Appeal No. UKEAT/0473/10/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 22 July 2011

Before
THE HONOURABLE MR JUSTICE WILKIE
MR A HARRIS
MR D G SMITH

MISS A PERRY	APPELLANT

IMPERIAL COLLEGE HEALTHCARE NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MISS A PERRY
(The Appellant in Person)	
For the Respondent
	MR R MORETTO
(of Counsel)
Instructed by:
Capsticks Solicitors LLP
1 St George’s Road
London
SW19 4DR	

SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal

The conduct established at the appeal against prior dismissal was completely different to that upon which the decision to dismiss was based and was not such as could have resulted in any reasonable employer dismissing the Appellant. 

THE HONOURABLE MR JUSTICE WILKIE
Preliminaries
1.	This is an appeal by Miss Perry against a decision of the Employment Tribunal after a four day hearing between 19 and 23 April 2010, which, by a decision sent to the parties on 4 June 2010, dismissed her claim that she had been unfairly dismissed by Imperial College Healthcare NHS Trust and also dismissed claims for disability discrimination and unpaid holiday pay.  No appeal is launched in respect of the disability discrimination or unpaid holiday pay decisions.

2.	Our decisions in summary form are, first, to uphold the appeal against the decision of the Employment Tribunal dismissing the claim for unfair dismissal; second, to substitute a finding that the dismissal was unfair; third, to make a finding of contribution to the dismissal by the Appellant to the extent of 30%; fourth, the necessary consequence of these three decisions of ours is that the questions of remedy and award will be remitted for decision on the basis of our findings.  There is no reason why it should go to the same Employment Tribunal as the questions of remedy and calculation of award is separate to the decisions to which we have come and the Employment Tribunal dealing with the question of calculation of the award will have the benefit of a transcript of this decision.

3.	Also by way of preliminaries, we identify a number of issues raised in the appeal with which it has either not been necessary for us to deal or where we reject the grounds of appeal.  The first ground concerns an allegation of procedural impropriety, which, effectively, involved allegations that one or other or both of the lay members of the Employment Tribunal were asleep at one, or other, or more than one, time during the four day hearing.  The Employment Appeal Tribunal ordered evidence to be furnished in respect of that issue.  We have read that evidence. We have also read the submissions of both parties in respect of that issue.  In the light of our main decision and the reasons for it, it has not been necessary for us to reach any conclusion as to whether that ground is a good one. 

4.	Second, it appeared from the Notice of Appeal and from the skeleton arguments that it may be that Miss Perry was seeking to reopen an argument that the dismissal was automatically unfair for failure to comply with the statutory procedures; an argument which had at one stage been canvassed before the Employment Tribunal.  It is common ground between the parties that counsel who appeared for her at the Employment Tribunal did not seek to argue the point in closing submissions.  Accordingly, if it were sought to reopen this issue at this level, that would be impermissible.

5.	In any event it has become clear from what Miss Perry has said that she does not seek to reopen that issue; rather, what she seeks to do is to ensure that alleged discrepancies between the various approaches of the Respondent, at various stages of the dismissal procedure, should be available for her to comment on and argue in support of her main appeal.  Mr Moretto has not sought to argue that that would be impermissible and we entirely agree with him on that, but the consequence of that is that there is no longer any attempt to appeal the finding that the dismissal was not automatically unfair as it had been withdrawn as an issue from the Tribunal. 

6.	The next issue which is raised in the grounds of appeal, and which we reject, is a contention that the Employment Tribunal was perverse in coming to a conclusion that the Respondent believed and had reasonable grounds for a belief that, in some way or another, the Appellant had acted dishonestly.  We have been reminded by Mr Moretto of counsel in his helpful skeleton argument of the numerous occasions on which the very high hurdle for a perversity argument to succeed, illustrated by the decision of this Tribunal in Yeboah v Crofton [2002] IRLR 634, has been referred to at Court of Appeal level as a warning to this Tribunal and to Employment Tribunals not to be ready too easily to reopen, or substitute, their views for those of the Respondent, or the Employment Tribunal as it may be, on the grounds of perversity.  

7.	As will become apparent from our rehearsal of the facts of this matter, the argument that the Tribunal was perverse in coming to the conclusion that it did about the genuineness of the Respondent’s belief and the reasonable grounds for it is hopeless.  In passing, however, we  observe that the Tribunal did make certain findings of its own in respect of the bona fides of the Appellant in arguing for, or saying that she believed in, a certain construction for one of the terms of her contract of employment.  That finding of fact by Tribunal was, in our judgment, clearly set out at paragraph 13 of its Reasons and was to the effect that the Tribunal found that she was in good faith in forming that view, though they later on made it clear that they thought that her view was a mistaken one.  That clear finding of fact has enabled us to conclude that we are in a good position to make findings in respect of contribution; findings to which we have already referred and to which we will return.

A summary of our reasoning
8.	Finally, by way of preliminaries, we summarise our reasons for concluding that the decision of the Employment Tribunal in dismissing the claim for unfair dismissal is fundamentally flawed in law and cannot stand.  The decision of the Employment Tribunal is set out in a full decision.  It is structured, to the extent that, at paragraph 4, it sets out a summary of the issues; at paragraphs 5-48 it sets out its findings of fact; at paragraphs 49-51 it sets out the law.  It then conducts, at paragraphs 52-69, what is called “an analysis” in respect of unfair dismissal, which contains the substance of its reasoning. 

9.	This was a case where the employer dismissed the Appellant for alleged gross misconduct.  In setting out the law the Tribunal at paragraph 49 rehearsed, faithfully, the provisions of s.98 of the Employment Rights Act 1996.  In particular it identified that the responsibility was on the employer to show the reason for the dismissal and that it was a reason falling within, in this case, subsection (2), namely relating to conduct.  It then rehearsed, briefly, the statutory provision as to whether the dismissal was fair or unfair depending on whether:

“In the circumstances […] the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.”

10.	In paragraph 50 the Employment Tribunal then posed for itself the questions which they had to ask.  They said as follows:

“We have to ask whether the employer has proved the reason for the dismissal.  It is for the employer to establish the fact of its belief in the misconduct.  Then we have to ask on a neutral burden of proof whether the employer had in its mind reasonable grounds upon which to sustain that belief.  Thirdly we ask whether the employer, at the stage in which it formed that belief on those grounds, at any rate at the final stage at which it formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  We take that proposition from the well-known test in BHS v Burchell [1978] IRLR 379 at paragraph 5.”

11.	The Tribunal went on to address the law in relation to disability discrimination.  It is, in our judgment, a startling omission that the Employment Tribunal, having taken it upon itself to identify the relevant questions and to cite the well known authority of BHS v Burchell omitted entirely to remind itself of the final question which, in subsequent decisions of the Court of Appeal, is said to be fundamental and to be inferred from what was said in BHS v Burchell; that is, whether the decision to dismiss was one which was within the range of responses available to an employer acting reasonably; (the reasonable range of responses test).

12.	Such a startling omission in this part of the decision would not, of course, be of significance in itself if the Tribunal had subsequently gone on in the analysis part of its decision to demonstrate that it had, in fact, posed for itself that question and answered it and had given reasons for so doing.  It is of significance that, in this case, there was a decision to dismiss and then there was, subsequently, a process of appeal which was effectively by way of re-hearing, which, whilst confirming the decision to dismiss, manifestly approached the decision on a very different basis from the original decision to dismiss, drawing a very different set of conclusions and inferences from the same basic facts.

13.	The Tribunal acknowledged this and recognised it by dealing, in its analysis section, with these two stages extensively and separately.  In relation to the original decision to dismiss, in considering the question of the range of reasonable responses of the decision to dismiss, the Tribunal limited itself to a single brief paragraph - paragraph 61 - where they said this:

“We consider therefore that what the employer did in fact was fair and that it was within the reasonable range of responses of a reasonable employer.”

14.	We agree that even such a short paragraph on the face of it does appear to pose and answer the last question which had been omitted from the Tribunal’s statement of the law.  It is to be observed that there is no process of reasoning set out in support of the Tribunal’s conclusion in respect of that specific question.  However, what is more significant is that in the subsequent paragraphs, running through to paragraph 69, and in particular paragraph 69, the Tribunal deals with the appeal process at the end of which the dismissal was confirmed but on a wholly different basis.  In that part of its decision, the Tribunal, whilst going through the Burchell questions which it had posed for itself in some detail, and having concluded that the Respondent had a genuine belief, on reasonable grounds and after a reasonable investigation for its belief, said nothing which addressed the question whether, in the light of the factual situation which by then had emerged, the Respondent had, in dismissing the Appellant, taken a decision which was within the range of reasonable responses.  In our judgment that is a fundamental failing in the Tribunal’s decision and, accordingly, it cannot be sustained.  On that basis alone we uphold the appeal.

15.	The next question for us was whether we should substitute our own finding for that of the Employment Tribunal.  Each of the parties urged upon us that we were in a position to do so.  This is essentially a case which turns very substantially on different forms of documentation: contractual documentation; policy documentation; reports; letters; and emails.  Mr Moretto perhaps trying to, as he put it, have his cake and eat it, suggested that we should only substitute our own finding if it were obvious and suggested that the only obvious solution was that the Employment Tribunal would have come to the same decision as it did had it posed the correct question.  In our judgment, the position is in fact obvious, but, unfortunately for Mr Moretto, our view is that it is obvious the other way.  We have therefore, on that basis, acceded to his submission that we should only substitute our view on the basis that it is obvious. Had we been of the view that there were significant arguments to be had either way we would have remitted that matter, either to the same Tribunal or to a different Tribunal, depending on our view on the issue which we have not felt necessary to decide, namely procedural impropriety.

The underlying facts in summary form
16.	The Appellant is a midwife.  She was employed by the Respondent working 19 hours a week performing her functions on a community basis.  That meant that she conducted home visits.  This meant that she had to be mobile.  Her chosen way of travelling was by bicycle, but, more significantly, her patients being visited in their own homes meant that she had to be capable of going to a number of different places, accessing a number of different types of accommodation, including, for example, high-rise council flats with broken lifts. 

17.	From about 2006 she developed a chronic knee problem and surgery, which she underwent in 2006, if anything made it worse.  In September 2007 she was interviewed for another part time position, namely as a family planning nurse working for Ealing Primary Care Trust.  That was a job which was effectively clinic-based and which was situated within 100 yards of her home.  She took up that employment. Accordingly, she had two jobs at the relevant time, both of them part time and both of them involving working at mutually exclusive hours; they did not clash in any way.

18.	From December 2007 her medical condition was such that she could no longer perform her work for the Respondent because her knee condition made it too difficult and painful for her to access the community locations which her job required her to access.  However, she was well equipped and able to continue to do the clinic-based job that she was undertaking for Ealing.  She was off sick from the Respondent’s employment on 13 December 2007.  However, she carried on performing the work which she had previously undertaken for Ealing and, as emerged in due course, at no time did the work that she performed for Ealing in any way overlap with the hours of work she would otherwise have worked for the Respondent.  Accordingly, there was no point at which she was drawing sick pay from the Respondent in respect of hours for which she was working for Ealing and, therefore, being paid by Ealing.

19.	She did not, however, notify the Respondent of the fact that her Ealing employment was continuing, notwithstanding the fact that she was signed off sick from working for the Respondent.  As the year, during which she was absent from work for the Respondent, went on, circumstances arose whereby it was becoming possible for her to return to work for the Respondent and arrangements were being made for that to be achieved, possibly by way of breaking her in gently.  However, towards the end of 2008, it came to the Respondent’s attention that she had been continuing to work for Ealing whilst off sick from work for the Respondent.  This set of circumstances sufficiently concerned the Respondent that, on 23 December 2008, her manager, Toby Cooper, wrote to her, informing her that it had been brought to her attention that an allegation of fraud had taken place in respect of her working for Ealing PCT whilst taking sick leave at the respondent between December 2007 and December 2008, and informing her that it would be investigated. 
 
20.	This matter was clarified by the Respondent at the request of Miss Perry on the following basis:

“… the allegation of fraud is that you have been reported to be in paid employment by Ealing PCT whilst certified as sick at Imperial College NHS Trust.” 

21.	On 12 February 2009, following receipt by the Respondent of a fact finding report compiled by Toby Cooper, the Respondent, acting by the General Manager, Maternity and Neonatology, Emma Hardwick, wrote to the Appellant requiring her to attend an investigatory hearing on 27 February 2009, at which she intended to investigate the allegation that, during the period 13 December 2007 and 28 December 2008:

“… you claimed and received statutory sick pay from Imperial College NHS Trust, whilst concurrently working for Ealing PCT as a family planning nurse.”

22.	She advised the Appellant that this investigatory hearing might result in a disciplinary interview being conducted which may result in action including, potentially, dismissal.

23.	On 27 February the investigation hearing took place.  Prior to that hearing taking place, on 25 February, the Appellant had obtained a letter from her general practitioner addressed “to whom it may concern”, which stated that its aim was to clarify her ability to perform some aspects of her work during the period from 2007 until the present.  That letter reads as follows:

“During the time that the patient was signed a Med 3, she had been signed off her usual work as a Community Midwife.  This involved travelling around to client/patients’ homes on her bicycle and assessing women in antenatal care, postnatal care and various stages of labour.  She was unfit to carry out this job but as far as I was aware, she was fit to work in the Family Planning Clinic (she lives about 100 yards from this clinic and is within easy short walking distance).  She performed most of her required tasks from a desk based situation and thus required no extra stress on her knee.  She worked between 0 - 6 hours per week on a Monday evening and I feel that the two jobs and the nature of the jobs should be taken as completely separate and different from each other, requiring different levels of physical abilities.”

24.	Notwithstanding that letter, the contents of which were reported to Ms Hardwick, Ms Hardwick declined to receive it in evidence, apparently on advice.  As a result, she wrote a letter on 5 March 2009, following the investigatory hearing of 27 February, which had been immediately followed by a disciplinary hearing.  That letter summarily dismissed the Appellant for gross misconduct.  In the course of that letter, and as part of her investigation, reference was made to a report from the Counter Fraud Department.  The letter records that report as saying as follows:

“… which clarified that an employee cannot work for another employer while in receipt of occupational sick pay or statutory sick pay, and that the interpretation of this is treated as a strict interpretation.  The reason being that you would be being paid twice; as you would be providing services to another employer while you should be using your skills and abilities for the benefit of your primary employer.  The implications of this to the primary employer are financial loss, the need for staff cover with associated financial loss and the inconvenience to other team members which may risk a potential detrimental effect on patient care.  [The author of that report] explained that this situation would be considered a fraud.”

25.	Immediately after the investigation and following an adjournment, the letter records the proceedings as follows:

“… I explained that after carefully considering the information presented at the hearing, I considered that gross misconduct had occurred in that during the period of 13 December 2007 and 28 December 2008 you claimed and received sick pay from Imperial College Healthcare NHS Trust, whilst concurrently working for Ealing PCT as a Family Planning nurse.  I therefore decided to proceed to a disciplinary interview.”

26.	The letter then records that at the disciplinary interview Ms Hardwick informed the Appellant that, after giving due consideration to all the circumstances, she considered the allegation to be well founded.  She explained that, having had regard to technical advice, the clinical elements of the two jobs - Ealing and Imperial - were effectively the same.  She concluded that the Appellant’s actions in continuing to be employed with Ealing whilst off sick with Imperial suggested that the Appellant had acted unlawfully and, regardless of whether that had occurred by reason of the Appellant’s ignorance, that it was contrary to the Respondent’s reasonable expectation that she would act lawfully.

27.	The letter then went on to state that there had been established:

“… an intention to defraud.  I explained that your actions or omissions have served to permanently deprive the Trust of a large sum of money over a period of time when neither the management or Occupational Health had given their advice or approval for you to do so.” 

28.	On that basis she considered the Appellant’s actions constituted gross misconduct and she was summarily dismissed.
 
29.	It is to be observed, at this point, that the conclusions drawn by the Counter Fraud report were far in excess of what was legitimate.  Far from a person not being allowed to work for two NHS employers at the same time, it subsequently emerged that this was relatively common.  The position is covered by the terms and conditions of employment where the only inhibition on a person working for more than one employer, or in more than one employment, concerns their working over the 48 hour week compliant with Working Time Regulations.  By reason of that concern, the terms and conditions of employment provide as follows:

“The Working Time Regulations state that you should not work more than an average of 48 hours per week based on a 17 week period.  Accordingly, the Trust should be aware of all the hours you work regardless of whether this is for the Trust as overtime, bank/casual, agency work or with another employer.  You are, therefore, asked to notify your manager of any such hours worked over and above 48 per week for the Trust or any external employer.
If you wish to exceed the 48 hour maximum, you should discuss this with your General Manager and any agreement reached should firstly be confirmed in writing.”

30.	Not only is that the case, but it is also the case that, in respect of statutory sick pay, it is perfectly in order for an employee with two employments to be claiming sick pay in respect of one employment whilst continuing to work under the other.  We have in our bundle a document which is said to be an extract from a document entitled “statutory sick pay E14” which was faxed by the Statutory Sick Pay helpline to provide guidance for employers.  The segment which is in our bundle reads as follows:

“Your employee has two contracts. 
It is possible for an employee, who has two distinct contracts, with the same or different employers, to be incapable of work under one contract but capable of working under the other.
When an employee has more than one contract with the same or different employers trading in association, and their earnings are aggregated for NICs purposes, they must be incapable of work under all contracts before they can be entitled to SSP.”

31.	The position, as far as Ealing and Imperial Health Trusts are concerned, is that they were not associated employers in that sense.  In addition, in our bundle there is some guidance on how to resolve a dispute:

“It is quite common for the employer to dispute the incapacity and whether the employee is incapable of work under their contract, even though they have medical evidence to support the incapacity.
This can be for a number of reasons, a few examples are that the employee
•	Is still working in another job
[…]
An employee might have more than one type of job and be legitimately off work sick with one employer, while continuing to work with another employer.  SSP is contract specific, for example, the employee might work in a supermarket as a shelf stacker and be off sick, but is able to continue working as a secretary.”

32.	Having regard to that statutory guidance it is obvious, in our judgment, that the conclusion, at least to that extent, of the fraud report which informed Ms Hardwick’s view was misconceived.  Not only that, but so too was the contention that it was gross or very serious misconduct for the Appellant to be in the situation of receiving statutory sick pay from the Respondent whilst working for another employer because the Appellant would be being paid twice, providing services to another employer while she should be using her skills and abilities for the benefit of her primary employer.  

33.	As must have been known by Ms Hardwick, because of what she had been told by the Appellant from the letter from the GP, which she should have looked at, the work performed at the two employments were at different hours, so there never was a time when the Appellant, whilst off sick and being paid statutory sick pay for the hours she would otherwise have worked for the Respondent, was working those same hours for Ealing, thereby obtaining payment twice.  Had that been the case ‑ and we will return to this - there is authority from this Tribunal that that would be inappropriate.  But in this case there was no question of that. On that basis too, the advice being tendered to Ms Hardwick, which she seems to have followed very closely in her letter of dismissal, was misconceived.

34.	Against that background it is unsurprising that the Appellant appealed against her dismissal, nor is it surprising that the position of the Respondent, when it came to appreciate the true factual position, changed very significantly.  As a result, the letter setting out the position of management on the hearing of the appeal changed tack very significantly.  The management summarised their position as follows:

•	“Your contract of employment had stated that while absent on sick leave you were not permitted to work elsewhere without prior permission from your manager, which you had neither obtained nor sought;
	[…]
•	Your duty had been to inform your line manager that you were continuing to work at Ealing PCT; your sick certificates had indicated that [you] were unfit for any work; by not disclosing the true position, you had prevented the Trust from realizing that you might be re-deployable to other duties;
	[…]
•	In this way, you had deceived the Trust; this deception went beyond a mere technical breach of contract;
•	Accordingly, the evidence presented at the disciplinary hearing led management to the conclusion that you had committed gross misconduct, and that, of the relevant sanctions available, dismissal was the most appropriate.”

35.	It may be interposed here that, whilst that may have been the position of management at the appeal, it most certainly was not the basis for the decision to dismiss taking by Ms Hardwick, where the emphasis was on money obtained permanently from the Trust apparently by deception or fraud. 

36.	By this stage, the focus was not so much on that, as on the Appellant failing to inform the Respondent that she was continuing to work for Ealing, thereby, it was said, depriving the Respondent of an opportunity to consider whether, given that she was obviously capable of some work whilst off sick, it might be possible to redeploy her for the benefit of the Respondent, and no doubt the Appellant herself, to some other work.  The decision reached by the appellate body followed that reasoning and they expressed themselves in the following terms:

•	“However, the key issue for the panel remained your failure to inform management at the Trust, while on extended sick leave, that you were still doing bank work for Ealing PCT;
•	The Ealing job was different and lighter but, while the panel did not doubt that you were unable to do your full job at Imperial, had the Trust been aware of the fact that you were working elsewhere on lighter duties, it might have been able to allocate you to a different role at Imperial rather than continuing to pay you sick pay;
•	As it was, the Trust’s ignorance that you were doing the job at Ealing deprived it of key information that might have enabled it to redeploy you.”

37.	They then went on to comment that she had ample opportunity to mention that she was still working for Ealing; that the responsibility was on “you”, the Appellant, “not just [as] a technical legal point, but as a matter of common sense”.  Then the decision concludes as follows:

•	“The panel could not accept that you did not realise that it was important to tell the Trust, as your employer, that you were working elsewhere, and considered that you had ample opportunity to make this fact known to them;
•	The panel was therefore satisfied that you had deceived the Trust.  This did not amount to a finding of fraud, but it constitute [sic] misconduct sufficient to justify your dismissal.
•	The panel recognized that there were mitigating circumstances, especially management’s failure to manage your sick absence properly; but, while taking these fully into account, the panel could not find that they warranted a lesser sanction than dismissal.”

Analysis of the documents
38.	The reference in the letter confirming the dismissal, though on a different basis, to “not just a technical legal point” is a reference to a specific term in the Appellant’s terms and conditions of employment; a term to which the Tribunal had regard.  It reads as follows and is under the heading “Sickness absence”:

“If you are absent on sick leave, you are not expected to do anything that is inconsistent with being unfit for your duties or which would delay your return to work.  This includes working for another employer without the prior permission of your manager and taking part in inappropriate activities likely to aggravate your condition.  If it is found that you have done something inconsistent with your absence on sick leave, this may result in the suspension of sick pay allowance and/or disciplinary action.”

39.	We have the benefit, as did the Tribunal, not only of the statement of terms and conditions of employment of the Appellant, but also documentation setting out the sickness absence policy of the Respondent.  It is of significance, in our judgment, that nowhere in any of these documents is there any hint that there is any practice, or any possibility, of someone who is off sick being either requested, or required, to provide information which would enable the Respondent to consider whether, during their sickness absence, they might be deployed to do work which they were capable of doing, even though the work which they were employed to do was outwith their capabilities whilst sick.  At its highest there is under paragraph 1, “Reporting absence”, the following at 1.4:

“Employees should be asked to contact his/her Manager once per week in order to maintain contact, and to update on progress.”

40.	It is equally plain that such obligation as there is, requiring an employee only to work for another employer whilst off sick when they have first obtained permission, is not there in order to furnish information with a view to redeployment but is addressed to the question whether such other employment may be inconsistent with their being unfit for their duties with the Respondent - that is, evidence of malingering - or which would delay their return to work.  There is, in our judgment, no basis upon which the Respondent could reasonably have believed that either of these concerns was in play in respect of the work the Appellant was performing for Ealing. The evidence that they had from the GP was that the work she was doing for Ealing was consistent with her continuing to be unfit for her duties with the Respondent and would not in any way delay her return to work. 

41.	It is of significance, however, that the Respondent, in the letter of decision on the appeal specifically made a finding that the Appellant had sought to deceive them by withholding information which, it was said, she was contractually obliged to provide.  The Appellant, before  the Tribunal, before us, and, it would appear, in her response to the Respondent by way of appeal against dismissal, acknowledged the existence of that contractual term but stated that, though, at the time she went off sick, she knew she was carrying on working with Ealing, she had looked at her contractual documentation, including at this term, and had not thought that there was anything in it which, in her situation, required her to ask permission of her manager to continue working for Ealing whilst absent on sick leave.  

42.	The Respondent took the view, not only that that was a misconstruction of the contractual term and that it did apply to her, but also the Respondent did not believe her when she claimed that she had acted in good faith in not asking permission.  They did so on the basis that they thought it was common sense, that if she was going to carry on working for Ealing whilst she was off sick from her job at the Respondent she was obliged first to seek the Respondent’s permission. The Respondent thought that it was such an obvious piece of common sense that she could not have honestly thought that she was not obliged to seek their permission. 

43.	In our judgment, the Employment Tribunal was entitled to take the view that, in all the circumstances of the case, the Respondent both had that genuine belief and had reasonable grounds for it and that that was based on a proper investigation.  At the same time, however, it is clear to us that the Tribunal itself made a finding of fact, which it recorded in paragraph 13 of the decision, namely:

“The Claimant took the view that this did not apply to part time midwives like herself who already had existing work with another employer.  She therefore decided that she did not have to ask her manager for permission to continue to work for Ealing PCT while on sick leave from the Respondent.”

In our judgment that is a clear finding of fact by the Employment Tribunal that the Appellant was not dishonest in failing to ask for permission.  

44.	The Tribunal went on to conclude, as we have, that the Appellant was plainly and obviously wrong in her construction of that term of the contract.  In our judgment it is clear that it does bite in the situation that she found herself in and there is no sensible basis for the contention that it only applies to someone who is thinking of taking on new, second, employment during her period off sick.  It is applicable to that situation, but it is also applicable to the situation the Appellant was in - where she already had second employment - even though, as we have pointed out, she had not been under any obligation to inform them that she had undertaken secondary employment unless to do so would have put her in breach of the 48 hour per week limit under the Working Time Directive.

45.	It is against that background that we have rejected the contention that the Tribunal was perverse in coming to the conclusion, which it did, about the Respondent’s reasonable belief in the Appellant’s dishonesty.  But, equally, the fact that the Employment Tribunal made a finding that she acted in good faith enables us to be fully informed on the issue of contribution to which we will return.

46.	In our judgment the decision of the appellate body, in the context of this case, that dismissal was an appropriate sanction for what they had found against the Appellant was, plainly, not a conclusion which was open to any reasonable employer in the context of the situation which had developed.  In our judgment it is very clear that the level of management which took the original decision to dismiss did so on a wholly different basis from that which emerged before the appellate body.  The original decision to dismiss focussed on an alleged fraud perpetrated by the Appellant, apparently by claiming £15,000-odd from the Respondent as sick pay whilst working for someone else.  It was both legally and factually misconceived, but, nonetheless, it was the basis upon which a decision was taken summarily to dismiss the Appellant.

47.	By the time it came before the appellate body the following matters were, or should have been, plain: first, the Appellant was permitted to take second employment whilst working for the Respondent; second, she was under no obligation to inform them that she was so doing; third, that the hours of the two employments were mutually exclusive, that is to say her hours of work at Ealing did not overlap with the hours of employment with Respondent; fourth, it was permissible for the Appellant to be off sick from work for the Respondent whilst, at the same time, being fit to continue her work with Ealing and continuing to do so; fifth, in the circumstances which, by then, must have been apparent to the Respondent, there was no question of the Appellant having obtained statutory sick pay from the Respondent for hours during which she was working for Ealing and, therefore, there was no basis for any contention that they had suffered any loss; sixth, they were entitled to view her failure to ask for permission to continue to work for Ealing as a breach of her contractual obligation; seventh, they were entitled to form the view that she was not acting in good faith in asserting her belief that she was not required to ask for permission.

48.	However, there was no basis, whether in terms of their sickness management policy, or their contractual documentation, or in any statutory guidance, for any suggestion that, by failing to inform them, she was, in any way, standing in the way of any scheme, or arrangement, or individual consideration of her redeployment to other work which she might have been capable of doing.  There was simply no basis for such a view, other than what was put forward by management at the appeal,  no doubt in an attempt, after the event, to salvage something from what, by that stage, had plainly been an initially misconceived decision summarily to dismiss.  

49.	It, therefore, follows, in our judgment, that, in these particular circumstances, against that particular background, it was unreasonable for the Respondent, at the appellate level, to have concluded that summary dismissal for gross misconduct was a warranted sanction for what, by that stage, had emerged was a minor deception, if, indeed that was what it was.

Conclusions
50.	It follows that, the Employment Tribunal having failed at all to address that issue; and we, having addressed the issue, having available to us all the relevant documentation, including the corporate arrangements for managing sick employees to which we have referred; we are of the view that the last question posed by BHS v Burchell, namely whether dismissal was a sanction which was within a range of reasonable responses, should be answered in the negative.

51.	On that basis, therefore, not only do we uphold the appeal, we substitute, for the finding that the dismissal was fair, a finding that the dismissal was unfair. 

Contribution 
52.	We therefore turn to the question of contribution.  Mr Moretto has urged on us that we are not in a position to assess the quantum of contribution, essentially because we have not heard all the evidence and, although we have the witness statements, we do not have notes of cross-examination. 

53.	In our judgment that is an unduly pessimistic view of our position.  As we have already indicated, this case very much turns on the documents.  At the heart of the question of contribution lies the question whether, in fact, the Appellant was dishonest or was simply mistaken and wrong-headed.  We would have great sympathy with Mr Moretto’s submission if the Tribunal itself had failed to make any finding on that issue, the Tribunal having the benefit that we do not have of having heard all the evidence as well as reading all the documents. 

54.	However, as we have indicated, it is clear to us from the decision, and in particular paragraph 13 to which we have referred, that the Tribunal, having had regard to all the material which was before it, did come to a finding on the question of its view of the Appellant’s alleged dishonesty.  In our judgment, the Tribunal came to a finding that she was not dishonest. The Tribunal found that she genuinely believed that there was nothing in the contract of employment which required her to seek the permission of the Respondent before carrying on the employment with Ealing PCT, whilst claiming sick benefit for sickness absence from the Respondent. 

55.	In our judgment, we are in a position where we can assess the level of contribution on the factual basis found by the Employment Tribunal, namely - that the Appellant acted in good faith.  We are in a position to judge, as the Employment Tribunal was in a position to judge, whether or not the Appellant was wrong in her view of her obligations under the contract.  Her failure to seek permission lay at the heart of the decision to dismiss which was ultimately taken by the Respondent at the appellate level.  For the reasons to which we have already referred, in our judgment the Respondent was unreasonable in imposing a sanction of dismissal.  However, what informed that decision was the Respondent’s view that she was wrong in her construction of her obligations under the contract.

56.	A Tribunal, in considering the amount of any compensatory award, is obliged to consider whether the dismissal, though unfair, was to any extent caused or contributed to by any action of the complainant and it is under an obligation to reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding (s.123 of the 1996 Act).  There is a parallel provision under s.122(2) in respect of a basic award.

57.	In our judgment, even accepting that the Appellant acted in good faith in asserting that she was not obliged to seek the Respondent’s permission, pursuant to that clause, it is - as we have already indicated - clear and obvious that she was wrong about that. The provision is clear.  It follows that, loyal to the finding made by the Employment Tribunal that she acted in good faith, we are obliged to conclude that she was, not only wrong, but plainly wrong and wrong-headed in forming that view.

58.	It therefore follows that, whilst her level of contribution is by no means as high as it would have been had the Tribunal found, on proper grounds, that she was, in fact, dishonest, nonetheless her contribution to her own downfall, given the wrong-headedness of the view which she had about the contractual term, is such that her contribution is significant and by no means negligible.  In our judgment we are as well placed as the Employment Tribunal, giving its findings of fact, to assess the level of that contribution and we do so - at 30%.  In our judgment we are in a position to make such a judgment and it is just and equitable that we should do so.

Remission for undecided issues to be determined
59.	Without making any findings on the allegations of procedural impropriety, it is clear from the material which is now  before us, that there are very considerable misgivings entertained, not  only by the Appellant herself and those who might be thought to have supported her, but also by more impartial observers, over what happened before the Employment Tribunal.  In those circumstances, quite apart from the extra delay and inconvenience of waiting for the same Employment Tribunal panel to be available, in our judgment it would not be just and equitable, where there are these misgivings which have not been resolved, for this matter to be remitted to the same Tribunal for  the remedies and award to be determined 
60.	It follows that this matter must be remitted to a differently constituted Employment Tribunal, for such issues as remain to be determined. 

61.	In our judgment, the question of remedy and calculation of the basic and compensatory awards and any other awards, against the background of our findings: that the Appellant was unfairly dismissed; but that she made a contribution of 30% to her dismissal, can properly be conducted efficiently and in a cost-effective way by a differently constituted Tribunal.

62.	Accordingly, our final decision is that this matter be remitted for the purpose of remedy and calculation of the award to a differently constituted Employment Tribunal.