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Cite as: [1992] UKEAT 469_90_1407

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BAILII case number: [1992] UKEAT 469_90_1407

Appeal No. EAT/183/90, EAT/469/90

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14 July 1992

Before

THE HONOURABLE MR JUSTICE HUTCHISON

MR D G DAVIES

MR J A SCOULLER

EAT 183/90

VEGA SPACE SYSTEMS ENGINEERING LTD APPELLANTS

R D WESTON RESPONDENT

EAT 469/90

MR D WESTON APPELLANT

VEGA SPACE SYSTEMS ENGINEERING LTD RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

EAT 183/90

For the Appellants MR C JEANS

(Of Counsel)

Messrs Harris Rosenblatt & Kramer

Solicitors

26-28 Bedford Row

London WC1R 4HE

For the Respondent IN PERSON

EAT 469/90

For the Appellant IN PERSON

For the Respondents MR C JEANS

(Of Counsel)

Messrs Harris Rosenblatt & Kramer

Solicitors

26-28 Beford Row

London WC1R 4HE

MR JUSTICE HUTCHISON: This is an appeal by employers Vega from a decision of the Industrial Tribunal for London North that the Applicant Mr Weston, had been unfairly dismissed and was entitled to basic and compensatory awards totalling £316 and £5,093.07 respectively. The dismissal was by letter of 15 June 1987.

The original decision was sent to the parties on 2 February 1990. On 14 February 1990 Vega sought a review raising 8 distinct grounds. The Tribunal while accepting only some of those grounds, granted a review for reasons sent to the parties on 16 July 1990. Those reasons substituted paragraphs 43R to 47R for the original paragraphs 43-47. One of the consequences was to reduce compensation to £2,953.18, a reduction which elicited an appeal by Mr Weston in which he sought to uphold the original award. We say at once that we have no doubt that the Tribunal were right to reduce the figures to allow for an error they had made and on review accepted, and that the Appeal by Mr Weston is unsustainable.

Meanwhile, however, the company had appealed against the finding of unfair dismissal. Following the revision of the reasons consequent upon the review they were, not without opposition from Mr Weston, permitted to amend their grounds of appeal. They rely on a number of alleged misdirections, contend that a number of the Industrial Tribunal's conclusions are individually perverse and that the finding of unfair dismissal is in itself perverse. If all those challenges fail, they seek to challenge the failure of the Tribunal to make a deduction for contributory fault on the part of Mr Weston.

We turn to the material facts. Mr Weston's employment history with the Appellants, a company providing services to the space defence and satellite industries, is a relatively complex one but fortunately it is unnecessary to rehearse it from the beginning. A very full and careful account is to be found in the Industrial Tribunal's reasons for their decision at paragraphs 2 to 27. For present purposes the following summary will suffice.

From September 1984 Mr Weston, a senior engineer, worked for the company in Germany on work connected with the Giotto Space Mission. Following the termination of that contract in 1986 he entered into a new contract which took effect in April 1986 in circumstances which were held to afford him continuity of employment and worked mainly in the United Kingdom. It was not the practice of the company to provide employees of the Applicant's standing and length of service with a company car when they were required to work at the head office in St Albans but employees working on location were normally provided with a car. There were quite extensive discussions and correspondence leading up to the employment which commenced on 7 April 1986 and what was envisaged was that Mr Weston should work at Oakhanger in Hampshire on the Skynet contract. He was thus provided with a car as part of his contract and used it to commute from his home in Bristol. For reasons which are unnecessary to examine, these arrangements did not work altogether smoothly and in December 1986 Mr Fagg, the managing director of Vega, wrote offering Mr Weston three options - to continue at Oakhanger moving to the area; to continue with his current work but based at head office at St Albans, moving to that area; or to transfer to the Giotto contract returning to Skynet support based at St Albans when that project finished. A company car was not to be available for the Goitto project and as we have already indicated, employees such as Mr Weston working at head office did not customarily receive a car.

Mr Weston sought clarification of this last option which was provided in Mr Fagg's letter of 22 December 1986 in which he enclosed a Job Description in respect of the Giotto work which expressly stated that a car was not provided and reiterated that if the Giotto work did not materialise then Mr Weston's employment would continue but based on the St Albans' office. The letter concluded:

"On the matter of the company car, it was made clear to you that this would only be available to you in the situation where you would be working on-site at Oakhanger. We will review the situation when you start work in St Albans following the GIOTTO involvement."

By letter of 7 January 1987 Mr Weston accepted these terms as the Industrial Tribunal in paragraph 18 of their reasons expressly found.

The Giotto work ended in mid April 1987 and there followed some correspondence in which Mr Weston sought more details of his responsibilities thereafter and also asked for:

"details of arrangements for company car".

In his response of 15 April, Mr Fagg said that a company car was provided only in relation to work at Oakhanger on Skynet. There then followed correspondence of some importance. Mr Weston in his letter of 21 April deployed his contentions as to why he was contractually entitled to a car and concluded by saying:

"If you are now proposing to remove the facility of company car then I find this an unacceptable condition."

In his next letter of 27 April following a meeting at the office that day, he again reiterated

that it was a contractual entitlement and said:

"I consider that by removing the use of a company car you are breaking the contract of employment, by changing the terms unfavourably without my agreement. Consequently, I am willing and available to undertake work for Vega at home on a similar basis to that carried out recently on behalf of ESOC, until the problems concerning work definition by INMARSAT and terms of employment can be resolved".

Vega wrote on the same day confirming the company's stance that the car had been provided only while he was working on site on the Skynet contract and was not appropriate for work in-house at St Albans. The letter contained this sentence:

"I also confirm the verbal statement made to you today that, if you are not available for work in the offices here as of tomorrow, we shall have to assume you are taking leave of absence without permission and take steps accordingly."

It went on to indicate the nature of the work which Mr Weston was expected to do. Then on 5 May Mr Fagg wrote again in the following terms:

"Further to my letter of 27 April, we have noted that you have not been available for work in the offices here on 28 April up to date as required and we must consider this as a serious breach of your contract. We do not find lack of transport a reasonable excuse for failing to be at work.

We do not accept that we are breaking your contract of employment by removing the use of a company car; our reasons for taking this action have been clearly stated and are supported by previous correspondence. Nevertheless, on review of your salary in comparison with other staff with similar experience, we find that a salary increase of £3,000 would be appropriate. In addition, a cost of living increment will also be applied to your original base salary, but this must await completion of the formal review procedure[and then I omit a few words].

"A revised statement of your Terms of Employment is attached to confirm the above. This is our final position. If you now fail to report for work. we shall consider this grounds for immediate termination of your contract, without notice".

On 7 May Mr Weston responded reiterating his contention that he was entitled to a car and the company were in breach of contract, and putting forward various terms on which he was prepared to work. He concluded:

"I repeat that I am available for work at home on a similar basis to that carried out on Giotto (and Skynet whilst waiting for my security clearance) until these problems can be resolved. Any termination of my contract without notice will be pursued rigourously through the appropriate channels. I hope we can come to an amicable agreement and restore mutual trust and a good working relationship".

There was plainly some communication by telephone which led to a further letter on

20 May in which Mr Weston said:

"..I feel that if the suggested options for work with Vega outlined in my letter of 7 May are not acceptable, and you wish to dispense with my services, then you should honour your contract as any other employer would and give me two months notice".

On 9 June he wrote threatening proceedings for unfair dismissal. On 15 June the company wrote terminating his contract with immediate effect making it clear that their action followed their warnings of 27 April and 5 May and was taken because of his failure to present himself for work which they categorised as a fundamental breach of contract, referring him to clause 4.1 of the General Conditions of Employment:

"In cases of gross misconduct, which includes non-availability for work for a period of more than 3 days without good reason and without notifying the Company, the Company reserves the right of immediate dismissal".

The Industrial Tribunal rightly appreciated that the resolution of the contractual argument was of crucial importance and they resolved it in favour of the employers. Paragraph 5 of their reasons contains this statement:

"We are therefore of the opinion that the applicant's contract of employment only provided for a company car to be made available to him while he worked on site at Oakhanger and that he knew that, if he were required to locate elsewhere, then the matter would have to be renegotiated along with the other Special Conditions of his employment".

They had earlier rejected an argument advanced by Mr Weston that provision of a car had

been specifically negotiated wherever he was to work.

It is right to point out however, as will appear from later quotations from the reasons, that the Tribunal accepted that Mr Weston genuinely believed that he was entitled to a company car. It might be thought that this conclusion was inconsistent with the passage we have just quoted from paragraph 35, but it is so clearly stated and reiterated that plainly it must be accepted. The Tribunal also say this in paragraph 39:

"Certainly, both sides were consistent in their attitudes from December 1986 onwards. On the one hand the applicant was insistent that his terms of service entitled him to a company car wherever he was based and on the other hand the company was adamant that he was not so entitled".

They go on in paragraph 40:

"In pursuance of what he genuinely believed to be his rights, the applicant stayed away from St Albans and the company subsequently dismissed him for having failed to make himself available for work".

We have now to consider the reasoning which led the Tribunal to find that, notwithstanding the conclusion that the company were right and Mr Weston wrong on the contractual issue, he was unfairly dismissed and that his conduct did not contribute to his dismissal. It goes without saying, as the Tribunal rightly pointed out, that their decision on the contractual issue was not determinative of the issues arising under s.57(3) of the Act. What the Tribunal did was to treat the present as a case requiring them to adopt the approach outlined by Mr Justice Arnold in the well-known case of BRITISH HOME STORES v BURCHELL [1980] ICR 303. The passage is too well known to require citation. Anticipating the arguments which were addressed to us, we should mention that Mr Jeans, for the company, contended that in this respect the Tribunal were misdirecting themselves and that the Burchell approach has little if any relevance to a case such as the present, where all the facts were known at an early stage and each side had adopted an entrenched position based on its interpretation of the contractual obligations.

In their reasons as originally formulated the Tribunal accepted that Mr Fagg believed that Mr Weston was guilty of the misconduct relied on and had reasonable grounds for that belief, ie that the first and second limbs of BURCHELL were satisfied. They considered however, that the company had not satisfied the third test and the reason they advanced was that Mr Fagg, who was not a lawyer should not simply have assumed that his own view of the contract was correct but should have sought professional legal advice and for that reason he had not carried out as much investigation as was reasonable in the circumstances. This conclusion was, as it happens, based on a misapprehension of the evidence, for Mr Fagg had twice stated in evidence that he had obtained favourable legal advice. In the circumstances we need not express a view as to whether had it been based on a correct appreciation of the evidence, it would have been supportable, although we very much doubt if it would.

The Tribunal also categorised as a failure to carry out as much investigation as was reasonable what they described as the company's failure to tell Mr Weston that he was in jeopardy of being dismissed for "gross misconduct" and give him an opportunity to answer the charge before he was told of his dismissal for that reason in the letter of 15 June. This ground for holding that the third BURCHELL test was not satisfied survived, unlike the previous one in the revised reasons, so it is appropriate to comment on it at this stage. It is based on the wording of Condition 4.1 of the General Conditions already cited and it is perfectly true that the words "gross misconduct" were not used in the correspondence to which we have referred.

However, it will be remembered that in the letter of 5 May in which they stated their final position on the matter, the company had said:

"If you now fail to report for work, we shall consider this grounds for immediate termination of your contract, without notice".

In the circumstances, given the nature of the relationship of the parties concerned in this case, this was a clear an indication as one could desire of the company's attitude and intentions. In argument before us Mr Weston frankly conceded that he understood that he was being told that if he did not come to work at St Albans he would be dismissed. In any event we fail to see how the fact that Mr Weston was never told that he might be dismissed for gross misconduct can be linked to suppose failure to carry out full and proper investigation of the circumstances.

Having stated these conclusions the Tribunal went on to remind themselves that s.57(3) required the question whether the dismissal was fair or unfair to be determined in accordance with equity and the substantial merits of the case. They said:

"Bearing this in mind, whilst having observed Mr Fagg throughout the hearing to be a very intelligent, considerate and gentlemanly person, we consider that in the particular circumstances, where there was a genuine dispute between the parties as to the interpretation of the applicant's contract, it was not reasonable for the company to treat his non-availability for work as amounting to gross misconduct and as a ground for dismissing him with such a stigma attached. In our view, the fair way for the company to proceed in the circumstances would have been to have given him two months' notice in accordance with the terms of his contract".

As we have already said the company sought and obtained a review. One of the contentions raised on the authority of TREGANOWAN v ROBERT KNEE & CO LTD [1975] ICR 405 and BSC SPORTS v MORGAN [1987] IRLR 391 was that the issue in cases of this sort is whether the dismissal was fair or unfair and that the Tribunal's view as to whether the company should have given Mr Weston 2 months' notice was irrelevant.

In their reasons for allowing the review the Tribunal rejected this argument and stated that the cases did not support the submission for which they were cited. They said:

"The sentence in question was added with a view to being helpful to the respondent as showing how we considered it might have proceeded in the circumstances.[In order however to make it plain that we have not set up an arbitrary test of fairness, we have deleted the final sentence of paragraph 46].

On the issue of legal advice and adequate enquiries, the Tribunal, although apparently

unaware of the fact that they had all the time had the evidence, accepted that Mr Fagg had

taken legal advice and that in the light of that their particular conclusion could not stand.

They then said this:

"Having been obliged to review the position as a result of that conclusion, however, we have looked once again at our finding in regard to the second test propounded by Mr Justice Arnold in the Burchell case and we have concluded that much of our reasoning in paragraph 44 would be equally applicable in relation to the second test. The upshot of our view in this regard is that we consider that we should have found that the second test had not in fact been satisfied and accordingly we have redrafted paragraph 43 to show that that is now our view; our revised view is now to be found in paragraph 43R set out below".

It is in the circumstances necessary to cite paragraph 44R in which the Tribunal explain this change of view in full:

"The second test requires that the employer should have had in his mind reasonable grounds upon which to sustain that belief. Here the belief in question had to be that Mr Weston had been in breach of clause 4.1 of the General Conditions of his contract of employment (set out in paragraph 5 above). Mr Fagg therefore had to have had reasonable grounds for believing that the applicant had not made himself available for work for more than three days "without good reason". Mr Fagg well knew that Mr Weston was not attending for work because he believed the company was not providing him with the car to which he believed his contract entitled him. Mr Fagg has told us that he consulted a solicitor and was advised that the applicant's contract did not entitle him to a car. We ourselves have analysed the legal position and have expressed the opinion above that the applicant was wrong in his claim that it did. We recognise, however, that it is highly arguable whether or not that opinion is correct. Moreover, even if it is, it does not automatically follow that Mr Weston had been absenting himself from work "without good reason". We consider that the applicant genuinely believed his contract entitled him to a car and, in our view, that belief was not unreasonable in the complex legal situation then existing in regard to his contract of employment. As we said in paragraph 31 above, unjustified removal of the car (worth £3,000 per annum to the applicant) would, in our view, constitute a valid reason for him failing to report for work until the position was sorted out. If he had done so, he would have been risking it being held that he had accepted the Respondent's interpretation of his contract. The £3,000 salary increase offered him on 5.5.89 (paragraph 24 above refers) was not expressed to be in compensation for the loss of car but was expressed to be the consequence of a salary review and was made at a point when the applicant was being required to relocate his house from Bristol to the more expensive South East and could well have been taken as an inducement for him to make that move. It is therefore our considered opinion that Mr Fagg did not have reasonable grounds for believing that the applicant had absented himself from work "without good reason". We would have expected the parties to work out a mutually-acceptable way of resolving their dispute, e.g. by arbitration. In our view, it was unacceptable for Mr Fagg to have treated the applicant as having been guilty of "gross misconduct" in circumstances where he was in a genuine legal dispute with the company over the terms of his contract of employment".

The original paragraph 45 re-appears as 45R, substantially unchanged and 46R is the original 46 with the omission of the final sentence as previously indicated.

Mr Jeans, in support of the amended grounds of appeal, began by developing his argument that the Burchell approach was inappropriate in this sort of case. He contends:

"The need for "reasonable grounds" and "reasonable investigation" are of importance only where relevant facts are in dispute.... Where it is not necessary to "confirm suspicion or clear up doubt" as to the facts it is an error of law to treat the Burchell test as the touchstone of fairness".

In support of these contentions he cites RSPB v CROUCHER [1984] ICR 604. That was a case where an employee had made false claims for reimbursement and, when he was accused of dishonesty, admitted the conduct alleged but said by way of mitigation, that he had omitted in the past to claim genuine expenses, the amount of which exceeded the amount falsely claimed. He was dismissed. The Industrial Tribunal applying Burchell found the dismissal unfair holding that the employers had not carried out sufficient investigation.

The summary of the conclusion in the headnote says this:

"Held, allowing the appeal, that having regard to the fact that the employee had admitted the dishonest conduct there was little scope for an investigation and the industrial tribunal had erred in law in placing too much emphasis on the need for investigation rather than considering generally under the provisions of section 57(3) of the Act of 1978, whether the society had acted reasonably and in accordance with equity and the substantial merits of the case in dismissing the employee; that the society had acted fairly and that, accordingly, the employee's claim failed".

The Industrial Tribunal's view can be found in a passage quoted on page 609C. They

said:

"We are not satisfied that the society carried out such investigation into the matter as was reasonable in all the circumstances. These circumstances include a substantial counterclaim by the [employee] against the society. The society regarded the counterclaim as wholly irrelevant to the issues. In our view a reasonable employer would not have limited himself to such a narrow view of the circumstances as did the society. They relied solely on the admission of the [employee] in reaching their decision to dismiss him. A reasonable employer would have looked far more closely into the circumstances as a whole, including in particular the [employee's] counterclaim".

Describing the employer's reasoning in reaching the decision to dismiss Mr Justice Waite, at

page 611 between (C) and (G) said this:

"The other thread in their reasoning was the existence of what came to be called the counterclaim, that is to say the amount which the employee said was due to him for expenses. The society had made their view of it plain. They thought it was irrelevant and it did not matter whether the society owed him £11,000 or £100 for unclaimed expenses; the point, so far as they were concerned, was that he had been dishonest in a position of seniority, trust and responsibility.

It appears from their comments that the industrial tribunal did not agree with that approach; but, if such disagreement was the basis of their decision, then of course it must be plain that they can only have been acting against their own professed self-direction not to confuse their own view of the employee's conduct with their appraisal, by the standard of reasonableness, of the attitude adopted towards it by the society. They can only have fallen, in other words, into the familiar pitfall most recently pointed out by the decision of this appeal tribunal in Iceland Frozen Foods Ltd v Jones [1983] ICR 17. And so, in the end, we have come to the view that this is one of those exceptional cases where an industrial tribunal has reached a conclusion at which no reasonable and properly directed tribunal could have arrived. Any reasonable industrial tribunal would have been bound, in our view, to conclude that dismissal of the employee in the way that he was dismissed, including the appeal procedure, was within the range of reasonable response for any reasonable employer placed in those circumstances.

It is not an agreeable task for us to have to pronounce our conclusion in such trenchant terms, but it is our plain duty to do so in cases where we believe that intervention is called for on the ground of radical error. We are particularly reluctant to do so in a case like the present one, where the industrial tribunal has taken such obvious care, has gone into the matter so fully, and has sought to express its conclusions in such clear and complete language".

There then comes a most important passage:

"It is difficult to escape the impression that the source of error in the present case may have been their evident view that the test in British Home Stores Ltd v Burchell [1980] ICR 303, 304, was one that fell to be applied automatically whenever reasonableness was in issue, at all events in cases of dishonesty, for the purposes of assessing whether a dismissal had been fair under section 57(3). The Burchell case, it will be remembered, was a case which concerned instances in which there has been a suspicion or belief of the employee's misconduct entertained by the employers. Here there was no question of suspicion or of questioned belief: there the dishonest conduct was admitted. There was very little scope, therefore, for the kind of investigation to which this appeal tribunal was referring in Burchell's case; investigation, that is to say, designed to confirm suspicion or clear up doubt as to whether or not a particular act of misconduct has occurred. So we think that this may perhaps be another case where an industrial tribunal has fallen into error by a misplaced and artificial emphasis upon the guidelines in the Burchell case, something to which this appeal tribunal had recent occasion to refer in Lintafoam (Manchester) Ltd v Fletcher, The Times, 12 March 1984.

We repeat what we said then. The Burchell case remains, in circumstances akin to those that were there under consideration, a most useful and helpful guideline; but it can never replace the soundness of an appraisal of all the circumstances of each particular case viewed in the round in the way that section 57(3) requires them to be viewed".

Mr Jeans submits, in our view rightly, that those observations apply with even more force to the present case where no question of dishonesty arises. The facts were well known and each of the parties had made their position clear. Mr Weston insisted on the provision of a car as a contractual right and would not come to work unless his demands were met and the company asserted that he had no such entitlement and that they were justified in insisting on his attendance. The only matter which could have been further investigated was this legal issue.

Mr Weston, to whose unfailing courtesy and moderation in the presentation of his arguments we should like to pay tribute, in answering this contention found himself at something of a disadvantage because it quickly became apparent that the main thrust of the arguments he wished to advance on this and other aspects of the case was (1) that the Industrial Tribunal were wrong in their conclusion that he was not contractually entitled to a car, and (2) that they were also wrong in their finding that he had agreed to work after the conclusion of the Giotto project at St Albans. Mr Jeans, pointing out that no Respondent's Notice had been served in this case and that he had had no advance notice of these contentions, and that it would for reasons which he explained and which we need not rehearse, be very difficult for him to deal with them, objected.

We concluded that in the circumstances we could not fairly permit these challenges to the Industrial Tribunal's conclusions to be advanced. It will be readily understood, therefore, why Mr Weston, who at our suggestion took a little time to reconsider how to deploy his arguments in the light of this ruling, found it difficult to present them without introducing submissions which were, in the circumstances, inappropriate.

His submissions on the Burchell point were that facts were in dispute; in particular those surrounding his contract, coupled with the issue of what work he was expected to do if he did present himself for work at St Albans. On this he rightly pointed out that in the correspondence to which we have referred he had, on a number of occasions, raised the issue and made clear his desire to have a proper definition of his duties and the nature of his work. He sought in argument before us to elevate this aspect of the case into one of primary importance, suggesting that it was a concurrent reason for his refusal to come to work and that he was justified on that ground even though, as the Industrial Tribunal found, wrong on the contractual issue as to the car. He pointed out moreover that, particularly in his letter of 7 May, he had invited discussions. He contended that his employers should have taken up these suggestions in order further to explore the possibility of some sort of mutually acceptable arrangement.

We note that these matters do not find an echo in the Tribunal's very full Reasons and we are satisfied that Mr Weston at the hearing of this Appeal, has attributed to them a significance which, at the hearing before the Industrial Tribunal, it was not suggested they had and which they did not deserve. The Industrial Tribunal's reasons reflect, we are satisfied accurately, the area of dispute which was critical on the issue of dismissal - the Applicant's refusal to attend for work at St Albans unless he was provided with a car. At page 96 of the Chairman's Notes one finds Mr Weston saying:

"I did not report to St Albans for work on 23 April because my car had been taken away.

If I had had a car I would have come and discussed the programme."

We appreciate that he did raise the other matters, both in correspondence and before the

Industrial Tribunal but not as being crucial on the issue of attending for work. When he came

to make his submissions (Notes page 99) he said:

"The main cause of the problem was that I considered the Respondent had breached my contract of employment by withdrawing my car, which formed a large part of my remuneration."

We accept Mr Jeans' submission. This was, as he says, a case in which the parties had defined their respective positions with great clarity and each had taken a stand on the contractual issue about the car. The decision in RSPB v Croucher is in point and shows that the approach to the issue of fairness by the application of the Burchell test in the present case was inappropriate.

If confirmation be needed it is to be found in what could, without injustice, be described as the contorted reasoning which led the Industrial Tribunal to conclude initially that the third test was not fulfilled because principally of the failure to take legal advice. Then, when they appreciated that that was factually inaccurate they revised their view of Mr Fagg's state of mind, the second test, and said that they found he did not have reasonable grounds to sustain his belief. If one examines paragraph 44R is contains no logically cohesive reasoning in support of this revised conclusion. Mr Fagg considered, and had legal advice to support him, that Mr Weston was not entitled to demand a car and that he was obliged to come to work. The Industrial Tribunal seemed to be saying that because the contractual issue is difficult and Mr Weston was not unreasonable in taking the opposite view on it, Mr Fagg had no reasonable grounds for believing that Mr Weston had absented himself from work

"without good reason".

That is a phrase which they take from condition 4.1 of the General Conditions of Contract already cited. It simply cannot, in our judgment, be correct to say that an employee who chooses with knowledge that his employers assert that he is in breach of contract, and in the face of the clearest warnings as to the consequences, and who is in fact in breach of contract, is not absenting himself without good reason. The reasoning of paragraph 44R is in our view unsupportable.

Turning to the third Burchell question, 45R, we have already made clear why we consider that here again we cannot accept that the Tribunal's reasoning can be supported. The ground advanced appears to have nothing to do with the issue of proper investigation and, as he accepted, Mr Weston understood quite clearly from the letter of 5 May that he was being told that if he did not report for work he would face dismissal.

In seeking to apply the decision in Burchell to this case and also in the manner in which they applied it, the Industrial Tribunal in our view misdirected themselves and their conclusions cannot stand. In the light of the findings they had made on the contractual issues this was, as Mr Jeans has submitted, a very simple case. It was a case to which Burchell had no real application; the erroneous attempt to apply that case to it led the Industrial Tribunal into errors of reasoning. Even if the Burchell test were applied, there was in our view no room for any conclusion other than that, as the Industrial Tribunal originally and rightly held, the first two requirements were undoubtedly satisfied; and as to the third, the only surviving reason advanced as justifying it is equally plainly unsupportable.

Mr Jeans deployed further cogent criticisms at paragraph 44R. There was, he contended, no justification to the suggestion that the employer should have sought arbitration, and the introductory words of the sentence containing that suggestion:

"We would have expected the parties"

are the sort of words one finds where, as he suggested has happened here, the Industrial Tribunal have fallen into the error of substituting their own views for those of the employers instead of considering as they should have done, whether an employer who, faced with deliberate prolonged and unjustified non-attendance in the face of a clear warning, and who carried out that warning, is acting in a manner which falls within the broad band of reasonable responses which a reasonable employer could adopt. In this context he naturally referred us to the Iceland Frozen Foods Ltd v Jones [1983] ICR 17. In the light of our conclusions already stated in relation to paragraph 44R, we need not further examine these arguments. They appear to us to be well-founded.

We turn now to consider paragraph 46R. If one disregards the strong impression that this is something of a postscript and further the fact that it originally concluded with words suggesting that what would have been fair would have been to dismiss Mr Weston with two months' notice, then it can be read as a paragraph in which the Tribunal were posing the true question which did arise in this case, namely "Had the employer acted reasonably or unreasonably in treating Mr Weston's failure in breach of his contract to attend St Albans for work as a sufficient reason for dismissing him?" - that question to be determined in accordance with equity and the substantial merits of the case.

Mr Weston, with some encouragement from us, formulated the argument thus:

The Industrial Tribunal were here reflecting their findings that, notwithstanding that he was in fact wrong about the contractual issues, Mr Weston genuinely believed that he was right; that there was a genuine dispute about the matter; that he had indicated a willingness to embark on further discussions; that he was plainly quite well regarded in terms of ability by his employers; that he had been with them for some 3 years and moved jobs several times to suit their convenience; and that in all the circumstances the sanction of dismissal was inappropriately severe.

Mr Jeans however, invites us to have regard to the Iceland Frozen Foods case. He asks us to consider what options the employers had. They had been conciliatory to the extent of increasing Mr Weston's salary by an amount equivalent to the value of a car, and he understood this (see page 91 of the notes). They had made their position absolutely clear and they were, as the Industrial Tribunal found, right on the issue of providing a car. They had given a warning of dismissal in clear terms. Mr Jeans goes so far as to suggest that they had in truth only one option; but he argues, if that be wrong it is simply impossible sensibly to contend that in the circumstances, the sanction of dismissal did not fall within the band of reasonable responses to Mr Weston's conduct which a reasonable employer could adopt. This is a clear case, he submits, of the Industrial Tribunal substituting their own views.

We accept that these submissions are correct. We entertain no doubt that, had they directed themselves in accordance with the decision in Iceland Frozen Foods Ltd v Jones the Industrial Tribunal would inevitably have concluded that the employers response in dismissing Mr Weston fell within the broad band of reasonable responses. We are inclined to attribute their conclusion to the contrary - if, as we are assuming, paragraph 46R truly embodies such a conclusion - to their failure to remind themselves of the guidance to be derived from that well known authority. As it is, they did in our opinion fall into the error of substituting their own views. If, however, they are to be taken to have had it in mind, we have to state our clear conclusion that on the facts of this case no reasonable tribunal properly directing itself, could have concluded that dismissal did not fall within the broad band of reasonable responses to Mr Weston's conduct.

We record, as is to be expected, that on the main issues a number of arguments on subsidiary points were addressed to us by both sides and several authorities in addition to those we have cited were referred to. We have, however, in this judgment endeavoured to concentrate on the central arguments and do not feel it necessary to rehearse those subsidiary arguments or refer to other authorities.

There were however two other specific issues which must be mentioned. The first is the Appellants' contention that even assuming that their finding of unfair dismissal was correct, the Industrial Tribunal's decision that dismissal was not to any extent caused or contributed to by the actions of Mr Weston is unsustainable (see section 73(7)). In the light of our conclusion on the main issue however, we do not feel that it is either necessary or appropriate to deal with this argument.

Secondly, there is Mr Weston's cross-Appeal on the revised award already referred to. We have stated that this is in our view unsustainable. The Tribunal originally awarded a sum as part of the compensation in respect of 6 weeks prior to dismissal, during which period his employers had been withholding his wages because of his failure to attend for work. As on the review they recognised, it cannot be right to include this sum in the compensatory award since their jurisdiction is confined to "loss sustained by the Complainant in consequence of the dismissal" - see section 74(1). Mr Weston sought to introduce an argument not deployed before the Tribunal based on the Wages Act, but we ruled that it was not open for him to do so. None of his other submissions met the fundamental objection accepted by the Tribunal as valid. The Industrial Tribunal were accordingly correct and we would have dismissed the cross-Appeal.

It only remains to say that in the light of the reasons which we have given, it follows that this Appeal must be allowed. We have considered whether this is a case in which exercising the powers which we have under paragraph 21(1) of Schedule 11 of the Act, we should dispose of the case finally ourselves, or should remit it for a fresh hearing before a differently constituted Tribunal. It appears to us that it is appropriate to remit a case where there are factual issues which need to be determined, or where there are matters which require to be further investigated. In the present case we accept Mr Jeans' submission that the facts and findings relative to the legal position have been fully determined by the Industrial Tribunal and no useful purpose would be served by remitting the case for a further hearing. We note that in the decision already cited of RSPB v Croucher that is the course that Mr Justice Waite took. He said this at the end of his judgment:

"In those circumstances we feel justified in not only allowing the appeal but in substituting a finding of our own, and that will be a declaration that the employee's dismissal was fair"

That is what we do in this case for those reasons.