Neutral Citation Number: [2015] EWCA Civ 677
Case No: A2/2014/1408
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MRS JUSTICE SLADE, MRS C BAELZ, MS G MILLS 
UKEAT/0011/13/SM
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 3rd July 2015
Before :

THE CHANCELLOR OF THE HIGH COURT (SIR TERENCE ETHERTON)
LORD JUSTICE BEAN
LADY JUSTICE KING
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Between :

	ROBERT NEWBOUND	Appellant	
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	THAMES WATER UTILITIES LIMITED	Respondents	
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 (Transcript of the Handed Down Judgment of
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David Mitchell (instructed by Waring & Co, New Barnet) for the Appellant (Claimant)
 Philip Jones (instructed by Ashfords LLP, Taunton) for the Respondents 

Hearing date: 25 June 2015
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Judgment
Lord Justice Bean : 
1.	This appeal raises once again the familiar questions of when an employment tribunal (ET) is justified in finding that an employer’s decision to dismiss on the grounds of conduct was unfair; and, if the ET does so find, in what circumstances that finding can be successfully challenged on appeal.

The facts

2.	On 15 September 2011 Mr Robert Newbound was dismissed from his employment with Thames Water Utilities Ltd after 34 years’ continuous service. He presented a claim for unfair dismissal to the employment tribunal. After a two day hearing at Watford before Employment Judge Bedeau (sitting alone) the Tribunal found, in a reserved decision promulgated on 17 September 2012, that he had been unfairly dismissed but had contributed to the dismissal to the extent of 40%. At a subsequent remedies hearing the respondent was ordered to pay £54,197.84 as compensation subject to the statutory recoupment provisions. 

3.	By notice of appeal dated 25 October 2012 the employers appealed to the Employment Appeal Tribunal (EAT). The appeal was not heard until 18 October 2013. In a reserved judgment handed down nearly six months later, on 9 April 2014, the EAT allowed the appeal and dismissed the claim. With permission granted by Elias LJ Mr Newbound appeals against that decision. 

4.	A penstock is a large valve, several tonnes in weight, operated by sliding up and down to open and close a sewer. The claimant’s job title with effect from 1st April 2010 was penstock co-ordinator. It involved the maintenance of the respondent’s water assets on a regular preventative programme. Penstocks and other mechanical devices within sewers which regulate the flow of water require regular inspection and maintenance. The claimant was responsible for ensuring that all annual conditioning inspections of penstocks were completed correctly and on time. He had to report all defects, some of which enabled the respondents to obtain capital funding to spend on refurbishments.

5.	The claimant reported to Mr David Dennis, inspection team manager, who in turn reported to Mr Mike Gunn, field service manager - trunk sewers. Mr Gunn in turn reported to Mr Robert Nason, regional performance manager – large assets group. The total staff complement of the respondents is about 5,000.

6.	The flap and penstock of the sewer at Albert Road, East London was due to have an annual inspection and report carried out in the summer of 2011. On or around 20 June 2011, Mr Dennis had a discussion with the claimant about the proposed inspection. They discussed the equipment needed, and whether the respondent's contractor, Mr Alan King, a mechanical fitter, would be able to use the respondent's trolley set. A trolley set is a full breathing apparatus with an umbilical air line attached to the surface above the sewer. Air is fed from a supply outside to the breathing apparatus. The trolley set is used for difficult and/or dangerous tasks where manoeuvrability is minimal in a confined space. It was agreed between Mr Dennis and the claimant that the inspection would take place on 19 July 2010 as a trolley set would be available on that day.

7.	On 19 July 2011, Mr Dennis met the claimant and Mr King and went through the safety requirements, in particular the safe system of work form referred to as the SHE4. The SHE4 form is a formal method statement detailing a safe system of work and is used by the respondent for more complex activities which are not covered by the usual risk assessment. As this was a new document, Mr Dennis explained the reasons why it was necessary and the fact that the form was part of the respondent’s new health and safety management system. He read a brief description of the work and went through the tasks involved. He made it clear to both men that they were required to use a breathing apparatus. The SHE4 form stated in the description of work that it was a Class C sewer and the inspection must be undertaken in full breathing apparatus. The judge was satisfied, having heard the evidence, that both the claimant and Mr King understood that they were required to wear breathing apparatus on entry into the sewer and that they signed the relevant paperwork. The judge also found that Mr Dennis read out what was written in the second on the first page of the SHE4 form, namely: 

“An annual inspection is required on two Trunk Sewer assets in the Albert Road Connecting Sewer Chamber. The sewer is C Class and must be completed in full BA in accordance with the Thames Water Confined Space Code of Practice."
8.	Both the claimant and Mr King were asked by Mr Dennis whether they wanted to keep a copy of the signed SHE4 but declined and left, making their way to the Albert Road sewer. The SHE4 was issued by Mr Dennis as the manager devising the safe system for the task to be undertaken. The judge found that neither the claimant nor Mr King had been trained on this new health and safety procedure involving the use of the SHE4 form.

9.	In addition to the SHE4 the work also required a "C permit" authorising entry into a confined space. This was issued by Mr Robert Smith, OPS field specialist, on 19 July 2011. It was countersigned by Mr Shaun Andrews, as the “competent person” in charge (referred to as the “CP2”).

10.	When the claimant and Mr King arrived on site all members of the safety team were already in place for their entry into the sewer. In addition, there was a traffic management team regulating the movement of traffic around the sewer area. A gas monitor had been sent down the chamber and was monitoring the atmosphere. Mr Gunn and Mr Nason were also present as well as there being a breathing apparatus trolley set team on site. The claimant and Mr King then put on their personal protective equipment, and talked over the entry into the sewer to Mr Andrews, being the CP2 in charge of health, safety and entry. They discussed whether it was safe to enter the chamber with or without the breathing apparatus and whether or not false air ventilation was required. Mr Andrews checked the readings and the gas monitor three times and found that it was safe to enter as all the readings were within safe parameters. There was a good level of oxygen and no presence of methane or hydrogen sulphite. The claimant and Mr King then entered the chamber and had in place an extra gas monitor to continually test air quality throughout their inspection. They wore respiratory dust masks. They were required to travel down approximately 3 metres into the sewer. The job to be done was directly below the entry point so that they could see the street level entry/exit hole. The chamber was approximately 2.5 metres long and 3 metres wide. During their inspection Mr Dennis, together with Mr Mitchell Fraser, survey inspector, arrived on site. 

11.	After being in the chamber for approximately five minutes, the claimant and Mr King received a call from the safety team for them to vacate the chamber. The claimant, Mr King and the team working above ground, were briefed by Mr Nason about rescue arrangements, focusing on the need for alternative methods for lifting an unconscious casualty from the sewer. This led to discussion of using a Didsbury hoist or winch. As the claimant emerged from the sewer, Mr Gunn, who was in the company of Mr Nason, noticed that neither the claimant nor Mr King was wearing breathing apparatus.

12.	The absence of a Didsbury winch or hoist on site meant that the work inside the chamber could not continue for health and safety reasons. The winch was important as it was required to be used in the event of an emergency to lift someone from inside the chamber who might be injured. It was Mr Andrews’s responsibility to arrange for a winch to be present but he had failed to ensure that one was available. He left the site to collect one. In the meantime vehicles were moved to a side street to allow traffic to flow. 

13.	Mr Andrews returned within the hour with the Didsbury winch. Traffic management was replaced, and the manhole lifted and vented by the safety team. Gas checks were again carried out by the safety team and the atmosphere was found to be within safe parameters. By this time Mr Nason and Mr Gunn had left the site. As the atmosphere within the chamber was within safe limits, Mr Andrews again allowed the claimant and Mr King to enter the chamber without wearing breathing apparatus or a false air ventilator; each had an extra gas detector and wore a dust mask. They tested the eyebolt in the ceiling and replaced and tested the eyebolt on the flap. They then lifted the flap to a horizontal position attaching a secure chain. The process took approximately half an hour. During that time the gas detectors were frequently checking for any fluctuations in the atmosphere. 

14.	When the work was completed, the claimant and Mr King came out of the sewer chamber. Traffic management on Albert Road was then restored and the site cleared. The claimant telephoned Mr Dennis to report that the flap had been raised and secured.

The employers’  investigation

15.	The following day, Wednesday 20 July 2011, Mr Gunn discovered that both the C permit and the SHE4, issued in accordance with health and safety procedures, referred to the requirement for breathing apparatus to be used. As Mr Gunn had observed the claimant and Mr King leaving the sewer without breathing apparatus, he was aware that a breach of procedure had occurred. He contacted Mr Nason, who instructed him to prepare a report on the conduct of all who were involved in the Albert Road inspection and their respective contribution towards the breach of procedure.

16.	Mr Gunn carried out a fact-finding investigation and prepared a report. He did not speak to the claimant. In this report he set out his concerns, particularly in relation to the claimant and the fact that the site entry was controlled by a C permit and a SHE4 method statement. The C permit had been countersigned by Mr Andrews. The SHE4 document had been issued by Mr Dennis and countersigned by the claimant. The use of a dust mask was an inadequate respiratory protection for anyone entering a C class sewer. Although the claimant was not the CP2 in charge, he was a senior employee and was involved in leading the working party (namely Mr King) into the sewer.

17.	In Mr Gunn's report he gave the names of 11 individuals who were involved in the Albert Road sewer inspection/maintenance on 19 July 2011 and their involvement in the work on site. In relation to Mr Shaun Andrews, the CP2 in charge, he wrote the following: 

"Shaun was responsible for H&S and CP2 in charge. He should have read the relevant paperwork (SHE4 and C permit), and thus been aware of the BA requirement. He should also have briefed his team on the special requirements. In mitigation he is a fairly inexperienced CP2 in charge, was clearly fully committed to correcting his mistake when observed by myself, and could have been the subject of pressure to get the job done from more experienced staff members in the team. l feel potential gross misconduct could apply here." 
In relation to the claimant he wrote:

"Bobby [the appellant] was the most experienced and senior operative on site. He had signed the SHE4 document which stated that full BA was to be used for the entry. He entered the sewer using just a dust mask accompanied by the Delphini operator who also wore a dust mask. No breathing apparatus was used. I can find no mitigating behaviour. I feel potential gross misconduct could apply here.

18.	Mr Gunn’s fact finding investigation report was forwarded to Mr Nason on 22 July 2011. Mr Nason discussed it with Mr Gunn and revised the recommendations for management action to be taken regarding the individuals involved. Mr Nason felt that Mr Andrews should be the subject of misconduct as opposed to gross misconduct proceedings as Mr Gunn had initially recommended. Mr Nason was of the view that Mr Andrews was relatively inexperienced; his behaviour after the incident demonstrated remorse for what had happened; and he was keen to learn from his mistakes.

19.	Mr Nason’s opinion of the claimant's role was, however, different. He considered that as the claimant was one of the most senior employees involved and was leading the actual working party that entered the sewer, he should have been fully aware of the high risk nature of the operation and the additional safety precautions required for the work to be conducted safely. The claimant failed to follow safety procedures not once, but twice. Mr Nason felt that the claimant had put himself and Mr King in unnecessary danger in a situation where an incident could easily have resulted in serious injury or fatality to one or both of them. He agreed that the gross misconduct allegation should proceed.

20.	On Monday 25 July 2011, the claimant was called to a meeting with Mr Nason and Mr Gunn. He was asked whether he had entered the Albert Road sewer on 19 July 2011 without breathing apparatus. He admitted that he had done so before and after Mr Nason's visit. Having regard to the serious nature of his admissions, he was suspended by Mr Nason from work on full pay as he had placed himself and Mr King in unnecessary danger. The judge found that there was no questioning on how he felt about his behaviour to assess whether he had learned from his mistake.

The disciplinary proceedings

21.	Mr Nason conducted a disciplinary investigation. He looked at the claimant's health and safety record. This showed that he had been recorded as injured on four occasions since February 2010. It was Mr Nason’s view that three of those incidents demonstrated the claimant’s complacency towards his own health and safety. None of the incidents resulted in disciplinary action. He also checked the claimant’s training records and these showed that he was competent in the use of breathing apparatus; in working in high risk confined spaces; that he was trained to manage contractors; that he was familiar with permits to work authorisations; and was qualified as a Competent Person authorising him to be put in charge of activities and of others working in confined spaces.

22.	In carrying out his investigation, Mr Nason asked Mr Andrews why he did not challenge the claimant on the failure to use proper safety equipment. Mr Andrews admitted having made a mistake in that regard. He said that he found it difficult to challenge those with many more years experience based on his relative inexperience as the CP2 in charge: he had only been formally appointed to the position of CP2 in charge in April 2011. Even though technically Mr Andrews was in charge of the team on the day, Mr Nason’s view was that the claimant was the most experienced member and that it was appropriate to summon him to a disciplinary meeting. The claimant was not interviewed as part of Mr Nason’s disciplinary investigation. The judge found that surprising. So do I.

23.	A disciplinary hearing was arranged before the maintenance manager Mr Kemp. Mr Nason presented the management’s case. The claimant was accompanied by his union representative, Mr Hedges. Mr Dennis attended as a witness. Mr Andrews was not asked to attend.

24.	The claimant said that Mr Nason did not speak to him but to Mr Andrews, the CP2 in charge. He said that it was not his responsibility to ask whether all equipment was on site. Mr Hedges said that in the past a Didsbury winch was not needed. The Albert Road sewer was a shallow entry about eight feet deep. The claimant relied on his experience by not using breathing apparatus.

25.	Mr Nason said that the work was stopped initially because there was no Didsbury winch present. It was a mandatory piece of equipment according to the code of practice. Without it, given the circumstances it would have been difficult to carry out a rescue of someone in the sewer.

26.	The claimant acknowledged that he had signed the SHE4 document but admitted he had not read it fully. He thought it was a method statement and that breathing apparatus was not going to be used on site for the work. Mr Nason said that the respondent had been using the new health and safety environment, SHE4, process for 11 months. The previous document was a safe system of work form. The only difference between that version and the new SHE4 was that the new form required a signature confirming that the document had been read and understood. Mr Hedges said that the SHE4 document might have been in place for 11 months but no training had been given.

27.	Mr Nason's response was that staff were made aware of the new process and knew that the safe system of entry for a C class sewer required an attached air supply line to be available. He said that one of the operators on site for the trolley set application was also an instructor and was available to provide training to individuals in the use of the breathing apparatus if required. Mr Hedges said that the claimant was using his experience in deciding not to use breathing apparatus as the gas monitors did not give a high reading. The claimant repeated that he had not seen the SHE4 document before and had not been trained on its use. He thought that this was a standard method statement and that, at the time, he was in a hurry to get out to do the work. Mr Hedges asked why the CP2 in charge, Mr Andrews, did not stop the work from being carried out if he was unhappy about the claimant and Mr King entering the sewer. Mr Nason responded by saying that it was the claimant's responsibility to follow the safety procedures.

28.	Mr Dennis was then called to give evidence. He said that he read out the SHE4 to the claimant and said that although it was "a simple job" there were some complexities and it required the use of breathing apparatus.

29.	The claimant then read a written statement he had prepared and was questioned. He reiterated that he thought the SHE4 document was a method statement. In other words, how the work was to be carried out and the equipment to be used, if required, as such he did not pay much attention to it. He could not remember Mr Dennis saying that the trolley set would be present as back up. He again repeated that he had skim read the SHE4 document. He assumed that the breathing apparatus was present, namely as part of the trolley set, to be used if required. He acknowledged that he made a decision using his experience to enter the sewer without breathing apparatus. He knew how the work should be carried out in a confined space. He knew what a C permit is used for. He also acknowledged that he had attended a CP2 course. He said that the refresher course for CP2, which is every three years, would cover working in sewers and the use of breathing apparatus and that it should be worn in a confined space. He said that if breathing apparatus should have been worn the job should have been called off by the CP2 in charge. He said that he was not sure about wearing breathing apparatus in a C class sewer. He admitted that he had carried out work in the Albert Road sewer in the past and knew that it was a C class sewer.

30.	Mr Kemp then invited Mr Nason and the claimant to summarise their respective cases. After adjourning for just under an hour Mr Kemp read out a statement as follows:- 

“After considering all the information presented by Rob Nason and yourself, I have concluded that you failed to follow a safe system of work which you confirmed you clearly understood by signing your name at the foot of the document. 
You failed to follow the methodology outlined in the safe system of work by carrying out the C class entry work without breathing apparatus or the Didsbury, in spite of this being a requirement of the safe system of work on two “back to back” separate occasions. 
You are fully qualified and you have had full and refresher CP2 training on numerous occasions over the last 10 years. By your own admission, you understand the risks associated with C class sewer and subsequent entry. 
Despite you admitting your understanding of this, you continued to carry out the entries on this day and repeatedly implied to me at this hearing that it was not your responsibility to identify health and safety omissions as you were not the CP2 in charge. You were the senior employee on site with 35 years’ experience, working alongside a contractor as the leader of a two man working party. 
I deem this act as a serious infringement of health and safety rules and a serious breach of the company’s health and safety policy. 
In reaching this decision, l felt that the evidence presented is clearly viewed by the company as being acts of gross misconduct. Therefore, l have no alternative but to summarily dismiss you from the company with immediate effect, I5 September 2011. You have the right to appeal against the decision and if you were to do so it must be made in writing to Teresa Lennon, employee relations specialist, within seven working days of receipt of this letter." 
31.	After the hearing Mr Kemp wrote to the claimant on 15 September 2011, confirming his decision. In addition, he made reference to:

“The company has found some other substantial reason, by virtue of the loss of trust and confidence, to proceed to dismissal”.

Reference to a loss of trust and confidence amounting to “some other substantial reason” was clearly an afterthought by the respondent’s legal advisers. It was not an allegation the claimant previously had to meet. But I do not consider that anything turns on this in the present case: it is simply another label attached to the same set of facts.

32.	Mr Newbound appealed against his dismissal on 30 September 2011. In his grounds he wrote:-

"I now understand from this situation that the company, rather than rely upon individuals experience are now required just to follow chapter and verse. This is especially highlighted by the fact that very recently everyone has now been trained in the new system of work. This would suggest that the method I employed is not an individual occurrence but commonplace practice. It also implied that knowledge of the new health and safety system is at best “scant” within the business, yet I find myself dismissed for this shortcoming."

33.	He acknowledged that there was an error of judgment on his part but no intention “to misuse” any health and safety regulations. He earnestly wanted to be employed by the respondent and was sorry for his actions. He was prepared to undergo any refresher training and invited the respondent to have regard to his 34 years of loyal and devoted service.

34.	The claimant’s appeal was heard by Mr Gardner, head of capital procurement for the respondents, on 9 November 2011. It was not a rehearing of all the evidence but a determination whether or not to uphold Mr Kemp’s decision to dismiss the claimant. On 14th November 2011 Mr Gardner wrote to the claimant upholding the decision to dismiss him.

35.	As for the others involved, a letter was sent on 21st July 2011 to the employers of Mr King stating that because of the serious failings in health and safety procedures and the fact that Mr King had “made an entry into the sewer chamber and breached health and safety by not wearing full breathing apparatus equipment”, “we do not wish to have Alan carrying out any more duties within Thames Water trunk sewer group.” 

36.	Mr Andrews, on the other hand, appeared at a disciplinary hearing on 9 September 2011 before Mr West, field service manager. The allegation he had to meet was that he had failed to carry out his full duties while in charge of a CP2 manned entry team. This was put as misconduct, but not gross misconduct. Mr West found the case proved, and Mr Andrews received a written warning to remain on file for 12 months. He was also required to “engage with an improvement plan”, complete a full CP2 confined space course and retake the CP2 and charge assessment.

Health and safety and disciplinary policies of the respondent

37.	The respondent’s health and safety policy, as updated on 1 July 2010, states the following:

“All employees, regardless of grade or seniority, have responsibilities for health and safety at work. This includes:-
•	Taking reasonable care for the health, safety and welfare of themselves, their colleagues and other persons so employed by Thames Water.
•	Complying with health and safety instructions and procedures provided for the purposes of safety, health and welfare, together with making full and proper use of protective clothing and safety equipment.
•	Seeking advice if in doubt about the adequacy of any health and safety arrangement.”
38.	The penultimate paragraph reads:

“(Note: individuals have the authority to immediately stop work on any activity that they consider is unsafe. No employee, at any level, is authorised to initiate, or continue any activity that places themselves or others in danger. Any such deliberate act or action will be viewed as a disciplinary matter with appropriate measures taken to secure the interests of Thames Water, its employees and stakeholders).
39.	The respondent’s disciplinary policy, under the heading “Acts Constituting Gross Misconduct" includes, as such documents usually do, “actions liable or able to bring the company into disrepute"; "deliberate and serious infringement of health and safety rules"; and “serious or persistent contravention of company policies.”

The employment judge’s findings

40.	It is convenient to begin with the findings which were not in dispute before us. The judge found that the respondents had shown that the reason for the claimant’s dismissal was conduct, namely that he had entered the Albert Road sewer on two occasions without breathing apparatus. He had admitted this on 25th July 2011 and at the disciplinary and appeal hearings. It has never been in dispute that such behaviour falls within the potentially fair reason of conduct under section 98(2)(b) of the Employment Rights Act 1996.

41.	The judge asked himself next whether the respondents had conducted a reasonable investigation. He raised some concerns about the investigation prior to the dismissal but held that overall the enquiry into the claimant’s conduct was reasonable. This too has not been challenged in this court; indeed it was relied on by counsel for the respondent employers.

42.	The crucial question was therefore whether the respondent acted reasonably or unreasonably in treating the claimant’s conduct as a sufficient reason for dismissal, a question to be decided having regard to equity and the substantial merits of the case. Before considering the judge’s decision on that issue it is important to set out his conclusions of fact:-

“46. ….I have come to the conclusion that the SHE4 document was a comparatively recent introduction. I was not satisfied that the claimant and his colleagues had been trained in its significance. I am supported in that view because when this was raised by the claimant and his representative during the appeal it was not challenged that there was training given to supervisors and CP2s at Abbey Mills. In other words if the claimant was not the subject of disciplinary proceedings he too would have been on the training. I was also not satisfied that Mr Dennis had explained to the claimant that the failure to wear breathing apparatus would lead to disciplinary action, possibly dismissal. The evidence before me was that the claimant had in the past exercised his discretion in deciding whether or not to use breathing apparatus, hence his genuinely held belief that the SHE4 was a method statement. Such earlier decisions did not lead to disciplinary action as the respondent was prepared to rely on his skill, knowledge and experience. The respondent failed to take into account that both the claimant and Mr King were in a rush to get to the Albert Road sewer and had only scanned through the SHE4 in Mr Dennis’ presence.
47. Much has been remarked on the claimant’s failure to show remorse at the earliest opportunity. This is misleading. The claimant was called to a meeting with Mr Nason and answered questions put to him without their purpose or significance being explained to him. He showed considerable remorse during the appeal and offered to go on training and be given a second chance after 34 years’ service. This was not given any credence.
48. The respondent asserted that during the disciplinary hearing he did not own up to his guilt. Again this could not be further from the truth. He admitted to Mr Nason prior to his suspension that he did not wear breathing apparatus. At the disciplinary hearing he gave an account of events. He said that it was Mr Andrews who gave him and Mr King the green light to enter the sewer without the apparatus. This was precisely the evidence Mr Andrews gave to Mr Gunn on the 5 August 2011. Mr Andrews was aware that breathing apparatus was required yet allowed the claimant and Mr King to use their discretion. The claimant was not seeking to deflect blame but gave his account of events supported to a large extent by Mr Andrews.
…..50. I do take into account Mr Nason’s evidence before me that the CP2 in charge is responsible for any part of an operation going wrong if it could be avoided. Mr Andrews was the CP2 in charge.”

43.	The judge made reference to the claimant’s length of service of more than 34 years and his clean disciplinary record and said that this had not been given sufficient weight in the circumstances. He concluded that no reasonable employer would have dismissed the employee in the circumstances and that the decision to terminate his employment was perverse.

44.	He went on to find in the alternative that the dismissal was unfair based on the disparate treatment of the appellant and Mr Andrews. As to that he said:-

“Both men were employed in the same operation. Mr Andrews was in charge, the claimant was not. Mr Andrews allowed both men to enter the sewer without a Didsbury winch being on site and without breathing apparatus. Yet Mr Andrews was given a written warning and had to undergo training. This was not an appropriate case for disparity in treatment notwithstanding that on the day they performed different roles.”
45.	So far as Mr King was concerned, the judge considered that he was not a comparator. He was not the respondent’s employee. 

46.	The judge found that the claimant’s failure to have regard to what Mr Dennis had read to him (saying that the work in question required the use of breathing apparatus) and his action in entering the sewer together with Mr King, without it being used, amounted to blameworthy and culpable conduct. The judge assessed contributory conduct as a contribution of 40% to be deducted from both the basic and the compensatory awards for unfair dismissal.

The decision of the EAT

47.	The employers appealed to the EAT. The case was heard by Slade J with two lay members, Mrs Christine Baelz and Ms Gloria Mills CBE.  The “discussion and conclusions” section of their reserved judgment included the following:-

“74. Having decided the reason for the Claimant's dismissal and that the enquiry into the Claimant's conduct was reasonable, the reasoning of the EJ on the reasonableness of the decision to dismiss concentrated on the factors advanced by the Claimant in mitigation at his appeal hearing.
75. Mr Jones contended that on such a serious health and safety issue as arose in this case it is:
"…only in the most exceptional of circumstances and on the most urgent of grounds should a Tribunal be permitted to override the Respondent's view of the seriousness of the conduct and the appropriate sanction."
In this case in our judgment the EJ failed to consider the reasonableness of the gravity with which the Respondent viewed the conduct of the Claimant. The Respondent considered that the Claimant had deliberately entered a C Class sewer without breathing apparatus using his own assessment of the situation rather than complying with the instruction given to him by Mr Dennis. The Respondent considered that the acquiescence of the less experienced CP2 at the site, Mr Andrews, did not negate that instruction or relieve the Claimant from responsibility to take care of his own safety when working in a confined Class C sewer which could present serious risks to his safety. If the EJ considered that the Respondent formed a view of the seriousness of the Claimant's actions which fell outside that which could be taken by a reasonable employer he failed to give reasons for so concluding…………….
77. The EJ referred to the evidence before him in concluding that the Claimant had in the past exercised his discretion whether or not to use breathing apparatus and had not been disciplined for not doing so. Hence he believed that the SHE4 was a method statement. However the notes of the disciplinary hearing show that the Claimant said that whilst breathing apparatus was listed on the SHE4 document "in the past we have not had to follow every step". They do not record that the Respondent knew that he had entered a C Class sewer in the past without breathing apparatus contrary to a written instruction and had not been disciplined. The EJ appears to have accepted that these earlier failures to use breathing apparatus did not lead to disciplinary action. By relying on evidence given to him at the hearing rather than the evidence before the Respondent when taking the decision to dismiss in our judgment the EJ erred in placing any weight on this factor in the absence of any findings as to whether the Respondent was aware of such failures, and if so the circumstances in which they occurred and, if it was not, why no disciplinary action was taken.
78. Further in our judgment the EJ impermissibly substituted his view of the importance of training on the SHE4 document rather than considering whether the Respondent acted unreasonably in not regarding this as a significant mitigating factor. Such an assessment should have been made by the EJ in the light of his finding that Mr Dennis had read the SHE4 document to the Claimant, and that it stated that breathing apparatus was to be used in the Albert Road sewer. The unchallenged statement by Mr Dennis at the conclusion of the disciplinary hearing was that the Claimant admitted that he understood this requirement. In commenting that he was not satisfied that Mr Dennis had explained to the Claimant that failure to wear breathing apparatus would lead to disciplinary action the EJ failed to refer to the statement in the health and safety policy that such action would result in such action.
79. In our judgment the EJ erred in characterising the Respondent's view that the Claimant had failed to show remorse as "misleading". The unchallenged statement of Mr Kemp at the conclusion of the disciplinary hearing set out in paragraph 9.38 of the judgment of the EJ and the findings of fact made by him established that he recorded that at the disciplinary hearing the Claimant agreed he had entered the sewer twice without breathing apparatus but he did not then acknowledge he had done anything wrong. 
The Claimant's ground of appeal from the decision to dismiss set out in the judgment of the EJ is based on the assertion that he "now" understood that rather than rely on experience employees "are now required just to follow chapter and verse". The Claimant did not acknowledge that he had done anything wrong until after he had been dismissed and was appealing the decision. For the same reason that his characterisation as "misleading" was made in error, the conclusion of the EJ that it "could not be further from the truth" for the Respondent to say that the Claimant did not own up to his guilt at the disciplinary hearing was also unsustainable. The Claimant admitted that he had entered the sewer twice not using breathing apparatus but on the material referred to by the EJ including the statement of Mr Kemp at the conclusion of the disciplinary hearing it is clear that at that hearing he did not acknowledge he had done anything wrong. The EJ substituted his own view rather than assessing the reasonableness of that of the Respondent when he commented at paragraph 48:
"The claimant was not seeking to deflect blame but gave his account of events supported to a large extent by Mr Andrews."
80. The EJ also considered the Claimant's length of service to be significant. He made his own observation on its importance saying:
"It is very rare nowadays to have an employee with so many years service."
Further, the EJ made his own assessment when finding:
"His contribution towards the respondent's own health and safety practice was considerable."
81. The EJ also referred to the fact that Mr Andrews was the CP2 in charge and was responsible for any part of the operation going wrong if it could be avoided. The EJ does not appear to have considered whether the view of the Respondent that Mr Andrews was less experienced than the Claimant and as Mr Gardner has been informed, did not feel able to challenge the more experienced members of the team, was one which they could reasonably take.
82. In our judgment the factors relied upon by the EJ to reach his conclusion that the dismissal of the Claimant was unfair were based on a misunderstanding of the facts and in certain respects represented his own views of the blameworthiness of the Claimant's conduct. Despite a correct self direction, the EJ fell into error by assessing the fairness of the dismissal on his own view of the facts and their significance rather than considering whether dismissal was within the range of reasonable responses of a reasonable employer in the circumstances. Notwithstanding that different employers may take different views of the blameworthiness of the Claimant, the EJ could only find the dismissal to be unfair if no reasonable employer taking into account all the relevant circumstances would have dismissed the Claimant.
83. In the alternative the EJ concluded that the dismissal of the Claimant was unfair because he was dismissed and Mr Andrews, the CP2 in charge, was only given a warning. The introduction to his consideration of disparate treatment indicates that the approach adopted by the EJ was to consider how Mr Andrews should have been treated and to decide on the relative culpability of the Claimant and Mr Andrews. The EJ started his account by saying at paragraph 52:
"I had all the relevant evidence before me in relation to Mr Andrews' case."
In our judgment the EJ erred in observing that the Claimant was not given the opportunity prior to any disciplinary investigation to apologise to Mr Nason or Mr Gunn. The conclusion of the EJ that:
"The assertions that Mr Andrews had shown remorse and was inexperienced were not sufficient grounds for treating them differently as the claimant was not given the opportunity prior to any disciplinary investigation to express himself to Mr Nason or Mr Gunn."
is not supported by the findings of fact. Those findings do not establish that the Claimant was prevented from apologising for his conduct, whether when he was suspended or at any other time. Further, later at the disciplinary hearing the Claimant did not acknowledge that he had been at fault.
84. The EJ failed to explain why the difference in the attitude of the Claimant and Mr Andrews to their wrongdoing did not reasonably justify the Respondent in taking different action against them. Mr Andrews accepted at an early stage that he should have taken steps to ensure the Claimant and Mr King wore breathing apparatus. He explained his inexperience compared to that of the Claimant. The judgment of the Court of Appeal in Paul is an example that acknowledgement of wrongdoing can justify a Respondent treating one employee more leniently than another involved in the same incident.
85. In our judgment the alternative basis for holding the dismissal to be unfair was erroneously based on the EJ's own view of the relative culpability of the Claimant and Mr Andrews rather than a consideration of whether it was within the range of reasonable responses for the Respondent to form that view in the circumstances.”
The UNISON letter

48.	Mr Newbound was a member of UNISON and was represented at the disciplinary hearing and appeal by an official of UNISON, Mr Hedges. Following his dismissal he sought union support for an unfair dismissal claim. This was refused, and in a letter to him of 18th January 2012 Mr John Loudoun, Greater London Regional Organiser of UNISON, explained why. Such a sequence of events is very common in employment disputes.

49.	What is unusual about the present case is that the letter came into the possession of the respondents. We are told that this occurred at an early stage of the proceedings  when Mr Newbound was acting in person without assistance from either a union representative or a lawyer. 

50.	The letter, after reciting the history of Mr Newbound’s suspension, the disciplinary hearing and the appeal, sets out his account of the facts. It goes on to explain in trenchant terms why in the union’s view and that of its solicitors the tribunal claim had no reasonable chance of success. In a passage cited by the EAT Mr Loudoun wrote:-

“The company dismissed you for a very significant and potentially very dangerous breach of health and safety, to both yourself and others, health and safety breach [sic]. Despite the mitigation that you raised, the failure to abide by the requirements as set out by the on site briefing is totally damning.”

51.	It is hardly surprising that having come into possession of this letter the respondents sought to make use of it in the litigation. I am prepared to assume that it could not have been protected by legal professional privilege, but I am confident that if the employers been aware of its existence but not its contents, no employment judge would have made an order for its disclosure had such an application been made. Once in the employers’ hands the letter was technically admissible for the purposes of cross-examination of the claimant on the lines that in one or two respects the factual account he was giving to the tribunal differed from what he appears to have told his union representative. We are told that some questions of this kind were indeed put to him. But the principal purpose for which the employers relied on the letter was of course the expression of UNISON’s opinion that the claimant’s failure to follow health and safety instructions was “totally damning” and that he had no case. The employment judge makes no mention of the letter in his judgment; we were told that he observed during argument that the views expressed in it could not be binding on him.

52.	It is important to note that one of the employers’ grounds of appeal to the EAT against the employment judge’s decision in the claimant’s favour was as follows:-

“Given the contents of the respondent’s policies, there was no realistic argument that the claimant was not or ought not to have been aware that contravention of an express requirement to wear breathing apparatus would result in a disciplinary charge.
Strong support for that proposition was received from the claimant’s own trade union and their solicitors – in a piece of evidence which the employment judge ought to have taken into account but did not. In its letter of 18 January 2012 refusing to support the claimant’s tribunal claim, UNISON made it clear that it considered the claimant’s failure to abide by the requirement for breathing apparatus “totally damning” and pointed out that the claimant had been dismissed for “a very significant and potentially dangerous breach of health and safety, to both yourself and others”. Again, given the views of even the claimant’s own union as to the seriousness of the incident, it was not open to the employment judge to find that it should have been explained to the claimant that a failure to obey his manager’s instruction might result in disciplinary action.”

53.	In my view the employment judge was right to ignore the expressions of opinion in the letter. Mr Loudoun was not being called as an expert witness on health and safety issues by the respondents. If he had been, he could have been cross-examined. As to his opinion that there was no reasonable prospect of success: the case is no different, as King LJ pointed out in argument, from one where a solicitor writes a letter to a client saying that the case is not strong enough to qualify for legal aid. If that opinion does come to the attention of the opposing party and is placed before the court, the court should pay no attention to it, any more than it would to an adviser telling the client that his case is overwhelmingly strong.

54.	On the separate issue of whether, given the ground of appeal to which I have referred, it was appropriate for the National Secretary of UNISON to sit as a member of the EAT in this case, I agree with what the Chancellor says in his judgment.

The appeal to this court

55.	On the appellant’s behalf Mr David Mitchell (who appeared in the EAT but not in the ET) submitted, essentially, that there was no error of law in the decision of the employment tribunal and thus no basis on which the EAT could properly interfere. Mr Philip Jones (who represented the employers in both tribunals below as well as before us) submitted that the EAT were right to find that the employment judge had impermissibly substituted his own views for those of the employment tribunal.

The law

56.	The case thus involves basic principles of unfair dismissal law and the respective roles of the employment tribunal and the EAT. Since there was no real dispute about these I can set them out briefly.

57.	Section 98(1) of the Employment Rights Act 1996 provides that it is for the employer to show what was the reason for dismissing the employee. In this case there has never been any dispute that it was on the grounds of conduct, which is a potentially fair reason under s 98(2)(b). Section 98(4) provides that:- 

“… the determination of the question whether the dismissal is unfair (having regard to the reason shown by the employer) –
a) depends on whether the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee,
b) shall be determined in accordance with equity and the substantial merits of the case.”

58.	The employment judge set out the law on this subject as follows:-

“In the case of British Home Stores v Burchell [1980] ICR 303, EAT approved in the Court of Appeal case of Weddell & Co Ltd v Tepper [1980] ICR 286, [it was held that] the employer must show that the misconduct was the reason for the dismissal. In other words, did the employer genuinely believe in the misconduct alleged? As to section 98(4), the Tribunal has to consider whether there was a reasonable investigation and reasonable grounds for the belief. Finally, was the dismissal within the range of reasonable responses.
A judge or Tribunal must consider whether the employer has acted in a manner a reasonable employee might have acted: Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, EAT.
It is not the role of the Tribunal to put itself in the position of the reasonable employer: Sheffield Health and Social Care NHS Trust v Crabtree UKEAT/0331/09/ZT, and London Ambulance Service NHS Trust v Small [2009] IRLR 563……. 
The range of reasonable responses test applies to the investigation as it does to the decision to dismiss for misconduct, Sainsbury’s Supermarkets Ltd v Hitt [2003] ICR 111, CA.”

59.	 Mr Jones cited to us the well known observations of Mummery LJ in London Ambulance Service NHS Trust v Small at [43], to which the judge had referred:-

“It is all too easy, even for an experienced ET, to slip into the substitution mindset. In conduct cases the claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer. He has lost his job in circumstances that may make it difficult for him to get another job. He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question – whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal.”

60.	The fairness of a dismissal falls to be judged on the basis of the facts known to the employer at the time of the decision to dismiss (Devis v Atkins [1977] ICR 662, HL): hence Mummery LJ’s observations in Small about the claimant who comes to the tribunal with more evidence in an attempt to clear his name. But in the present case there was no material evidence placed before the tribunal which had not been available to Thames Water’s management at the time of the decision to dismiss. 

61.	The “band of reasonable responses” has been a stock phrase in employment law for over thirty years, but the band is not infinitely wide. It is important not to overlook s 98(4)(b) of the 1996 Act, which directs employment tribunals to decide the question of whether the employer has acted reasonably or unreasonably in deciding to dismiss “in accordance with equity and the substantial merits of the case”. This provision, originally contained in s 24(6) of the Industrial Relations Act 1971, indicates that in creating the statutory cause of action of unfair dismissal Parliament did not intend the tribunal’s consideration of a case of this kind to be a matter of procedural box-ticking. As EJ Bedeau noted, an employment tribunal is entitled to find that dismissal was outside the band of reasonable responses without being accused of placing itself in the position of the employer. The authority he cited as an example among decisions of this court was Bowater v NW London Hospitals NHS Trust [2011] IRLR 331, where Stanley Burnton LJ said: 

“The appellant's conduct was rightly made the subject of disciplinary action. It is right that the ET, the EAT and this court should respect the opinions of the experienced professionals who decided that summary dismissal was appropriate. However, having done so, it was for the ET to decide whether their views represented a reasonable response to the appellant's conduct. It did so. In agreement with the majority of the ET, I consider that summary dismissal was wholly unreasonable in the circumstances of this case.”
Disparity

62.	The employment tribunal found that the dismissal of the Claimant was unfair not only in its own right but also because of the difference between his treatment and that of Mr Andrews. Before doing so the judge cited the well-known cautionary words of Waterhouse J, giving the judgment of the EAT in Hadjioannou v Coral Casinos Ltd [1981] IRLR 352, that “industrial tribunals would be wise to scrutinise arguments based on disparity with particular care”. 

63.	There are two types of disparity argument. The first is where the employer has previously treated similar behaviour less seriously: if such behaviour has on previous occasions not even been treated as a disciplinary offence, this is often described as condonation. The second is where two employees involved in the same incident are treated differently. Both were in play in this case. 

64.	In Paul v East Surrey District Health Authority [1995] IRLR 305, in another passage cited by the employment judge, Beldam LJ said at [35]-[36]: 

“I would endorse the guidance that ultimately the question for the employer is whether in the particular case dismissal is a reasonable response to the misconduct proved. If the employer has an established policy applied for similar misconduct, it would not be fair to change the policy without warning. If the employer has no established policy but has on other occasions dealt differently with misconduct properly regarded as similar, fairness demands that he should consider whether in all the circumstances, including the degree of misconduct proved, more serious disciplinary action is justified.
An employer is entitled to take into account not only the nature of the conduct and the surrounding facts but also any mitigating personal circumstances affecting the employee concerned. The attitude of the employee to his conduct may be a relevant factor in deciding whether a repetition is likely. Thus an employee who admits that conduct proved is unacceptable and accepts advice and help to avoid a repetition may be regarded differently from one who refuses to accept responsibility for his actions, argues with management or makes unfounded suggestions that his fellow employees have conspired to accuse him falsely.”
65.	Mr Jones cannot and does not say that the judge was unaware of or had failed to remind himself of the relevant authorities, either on the elementary law of unfair dismissal or on disparity. His argument is, as it has to be, that having recited them the judge failed to apply them: that in effect (though Mr Jones was too polite to put it this way) he was only paying lip service to them. Such cases do occur, as Mummery LJ pointed out in this court in a passage to which I shall come shortly.

The role of the EAT

66.	There is no appeal from an employment tribunal except on a question of law (Employment Tribunals Act 1996, s 21(1)). An important consequence of this is that a finding of primary fact cannot be overturned on appeal unless there was no evidence to support it.  

67.	In Fuller v London Borough of Brent [2011] IRLR 414 Mummery LJ said at [12] and [29]-[31]: 

“A summary of the allocation of powers and responsibilities in unfair dismissal disputes bears repetition: it is for the employer to take the decision whether or not to dismiss an employee; for the ET to find the facts and decide whether, on an objective basis, the dismissal was fair or unfair; and for the EAT (and the ordinary courts hearing employment appeals) to decide whether a question of law arises from the proceedings in the ET. As appellate tribunals and courts are confined to questions of law they must not, in the absence of an error of law (including perversity), take over the ET's role as an 'industrial jury' with a fund of relevant and diverse specialist expertise…………..
The appellate body, whether the EAT or this court [the Court of Appeal], 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. 
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. 
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.” 

68.	All the authorities so far cited date from a time when unfair dismissal cases were heard by a tribunal including two lay members. By an amendment made in 2012 unfair dismissal claims can be heard, as this one was, by an employment judge sitting alone. Thus the traditional reference to the tribunal being an industrial jury is less apt than it used to be (although it was always inaccurate, in that juries give verdicts without reasons, whereas employment tribunals give detailed reasons). However, the statutory restriction on appeals to questions of law has not been amended. So, as in magistrates’ courts, the tribunal has the same task to perform whether it is a tribunal of three or of one.

69.	The EAT may likewise be composed of a judge sitting alone or a judge and two lay members. The usual practice is to reflect the composition of the employment tribunal from which the appeal is brought. When this case reached the EAT’s paper sift stage the President, Langstaff J, directed that “the full hearing of this appeal be heard before a judge and two members (given the issues on appeal, this constitution is preferable even though it was heard by judge alone below).”  I can understand why the President made such an order, but it increased the need for vigilance on the part of the members of the EAT not to substitute their own view of the case for that of the employment tribunal.

70.	Once a case of this kind has reached this court on appeal from the EAT, the issue is not whether the EAT’s decision was correct but whether the employment tribunal made any error of law (Vento v Chief Constable of West Yorkshire [2003] ICR 318) at [25] and [31]). So although Mr Newbound is the appellant before us and Mr Mitchell on his behalf addressed us first, the proper focus is on the decision of EJ Bedeau rather than that of the EAT. The starting point, before coming to the judge’s assessment of the reasonableness of the employers’ decision, has to be his findings of primary fact.

Discussion

71.	Paragraph 46 of the ET’s judgment, cited above, contains four findings of fact which I regard as crucial: (a) the SHE 4 document was a comparatively recent document; (b) the claimant and his colleagues had not been trained in its significance; (c) the claimant had in the past exercised his discretion whether to use breathing apparatus; (d) such earlier decisions did not lead to disciplinary action as the respondent was prepared to rely on his skill, knowledge and experience. Mr Jones (while disputing their significance) accepted that the first three of these findings were properly open to the judge, but submitted that the fourth was not. There was no evidence, he argued, either at the disciplinary hearing or before the employment tribunal, that the employers were aware that Mr Newbound had been “exercising his discretion” about the use of breathing apparatus in sewers.   

72.	I cannot accept this submission. It is clear from the employers’ notes of the disciplinary hearing, which are accepted on all sides to be broadly accurate, that the claimant said that he had made a decision using his experience; and that Mr Hedges, on his behalf, said that “it may have been wrong to do this in the past 11 months, but not prior to the new processes being in place”. It is also clear that entry into sewers requiring a confined space permit was not an activity carried out in secret: there always had to be someone supervising on the surface, the “CP 2 in charge”. Indeed, in the present case Mr Gunn and Mr Nason among others were on the surface at the time of the claimant’s first entry into the Albert Road sewer. There was ample evidence on which the employment judge could find that the employers had been content in the past to rely on Mr Newbound’s skill, knowledge and experience and not to object to his entering sewers without breathing apparatus if he thought it appropriate. That finding inevitably involves the implication that management were aware of what was going on. Putting it more succinctly, there was evidence that for many years this practice had been condoned. 

73.	Mr Jones does not dispute the correctness of the finding that Mr Newbound had not been trained in the significance of the SHE 4 document, but submits that (as the EAT held) the judge was wrong to attach importance to lack of training.  Instead, he argues, an employment tribunal should give a very wide margin of appreciation to the employers on matters of health and safety. The employers properly regarded failure to follow the instructions in the SHE 4 document which Mr Dennis had read out to Mr Newbound as sufficient in itself to justify dismissal, irrespective of whether he had been given training, given the risk to which both the claimant and Mr King were exposed by not using breathing apparatus.

74.	There is no special rule about assessing the reasonableness of a dismissal on conduct grounds where the alleged misconduct involves a breach of health and safety requirements. The employment judge was plainly entitled to attach significance to the lack of training. The point is of particular importance when taken together with the finding which I have described as previous condonation of not using breathing apparatus. There was and is no evidence that when the SHE 4 form was introduced anyone in management made it clear to the claimant, whether by means of a formal training course or even a one-to-one discussion, that (whatever past practice may have been) in future failure to wear breathing apparatus in sewers on any occasion would be treated as an offence justifying dismissal.

75.	Mr Jones criticises the judge’s finding that “nothing could be further from the truth” than the assertion that at the disciplinary hearing the claimant had not owned up to his guilt. I consider that the judge was right to find that from the start the claimant admitted that he had not worn breathing apparatus. His case was and is that he was exercising a discretion based on experience. The judge said that it was “misleading” to describe this as showing lack of remorse, and was entitled so to find. I would describe what the claimant said at the disciplinary hearing as a plea in mitigation. The case could not be further from the example given by Beldam LJ in Paul of the argumentative or aggressive employee, let alone the conspiracy theorist. 

76.	The judge held that the claimant’s 34 years of service with a clean disciplinary record had not been given sufficient weight. Mr Jones submits that this was an error of law. The weight to be attached to the claimant’s record was, he submits, entirely a matter for the employers. They did take it into account, but as a major point against him: they decided that with his experience he should have known better, and the breach was so serious that a clean record over 34 years was simply irrelevant. 

77.	Mr Jones’ submission, which found favour with the EAT, is an attempt to stretch the band of reasonable responses to an infinite width. In assessing the reasonableness of the decision to dismiss, length of service is not forbidden territory for the employment tribunal. The fact that Mr Newbound was an employee of 34 years’ service with a clean disciplinary record was a factor the judge was fully entitled to take into account: it would have been extraordinary if he had not done so.

Conclusions

78.	The judge found at paragraph 51 that no reasonable employer would have dismissed the claimant in the circumstances. This was a conclusion he was entitled to reach. He made no error of law and the EAT should not have interfered.

79.	In the alternative, the judge went on in paragraph 52 to find the dismissal unfair based on the disparate treatment of the claimant and Mr Andrews. His findings of fact included the following: (a) Mr Andrews was in overall charge on the day at the Albert Road sewer; (b) he allowed the claimant and Mr King to enter the sewer twice without a Didsbury winch being on site and without breathing apparatus; (c) Mr Andrews was only charged with misconduct, not gross misconduct, which avoided the possibility of his dismissal; (d) Mr Andrews was interviewed prior to the disciplinary hearings while the claimant was not; (e) Mr Andrews was given a written warning while the claimant was dismissed. On those facts the judge was entitled to find that this was not an appropriate case for disparity in treatment and that the dismissal was also unfair on this ground. For my part I have rarely seen such an obvious case of unjustified disparity.

80.	In the light of my conclusion that the employment judge’s decision should be restored it is unnecessary to consider Mr Mitchell’s fallback argument (by reference to Jafri v Lincoln College [2014] 3 WLR 933) that, even if there were any material errors of law in the judge’s decision justifying interference by the EAT, the claim should not have been dismissed but remitted to the ET for further hearing.

81.	The judge found that the claimant had contributed to his dismissal to the extent of 40%. The EAT expressed the view that had they not dismissed the claim they would have increased the contributory conduct percentage to 50%. We were not addressed on this in oral argument by either side.  I need only say that it is even more difficult to justify an appellate court interfering with a percentage assessment of this kind than it is to justify overturning a tribunal’s conclusion that dismissal fell outside the band of reasonable responses. I would leave the employment judge’s assessment undisturbed.

82.	I would therefore allow the appeal, set aside the order of the EAT and restore the decision of EJ Bedeau that the Claimant’s dismissal was unfair subject to a finding of 40% contributory conduct. I add my regret that in a jurisdiction which was intended to provide speedy adjudication, with stringent time limits for the presentation of claims, Mr Newbound’s claim has taken nearly four years from his dismissal to reach judgment in this court.

Lady Justice King:

83.	I agree.

The Chancellor (Sir Terence Etherton)

84.	I also agree.

85.	There is one matter which does not feature as a ground of appeal to this court but which has given me cause for considerable concern about the proceedings in the EAT. 

86.	Bean LJ has referred to the letter dated 18 January 2012 from UNISON to Mr Newbound refusing to support any claim by him to the ET for unfair dismissal.  The letter was written by UNISON’s Regional Organiser, John Loudoun.  The letter sets out in considerable detail the factual background to the disciplinary hearing and what took place at that hearing and the result of the hearing.  Mr Loudoun emphasised at the beginning of the letter and towards its end, when stating UNISON’s decision on Mr Newbound’s request, that he (Mr Loudoun) had taken advice from UNISON’s solicitors.  The letter was highly critical of Mr Newbound’s conduct for which he was dismissed and stated that Mr Loudoun, and UNISON’s solicitors, thought that any claim by Mr Newbound in the ET for unfair dismissal would not have a reasonable prospect of success.  UNISON’s position was summarised as follows:

“The Company dismissed you for a very significant and potentially dangerous breach of health & safety, to both yourself and others, health & safety breach.  Despite the mitigation that you raised, the failure to abide by the requirements as set out by the onsite briefing is totally damning.  It is therefore my view, and it is supported by UNISON's solicitors, that your Tribunal claim will not stand a reasonable chance of success at an Employment Tribunal.  UNISON will therefore not support your Tribunal claim nor will it represent you in these matters.  You have the legal right to continue to pursue your claim at Tribunal, however, UNISON would not recommend this.”
87.	As Bean LJ has pointed out (in [52] above) that letter (“the UNISON letter”) was expressly mentioned and relied upon by the employers in support of a ground of appeal to the EAT that “there was no realistic argument that the Claimant was not or ought not to have been aware that contravention of an express requirement to wear breathing apparatus would result in a disciplinary charge.”  As recorded in the EAT’s judgment, counsel for the employers, Mr Philip Jones, referred to the UNISON letter in his submissions to the EAT and criticised the ET for failing to take it into account or even refer to it.

88.	One of the two lay members of the EAT sitting on Mr Newbound’s appeal from the ET was Ms Gloria Mills CBE, who has been the national secretary of UNISON since 2006.

89.	No mention was made at any stage of the proceedings before the EAT that the employers’ reliance on the UNISON letter might present a difficulty with Ms Mills hearing the appeal.  I am both surprised and disturbed by that omission.

90.	The situation gave rise to an obvious issue about apparent bias which, on the face of it, ought to have been identified by the EAT itself before the hearing in the EAT began.  I emphasise immediately that this is not a case in which there is any suggestion that Ms Mills herself was in fact biased.  Nor is it a case in which Ms Mills was automatically disqualified to hear the appeal because UNISON itself had an interest in the outcome of the appeal: cf. R v. Bow Street Metropolitan Stipendiary Magistrate ex p. Pinochet (No.2) [2000] 1 AC 119.  Under the principle of apparent bias, however, she was not entitled to hear the appeal if a fair-minded and informed observer, having considered the facts, would have concluded that there was a real possibility that she would be biased:  see Porter v Magill [2001] UKHL 67, [2002] AC 357 at [103] (Lord Hope).

91.	There is no difference between the common law test of bias and the requirements of an independent and impartial tribunal under Article 6(1) of the European Human Rights Convention: Lawal v Northern Spirit Limited [2003] UKHL 35, [2003] ICR 856 at [14] (Lord Steyn).  Underlying both of them is the fundamental consideration that justice should not only be done but should manifestly and undoubtedly be seen to be done: R (McCarthy) v Sussex Justices [1924] 1 KB 256, 259.

92.	In AWG Group Limited v Morrison [2006] EWCA 6, [2006] 1 WLR 1163, at [9] Mummery LJ pointed to the practical difference between an objection to the judge based on facts discovered during the course of, or only at the end of, the hearing and a situation where the objection is taken before the hearing has begun.  In the latter situation, as Mummery LJ observed, there is scope for the sensible application of the precautionary principle, that is to say prudence naturally leans on the side of being safe rather than sorry.  Indeed, as was observed in Locabail (UK) v Bayfield Properties [2000] 1 All ER 65 at [16], judges routinely take care to disqualify themselves in advance of any hearing in any case where a personal interest could be thought to arise.

93.	In each case where the issue of apparent bias arises or may arise the facts and the context are critical: Man O’ War Station Ltd v Auckland City Council [2002] UKPC 28 at [11] (Lord Steyn).  As I have said, apparent bias in the EAT is not a ground of appeal to this court and we have not heard argument on the point.  It would be wrong, therefore, for me to express any firm view on whether Ms Mills should have recused herself.  On the face of it, however, there would appear to be a clear case for saying that the grounds of appeal to the EAT, and subsequently the submissions made by the employers’ counsel to the EAT in reliance on the UNISON letter, ought to have alerted the EAT to the potential for an argument of apparent bias.  Ms Mills could either have stepped down before the hearing of the appeal on the precautionary principle or the EAT ought to have raised the matter with the parties, preferably in advance of the hearing date so as to avoid wasted costs for the parties and wasted time for the EAT.

94.	No doubt, if the matter had been raised, the EAT would have borne in mind that the hypothetical fair-minded and informed observer is not unduly sensitive or suspicious or, for that matter, complacent (Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416, at [2] (Lord Hope)), and that judges should not accede too readily to suggestions of apparent bias (Locabail at [22]-[24] (Lord Bingham)).  The EAT would also have had to bear in mind, however, that if in any case there is real ground for doubt that doubt must be resolved in favour of recusal (Locabail at [25] (Lord Bingham)) and that, if the fair-minded and informed observer would conclude that there is a real possibility of bias, the judge is automatically disqualified from hearing the case. The decision to recuse in those circumstances is not a discretionary case management decision weighing various relevant factors in the balance: considerations of inconvenience, cost and delay are irrelevant:  AWG Group Ltd at [6] (Mummery LJ).