Perhaps it would not be out of place to make a few general comments about these differences, which lawyers and non-lawyers sometimes find unsatisfactory, even inexplicable.
27. Unfair dismissal appeals to this court on the ground that the ET has not correctly applied s.98(4) can be quite unpredictable. The application of the objective test to the dismissal reduces the scope for divergent views, but does not eliminate the possibility of differing outcomes at different levels of decision. Sometimes there are even divergent views amongst EAT members and the members in the constitutions of this court.
28. The appellate body, whether the EAT or this court, must be on its guard against making the very same legal error as the ET stands accused of making. An error will occur if the appellate body substitutes its own subjective response to the employee's conduct. The appellate body will slip into a similar sort of error if it substitutes its own view of the reasonable employer's response for the view formed by the ET without committing error of law or reaching a perverse decision on that point.  
29. Other danger zones are present in most appeals against ET decisions. As an appeal lies only on a question of law, the difference between legal questions and findings of fact and inferences is crucial. Appellate bodies learn more from experience than from precept or instruction how to spot the difference between a real question of law and a challenge to primary findings of fact dressed up as law.
30. Another teaching of experience is that, as with other tribunals and courts, there are occasions when a correct self-direction of law is stated by the ET, but then overlooked or misapplied at the point of decision. The ET judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable. The reading of an ET decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid.”

31.	Moore-Bick LJ in the minority also made some general observations.

“49. The first of the questions identified by the tribunal requires a finding of fact to be made about the employer's state of mind. Did it genuinely believe that the employee had committed the acts which are said to amount to gross misconduct? It is important for a tribunal considering that question to understand that it is not concerned with what actually happened but with what the employer believed had happened. A good example of the distinction is to be found in the recent case of Orr v Milton Keynes Council [2011] EWCA Civ 62. It is understandable that in a case such as the present the tribunal should wish to make findings of fact about what occurred, if only to set the dispute in context, but there is a danger that, if it does so, it may inadvertently treat its findings as if they were facts which were known to the employer, even though that may not be the case. The same is true of inferences that may be drawn from the primary facts: it is the inferences drawn by the employer that matter (provided they are reasonable inferences and genuinely drawn), not those that the tribunal itself might draw.”

32.	Mummery LJ has returned to these observations in guidance to Tribunals, for example in Gayle v Sandwell & West Birmingham Hospitals NHS Trust [2011] EWCA Civ 924 and Elias LJ to similar effect in Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721 CA.  The key issue in these cases is to decide what was reasonable for this employer in the circumstances: see London Ambulance Service NHS Trust v Small [2009] IRLR 563, again in the Judgment of Mummery LJ overturning this Tribunal, and the Employment Tribunal.

33.	Two specific guidelines were given by Mummery LJ in Fuller with are relevant to this appeal: 

“42. First, when the ET asks a correct question ... it is better for the ET to give a specific answer to it in addition to its discussion of the facts, law and argument on the question. It should not be left to the parties, or the EAT or this court to have to work out the answer for themselves. Failing to answer the question could encourage an appeal and false optimism about the prospects of its success. 
43. Secondly, it is normally better for an employee undergoing disciplinary action and faced with a possible threat of dismissal to participate in the process by complying with the employer's reasonable requests to provide a statement, information and representations and to attend hearings. I agree with the EAT judgment at paragraph [25] that Mrs Fuller "did not assist herself by not attending the meetings." 

34.	When an alternative to the reason given by an employer is advanced, it must be supported by some evidence: see the Judgment of Elias P in Associated Society of Locomotive Engineers & Fireman v Brady [2006] IRLR 576, reflecting Wilson v Post Office [2000] IRLR 834 CA.

Discussion and conclusions
35.	Applying those principles, we tread most carefully into this case.  Towering over our Judgment today is the majority Judgment of the Court of Appeal in Fuller.  How could we overturn a Judgment by a Watford Tribunal in an unfair dismissal case for misconduct, arising out of the very employer and the very school which has absorbed so much time and energy?  We have decided that it is our duty to set aside this Judgment, notwithstanding the trepidation that we feel in so doing, in the light of the cases we have cited.

36.	The first issue relates to the reason for dismissal.  It was unfair for matters to be taken against the school when an application had been refused for a postponement to allow the principal decision-maker to attend.  This Respondent’s case, therefore, was put on a limited basis.  

37.	The contention is that the Tribunal erred because it found that this was really a dishonesty dismissal.  If so, it was procedurally unfair because the procedure for a dishonesty allegation was not complied with, nor was the investigation.  That, in our judgement, is circular.  The Respondent is bound to lose if the reason it puts forward is not accepted.  What was required was an assertion and some evidence by the Claimant.  It will be recalled that she did not attend the panel.  So what she says about what happened could only be given limited weight.  A person who does that does not assist herself.  

38.	HH Judge Richardson, who gave directions in this appeal, set out a careful procedure, should either of the parties wish to adduce evidence of what was said at the hearing.  The Notice of Appeal and the Respondent’s skeleton argument make clear that the Claimant did not assert the pretext she relies on today.  In her claim form drafted by lawyers, and we dare say her witness statement by lawyers, she did not say “the real reason for my dismissal is theft and not the softer criticism of failing to leave a transparent audit trail”.  It is asserted that the Claimant did not say it at the hearing either. There has been no answer to that in Mr Marsh’s skeleton argument or Respondent’s answer for today.  However, taking instructions, he says that Miss Finch did raise it.  Mr Kemp, appearing as counsel, has no note of this matter.  This is an unsatisfactory situation.

39.	We consider that the Tribunal has made the Judgment based upon ongoing innuendo.  An innuendo is something which is not expressed so it must be taken to be the case that Ms Addington, in her evidence to the Tribunal, did not say “this is theft and dishonesty”.  She it was, who put the management case to the panel, but what is in issue is the decision making by the panel and upon appeal.  If that criticism had been ventilated at the Tribunal, then no doubt the decision maker could have dealt with it, but she was not there because of illness.

40.	We accept the force of ASLEF v Brady that there is a low burden of proof.  It is evidential only.  But something has to be done, and at the moment we are not satisfied that this issue was live before the Employment Tribunal at the instance of Miss Finch.  So although a Tribunal does not have to accept the reason given by the Respondent, it has to look at fairness having regard to the reason.  In our view the Tribunal erred by finding that the issue was one of dishonesty, when the reasons put forward in writing by the Respondent were not challenged at the hearing. This corresponds to the first error cited in para 42 of Fuller.

41.	So the Tribunal has made a finding on an issue which we do not consider to have been live before it. It has not given a reasoned decision as to why it did not accept the reasons given in the dismissal letter on behalf of the panel as being the reason for the dismissal.  This is also an error which creeps into the secondary reasoning of the Tribunal, which is on the footing that there was no dishonesty but the reason was as the Respondent put it, because this requires a decision as to the genuineness of the belief.  The employer does have a burden of proof here.  It must show that it genuinely believed the reasons which were put against the Claimant as the reason for dismissal. To use Mr Kemp’s words, this “taints” the secondary decision too.

42.	However, Mr Marsh contends that there is sufficient in this Judgment on the secondary case for it to survive, for the Tribunal expressly decided that if it were wrong about its decision on procedural unfairness because of dishonesty, it would go on to decide what it described as the band of responses.  The problem with the former is that, of course, if the allegation truly is one of dishonesty, it has not been properly investigated and put to the Claimant: see Strouthos v London Underground Ltd [2004] IRLR 636 CA.

43.	In its primary conclusion it reasserts its finding that the Claimant is honest.  As we say, we are not satisfied that honesty was in issue at the internal or the Tribunal hearings. Besides, the Tribunal has not directed itself in a way which it ought as an industrial jury. Like any jury, it would have to decide whether this honest witness may be mistaken.  She may be honest and yet be poor at administration and so on.  The Tribunal seems to have leapt from a finding of honesty to a finding that she was not responsible for the matters put against her in the three allegations as to which we now turn.

44.	The simple match of the three allegations to the three findings is wholly imperfect.  We accept the criticism made by Mr Kemp.  As to the first, that is the Christmas 2008 letter, it does not matter that the letter is charmingly written.  This is a value judgment of the Employment Tribunal but it misses the point that procedures were set in place which were not followed by the Claimant on Ms Addington’s appointment.

45.	The finding deals only with the Christmas 2008 letter.  The Tribunal extracts only one aspect of the allegation. There are others and they form the basis of a general criticism that the Claimant has not followed the changes in the school procedure in respect of requests for donations.  The Tribunal has not made a finding on the whole of the allegation as to whether it was genuinely believed, and whether there were reasonable grounds for it.  There being no criticism of the investigation, the only question that follows is whether or not the decision to dismiss for all three fell within the band of reasonable responses.

46.	We then turn to the second.  This is a straightforward mismatch.  The material in allegation 2 on paper deals only with financial irregularities in relation to gifts and vouchers from Fenwick’s and John Lewis.  In a large passage of interpolation, the Tribunal departs from that and includes issues to do with the Christmas concert. It then goes on, consistent with its interpolation, to make a finding on the Christmas concert.  It finds that there is no allegation that she took the money, and that the allegation has very little weight.

47.	There are many faults in this reasoning.  First, it does not address the actual allegation which was made but addresses another.  Secondly, it does not deal with the admissions.  This allegation is admitted by the Claimant in the passage.  She recorded matters of a financial nature poorly, and she removed school money, which was contrary to the rules. Only after suspension did she pay it in.  The Tribunal says it was only £17 but that is not the point.  It is a firm rule that no school money should leave the school.  So the Tribunal failed to pay attention to the Claimant’s admissions in respect of allegation 2.

48.	We then turn to allegation 3, which is the dinner money.  The Tribunal found that this allegation alone did not justify the dismissal of a long-standing employee.  We infer from that that it upheld the allegation and the finding by the Respondent and what essentially the Tribunal is doing in the passage we have extracted at paragraph 31, is to deal with mitigation: she did not have any training on spreadsheets.

49.	In our judgement the change in the regime for collecting school dinner money was made clear to the Claimant.  She received a matrix of responsibilities and she did not follow it.  The allegation is that the money had not been paid in and that there was a failure to follow required procedures for collecting and invoicing and the Tribunal does not make a finding as to the Respondent’s view of that matter.

50.	Standing back, the Tribunal then looks at the band of reasonable responses.  It was bound to get it wrong if our analysis of the match between the allegations and the findings is correct.  Therefore this Judgment by the Tribunal cannot stand.  The overall Judgment provided by the panel is based upon a clear breach of trust and confidence in relation to financial management, and this constituted gross misconduct. The allegations supporting that required to be correctly analysed and found by the Employment Tribunal.

51.	In our judgement the decision on what rules to apply, what protocols to adopt and what standards are to be maintained by an employee in a state school, with financial responsibilities, were matters for the school. On this imperfect reasoning, it cannot be said that the band of reasonable responses test was properly applied.  

Disposal
52.	With regret, we have to say that this case must go back.  There is no dispute as to where: to a differently constituted Tribunal.  It is therefore unnecessary for us to make any decision about contribution and remedy.  

53.	We encourage the parties to seek a resolution of this matter. There was a very long independent investigation and this case has gone on a long time.  We hope, now that this case is going back to the Tribunal and the parties are represented, that they can take advantage of ACAS to try and resolve the matter.  If not, it will go to a two-day hearing and the Claimant must in advance make clear what she says about dishonesty, so that the Respondent can meet that case and that illness does not again prevent the attendance of a key witness.