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Cite as: [1993] UKEAT 200_91_704, [1993] UKEAT 200_91_0704

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BAILII case number: [1993] UKEAT 200_91_0704

Appeal No. EAT/200/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11 & 16 December 1992

Judgment delivered on 7 April 1993

Before

HIS HONOUR JUDGE J HICKS QC

MR K M HACK JP

MR S M SPRINGER MBE

CO-OPERATIVE RETAIL SERVICES LTD APPELLANTS

MR I G SAVAGE RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellants Mr A Lynch

(of Counsel)

Messrs Croftons

Solicitors

Television House

Mount Street

MANCHESTER M2 5FA

For the Respondent Miss K O'Neill

(Legal Officer)

USDAW

188 Wilmslow Road

Fallowfield

MANCHESTER M14 6LJ

HIS HONOUR JUDGE HICKS This an appeal by the employers, Co-operative Retail Services Ltd against the Decision of the Industrial Tribunal on the application of the employee, Mr I J Savage, that Mr Savage had been unfairly dismissed. There is also a cross-appeal by Mr Savage limited to one aspect of the Industrial Tribunal`s assessment of compensation.

The Tribunal found the following background facts:

"2 The applicant began work for the respondents in November 1987. He was a driver out of their dairy in Sheffield and this meant that every day he took a trailer load of milk to a number of depots around Yorkshire from where individual milkmen collected milk on a daily basis for delivery primarily to households. Until the matter which gave rise to his dismissal the applicant had no disciplinary proceedings ever taken against him and nothing we have heard in these proceedings constitutes any criticism whatsoever of the way in which he performed his work up until the matters of complaint."

In early 1990 the employers decided to re-organise the delivery system from the dairy to depots in a manner which entailed that the drivers would work shifts, including a night shift, instead of always keeping to normal working hours. After much negotiation that was accepted by everyone concerned except Mr Savage. In early June he signed a new contract of employment acknowledging that his hours were now governed by the shift system, but he had certain reservations, and in particular strong objections to both the time and the order of delivery on the night shift. He wished to leave at 6 p.m., instead of the time of 8 p.m. provided for.

According to the facts found by the Industrial Tribunal Mr Savage was due to work his first night shift on 1 July 1990:

"... he arrived, according to Mr Murfin, the dairy foreman, just before 6 o'clock and he asked Mr Murfin for the keys. Mr Murfin said that Mr Parden, the transport foreman, was bringing them back at 7.45. The applicant said that he had told Mr Parden that he was not taking it out at 8, he was going to take it out at 6 and Mr Murfin took that as a refusal to take the vehicle out at 8 o'clock, which we find it clearly was. ..."

The Tribunal then dealt with the ensuing disciplinary proceedings in paragraphs 9 to 14 of their Reasons as follows -

"9 The following day there was a disciplinary interview and it was as a result of that interview that the applicant was dismissed and it is the way in which that interview was conducted that has particularly exercised the mind of this tribunal. Mr Bradley said that at the end of the interview, and I will come to the rest of it in a moment, when the applicant was told he would be dismissed he said:

`I've been pig-headed, haven't I? I didn't realise what it was going to lead me into'

The other feature which Mr Bradley, whom we found a patently honest and straightforward witness, made clear was that if the applicant had given assurances that he would comply in future, then he would not have been dismissed. So we look at that dismissal interview in the light of those 2 facts that the applicant said he did not realise what it would lead him into and secondly, the search by Mr Bradley for an assurance that the matter would not be repeated.

10 Mr Bradley said that it was at 9 o'clock in the morning. The applicant was represented. He said that he told the applicant he was in a very serious position. Mr Bradley said: `I told him he was in a serious position and I was there to collect the facts. I didn't actually say that I was considering dismissal because I thought it would be unfair at that time as I hadn't got the facts'. Indeed he said at the examination: `I didn't say he was facing dismissal, I said he was in a very serious position'. It is not necessary to be pedantic or legalistic about words. The applicant knew that he was at the outset of a disciplinary interview about serious matters. It is quite clear that Mr Bradley had difficulty in that interview because of the apparent silence and non-communicativeness of the applicant. The applicant gave evidence to the tribunal and, for whatever reason, whatever difficulties he experienced in giving evidence, we detected that many of his replies were rather monosyllabic and we are sure that perhaps at the time there was a degree of resentment in the situation he found himself in. There was a slight element we find of the applicant joining battle with the respondents over their new rota and seeking to make a point in what has turned out to be a rather unrealistic way. The applicant denied that he had been suspended and that was a matter that Mr Bradley subsequently investigated. He explained why he had not wanted to go to Huddersfield later on for the reasons I have given. Mr Bradley said that in the initial part of the interview he did not show remorse. That was during the fact-finding part of the interview. Later, after he was told of the decision to dismiss, the applicant said the passage that I have already quoted about being pig-headed.

11 The way in which Mr Bradley conducted the interview was first he tried to find the facts, because he saw it as a fact-finding interview, then have a pause whilst the applicant let the room, then Mr Bradley spoke to Mr Murfin and Mr Parden to get their versions of what took place and to check whether or not there had been a suspension and to get their assessment of the matter. Then without going back to the applicant or speaking to the applicant again Mr Bradley decided what to do. He decided upon dismissal. He said: `At the end of the hearing I decided to dismiss. I remarked I felt the offence was relevant to summary dismissal'. In fact he decided because of the applicant's good record to give him dismissal with notice pay instead, but certainly his job came to an end.

12 Mr Bradley gave evidence of what would have happened if the applicant had agreed not to repeat what he had done and to comply in the future. Mr Bradley said:

`I said "Would you be prepared tonight to go on to the night run?" to which the applicant acknowledged yes by a nod of his head. So I asked him why now but not on the previous Sunday'.

Mr Bradley said that he asked that question in effect as a way of pointing out the seriousness of the previous disobedience, not as a way of exploring really what was going to happen in the future. Later on he said:

`If the applicant had said `In future I'll comply' I would not have dismissed him, but I did not think I should plant these words in his mouth but I gave him every opportunity to say anything remotely similar to that. He was refusing to give me any response'.

That was really the impression we got that Mr Bradley, whilst hoping that the applicant might `off his own bat' be more communicative and say that he did regret what he had done and promise not to do it again, did not feel that he ought to have put the words into the applicant's mouth.

13 So far as the actual notice that the applicant had of what he was saying, Mr Bradley said that the first the applicant was told of the dismissal was when in fact he was dismissed. Mr Bradley himself conceded that against the background of the fact that he knew of the applicant's unwillingness to work the night shift in the proper way and against the background of Mr Bradley's having spoken to the applicant on that very point before he went on holiday. Mr Bradley himself did not consider that disobedience could lead to dismissal until he himself decided to dismiss and when he was asked by me how if he did not know, could the applicant be expected to know, he very candidly said: `I cannot to be honest say that he would know either'.

14 So as a result and because of disobedience to a lawful instruction in accordance with the disciplinary procedure of the respondents the applicant was dismissed. ..."

In paragraph 14, after dealing with the internal appellate procedure, to which we shall return, the Tribunal continued -

"...For the purposes of our findings of fact we also record the respondents' own disciplinary procedure where it says that what is in effect a final written warning may be given, notwithstanding no earlier oral warning has been given to the employee concerned, in any instance where the

`transgression to which the warning relates involves a serious failure on the part of the employee to comply with his obligations but that failure does not warrant the dismissal of the employee'."

The Tribunal's Decision and Reasons are set out in paragraphs 15 to 18 as follows -

"15 Those essentially are the facts of the matter and the first question that we have to ask ourselves is what was the reason for dismissal? The reason for dismissal was disobedience of a lawful instruction. That related to the applicant's conduct and therefore it was for an admissible reason. We then go on to consider in accordance with the provisions of the Act whether the respondents were reasonable or unreasonable in treating the misconduct as a reason for dismissal when the matter is viewed in the light of equity and the substantial merits of the case. In this context we hear in mind Burchell's case which sets out guidelines for matters of misconduct and we bear in mind the very helpful submissions that have been made by the representatives of both parties.

16 Where there has been a breach of trust on some basic dishonesty, an employer in an interview and acting within the range of reasonable responses of a reasonable employer would not wish to lead that employee into going through the motions of promising not to commit the same offence again because it might not be genuine and would only be impressed by an employee showing remorse and promising to not repeat it if it came from the employee. But this is not one of those cases and one of the features that stands out in this case is that this was self-proclaimed disobedience, with nothing covert about it. It was not a breach of trust type of case where an employer may say the relationship has to be restored. In those circumstances one of the features that seems to the tribunal to shine out of this case is that at no time was the applicant given specifically an opportunity to undertake to co-operate in future in an interview in which the employer would not have dismissed if that undertaking had been given. If it was the employer that was concerned to have such an undertaking if the job was to be preserved, why not explore that with the employee and judge his reaction? Why not give him an opportunity to redeem himself by giving a promise for the future? I say that because the only time it was touched upon in the interview by Mr Bradley asking if the applicant would in fact work properly on that night, the applicant did in fact indicate that he would. The other feature that shines out of this is that the applicant clearly did not realise that he was facing dismissal at any time until he was actually dismissed, although he realised that he was doing wrong and it is quite clear from what he says that, had he realised that, he would not have done what he did and would certainly not have done it again. We feel confident to make those conclusions of fact on the facts that we have found.

17 So we are left looking at whether the actions of the respondents in this context fell within the range of reasonable responses of a reasonable employer. It is perfectly true, as Mr Gallagher has pointed out, that the applicant refused a lawful instruction and it is perfectly true that refusal of a lawful instruction finds its place amongst the list of items which can lead to summary dismissal in accordance with the respondents' code. It is not automatic and indeed the handbook we have seen emphasises that the circumstances of each case have to be looked at to determine its seriousness. We find that an employer to act within the range of reasonable responses would never dismiss when he would have avoided that course if he had had an assurance of good conduct for the future and he had already received in the interview the preliminary assurances of future good conduct but had not followed it up. We also find that no reasonable employer acting within the range of reasonable responses would reach a decision in the context of the disciplinary interview after speaking to the 2 superiors who dealt with the applicant without first giving the applicant a further opportunity to come back into the interview and deal with those matters which those 2 men had spoken to Mr Bradley about, that is Mr Murfin and Mr Parden. The applicant had no opportunity whatsoever to deal with those matters because immediately after speaking to Mr Parden and Mr Murfin, Mr Bradley decided to dismiss. Again, even in the disciplinary interview when Mr Bradley was hoping that there would be some unilateral demonstration by the employee that he would not repeat it, he did not give the opportunity to the employee to address what he was facing, which was dismissal, and that again we find places this dismissal outside the range of reasonable responses of a reasonable employer. Finally by not considering the suitability of the type of final warning set out above and provided by their own disciplinary procedure, we also find that for the reasons we have given the respondents acted outside the range of reasonable responses of a reasonable employer.

18 To highlight the reasons for our decision if Mr Bradley had underlined in that interview not that the applicant was to be dismissed but that if he did it again he was to be dismissed, and if he had extracted from the applicant an undertaking not to repeat it, we are left with the distinct impression on all the evidence we heard that the applicant would be there today working as he had been told and we are really asking ourselves the question what on earth would a reasonable employer acting within the range of reasonable responses consider a final written warning is for if not for the very sort of circumstances which arose in this case?

Mr Lynch attacks that finding in two ways. First he says the Tribunal applied the wrong test, and secondly that their decision was perverse.

To make good the first ground Mr Lynch must show that the Tribunal misdirected itself in law. He accepts, as he must, that in paragraphs 15 to 18 the Tribunal repeatedly and consistently expressed themselves in terms which on their face amount to a proper direction, but he says that we should look behind this "lip-service", as he alleges it is, to phrases and other indications which he says betrayed that in truth the Tribunal were substituting their own judgment for that of the employers.

When pressed for instances Mr Lynch pointed to the word "never" in the middle of paragraph 17 and to various passages which show, he says, that the Tribunal were concentrating on the facts of this particular case. Both of these criticisms are in our view misconceived. A Tribunal asking itself, correctly, whether the employer's response fell within the range of reasonable responses of reasonable employers must necessarily compare what the respondent employer actually did in the particular circumstances of the instant case with the spectrum of what might reasonably be done by a (hypothetical) selection of reasonable employers in those same circumstances, and steps which fall outside that spectrum would, it must follow, "never" be taken, in the view of the Tribunal, by the reasonable employer acting reasonably.

Mr Lynch had even more difficulty in attacking the Tribunal's finding that the conduct of the disciplinary interview was unfair, in particular Mr Bradley's conduct in discussing the matter with Mr Parden and Mr Murfin when he, in his own words, "recessed the meeting to consider his decision", having regard to Mr Bradley's own evidence that what they said "helped me to make up my mind". We can find no misdirection there, and the Tribunal clearly relied upon that as an independent ground for their finding of unfair dismissal.

We therefore hold that there was no misdirection. Mr Lynch did make some more general submissions under this head, but they amounted in substance to the proposition that the mere unreasonableness (as he alleges) of the result shows of itself that the Tribunal asked itself the wrong question. That is really another way of putting the second ground, that of perversity, to which accordingly we turn.

As to perversity, Mr Lynch disclaimed any attack on the findings of primary facts by the Tribunal. His case was that on the basis of those facts the Tribunal's decision "outrages common-sense" and is a "recipe for industrial disaster". He appealed to the industrial members of this Appeal Tribunal to apply their own experience and to conclude that, as in the case of East Berkshire Health Authority v. Matadeen [1992] IRLR 336, this is one of the "very rare" cases where the Tribunal's decision was "irrational".

This is not a ground of appeal which admits of any elaboration. We can only say, and need only say, that none of us considers that the decision of the Industrial Tribunal was one which no reasonable Tribunal, properly directed, could have reached, and we therefore reject this ground of appeal.

It follows, in our unanimous view, that the Tribunal's decision that the original dismissal was unfair cannot be disturbed. There is, however, a third and distinct ground of appeal, namely that the defects in the original decision to dismiss were cured by a fairly conducted disciplinary appeal by way of rehearing, at which the decision to dismiss was confirmed.

The only reference to this in the Tribunal's Reasons is the single sentence:

"He appealed unsuccessfully".

(There are references immediately after that and in the evidence to a possible further appeal, but it did not occur and this point was not suggested by either party to be of any relevance). There is no reference in the Chairman's Notes of the closing speeches to any submissions on the present point. Mr Dudley, who heard the disciplinary appeal, was not called to give evidence. Mr Bradley said simply, according to the Chairman's Notes: "I gave evidence on the appeal" and he was not cross-examined or questioned by the Tribunal on the point. Mr Savage gave evidence on this subject equally simply, the Note reading: "Appeal took place with Mr Dudley". Mr Savage's letter of appeal and Mr Dudley's decision letter were before the Tribunal, but were not apparently referred to in argument. They read, so far as relevant, as follows -

"Dear Mr Dudley

I wish to appeal against my dismissal on the grounds of unfair and unconstitutional.

Yours

I G Savage (signed)

"Dear Mr Savage

Re: Disciplinary Appeal

Having conducted the required interviews, i am now in a position to give my decision.

I can find no grounds on which your dismissal is "unconstitutional", indeed it was clear from our interview that both yourself and Mr Madigan had no idea as to how it might be.

As to "unfair". In light of the facts that:

(a)On a minimum of two occasions you were told not to commence the shift until 8.00 pm, having said that you were going to commence at 6.00 pm. You still attempted a 6.00 pm start.

(b)Your defence for this was that you wished to "tie up" with the Transport Foreman. This seems unlikely to happen at 6.00 pm, as he would either have been on a shift which should have finished by 3.50 pm, or would have been in immediately prior to the expected 8.00 pm start (as was actually arranged). Neither of these instances would have given you his presence at 6.00 pm, which leads me to the only logical conclusion available, that you still intended to start the shift at 6.00 pm.

(c)The Dairy Foreman insists that he told you that a 6.00 pm start was unacceptable, that he was therefore suspending you, and that you were to report to Mr Bradley at 9.00 am the following day. You say that you were not told of your suspension, or who to report to, yet you arrived at Mr Bradley's office, with Union representation, at 9.00 am. I find it hard to believe that you would have gone to Mr Bradley instead of Mr Murfin unless you had been specifically told to. Your arrangement for representation was pre-emptive unless you presumed that a disciplinary action was forthcoming. These two actions have no logic unless Mr Murfin had informed you that a disciplinary hearing would be forthcoming, conducted by Mr Bradley at 9.00 am. I am satisfied that Mr Murfin took the actions that he stated.

(d)If Mr Murfin had not suspended you, I can find no reasoning to allow me to believe that no conversation was held regarding your attempting to find out why you should not return at 8.00 pm to commence the shift. Both yourself and Mr Murfin agree that conversation was minimal once the decision to leave site was taken. Your lack of remonstration or fact-finding tells me that you were fully aware of the reasoning behind your leaving site.

Considering these facts, and having made my investigations via my interviews, I find nothing unfair in your dismissal. My decision is that your dismissal stands. ..."

We conclude that this was not a live issue before the Tribunal. That raises in an acute form the question whether in such circumstances the employer should fail on this part of the appeal, not having invited the Industrial Tribunal to consider the point, or whether the appeal should (subject to one reservation) succeed, on the basis that the Tribunal had a duty to raise the issue of its own motion and erred in law in failing to do so. (The third theoretical possibility, that the employee had some responsibility to raise the point, was rightly not argued by Mr Lynch.) The reservation referred to above is that the appeal would not succeed if, despite the postulated error in law, this Appeal Tribunal were satisfied that no reasonable Industrial Tribunal properly directed would have reached a different decision.

On the question whether the Tribunal erred in law in failing to consider the issue we were referred to two cases.

In Neale v. Hereford & Worcester County Council [1986] ICR 471 the applicant teacher was dismissed for gross misconduct. The facts and procedural history are complicated and not material to the present point. The relevant passages in the judgments of the Court of Appeal are as follows -

"Later, however, the appeal tribunal said:

"The thoroughness and care which the industrial tribunal showed in reaching and expressing their decision ... has naturally increased our regret at feeling obliged to overturn it. There is comfort, nevertheless, to be gained from reflecting that if our construction of their language is correct, the industrial tribunal themselves might have come to a different conclusion altogether, had they not felt inhibited from taking into account matters which they rightly regarded as important but which they felt bound to put on one side because they had not been relied on by the applicant's representative. We should perhaps add that in our view they need not have felt such inhibition - at all events as forcibly as they appear to have done. The adversarial nature of the tribunal jurisdiction is always subject to the overriding flexibility of their procedure, and if they think a particular factor has relevant and important bearing on a decision they are entitled and bound to have regard to it, irrespective of the attitude of its significance which may have been taken by the parties. So far as the relevant matters had not been pressed before the schools sub-committee or the internal appeal committee, the tribunal were entitled to ask themselves whether they were matters which ought to have occurred to a reasonable employing authority, whether raised by or on behalf of the teacher or not. As to any forebearance to raise the matters before their own tribunal, there was nothing to prevent them, in furtherance of their duty to survey `all the circumstances' of the case, from taking into account matters which they themselves regarded as significant but which either of the parties for one reason or another had chosen not to press."

In general I agree with the view expressed by the appeal tribunal as to how a tribunal should treat and assess matters which they regard as important but which the applicant or his representative has either not mentioned at all or has apparently treated as of little importance. It is however necessary to add that it would be unwise and potentially unfair for a tribunal to rely upon matters which occur to members of the tribunal after the hearing and which have not been mentioned or treated as relevant without the party, against whom the point is raised, being given the opportunity to deal with it unless the tribunal could be entirely sure that the point is so clear that the party could not make any useful comment in explanation. Further, if a point has not been mentioned, or if little or no weight has been attached to it, the tribunal is entitled to and should have regard to the point according to their own assessment of it but, in forming that assessment, the industrial tribunal should, in my judgment, pay careful and proper attention to the course of the hearing and the way in which and the extent to which a point has been made or relied upon. ..."(per Ralph Gibson LJ at pp.485H - 486F).

and

"... It has been argued that the use of the word "unable" in paragraph 36 of their reasons which I have cited, indicates that the industrial tribunal misdirected themselves as a matter of law in failing to take into account, or take sufficiently into account, those important matters which they felt significant because they did not form part of the applicant's argument. If this were so then I would feel that they did misdirect themselves in law and their decision cannot stand. ..." (per Stocker LJ at p.489).

The other case is that of Helyer Bros. Ltd v. McLeod & Ors [1987] ICR 526. The issue there was whether the applicant trawlermen had the necessary continuous employment. For present purposes the only further fact which it is necessary to note is that in the second of two appeals heard together the applicants had been refused leave to amend their Answer in order to put their case in a different way. The Headnote summarises the decision of the Court of Appeal on this point as follows -

"(2) That, in the second appeal, the point sought to be argued before the appeal tribunal had formed no part of the case before the industrial tribunal and was a new point of law, and that upon the established principles applicable to the raising of new points by respondents, the appeal tribunal had correctly taken the view that it was right to refuse leave to allow it to he raised; and that in any event neither the Court of Appeal nor the appeal tribunal could have disposed of the appeal in favour of the second applicants on the basis of the new ground upon the findings of fact of the industrial tribunal."

There was a single judgment of the whole Court of Appeal of which the passages relevant to the present point are:

"We have no doubt that the point sought to be argued formed no part of the case of these applicants before the industrial tribunal. The point was never raised for decision by the solicitor appearing for Bostons. Mr Melville Williams acknowledged in the course of argument that the point was "not in play." The attention of the industrial tribunal was never directed to it. It was correctly described by French J. as a new point of law." (p.566E)

and at p.567C - E:

"Finally, we have no doubt that neither this court nor the appeal tribunal could dispose of the appeal in favour of these applicants on the basis of this new ground upon the findings of fact of the industrial tribunal. Further investigation of evidence and findings of fact would be necessary, as will be clear from the consideration later in this judgment of submissions directed to the new ground. The industrial tribunal did not consider or make findings upon the issue of continuity of employment for two years preceding March 1983 upon the theory sought to be advanced; nor upon the question whether, if the last crew agreement was a contract for employment for a fixed term, it had in March 1983 in respect of these applicants come to an end by expiry or in some other way such as mutual consent. The appeal tribunal clearly had this in mind as is apparent from French J's reference to the fact that the hearing in the industrial tribunal was on the basis of the issues stated in the solicitor's letter of 23 August."

In the course of the argument on this point we directed the attention of counsel to a note in Harvey on Industrial Relations to Rule 8(1) of the Rules of Procedure for Industrial Tribunals.

On p.VII/207, Vol. III, the notes to that Rule include the following:

"However, the apparent generality of Rule 8(1) must now be read subject to the major statement of policy made by the EAT in Aberdeen Steak Houses Group v. Ibrahim [1988] IRLR 420 to the effect that too much informality may be counter-productive, and that in order to secure perceived fairness a tribunal should normally adhere to generally recognised rules of procedure and evidence. Having decided the point at issue in the case ... Wood P went on to make the following remarks:

...

(2) Guidance has been given over the years on appropriate procedures and rules of evidence; he instanced the following:

...

(c) It is for the parties, not the tribunal, to ensure that all relevant evidence is adduced (Craig v. British Railways [1973] 8 ITR 636; Derby City Council v. Marshall [1979] IRLR 261."

Neither counsel dissented from that summary or asked us to look at the original authorities referred to and Mr Lynch conceded that the parties have the conduct of the hearing, and that it is not for the Industrial Tribunal to make its own investigations.

On this issue two of us (Judge Hicks and Mr Hack) consider that the Industrial Tribunal did not err in law in omitting to raise and pursue the question whether the disciplinary appeal cured the unfairness of the original dismissal. The case of Hellyer was concerned with an application for leave to appeal to amend the original Answer, which is not the form in which the point arose before us, but the way in which the judgments deal with the absence of findings of fact necessary for the disposal of the point sought to be argued, in particular, tell against any suggestion that those absences showed any error of law or dereliction of duty on the part of the Tribunal, and the paucity of evidence and of relevant findings of fact are an important element here. The case of Neale concerns the right of the Industrial Tribunal to take into consideration factors which they consider of importance. The words importing a duty on the Tribunal's part to take such factors into account all relate to the situation in which the point is already in the Tribunal's mind, whether initiated by the Tribunal or the parties; they do not imply that a failure to have the point in mind at all, because no one has raised it, is always an error in law. That is not to say that a Tribunal is never under a duty to consider points not raised by the parties. Material factors are whether the party who might take advantage of the point is represented, and if so by whom, and whether the point is or is not an obvious one or one in the natural progression through which the Tribunal needs to go to reach its decision. Here the employers were represented by Mr Gallacher of the relevant employers' association and chose to present their case on the footing of the original dismissal, without arguing in the alternative that any unfairness there was cured by the appeal, and without calling the evidence which would have enabled such an argument to be assessed.

We therefore reject this ground of appeal by a majority for those reasons.

The third member of this Tribunal, however, (Mr Springer) dissents on this last point. He considers that the Industrial Tribunal, having before it the evidence as to the fact and nature of the appeal which we have set out above, failed to consider, as in his view they should, whether that appeal was a rehearing of the case or a review of the evidence.

Mr Springer notes that there is no recorded evidence that Mr Bradley told Mr Dudley what he said in evidence to the Industrial Tribunal as recorded at paragraph 12 ...:

"...I said "Would you be prepared tonight to go on to the night run? to which the Applicant acknowledged yes by a nod of his head. So I asked him why now but not on the previous Sunday," ... "If the Applicant had said in future I'll comply I would not have dismissed him, but I did not think I should plant these words in his mouth but I gave him every opportunity to say anything remotely similar to that. He was refusing to give me any response."

... whilst hoping that the Applicant might "off his own bat" be more communicative and say that he did regret what he had done and promise not to do it again. ..."

and that similarly, there is no record that Mr Savage himself or his representative said to Mr Dudley at the appeal hearing what is recorded by the Industrial Tribunal in paragraph 9 ...

"... I've been pig-headed, haven't I? I didn't realise what it was going to lead me into."

In Mr Springer's opinion there was, in the circumstances of this case, a duty on the Industrial Tribunal to be more investigative in respect of the Employee's appeal. It was important for them to ascertain what evidence was actually before Mr Dudley in order to decide whether any wrong which occurred at the dismissal hearing could have been cured, in the light of the evidence which they heard from Mr Bradley. There is no finding of fact as to this issue. This evidence was so crucial to the outcome of the appeal that since it is not recorded anywhere as evidence before Mr Dudley, and since there is no finding whether the appeal was a rehearing of the case or a review of the evidence, in the light of what the disciplinary procedure indicates in regards to the appeal system, he would conclude that the decision of the Industrial Tribunal is flawed, and this case should therefore be remitted to the same Tribunal to consider the issues in respect of the disciplinary appeal.

In the event however, the appeal is dismissed.

We can dispose of the cross-appeal much more briefly. The matter complained of is that the Tribunal, in awarding compensation, wrongly curtailed the period of loss. This point is dealt with in the middle of paragraph 20 as follows:

"...So far as the actual compensatory award is concerned, it seems to us that the applicant by 24 December had been out of work for several months. He had obtained employment which yielded £800 and 40% of that is £320. That would come to be deducted from any other sum. But it seems to us that whilst the applicant has made efforts during that period to obtain employment, we are bound to say that we suspect that certainly in the latter part of that period it was because his new venture is as someone who is self-employed that his attentions were diverted to that. So we would propose in making an order for compensation to award the applicant his loss up to 24 December but from then on when he became self-employed and embarked on a new enterprise to make no award at all. ..."

Miss O'Neill, on behalf of Mr Savage, said that in approaching the matter in that way the Tribunal fell into the same error as the Tribunal in Gardiner-Hill v. Roland Berger Technics Ltd [1982] IRLR 498. In that case the Industrial Tribunal had said this -

"He did not register or inquire for employment at any bureau or government department exchange. He did not advertise his services. His actual financial loss must be offset by the £1500 plus 80% of the loss which otherwise he sustained in the period of 27 weeks from 1.6.81. It is on his evidence that we assess the failure at that proportion of such period." (para 5)

In delivering the judgment of the Employment Appeal Tribunal Browne-Wilkinson P. said:

"In our view, the Industrial Tribunal has misdirected itself in this case as to what is the rule on mitigation of damage. A plaintiff or claimant who has suffered by the wrongful act of another party is entitled to recover the loss that flows from that wrongful act. In the case of a breach of contract of employment, the loss will be the loss of earnings during such period as he loses the wages which he would have had from his employment and receives no alternative income earned during ordinary working hours.

In the present case, it seems to us that the Industrial Tribunal have taken the view that because Mr Gardiner-Hill did not apply for another job (ie paid employment) he has therefore as a matter of law automatically failed to mitigate his loss. In our view, that is not correct. The duty on a claimant is to take such steps as in all the circumstances are reasonable to reduce the loss he suffers from the respondent's wrongful act. ..." (para 9)

In our view Miss O'Neill's criticism is justified. As Mr Lynch pointed out, the facts are not on all fours, nor did this Tribunal apply a percentage reduction, as did that in Gardiner-Hill; instead they curtailed the period. But those are not distinctions of importance. The issue is whether the Tribunal asked the right question, that is whether in all the circumstances it was reasonable for the Applicant to do what he did, namely set up in business on his own account. There is no indication that they did, and every indication that they did not. If Mr Savage acted reasonably in becoming self-employed (and that is to be judged by the situation at the time when he took or failed to take the relevant steps, not by hindsight) then the correct approach is to bring his earnings from self-employment into account, not to end all compensation when self-employment started.

The cross-appeal is therefore allowed and the application remitted, if possible to the same Tribunal, for assessment of compensation in accordance with the principles stated in Gardiner-Hill and in this decision.