[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Davenport v Taptonholme For Elderly People [1999] UKEAT 559_98_1401 (14 January 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/559_98_1401.html Cite as: [1999] UKEAT 559_98_1401

[New search] [Printable RTF version] [Help]

APPEARANCES

 

For the Appellant	MR I HARRISON (Representative) Pitsmoor Citizens Advice Bureau 30 Spital Hill Sheffield S4 7LG
For the Respondents	MR D TATTON-BROWN (of Counsel) Wansbroughs Willey Hargrave 241 Glossop Road Sheffield S10 2GZ


 


JUDGE COLIN SMITH QC: We have to consider first, when we are considering this appeal, whether we should admit certain further evidence, namely, the letter which is in the bundle before us at page 16, dated 19 March 1998 addressed to Miss Helen Jackson, Member of Parliament from Howard Morton, describing himself as Head of Service, Disabilities and Mental Health of the Family & Community Services Department, of the Sheffield City Council. We have had the benefit of clear and concise well argued submissions in relation to it. The letter was of course, not before the Tribunal because it is dated 19 March 1998. The letter is in these terms:-

"I am writing further to my letter of 9th February.

I have confirmed that Mrs Davenport was dismissed from Taptonholme Residential Care Home solely on the basis of the Adult Protection Investigation in May 1997 and the case conference which followed it. It is not the purposes of this type of investigation to make final judgments about the conduct of staff, and the social services managers who attended this case conference were given to understand that a disciplinary investigation would be commissioned. This has not taken place and it is therefore not possible to be satisfied that the treatment of Mrs Davenport has been fair.

In the light of the above I feel that the only safe way forward will be to complete the work which was left unfinished. I am therefore now requiring that a disciplinary investigation be carried out specifically to look at the conduct of the two staff members named at the case conference. Mrs Davenport will be asked to contribute to the investigation and will be given information about the allegations against her. When this investigation is complete any recommendations will be submitted to the Inspection and Registration Unit, who will make a judgment as to whether the names of these two former members of Taptonholme staff should then remain on the Local List.

I will of course write again at that point to advise you of the final decision."

Now it is quite clear that the circumstances in which the Employment Appeal Tribunal can receive further evidence or fresh evidence, are set out correctly by the Employment Appeal Tribunal in the case of Wileman v Minilec Engineering Limited [1988] ICR 318. Both Counsel agree that there is a three fold cumulative test. First of all it is for the Appellant to show that the evidence could not have been obtained with reasonable diligence for use at the Tribunal, secondly the Applicant must show that the evidence probably would have had an important influence on the result of the case and thirdly, that the evidence is apparently credible.

We are not going to go into detail about the nature of the appeal, although it is necessary to say something about the matter.

The substance of appeal is an appeal and cross appeal relating to proceedings before an Industrial Tribunal held at Sheffield on 5 and 27 January 1998 and of which Extended Reasons were sent to the parties on 11 February 1998. The Industrial Tribunal held unanimously that the Appellant, Mrs Davenport had been unfairly dismissed by the Respondents the Taptonholme for Elderly People when she was summarily dismissed from her employment as a night care assistant by the Respondents on 10 July 1997, but the Industrial Tribunal went on to hold that it was just and equitable not to order a basic award and that compensation should be limited to the appropriate notice pay to which the Appellant was contractually entitled.

It is to some extent necessary in order to rule on the question of the fresh evidence to refer to some of the matters that were before the Tribunal, and some of the facts as found by them. The Respondents are a charity run by a board of volunteer trustees operating a residential home for about 18 very elderly people, who are vulnerable and dependent on the staff. The home is a registered care home under the 1984 Act and the Sheffield City Council are the registration authority charged under the statute with inspecting, supervising and approving the operation of the home and discharging its responsibilities apparently through its Family and Community Services Department.

The Industrial Tribunal accepted that the City Council were in a position to dictate to the Respondents who should not be employed at the home. In effect the Respondents had no option but to comply with such instructions. The Sheffield City Council by the Family and Community Services Department kept a list of names of persons whom they regarded as undesirable for such employment, and once the employee of the Respondents was put on an undesirables list, kept by the Family and Community Services Department, it was unrealistic to suggest that the Respondents could attempt to challenge such a decision or do other than accept such a decision, and to do otherwise would be likely to lead to the cancellation of the home's registration.

Now what happened was that in outline, and it is only an outline, and it is subject entirely to hearing full arguments in due course on the appeal later today, is that in about April 1997 certain allegations were made against the Appellant and another night care assistant as reported to the board of the Respondents by the manager of the home, Mrs Nettleton. The board felt obliged and did report such allegations to the registration authority. It appears from the findings of the Tribunal that the registration authority passed the matter to their Adult Abuse Section who indicated that an investigation would be carried out, which might involve the Police. Residents were interviewed by the Adult Abuse Unit, and the Chairman of the Respondent Board wrote to the Appellant in the terms of his letter of 7 May, as quoted at paragraph 6 of the Industrial Tribunal decision. It appears that a case conference was held by the Family and Community Services Department on 2 May 1997, and there followed, vitally to the decision we have to make on the fresh evidence issue, the Family and Community Services Department's letter to the Respondents dated 15 May 1997, of which the relevant part is quoted in extenso at paragraph 7 of the Industrial Tribunal decision.

The letter is self-explanatory and should be deemed to be included within this judgment. There is no doubt that as a direct consequence of that letter the Chairman of the Respondents wrote the letter of dismissal dated 10 July 1997 as set out in full by the Industrial Tribunal at paragraph 8 of its decision which had the result that the Appellant was summarily dismissed.

Among the issues that arise on this appeal is a challenge to the finding by the Industrial Tribunal that the reason for the dismissal amounted to some other substantial reason of a kind such as to justify dismissal of the Appellant with the meaning of s.98(1)(b) of the Employment Rights Act 1996; that is in issue on this appeal.

Another issue on the appeal, particularly on the cross-appeal, is whether the Industrial Tribunal correctly decided that the statutory test of fairness had been met under s.98(4) of the Act and that it was fair and reasonable in all the circumstances and within the band of reasonable decisions of a reasonable employer to dismiss for that some other substantial reason.

So those matters are both central matters to be decided on this appeal and therefore it is obvious that we had to bear those matters very much in mind in deciding whether this evidence should be admitted.

Now against that background we come to consider the submissions and apply them in relation to each of the limbs of the test. The first question is whether the evidence could have been obtained with reasonable diligence for use at the Tribunal. It was pointed out by Mr Harrison that the Applicant was not represented, although she had the benefit of the help of her son who is not a lawyer. He pointed out that efforts had been made apparently to obtain discovery, letters had been sent to the Sheffield City Council and no response had been received.

On the other hand it was submitted by Mr Tatton-Brown on behalf of the Respondents that if the argument was going to be addressed to the Industrial Tribunal that the Respondents' hands were not really tied by the letter of 15 May 1997 and that that was merely an interim recommendation of some kind or another, it would have been perfectly possible had that approach been one that was going to be taken for Mr Morton to have been witness summonsed to appear before the Industrial Tribunal.

It also would have been possible for further investigations to have been made as to those who attended a particular case conference and for witness summons to have been issued to throw light upon what had occurred at that conference held by the Sheffield City Council.

We have concluded on this particular point that despite the fact that the Applicant was unfortunately not represented, we believe this evidence or the substance of this evidence could have been obtained with reasonable diligence for hearing at the Tribunal. Not of course in the form of the letter itself, because that letter is dated 19 March 1998, but with regard to the contents of the letter. It would have been perfectly possible, with reasonable diligence, especially with the help of advice from, for example, the Citizens Advice Bureau, for the relevant witnesses to have been witness summonsed, so that the evidence could have been obtained and placed before the Industrial Tribunal.

That is our finding in relation to that. On the face of it therefore, that actually disqualifies the evidence from being admitted before us, because, as we said earlier, the test under Wileman v Minilec is cumulative. However, we think it important we should also consider the other elements of the test. The second element as we have already said is whether the introduction of the evidence would have had an important influence on the result of the case. It was argued by Mr Harrison that it might strengthen the argument on appeal with regards to the Lavelle v Alloa Brewery Co Ltd (EAT/655/85) point on the basis that it might shed a different light on the letter of 15 May 1997.

We do not accept that submission since we do not think that the contents of the later letter would have affected the Industrial Tribunal's characterisation of the reason as being some other substantial reason. The Industrial Tribunal had to look at what the employer knew and reasonably knew at the time and the Industrial Tribunal had to look at the apparent meaning of the letter which the employer had received on 15 May 1997. In our judgment, the Industrial Tribunal could not have really been helped and nor could we be assisted on the hearing of the appeal by an ex post facto rationalisation of what the letter is apparently intended to mean, given ten months later in circumstances where we note that despite the contents of the letter of March 1998, in fact no further investigation whatsoever had been carried out by the Sheffield City Council. Further we do not accept Mr Harrison's submission that the Industrial Tribunal might have been able to interpret the letter of 15 May 1997 as merely the starting point of an investigation rather than the conclusion of an investigation, and that they might have been able to and should have concluded that that was how the employer should have understood its meaning at that relevant time.

We accept the argument placed before us by Mr Tatton-Brown that the Industrial Tribunal's task under s.98(4) was to determine the reasonableness of the Respondent's action at the time in the light of the information they had at the time and we accept that on the face of the letter of 15 May, it was written in very unequivocal language. Nobody suggested at the hearing before the Industrial Tribunal that the letter of 15 May was of an interim nature or the starting point of an investigation. In our judgment neither the Industrial Tribunal nor ourselves would have been assisted by the letter of 19 March 1998 and it is inconceivable that it would have had any influence on the result of the case despite the arguments of Mr Harrison to the contrary.

Finally, we do not doubt the authenticity of the letter in the sense that it is in no way of course a forgery or anything of that kind and we fully accept that Mr Howard Morton entirely correctly described himself. However, we take the view that the letter cannot really be regarded as apparently credible in the light of the fact that it was written in reply to a letter which, although it did not directly threaten legal action against the Sheffield City Council in respect of the way in which they had handled this particular matter, nevertheless to an experienced head of service it would have imported such threat of legal action, either in negligence or possibly breach of statutory duty and the letter must be seen in our judgment in that context. Properly so construed it is open to the interpretation that it was really an attempt to backtrack or qualify the apparently unequivocal letter of 15 May 1997. So for all those reasons we have concluded that we should not allow before us the admission of the letter of 19 March 1998 and we rule accordingly.

JUDGMENT ON THE APPEAL

Some of what we are going to say now by way of judgment on the full appeal has already been said because we had to deal with the earlier application, but it is important in this case that we give a full judgment on the appeal itself and therefore there will be a degree of repetition inevitably.

This is an appeal by Mrs Davenport who was the Applicant before the Industrial Tribunal relating to proceedings before a full Industrial Tribunal held at Sheffield on 5 and 27 January 1998 of which Extended Reasons was sent to the parties on 11 February 1998 when the Industrial Tribunal held unanimously that the Appellant, Mrs Davenport, had been unfairly dismissed by the Respondents the Taptonholme for Elderly People when she was summarily dismissed from her employment as a night care assistant on 10 July 1997, but the Industrial Tribunal held that it was just and equitable nevertheless not to order a basic award and that compensation should be limited to the appropriate notice pay to which the Appellant was contractually entitled.

The real issue on the appeal before us today, as it has been argued before us, is whether the Industrial Tribunal were correct in finding that there was some other substantial reason to justify the dismissal within s.98(1)(b) so that the dismissal was fair within s.98(4) of the Act. The principal point of appeal being the first point of appeal namely that the Industrial Tribunal erred in law in holding that there was some other substantial reason justifying dismissal within section s.98(1)(b).

If, contrary to the submissions of Counsel for the Appellants, the Industrial Tribunal were correct in finding that there was some other substantial reason within s.98(1)(b) and that the Industrial Tribunal approach was correct with regard to s.98(4) so that the dismissal was fair, then obviously the question relating to the basic award goes by the board and we need not consider it.

We should also mention that it is accepted by Counsel for the Appellant that it was an error of law for the Industrial Tribunal to characterise the dismissal as unfair simply on the basis that appropriate contractual compensation had not been paid in accordance with the Appellant's notice entitlement. We understand that that matter has now been resolved in that the correct contractual sum to which the Appellant was entitled mainly seven weeks pay has been paid by the Respondents and that even though it was wrongly ordered to be paid, the Respondents will not seek to recover that sum from the Appellant since they accept that she may well have had a good claim for damages for wrongful dismissal, and they do not seek to recover that sum. They make no concession that there was any wrongful dismissal but they have undertaken not to seek to recover that sum which has already been paid over to Mrs Davenport.

To understand the point argued an appeal, it is necessary briefly to set the appeal in its factual context in accordance with the clear findings made by the Industrial Tribunal. It appears from the findings of fact made by the Industrial Tribunal that the Respondents are a charity run by a board of trustees who are volunteers, operating a residential home for about 18 very elderly people, whom the Industrial Tribunal found to be persons who by reason of their age, mostly being over 90 years of age, are vulnerable and dependent on the staff. The Industrial Tribunal found that the home is a registered care home, that being a creature of statute, since it is a registered care home under the 1984 Registered Homes Act and the Industrial Tribunal found that the Sheffield City Council are the registration authority, that being a statutory authority charged with inspecting, supervising and approving the operation of the home. The Industrial Tribunal found as a fact that the Sheffield City Council discharge its responsibilities through its Family and Community Services Department. All this appears from paragraph 3 of the Industrial Tribunal's decision.

The Industrial Tribunal accepted, in the course of a well reasoned decision, that the Sheffield City Council were in a position to dictate to the Respondent Trust in respect of those persons who should not be employed at the home. Further, that the Respondents had no option but to comply with such instructions. That the Sheffield City Council by the Family and Community Services Department kept a list of names of persons whom they regarded as undesirable for such employment, and that once an employee of the Respondents was put on the "undesirables list", kept by the Family and Community Services Department it was on the findings of the Industrial Tribunal unrealistic to suggest that the Respondents could attempt to challenge on appeal such a decision or do other than accept such a decision, and that to do otherwise would be likely to lead to the cancellation of the home's registration. Those were findings of fact made by the Industrial Tribunal.

The Industrial Tribunal went on to find, as set out in the summary of the relevant facts found by the Industrial Tribunal, that by about mid-April 1997, as appears from paragraph 5 of the Industrial Tribunal's decision, certain allegations were being made against the Appellant and another night care assistant as reported to the board of the Respondents by the manager of the home or the matron of the home, Mrs Nettleton. The Industrial Tribunal, in effect, held that the board were obliged to report such allegations to the registration authority. That appears from the first sentence of paragraph 6 of the decision of the Industrial Tribunal. It then appears from the findings of the Industrial Tribunal that the registration authority, of course the Sheffield City Council, passed the matter to their Adult Abuse Section, who indicated that an investigation would be carried out, which might involve the Police.

It followed then on the findings of the Industrial Tribunal that a number of the residents were interviewed by the Adult Abuse Unit and statements were taken from staff as well. The statements from staff were in fact taken by the Respondents' own solicitors. The Chairman of the Respondent Board wrote to the Appellant in the terms of his letter of 7 May, as quoted by the Industrial Tribunal in paragraph 6. We need not repeat that quotation. There followed a case conference held by the Family and Community Services Department on 12 May 1997 and immediately after that case conference, the Family and Community Services Department of the Sheffield City Council wrote a letter to the Respondents upon which the dismissal was based and upon which the Respondents relied as amounting to some other substantial reason for dismissal, namely the letter of 15 May 1997 of which the relevant paragraph is quoted in extenso in paragraph 7 of the Industrial Tribunal decision and we need not set that out in full. Suffice it to say that the letter stated in terms that it seemed clear that abuse had been perpetrated on residents by the Appellant and another night care assistant and it was recommended that those two members of staff should not be reinstated but should be placed by the Inspection and Registration Unit of the Family and Community Services Department on the "undesirables list".

As appears from the findings of the Industrial Tribunal as a direct consequence of that letter after holding a disciplinary inquiry on 24 June 1997, the Chairman, Mr Winkworth-Smith, of the Respondents wrote the letter of dismissal dated 10 July 1997 to Mrs Davenport, the Appellant, as set out in full by the Industrial Tribunal at paragraph 8 of its decision which had the result that the Appellant was summarily dismissed.

Those were broadly the facts found by the Industrial Tribunal. There was an appeal from the decision to a director of the Respondents which was turned down. At all material times we should note that the Applicant was being represented by her son, Mr Jason Brown, who although he is not a lawyer obviously represented her with skill.

Having heard and recited the submissions as they record in paragraphs 10 and 11 of the decision, the Industrial Tribunal held summarising their findings (1) that the content of the letter dated 15 May 1997 to the Respondents from the Family and Community Services Department was the reason for the dismissal and they held that it amounted in law to some other substantial reason of a kind such as to justify the dismissal of the Appellant within the meaning of s.98(1)(b) of the Employment Rights Act 1996. They express that in their own words in paragraph 13 of their decision. (2) Next, applying the statutory test of fairness as contained in s.98(4) of the Act which they cited in full, and in the light of the citation which had been properly drawn to their attention by Mr Jason Brown from the Court of Appeal decision of Dobie v Burns International Security Services (UK) Ltd [1984] IRLR 329 which constrained them particularly and crucially to have regard to the degree of injustice to the employee resulting from the third party pressure to dismiss, the Industrial Tribunal concluded that the Respondents were placed in a very difficult position and had acted reasonably in accordance with s.98(4). They dealt with that matter particularly at paragraph 14 of their decision and we would wish the whole of their reasoning in paragraph 14 up to the sentence which ends "within the band of reasonable decisions of a reasonable employer" to be incorporated within this judgment.

The Industrial Tribunal then went on to make what are accepted really to be decisions which are arguably at any rate erroneous relating to the basic award and relating to contractual notice, which we need not consider any further in this appeal.

Counsel for the Appellant, Mr Harrison's, main submission, is that the Industrial Tribunal erred in law in deciding that what he characterised as improper third party pressure was capable of being a potentially fair reason to dismiss the Appellant as some other substantial reason within s.98(1)(b) of the 1996 Act. He submitted that that conclusion of the Industrial Tribunal was in effect foreclosed by the decision of the Employment Appeal Tribunal sitting in Scotland namely the case of Thomas Lavelle v Alloa Brewery Co Ltd a decision of the Scottish EAT of which we have seen a transcript under reference appeal number EAT/655/85. He submitted that there were close similarities between the facts of that case and the facts of the present case and he relied upon the decision of the Scottish Employment Appeal Tribunal to the effect that improper police pressure could not amount to a substantial reason justifying the dismissal of Mr Lavelle.

However, in our judgment Lavelle is, and was recognised as being, a very special and unusual case and does not lay down, or purport to lay down, any general principle qualifying in any way the broad wording of s.98(1)(b). We note that Lord McDonald, giving the judgment of the Employment Appeal Tribunal, was very careful to state that the Employment Appeal Tribunal in Scotland found that particular case to be an "extraordinary case", as appears from page 1 of the transcript. Later on in the judgment, the learned Lord McDonald stated as follows:

"We consider that that case (referring to Dobie v Burns) is clearly distinguishable from the most unusual facts of the present case."

We have considered the case carefully and we entirely agree with the Employment Appeal Tribunal in Scotland that the facts were indeed highly unusual and we accept and adopt the submissions made to us by Mr Tatton-Brown in paragraphs 13 to 17 of his skeleton argument with regard to the case of Lavelle. It was a case which involved what was plainly quite unwarranted police suspicion against Mr Lavelle. It was a case where no charge was preferred against Mr Lavelle by the police and no police proceedings took place against him. It was a case where on the finding of the Industrial Tribunal and the EAT the police had brought what those Courts found to be grossly improper pressure, and indeed what we would characterise as officious pressure to bear upon the Respondent employers by threatening that if they did not sack Mr Lavelle, their public house licence might be at risk when there was no conceivable justification for such pressure. It was plainly for Magistrates or their equivalent in Scotland to grant or withhold licences not for the police. The Industrial Tribunal in Lavelle had found that as a fact that, without any further consultation of any kind with Mr Lavelle, the employers simply caved in to the improper police pressure that was brought upon them and dismissed Mr Lavelle without carrying out any investigations themselves.

In our judgment, that was a highly unusual case, and is to be sharply distinguished from the present case, since in the present case we agree with Mr Tatton-Brown's submission to us that there was apparently no improper pressure whatsoever brought to bear upon the Respondents by the Sheffield City Council through its relevant departments. The Sheffield City Council was the registration authority, it was charged with inspecting, supervising and approving the operation of the home. It was obliged to investigate allegations of abuse, and it was entitled to recommend that abusers should not be reinstated and it was entitled to put such persons on the undesirables list. All of those things it was entitled to do and it was plainly entitled to bring proper pressure upon employers of the staff at residential homes of the kind the Industrial Tribunal was concerned with in this case to comply with such requirements of the statutory body constituting the registration authority.

What was improper, on the findings of the Industrial Tribunal, was the procedure which the Sheffield City Council had followed in reaching the decisions that they appeared to have reached in the letter of 15 May. That was where the alleged impropriety lay, not in the pressure that was brought to bear on the Respondents, and accordingly, in our judgment, even assuming with respect that Lavelle is correct on its special facts, we find it does not in any way lay down any general principle. The general principle is in our judgment to be found in cases such as Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812 and indeed in the relevant paragraphs of Harvey namely paragraphs D 1900 to 1910 and 1911. The upshot of those authorities is that a dismissal at the behest of a third party, at least where no improper pressure is involved, is potentially a fair dismissal within s.98(1)(b) as some other substantial reason, provided the Industrial Tribunal consider whether the employer had taken into account the potential injustice to the employee, in considering whether the dismissal is fair in all the circumstances as the Industrial Tribunal is required to do under s.98(4) of the Act.

Accordingly we have concluded that we must reject the argument presented to us on behalf of the Appellant based on the case of Lavelle for the reasons which we have given.

Mr Tatton-Brown points out that there was no ground of appeal contained within the documentation to the effect that Industrial Tribunal had erred in any way in their approach to the discrete but crucial question of whether the Respondents had acted fairly within s.98(4) and Mr Harrison accepts that is the position. Nevertheless, this is a somewhat unusual case and it is clear that it is always important for injustice to the employee to be considered expressly and explicitly by the Industrial Tribunal in the sense that the Industrial Tribunal must be satisfied that the employer has taken it properly into account in the circumstances where there has been a dismissal at the behest of the third party and therefore for some other substantial reason with s.98(1)(b).

We consider it important that we should satisfy ourselves that the Industrial Tribunal has taken the correct approach with regard to s.98(4) and, accordingly, we allowed Mr Harrison to develop an argument along the lines that since there was such severe injustice to the Appellant and that was such an overriding factor that the decision of the Industrial Tribunal that the employers had acted within the bands of reasonableness could not stand. It was in effect a perverse decision. We find that we cannot accept that submission.

In our judgment, a careful analysis of the Industrial Tribunal decision demonstrates their approach to s.98(4) could not be faulted. First of all, in paragraph 10, they correctly cited the key passage in the Master of the Roll's judgement in Dobie v Burns International Security Services (UK) Ltd and set it out in accordance with the submission made to them by Mr Jason Brown on behalf of the Appellant. Secondly, they themselves were very severely critical of the way in which the City Council had handled the matter, see paragraph 12 of their decision which speaks for itself. Indeed they considered that the Appellant had been denied justice at the hands of the local authority and expressed their belief that she should have a remedy in the Civil Courts. Thirdly, when they came back to consider s.98(4) as they did in paragraphs 13 and 14 of their decision, they clearly had fully in mind the guidance given by the Court of Appeal in Dobie with regard to the necessity of taking fully into account, as a very important factor, the question of whether the employers had taken into account in their turn the injustice to the employee and the extent of that injustice and they expressed themselves in regard to that matter as set out in paragraph 14, namely as follows:

"We accept too that they were aware of the unsatisfactory way in which the F & CS had made that decision. We think that they considered that matter. We accept that they took advice and they knew that if they were to ignore the decision they risked closure of their home. We find that in reality they had no option but to dismiss the Applicant."

They went on to find the disciplinary procedure was fair and reasonable and that the decision was within the band of reasonable decisions of a reasonable employer. It is to be noted that they set out in full the letter of dismissal written by Mr John Winkworth-Smith, which included the paragraph demonstrating that he on behalf of the Respondents had taken into account the apparent shortcomings of the Sheffield City Council in the way they had investigated the matter.

So for all those reasons, in what was plainly a difficult case, we take the view that the Industrial Tribunal were entitled to conclude that the employers had acted reasonably within s.98(4). It was not the Industrial Tribunal to substitute their view for that of the employer and they did not do so. They judged as an Industrial jury whether the employers' decision on the particular facts of this particular case was within the band of reasonableness and they decided that it was.

In our judgment, accordingly, we find we must also dismiss that ground of appeal. We would not wish to part with this case without saying that whatever be the rights and wrongs of the underlying allegations about which we can say nothing, it does appear to us on the face of the documents that there may have been an unsatisfactory approach to this particularly delicate investigation on the part of the Sheffield City Council. We are concerned about that aspect of the matter and our concern has not been laid to rest by the letter of 19 March 1998. Those matters are not within our jurisdiction and we pass no judgment upon them save that we would expect that, should it be necessary to do so, the Sheffield City Council would wish to look closely at the procedure that was followed in this particular case. Particularly bearing in mind the rights of the Appellant, Mrs Davenport.

We substitute a finding that the dismissal was fair and the appeal is dismissed.