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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Driving Edge Ltd v Gietowski [2008] UKEAT 0444_07_0802 (8 February 2008) URL: http://www.bailii.org/uk/cases/UKEAT/2008/0444_07_0802.html Cite as: [2008] UKEAT 444_7_802, [2008] UKEAT 0444_07_0802

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APPEARANCES

 

For the Appellant	MR SIMON GORTON (of Counsel) Instructed by: Messrs DWF LLP Solicitors Centurion House 129 Deansgate Manchester M3 3AA
For the Respondent	MR IAN SKEATE (of Counsel) Instructed by: Messrs Thornleys Solicitors 8 Warrington Street Ashton-under-Lyne Lancs OL6 6XP


 


SUMMARY

Unfair dismissal – Reason for dismissal including substantial other reason

Was the dismissal unfair and caused by the Claimant's trade union activities, or was it fair and caused by the Claimant's misconduct in giving an untruthful interview to the Daily Mail, which was published in an article which presented a false and damaging picture of the employers work practice. Inadequate reasoning/failure to consider the essential liability hearing of the ET majority decision. Remitted to a fresh Tribunal for rehearing.


 


THE HONOURABLE MR JUSTICE NELSON

1. This is the appeal of Driving Edge Limited, the Appellant and former employers of Adam Gietowski, the Respondent, against the decision of the Manchester Employment Tribunal, which, by a majority decision on 27 June 2007, found that Mr Gietowski had been unfairly dismissed by his employers because of his trade union activities contrary to section 152(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992. The Employment Tribunal majority rejected the employer's contention that the reason for the dismissal was the Claimant's misconduct in giving an untruthful interview to the Daily Mail which published an article on 18.5.06, including accurately recorded quotes from the Claimant, which presented a false and damaging picture of the Appellant's work practices. The Chairman of the Employment Tribunal, who dissented, concluded that the dismissal was fair and that the majority decision that the Respondent had been dismissed for trade union activities was not sustainable on the evidence before the Tribunal.
2. There are four grounds of appeal. Firstly that the Employment Tribunal failed to ask itself the fundamental question as to the reason why the Claimant was dismissed by reference to the Respondent's witnesses. Did the Respondent have in mind trade union activities when they dismissed the Claimant? Was that the reason or principal reason for the dismissal? Nowhere in the decision does the Employment Tribunal consider the thought processes of the Respondent's witness who took the decision to dismiss namely Mr Greenland, the dismissing officer, or Mr Martin the appeals officer. There is no analysis of their evidence or of what they were considering when the dismissal took place. In this essential respect their decision is wholly unreasoned and thus unsustainable. The Tribunal simply asked themselves whether the reason for the dismissal was trade union activities and nothing else. Secondly in so far as the Employment Tribunal's decision was based upon procedural errors it could not properly have been so biased, as to infer that a dismissal was because of trade union activities because of an error in procedure was in itself an error of law. Thirdly, the procedural errors identified by the Employment Tribunal were not procedural errors. In any event the findings were incorrect. Fourthly there was no evidential basis for a trade union activity finding for dismissal. Seven matters are relied upon by the Appellant in the grounds; the Employment Tribunal simply ignored the obvious and overwhelming reason why the Claimant was dismissed namely his correctly quoted words in the newspaper article making serious and inaccurate allegations against his employers which he knew to be untruthful and which his employers believed he had made; the rejection of the Appellant's assertion of damage to their business; finding that it was the media who spun the story and not the agreed words of the Claimant which made the story; the incorrect influence upon the Employment Tribunal of the Health and Safety issue; the finding that the Appellant's demonstrated anti union bias; the finding that the publication of the article provided the employer with the opportunity to dismiss and finally the finding that the Appellant failed to appreciate that the Claimant was making the comments on behalf of trade union members.
3. The Respondent submits that the appeal is in essence a perversity challenge which cannot succeed here. There is a strong prima facie case casting doubt on the alleged reason for dismissal and, therefore, the Appellant bore the burden of proof for the reason of the dismissal. The finding of strong evidence of anti union bias was justified and having reached that conclusion the Employment Tribunal was entitled to find the reason for dismissal was trade union activities. The Claimant only accepted that the article was a distortion not his words. He had no editorial control over the context in which his accurately reported sentences were reproduced. It was not therefore he who distorted the truth but the newspaper. In any event there was procedural unfairness as the investigation was fatally flawed on the Tribunal's findings. Had a proper investigation been carried out it would have concluded that the allegation was true in substance, and that the newspaper had put a spin on the article over which the Claimant had no control, that the Claimant was speaking about other workers and not himself in the article which does not say that he himself was prevented from taking breaks. If the decision is to be overturned the EAT should replace it with its own judgment that the Claimant was unfairly dismissed due to serious procedural unfairness and because the allegation was true. In any event the dismissal was not within the band of reasonable responses of employers in the circumstances.

The Employment Tribunal's findings.

4. The findings are essentially set out under the heading 'The Facts' in paragraphs 3 - 29 of the decision, though it is not always entirely clear whether the Employment Tribunal are reciting the evidence or making findings of fact. Certainly it is not the case that the findings are only set out in the conclusions.
5. The Claimant, who is Polish, commenced his employment with the Appellant in January 2005. From October / November 2005 he acted as a representative for other Polish workers employed by the Appellant at the Tesco's Wincanton Depot to which the Appellant provided employees. He recollected that he was elected a shop steward for the Transport and General Workers Union at the beginning of 2005 but there is no documentation relating to that.
6. In October / November 2005 the Appellant distributed a brief to its Polish workers in response to a T&GW recruitment leaflet which had been sent to those workers. The leaflet indicated that the Appellant would not try to stop employees joining the trade union but there were reasons to withstand the pressure to join it. A form was included enabling the employees to withdraw from the union if they wished. The Appellant stated that if the union had the opportunity to minimise agency staff in the workplace that would mean dismissal for Driving Edge employees, that it could not pay the same rates to its Polish workers as its English workers, and if forced to do so that would involve the dismissal of Polish workers. On 21 November 2005 Mr Cashman (now deceased) of the T&GW requested a meeting with the Respondent to discuss a number of issues. The Appellant did not meet Mr Cashman but instead arranged a meeting with a number of its Polish employees which took place on 28 November 2005. The issues raised by Mr Cashman were discussed at that meeting and certain actions taken as a consequence.
7. On 1 December 2005 Mr Cashman again wrote to the Appellant submitting a collective grievance on behalf of 47 Polish members. The grievances related to the same matters as had earlier been raised, namely accommodation charges, gas and electricity payments, charges for uniform and PPE, pay discrimination, holidays and, pay cuts when workers had been sick, and productivity. Again a meeting was held with members of the Polish workforce on 5 December 2005 but no meeting with Mr Cashman himself. Mr Greenland represented the Respondent at that meeting.
8. In January 2006 the Appellant decided that they should hold individual grievance meetings with those employees identified as having raised a grievance. In May 2006 they wrote to those employees arranging such meetings including one for the Claimant who was informed on 8 September 2006 that his grievance had not been upheld.
9. In February 2006 the T&GW was approached by the Daily Mail who were running articles on Polish workers in the United Kingdom. Mr Cashman put the journalist, Fiona Barton, in touch with the Claimant and a number of the Appellant's other employees. Mr Cashman was not present at the meeting with Miss Barton but another T&GW member, Mr Thompson, was.
10. In May 2006 the Daily Mail ran a three day feature headed 'The New Slave Trade'. On 18 May 2006 under the heading 'Hundreds of thousands of Polish workers have come to Britain after promises of well paid jobs. But for many the reality is poverty wages, exploitation and homelessness', 'Adam', an employee of the Respondent was quoted as saying:-

"The agency has put up the performance targets to 105%. How can anyone do that?

It means working without breaks, without going to the toilet, it is dangerous and I feel we are being treated unfairly."

11. The Managing Director of Driving Edge was quoted in the same article denying exploiting his Polish workforce and Tesco indicated that it was satisfied that the Respondent was operating fairly and meeting its standards.
12. In a letter of the same date as the publication of the article in the Daily Mail, namely 18 May 2006, Mr Thompson wrote to the Appellant indicating that the Claimant had been elected a shop steward to look after the interests of the T&GW members at the Wincanton site. In evidence Mr Thompson could give no explanation as to why it had taken so long to inform the Respondent of this fact other than that he did not wish to alert them to it before he wrote on 18 May 2006. He denied any connection between the letter informing the Appellant of the Claimant's appointment with the article which appeared the same day in the Daily Mail.
13. On 24 June 2006 the Claimant had a meeting with Mr Nielsen the Respondent's regional manager. The Claimant admitted that he was the 'Adam' referred to in the article and when he was asked whether he stood by his comments, and whether they were accurate he said 'Yes', though in his evidence before the Tribunal he said that he did not think that he had answered 'Yes'. He acknowledged that what had been said was a serious allegation about the Appellant and the notes record that the regional manager said to him 'Bringing the company into disrepute is very serious. Did you say that you had no time to go to the toilet and no time for breaks and that you thought it was dangerous to do so?' the Claimant's reply is recorded as 'Yes because I had to resign from my breaks.' In his evidence in chief to the Tribunal the Claimant said that he was asked by the regional manager whether he stood by his comments and whether they were accurate and he told him that they were.
14. After that meeting the Claimant was suspended and on 29 June 2006 an investigatory meeting took place conducted by Mr Nielsen, with the Claimant, Mr Cashman and interpreters. We have taken note of the fact that the Claimant did not speak English and that even with interpreters it must be taken into account that a translation of precise meaning may be imperfect. At the investigatory meeting the minutes record that the Claimant accepted that the article accurately reflected his comments and views and that he stood by his comments. He stated that he had not however been prevented from going on his breaks or working without taking a break. When asked for the names of people who did not take their breaks he was advised by Mr Cashman not to answer that question, though he said that there were such people. He confirmed that nobody had prevented him from taking a break or going to the toilet.
15. On 7 July 2006 the Claimant was provided with documents obtained by Mr Nielsen during the course of his investigation. These included investigation meeting notes, statements from team leaders regarding their policy on breaks, copy of the Claimant's LF12 which is a timed record of an employees work sheet, statements from other employees confirming they had not been stopped from having a break while at work, a statement from one employee indicating that she had been prevented from taking a break, and copies of her work record showing that breaks were taken, and performance reports of employees who achieved targets and confirmed that breaks were taken.
16. A disciplinary hearing took place on 23 August 2006, the notes of which recorded that the Claimant again acknowledged he was the 'Adam' in the article and that the article accurately reflected what he said to the newspaper. The minutes indicated that he confirmed that he took his breaks but said that others did not take their meal breaks. Mr Cashman indicated that this was referring to the 10 minute breaks. The Claimant admitted that he had taken breaks and reached his target and that when he had made the comments he knew that he could achieve the targets whilst taking breaks. He acknowledged that his comments would have a negative impact on the Appellant, and in his evidence to the Tribunal he accepted that the article was a distortion of the truth. During the disciplinary hearing Mr Greenland, who conducted it, was given a list of twelve workers whom it was alleged had been prevented from taking a 10 minute break. The hearing was adjourned to enable Mr Greenland to investigate that information.
17. The disciplinary hearing was reconvened on 24 August 2006. Mr Greenland had attempted to conduct a survey of employees to ascertain whether or not they had been prevented from taking their breaks but this had been stopped at the behest of the T&GW. The Claimant was handed copies of the statements which had been taken. Mr Greenland handed to the Claimant activity reports (LF12's) in connection with those employees who were on list, which indicated that those individuals were taking both their 10 minute breaks and their meal breaks. Those reports did not go back to May 2006 because those records no longer existed. Neither Mr Greenland, nor any other person personally interviewed the twelve people referred to in the document which had been handed to him at the disciplinary hearing. At the conclusion of the disciplinary hearing the Claimant was dismissed on the grounds of gross misconduct. The reason for dismissal was the fact that Mr Greenland said he believed that the Claimant had produced information to a newspaper about breaks that had showed the Respondent in a detrimental light, knowing that the comments the Claimant made about breaks were untrue or would be interpreted in an untrue and detrimental way. This brought the Respondent into disrepute. Mr Greenland considered that the Claimant's actions undermined the very foundation of his contract of employment and breached the implied term of trust and confidence in his contract. Mr Greenland's evidence, which was not challenged, was that while they did not lose existing clients the article caused aggravation with existing clients. He believed that they had lost a contract with Dairy Crest and that they failed to obtain extensions to contracts they had with existing clients. This passage is to be contrasted with the conclusion of the majority at paragraph 33.9 when it said that it did not believe that the Appellant suffered any commercial damage, because apart from the oral evidence of Mr Greenland no formal evidence was produced to substantiate this claim such as correspondence from commercial organisations.
18. On 25 August 2006 the Claimant gave notice of appeal and for the first time made the allegation that he was being victimised because of his role as a T&GW shop steward and the campaigning representative to improve pay and conditions. The appeal was heard on 13 September 2006 by Mr Martin. The agreed minutes of the appeal meeting show that the Claimant acknowledged that he told the journalist that 'it means working without breaks, without going to the toilet. It is dangerous.' Mr Cashman said that the Claimant was referring to 10 minute breaks not meal breaks. When the Claimant was asked if he could remember whether he made it clear to the journalist that when he was referring to breaks he was specifically referring to meal breaks he said he couldn't remember. The notes recorded that he was asked whether he had read the article and he confirmed he had. He said that he was happy with what he had said and that the journalist correctly recorded what he had said and that he had been quoted correctly. In his evidence he said that he did not agree with the word 'happy' and there was some difference in translation. There was a discussion between Mr Martin and Mr Cashman as to whether the journalist had exaggerated in order to create a more sensational article or whether the Claimant knew that what he was saying was actually incorrect, the key question being whether or not the Claimant had deliberately attempted to distort the situation to the media.
19. On 25 September 2006 Mr Martin wrote a twelve page letter setting out his conclusions on the issues raised both in the original disciplinary hearing and during the course of the appeal hearing. Mr Martin considered that when the Claimant referred to 'breaks' he did not make it clear to the journalist that he was referring only to the 10 minute breaks and that it depicted the Respondent as an employer who prevented its workers from taking any breaks, legal or otherwise, and damaged its reputation. His investigations indicated it was very rare for any individual to be denied a 10 minute break irrespective of productivity performance and the Claimant's comments were therefore untrue and should not have been made. Mr Martin took the view that by including references to not being able to go to the toilet and the working conditions were dangerous, it was being suggested that the company ignored the Working Time Regulations and Health and Safety legislation and that the Claimant knew that this would be interpreted as meaning that the workers were required to work through the whole shift without any break at all. Mr Martin was satisfied that the Claimant had acknowledged that the journalist had correctly recorded what he had said and accordingly he dismissed the appeal and upheld Mr Greenland's decision.

The Employment Tribunal's conclusions.

20. The majority of the Tribunal concluded that the Claimant had been dismissed by reason of his trade union activities. They found that the Appellant was opposed to trade unions and their activities; believed that union involvement would have a detrimental effect on their competitive commercial position, and sent a leaflet enabling members to withdraw from the union and indicating to employees that trade union membership could affect their job security. They refused to meet the trade union. They showed anti union bias by not discussing grievances with the T&GW. Their failure to follow the statutory grievance procedure showed a pattern of behaviour indicating a dislike of trade unions.
21. The majority concluded that the Claimant undertook the interview as he was frustrated with the grievances raised in November and December 2005 not being dealt with or acknowledged. They considered that the publication of the article in the Daily Mail provided the Respondent with an opportunity to terminate the Claimant's employment.
22. The majority considered that 'nothing in the article was intrinsically untrue but was spinned by the media to sensationalise it.' They accepted that the Claimant was 'having a go at the Respondent' but not to bring them into disrepute but because of his frustration and the fact that he had no other forum in which to put the actual position of trade union members and their grievances because of the Appellant's stance.
23. There was no proper investigation of the allegation of those listed by the Claimant which would have established the truth, or alternatively if the article was untrue, that the Claimant believed it to be true. The failure by the Appellant to personally interview those persons on the list handed to Mr Greenland at the disciplinary interview meant that the investigation was fatally flawed. The investigation carried out by Mr Nielsen and Mr Greenland, the evidence of the LF12's and the survey were not sufficient to overcome the failure to personally interview those employees identified on the list. The LF12 relied on did not go back to May 2006 because those records did not exist. Therefore the Claimant was judged on flawed evidence not contemporaneous records which fairness would expect.
24. The fact that some employees did not take breaks, the majority considered could be a Health and Safety issue. 'Although this aspect did not feature substantially in the majority decision because it was not raised significantly by either party during the hearing.'
25. The majority did not accept that the Respondent had suffered any commercial damage. The procedure involved in the investigation, the disciplinary hearing and the appeal did not address the point that the Claimant was speaking as a representative of other employees and was flawed because of the failure to personally interview the employees on the list produced to Mr Greenland. Representatives of employees must be considered differently to those who are putting their own individual view. The Appellant did not appreciate this difference. Following the letter of 18 May 2006 the Appellant knew that the Claimant was a shop steward and that his comments in the Mail were made on behalf of other employees who were members of the trade union and not his own personal comments. That was not addressed by the Respondent.
26. The dissenting Chairman's conclusion was that the quote in the article which had been correctly recorded clearly indicated that the Appellant had given its employees unachievable targets and in order to meet them their employees had to go without breaks, without going to the toilet and this was dangerous. The ordinary meaning of the words used in the article clearly indicated to anyone reading it that in order to meet the targets no breaks were possible. Nevertheless the Claimant did take the appropriate breaks and did reach his targets. The documentary evidence produced to the Tribunal indicated that other employees were able to take breaks and also reach their targets. There was no evidence of employees being put in danger or not being able to go to the toilet nor of breaches of Health and Safety. The Claimant accepted that the article was a distortion of the truth.
27. The Chairman was therefore satisfied that the reason that the Claimant was dismissed was because of conduct, namely the distorted picture he gave to the journalist which was then published. The Chairman considered whether the dismissal was within the range of reasonable responses open to the Respondent, being careful not to substitute his view for that of the Respondent, and concluded that given that the Claimant accepted that the article was a distortion of the truth and that he must have known that because of his own experience of reaching targets and taking breaks that it was a distortion, the dismissal was within the range of responses open to the Respondent.
28. The Chairman was satisfied that the Respondent was unaware that the Claimant was a shop steward before May 2006. There was no evidence of any action being taken against the Claimant prior to the article in the Daily Mail or indeed of any action being taken against any other employee as a result of his or her membership of the trade union. Even if the Respondent was biased against having union involvement in the workplace there had to be more than that to justify a finding that this Claimant was dismissed for trade union activities. The conclusion that he was so dismissed was not sustainable on the evidence before the Tribunal. The Chairman concluded that the Claimant was dismissed because of the article which appeared in the Daily Mail on 18 May 2006 and that this was a fair conduct related dismissal.

The Submissions.

The Appellant's submissions.

29. The failure to ask the fundamental question as to what was in Mr Greenland's mind when he dismissed the Claimant, or in Mr Martin's mind when he dismissed the appeal is a serious error of law. At no point in the decision does the Employment Tribunal properly assess the Respondent's evidence, reject their evidence as untruthful or misleading, or state why it was rejected. The Tribunal simply substitutes its own view by asking whether the cause of dismissal was trade union activities and answering in the affirmative rather than seeking to look into the mind of the person who made the decision. They either failed to ask the essential liability question or came to a conclusion which was wholly unreasoned and thus unsustainable. (English v Emery Reimbold and Strick Limited [2003] IRLR 710). The Employment Tribunal has not taken into account in assessing what was in the employer's mind, that it was only at the appeal stage that the Claimant or anyone on his behalf raised the question of trade union activities. This was an important factor when considering the employer's state of mind under British Home Stores v Burchell [1979] IRLR 379 but was not taken into account by the Employment Tribunal in its conclusion.
30. The existence of procedural errors cannot fill the gap left by the Employment Tribunal failing to ask itself the essential liability question. It is an unacceptable leap to conclude that a victim who has been treated unreasonably has been discriminated against. It is necessary to show that a particular employer's reason for acting was one of the proscribed grounds. The Law Society v Bahl [2003] IRLR 640 and Glasgow City Council v Zafar [1998] IRLR 36. The Tribunal failed to give proper consideration to the obvious explanation, namely conduct, and explain why that, as opposed to trade union activities was not the reason for dismissal. Bahl paragraph 166.
31. In any event Mr Gorton on behalf of the Appellant submitted that the findings of procedural shortcomings were flawed. The finding that there was no proper investigation of the allegation listed by the Claimant which would have established the truth or the Claimant's belief in its truth was misconceived. The Tribunal had itself found that the Claimant had made a statement to the press, that he, as well as others had been denied his breaks and was unable to achieve his targets which was the opposite of the truth as far as he was concerned. The words used by him in the article, which he accepted were correctly recorded, clearly covered his position as well as others. The finding that the Respondent did not address the point that the Claimant was speaking as a representative of other employees ignored the fact that the Claimant at no time until the appeal suggested that he was speaking on behalf of other employees as a T&GW representative. The use of the word 'we' was not enough to indicate that. In the circumstances no further investigation was required other than that which took place: Boys and Girls Welfare Society v MacDonald [1997] ICR 693.
32. The finding that the failure by the Respondent to personally interview twelve persons identified on the list handed to Mr Greenland at the disciplinary interview meant that the investigation was fatally flawed, was misconceived. As the Employment Tribunal's own findings indicated, when Mr Greenland had attempted to conduct a survey of employees to ascertain whether or not they had been prevented from taking their breaks he had been stopped at the behest of the T&GW. This was in the circumstances an invalid finding.
33. There were numerous other errors in the Employment Tribunal's reasoning and no proper evidential basis for their findings. They ignored the fact that the Claimant had made an untruthful statement which caused damage to the Respondent, they found that there was 'spinning' by the media when that was contrary to their own finding that the Claimant had accepted that the article was a distortion of the truth, that article including his accurately recorded words which he accepted were wrong. He acknowledged that his comments would have a negative impact on the Respondent, and at paragraph 17, that what had been said was a serious allegation about the Respondent. There was simply no scope for finding that there was media spin here.
34. The finding that the Respondent had not suffered any commercial damage flew in the face of the unchallenged evidence of Mr Greenland that aggravation had been caused with existing clients, a contract lost and a failure to obtain extensions to contracts with existing clients. The Employment Tribunal's reference to Health and Safety did not appear in either party's submissions and it was unknown what reliance they had placed upon it. The finding that there was nothing intrinsically untrue in the article flew in the face of the Tribunal's own findings as to what the Claimant had accepted about the comments made by him to the reporter. Even if such comments had been made as a shop steward representing his members, the Claimant was not entitled to state something that was untrue which he knew to be untrue and which had a negative impact on the Respondent. The finding that there was anti union bias was not a justification for finding that the dismissal was caused by such. That was an unacceptable leap.
35. As there was a clear and obvious reason for dismissal, namely misconduct, a finding that the Respondent took the opportunity to dismiss the Claimant can neither be justified nor support the majority finding.
36. The majority decision should therefore be set aside and either a finding made by the Employment Appeal Tribunal, in accordance with the minority ruling that the Claimant was dismissed fairly for a conduct reason, or alternatively, the matter should be remitted to a new Tribunal for a rehearing.

The Respondent's submissions.

37. Mr Skeate for the Respondent accepted that it was difficult in parts to understand the Employment Tribunal's reasoning and suggested that if that was the conclusion of the EAT then the matter should be sent back to the same Employment Tribunal for them to give further reasons.
38. The burden of proof however was upon the Appellant to prove that the dismissal was not for trade union reasons and it was quite unable to do this. There was abundant evidence for a finding of anti union bias sufficient to transfer the burden to the employer which it had failed to discharge.
39. The Claimant admitted only that the article was a distortion rather than his words within it. The use of the word 'we' showed that he was acting on behalf of others.
40. The challenge which the Appellant made was essentially a perversity point and there was no prospect of them establishing that.
41. The procedural failures were in any event grave. The LF12's were flawed evidence as they only commenced in May 2006; no transcript of the interview was obtained from the reporter so the quotes from the Claimant could be seen in context; the twelve on the list should have been personally interviewed. It was only the surveys which the union stopped, not personal interviews.
42. The findings as to spin, and that the quotes were not intrinsically untrue as at least one person was said by the Appellant not to have taken a break, were justified findings. In any event the Claimant had no editorial control over what was put in the article or how his quotes would be placed. He had no way of knowing whether the article might be damaging or not. The word 'we' did not necessarily include the Claimant himself. The failure to recognise that the Claimant was speaking on behalf of other members, for the union, and not for himself was a serious failure by the Appellant, as was their failure to carry out a proper investigation. The Boys and Girls Welfare Society principle only applied when the facts were so clear that no further investigation was needed. That was not the case here and accordingly the third limb of the test Burchell had not been satisfied. Furthermore, the failure to do anything about grievances between January and May amounted to substantial unfairness.
43. The EAT should therefore, Mr Skeate submitted, dismiss the appeal as the perversity challenge failed, alternatively if that was not to be accepted the EAT should itself replace the Employment Tribunal's majority decision with a judgment that the Claimant was unfairly dismissed due to serious procedural unfairness and because the allegation which he made to the press was in fact true. If the matter had to be remitted it should only be remitted to the original Tribunal who were properly seized with the matter and had seen and heard the witnesses.

Conclusions.

44. We have come to the clear unanimous conclusion that the majority decision of the Employment Tribunal cannot be allowed to stand. We are satisfied that the majority failed to ask itself the essential liability question, namely what was in the mind of the dismissing officer Mr Greenland or the appeal officer Mr Martin. Instead they found that the Claimant had been dismissed by reason of his trade union activities without any analysis of what was in the minds of the dismissing officer or the appeal officer. Their thought processes were simply not examined. If the Employment Tribunal had in fact considered these matters, but not analysed them or expressed them in their reasoning, the failure in their reasoning process would be so grave that their decision would have to be set aside upon this basis. The evidence of both Mr Greenland and Mr Martin was that the Claimant had been dismissed because of his gross misconduct in stating what he did to the press. Nowhere in their decision does the majority consider this evidence unless it can said that, by inference, when saying that the publication of the article provided the Respondent with an opportunity to terminate the Claimant's employment, they were impliedly rejecting the whole of Mr Greenland's and Mr Martin's evidence on these central issues. That cannot be sufficient.
45. It follows therefore that either because of the failure to consider the essential liability question or through the failure to give adequate reasons, the decision of the majority cannot stand.
46. Nor do we consider that any procedural failings would justify a finding that the Claimant had been dismissed by reason of his trade union activity. Furthermore the reasoning for the principal findings of procedural shortcoming is difficult to follow and also inadequate. We are unclear from the findings of the majority as to what occurred in so far as the twelve named on the list who it was alleged had been prevented from taking their 10 minute breaks. In paragraph 23 the Employment Tribunal finds that Mr Greenland attempted to conduct a survey of employees but that had been stopped at the behest of the T&GW. There is no finding as to whether the T&GW sought to stop all contact with the twelve on the list or whether it was simply the written surveys which they wished to stop rather than interviews as well. We note however that after the T&GW request to stop all contact "..the Claimant was handed copies of the statements that had been taken." We are unclear as to what further investigation should have been carried as to the truth of the article given the Claimant's admissions to them, albeit with the benefit of an interpreter. It is unclear whether the majority took into account the fact that neither the Claimant nor anyone representing him had sought to state until the appeal hearing that he was acting on behalf of the trade union when speaking to the press. Nor do the majority take into account that Mr Martin did consider the Claimant's role as a shop steward, after the matter had been raised for the first time.
47. It is not possible in these circumstances to assess the weight to be given to the findings of procedural shortcomings.
48. We are satisfied that the only solution is for the matter to be remitted to a fresh Tribunal for rehearing. It is inappropriate for the matter to be sent back to the original Tribunal where that is a majority decision, with a strong dissenting decision, and where there are substantial new facts to be found. We do not regard the unfortunate death of Mr Cashman as making any difference to this conclusion. He was not a witness of central importance in the case.
49. In view of the conclusion that remission to a fresh Tribunal for full rehearing is the only proper conclusion we can reach, we make no comments on the final ground of appeal in so far as it relates to the evidential findings. These will be matters which will be determined by the fresh Tribunal.
50. Accordingly we allow the appeal and direct that the matter be remitted to a fresh Employment Tribunal for rehearing.