On reconsideration and after having spoken to a an expert or two, I've concluded that all the panel meant by para 787 is that (1) there were two valid choices that could be made on the evidence: guilty or not guilty; (2) the panel thought that the more probable result at any trial would be not guilty; and (3) in the circumstances, since the ONLY
routes open to the panel in light
of the miscarriage finding was a new trial or the entry
of an
acquittal and since a new trial was inappropriate etc in the circumstances the correct procedure was to enter the
acquittal.
[The claimant] may well gain the sympathy
of the [Employment Tribunal] 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.»