1. It is an appeal by the Respondent in those proceedings against a Judgment of an Employment Tribunal sitting over a day, and then a day in deliberations, at Bury St Edmunds under the chairmanship of Employment Judge PritchardWitts, sent to the parties on 18 July 2011. The Claimant represented himself, and the Respondent, having hitherto been represented by solicitors, has instructed Mr Rohan Pirani of counsel. The Claimant claimed unfair dismissal; the Respondent contended it dismissed the Claimant fairly for gross misconduct having carried out the appropriate procedural steps. The Employment Tribunal decided in the Claimant's favour and upheld his claim. At a remedy hearing the Claimant was awarded £21,425.92, pursuant to a Judgment sent to the parties on 12 March 2012. That figure was after of a 65 per cent reduction to take account of the Claimant's contributory conduct under sections 122 and 123 of the Employment Rights Act 1996. There is no appeal from that. The sole issue is the Respondent's appeal in respect of the adverse finding on unfair dismissal. Directions sending this appeal to a full hearing were given by HHJ Peter Clark.

1. The relevant legislation is not in dispute and is cited in full by the Employment Tribunal, as we do: section 98(1) Employment Rights Act 1996 says

"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— […]

(b) relates to the conduct of the employee. […]

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

(a) depends on whether in the circumstances (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, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

1. The Tribunal directed itself, as we have said, erroneously in relation to the burden of proof but otherwise correctly on Burchell. It then said this:

"8. The Respondent reminded the Tribunal that it should not substitute its own view but only consider the objective standards of a reasonable employer. That is a matter which we have constantly reminded ourselves about in the course of our discussions and the Judgment."

1. That is the primary point in this case, for it is contended that, notwithstanding that selfdirection, the Tribunal was in a mindset so as not to take a responsible and reasonable objective view but to put itself in the shoes of the employer, which is what it should not do.

1. The Respondent is in the business of telecommunications and employs 100,000 people in Great Britain. The Claimant was employed as a customer service engineer commencing on 28 November 2002.

1. Relations between the Claimant and his manager, Mr Easy, became strained, there was a history of illwill between them, and the Claimant became affected by depression and stress. In due course the Claimant was referred to his GP, Dr Willis, who treated him for a history of stressrelated problems. It is important to record the GP's opinion given on 8 October 2010, which is this:

"…Lawrence has a long history of stress related problems going back as far as summer 2006 when he was involved in a fracas at a local pub and was badly beaten by several other men. There were very significant problems in resolving the legalities from that dispute, which took a considerable toll on him resulting in him having to take antidepressants and Diazepam to calm his severe anxiety state. My records show that he experienced stress at work during this period which I understand has recrudesced.

Lawrence's problems snowballed in late 2007 when he ran into financial difficulty combined with work related and family pressures. He is unwell enough to warrant referral to our community psychiatric link worker, who identified some features of paranoid personality disorder with mood swings ranging from low and hopeless to almost hypomanic. He did not however fit the criteria for depression or cyclothymic mood criteria. She worked with him to try and help him let go of his grudges and put some work into his understanding his anger response. There seems to have been some satisfactory resolution in his overall state of mind by April 2008.

Lawrence presented again in September feeling very harassed and stressed. There was no suicidal ideation or evidence of a formal depressive state but his anxiety levels were such that I again prescribed him Diazepam as an anxiolytic.

Bearing in mind the characterological problems that Lawrence has and the way he reacts to stress, there is no doubt at all that his impending disciplinary procedure is likely to cause significant destabilisation.

I hope this can be taken into consideration by the relevant authorities who may wish to commission an occupational health report prior to proceeding further. …"

1. This is a reflection on the charges made against the Claimant, of which there were six. Three, however, were dropped by the manager, Mr Lipscombe, who investigated the charges against him. The manager above Mr Lipscombe who heard the Claimant's appeal and dismissed it was Mr Gay. He had replaced Mr Easy as the relevant manager to hear the appeal against Mr Lipscombe's decision, and he formed the view that it was correct for Mr Lipscombe to have dropped three charges, for he accepted that the Claimant's irrational behaviour was caused by confusion about his stressrelated illness. So it was that three charges were upheld against him, and in respect of which he was dismissed; they are as follow:

"1. REPEATED UNAUTHORISED USE OF YOUR COMPANY VEHICLE, when you used your Openreach vehicle on numerous occasions for unauthorised journeys.

2. MISUSE OF COMPANY FUEL CARD.

3. ABUSE OF STORES ORDERING PROCESS, in that you have repeatedly ordered excessive stores items for which you had no work requirement."

1. This was held to be gross misconduct. The principal period during which the offences occurred was April to July 2010. On appeal, Mr Gay considered the material before Mr Lipscombe and he himself formed the view that the offences were made out. The Claimant was represented by different union officers at the disciplinary and appeal hearings. We have been taken in detail to the proceedings and to the decision letters that issued following those hearings. It is plain that the union officers were making a case for the Claimant's special treatment – as they put it, mitigation – in respect of a history of depression and stressrelated illness, and the drug diazepam, which he had been taking. The latter is found by the Tribunal to be a red herring, because although the Claimant, as can be seen from Dr Willis' letter, had had that drug at least until 2008, matters seemed to have been resolved satisfactorily, and one assumes there was no represcription until September 2010. So the Claimant was not taking the drug at the time, and this can be dismissed.

1. However, the second part was contentions by the union officers that there should be no dismissal of the Claimant while there were still issues relating to his mental health, and that could not be resolved until occupational health had made a decision.

1. The Tribunal went through the three stages in Burchell, and it is not disputed that the Respondent passed the test. The Tribunal found as follows:

"96. Mr Lipscomb [sic] did genuinely believe the Claimant was guilty of misconduct. The belief was based on reasonable grounds following a reasonable investigation. The facts of the allegations were established and the explanations were not consistent with the facts. However, there was sufficient material before Mr Lipscomb to put him on notice that all was not well nor what it seemed as far as the mitigation situation was concerned. Mr Lipscomb had already been misled in our view by HR stating to him that because of the satisfactory resolution in Mr Daniels' state of mind by April 2008 he need not look any further. He was further misled by the issue concerning Diazepam. What does operate in our view to taint the dismissal decision with unfairness is the failure to act upon Dr Willis' final paragraph which was the need to commission an Occupational Health report prior to proceeding further. This of course would not taint a dismissal which related to a small organisation. However, with BT we are dealing with a substantial global concern with substantial facilities and resources at its disposal. In a case of this nature, given the information provided from Mr Willis and from the trade union representative, the Tribunal would have expected a reasonable employer in this position to have certainly written to Occupational Health asking for a full report prior to proceeding any further."

1. As Mr Pirani correctly says, the first two sentences discharge the burden it had initially imposed on the Respondent, of proving a reason and of the other two tests. The question is whether a reasonable employer would have dismissed the Claimant in all the circumstances. This is the approach to be taken following Iceland Frozen Foods Ltd v Jones [1983] ICR 17.

1. The Tribunal's conclusion on all other matters appears to be in favour of the Respondent. The outcome was that there had been insufficient attention to the medical history before dismissal. After the claim form was presented to the Tribunal, Dr Willis gave a further opinion:

"I have been asked to provide formal medical confirmation that this gentleman has no history of psychological, emotional or social adjustment problems prior to 2004. His medical records are completely unremarkable up until September 2004 when he was first seen in this surgery by my colleague, Dr Bamber, at that stage he presented with the first of many stress related issues attributable to difficulties in the work place.

In July 2004 Mr Daniels suffered a fracture to his right middle metacarpal bone which necessitated him being off work through to the 10th September 2004. It is recorded that he had this inordinate amount of time off because his manager at work was insistent that there were no light duties available for him to do.

Over the last 6 or 7 years Mr Daniels has repeatedly suffered from tension, anxiety, anger, relationship difficulties and inability to take his focus off matters that he perceived to be unfair and damaging to his reputation. He has been highly sensitised by his employment difficulties which may well have exacerbated characterological traits that can be characterised as paranoid personality disorder. This has driven him to even considering suicide by thankfully he has an absolute focus on his family and has resisted the temptation.

There can be no doubt that the conflicts of the last several years have damaged Mr Daniels personality. He is keen for it to be understood that he was perfectly ok before all these troubles started. I can vouch for that, but am not in a position to attribute blame to either party.

I hope this information is useful."

1. What is unusual about this letter is that it was not available to the management at the time, but it was put before the Employment Tribunal as an indication of what further opinion might have reflected had it been taken, and it is referred to by the Tribunal (see paragraph 18). It was an open opinion addressed "To whom it may concern", the earlier one being sent to the trade union representative. No objection is taken to the Tribunal having considered this letter in the first place or to its being exigible before us.

1. The Tribunal, having addressed the three parts of Burchell – see, further, paragraph 89 – went on to deal with what it called mitigation, and found this:

"We come now to mitigation. Essentially the case against Mr Daniels is that he behaved in a dishonest manner. He has used his vehicle, fuel card and ordering procedures for his own ends effectively. He has basically been shopping at BT's expense. It is clear from the evidence of Mr Lipscomb that he regarded Mr Daniels as acting dishonestly. This view was clearly subscribed to by Mr Gay when he upheld the decision to dismiss. Accordingly, there were always two elements for the Respondent to consider if it was to act as a reasonable employer. First of all, had the actions actually occurred: there was no doubt that as a result of their reasonably comprehensive and thorough investigation the actions had occurred. The second issue, however, is whether or not there was an explanation for the actions. The medication that Mr Daniels was taking in September was effectively something of a red herring, we find. What the Respondent has not done to any significant degree as a reasonable employer is to look at the motivation behind the commission of these somewhat strange and bizarre activities where, it must be said, Mr Daniels was bound to be eventually detected in the course of his misconduct. It is another odd part of the investigation that not only are the events that are investigated predate [sic] by some months the investigation, but the events are ongoing during the investigation and do not end until July. Accordingly, we have a simultaneous commission [sic] of offences at the time that the investigation is proceeding. The mitigation was really in the medical background from the viewpoint of Mr Daniels and the groundwork for that explanation really lay within the body of Dr Willis' report.

91. That report, dated 8 October 2010, was provided by the trade union to Mr Lipscomb who, to his credit, agreed to take it into account. It contains this line at the end of the first page: 'There seems to have been some satisfactory resolution in his overall state of mind by April 2008.' It was by selecting that particular line out of context, in our judgement, that Human Resources misled Mr Lipscomb and convinced him that he had no need to take into account any further the psychiatric history of Mr Daniels. The second error that seems to have occurred in this case is the failure by Mr Lipscomb, thereafter, to act upon the final sentence of Dr Willis' report: 'I hope this can be taken into consideration by the relevant authorities who may wish to commission an Occupational Health report prior to proceeding further.'"

1. The Respondent contends that the Tribunal has doubled back on itself first by acquitting the Respondent of unfairness in its procedures for investigation and yet returning to the absence of an investigation when considering the overall approach required by Iceland. It is further contended that where a medical report is not selfevidently prescribed there is no obligation on an employer to withhold a dismissal (see Chamberlain Vinyl Products Ltd v Patel. The Tribunal in this case is guilty of substitution of its view for that of the employer; each of Mr Lipscombe and Mr Gay had formed a view that the charges against the Claimant should be upheld and that he was dishonest. Notwithstanding the Tribunal's firm direction that it should not substitute its opinion (see Bowater v Northwest Hospitals NHS Trust, this Tribunal has adopted the mindset criticised by the Court of Appeal in London Ambulance Service v Small [2009] IRLR 563.

1. The Tribunal in its substitution has credited the Claimant with a mental condition that was not upheld by the relevant managers, namely that he acted in a bizarre or irrational way. The Tribunal has explained away the offensive conduct by reference to a mental attitude of the Claimant that the management did not accept. There was a clear issue for both of the managers to decide, and they looked at what the Claimant said about each of the three charges and did not believe him. They did not accept his accounts, and the mental element of dishonesty was, to their minds, present.