United Kingdom Employment Appeal Tribunal
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Cite as: [1995] UKEAT 767_94_3110
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Appeal No. EAT/767/94
EAT/1029/94
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 19th September 1995
Judgment delivered
On 31st October 1995
Before
HIS HONOUR JUDGE J HICKS Q.C.
MR J D DALY
MRS M E SUNDERLAND JP
M H RUBENSTIEN AND G S ROSKIN APPELLANTS
T/A MCGUFFIES DISPENSING CHEMISTS
MISS J MCGLOUGHLIN RESPONDENT
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants MR C J HEAD
(Representative)
Irenicon Ltd
5 April Court
Sybron Way
Crowborough
East Sussex
TN6 3DZ
For the Respondent MR J BENSON
(of Counsel)
Messrs Matthews Darnell
31/35 Cheapside
Liverpool
L2 2DY
See also: Rubenstein & Anor (t/a McGuffies Dispensing Chemists) v McGloughlin (No 2) [1996] UKEAT 767_94_2904 (29 April 1996)
JUDGE HICKS: The respondent and cross-appellant, Miss McGloughlin, was employed by the appellants, a small partnership firm of dispensing chemists, as a sales assistant. The employers became concerned at warnings from their bank and accountants of indications that there might be cash "leakages" and made some investigations. In particular Mr Roskin checked the record of certain credit card transactions.
On a credit card sale the correct procedure, as Miss McGloughlin knew, was to enter the transaction on the cash till, initial the shop's copy of the credit card voucher and place that copy in an appropriate compartment of the till drawer. The vouchers, together with cash from cash transactions, and presumably cheques or other cash-equivalents if they were acceptable, should balance the sales entered on the till roll.
Mr Roskin's evidence was that in the course of his check he found vouchers for three credit card sales carried out by Miss McGloughlin which had not been entered on the till roll. One possible explanation of such a discrepancy was theft by the sales assistant concerned, since if a voucher were placed in the till but the transaction not entered the till would remain in balance if and only if the equivalent amount were removed from the till drawer, for example in the form of cash.
In consequence of this discovery Miss McGloughlin was dismissed. She applied to the Industrial Tribunal, which by a majority found that the dismissal was unfair. That decision, and the employers' appeal against it, turn essentially on the disciplinary procedure followed by the employers, and we therefore set out the tribunal's findings of what it calls the "material facts" (as we understand it unanimous) in that regard:
"(9) Mr Roskin also discovered that two other assistants, Susan Kendrick and Karen Byrne had also failed to ring up credit card transactions.
(10) On 2 March 1993 he informed the staff that in future they had to bring credit card transactions to him for signature.
(11) On 5 March Susan Kendrick telephoned Mr Roskin and confessed not ringing up credit card slips and taking cash out of the till.
(12) Mr Roskin asked the respondents accountants to carry out an investigation, and they examined the till rolls and confirmed his findings that the credit cards were not being rung up on the till rolls.
(13) Subsequently those till rolls were given to the Police and lost.
(14) On 8 March Mr Roskin suspended the applicant and Susan Kendrick and Kathryn Byrne and Sarah Thomas. Exhibit R1, page 4 is the applicant's letter of suspension.
(15) That letter also stated that a disciplinary interview would take place on Tuesday 9 March and that the applicant had the right to bring with her a friend or a member of the family but that that person must be an observed and could not take part in the discussions.
(16) The applicant attended with her future father in law, Mr Roskin chaired the meeting, his partner Mr Rubenstein was present. Mr Roskin did not advise her that the possibility of the outcome was her dismissal, he had not made up his mind to dismiss her at the commencement of that hearing, the applicant could not explain why the credit cards were not recorded on the till roll and said she could not remember the transactions. The respondent did not show her the relevant credit card slips, they hold her they had the green slips with her initials thereon and they were not on the till roll. She did not ask for copies or a sight of the credit card slips. The applicant was not shown the till rolls concerned, they were in the hands of the Police and whilst in their possession they became lost and have never been found since. The applicant protested her innocence and alleged forgery and that mixed transactions had taken place and was recorded on different parts of the roll.
(17) The applicant was dismissed as were the other three assistants who also had disciplinary hearings.
(18) The applicant appealed and it was heard by Mr Myerson, the respondent's accountant who reported to the respondent that he could see no good reason for allowing the appeal.
(19) There was a review and it was heard by Rubenstein and he confirmed the dismissal."
The Industrial Tribunal then turned to its conclusions and in paragraphs 5 to 7 of its reasons found that the employers had discharged the burden placed upon them of showing the reason for the dismissal and that it was a reason within Section 57(2) of the Employment Protection (Consolidation) Act 1978, that reason being conduct. That finding is not challenged, and no challenge could be sustained.
Next the tribunal directed itself in impeccable terms, in paragraphs 8 to 10, as to the questions which it should ask itself for the purposes of section 57(3) of the Act and, equally impeccably, reminded itself that it must not substitute its own decision for that of a reasonable employer. Having explained that the tribunal was divided on this aspect of the application the reasons continue:
"11. ... The majority of the Tribunal find that there were not reasonable grounds to support the respondent's behalf that the applicant had committed the conduct complained about and neither was there a reasonable investigation into the matter. They failed to take any account of her declaration of innocence and failed to investigate her explanations, namely forgery and a mixed transaction, that is part cash and part credit card and that is was entered on a different part of the till roll and that they failed to show her the till roll. They also take the view that a reasonably minded employer would have gone out of their way to justify dismissal of an employee with 9 year's service. They find that the appeal was flawed because Mr Myerson did not bring a fresh mind to the appeal in that he had been involved in the investigation.
12. Accordingly the decision is that the response of the respondent in dismissing the applicant would not fall under that band of reasonable responses available to a reasonable employer and that the applicant was unfairly dismissed."
Mr Head, for the employers, submits that none of those grounds, separately or in combination, justifies the tribunal's decision. In our understanding they fall into three groups. The first concerns failure to take account of relevant considerations. That is explicit in relation to Miss McGloughlin's protestation of innocence and must, we think, be the gravamen of the curiously worded reference to length of service. The difficulty with such grounds is that employers are not required to give reasoned "judgments" in support of their disciplinary decisions, and these employers did not do so. Weight was a matter for the employer, not for the tribunal - that is precisely the force of its correct self-direction not to substitute its own decision - and an employer might well be justified in not giving great weight to these two factors in such circumstances. There is nothing in the paragraph devoted to findings of material fact which shows that there was any evidence on which the tribunal could or did find that the employers had wholly disregarded them. We therefore find difficulty in accepting that these were valid criticisms of the employers' decision.
The next group for consideration has only one member; it is the finding that the appeal was flawed because Mr Myerson did not bring a fresh mind to the appeal. As to this it is, as we understand it, common ground that sub-paragraphs (18) and (19) of paragraph 4 of the tribunal's reasons treat as separate processes what was in truth only one; Mr Myerson's function was not to determine the appeal but to make a report to Mr Rubenstein, who had the decision. As to whether Mr Myerson should have been involved at all, he had not previously been concerned to form or express any view on the involvement or culpability of individual employees, and this was a very small firm in which it would have been very difficult, if possible at all, to find senior persons who had had no previous knowledge of the background. This criticism of the employers' procedure is therefore also inadequate to support the majority decision.
The final group concerns failure to investigate Miss McGloughlin's "explanations" of forgery and mixed transactions or to show her the till roll. Before addressing the merits of these criticisms we should clear the ground on some preliminary points. First, although it does not appear in the tribunal's reasons, we understand it is common ground that the possibility of forgery was not raised at the disciplinary interview, but was during the appeal process. Since it is the reasonableness of the employers' final decision to dismiss, at the end of the process, which is in question, we consider that that makes no difference. Secondly we have put the word "explanations" in quotation marks because it is clear that Miss McGloughlin's primary response was that she could not explain why the alleged discrepancies had occurred and could not remember the transactions; in that context her "explanations" were plainly not positive assertions but the raising of alternative possibilities. Thirdly there must be at least the possibility that the majority's reference to the till roll was a slip of the pen for the credit slips. The latter were (it is common ground) available in the room during the interview, and paragraph 4(10) expressly finds that they were not produced by the employers and shown to Miss McGloughlin, whereas the till roll was in the hands of the police, which makes "failed to show" a rather odd form of words.
In our view these matters went to the heart of the accusation against Miss McGloughlin. That accusation had a positive and a negative aspect. The positive aspect was that she had dealt with the transactions and obtained credit card vouchers in payment. The evidence of that was her signature on the shop copies of the vouchers. The first and most elementary necessity of any adequate investigation, simply to establish whether that aspect was in issue, but of course a fortiori once the possibility of forgery had been raised, was to show her the vouchers and ask whether she accepted that the signatures were hers. The negative aspect was that she had not entered the transaction on the till roll. That involved at least two questions which she needed the opportunity of considering. The first was whether the roll relied on by the employers was the one on which the transactions should have been entered; that would sometimes be a simple matter to check, as where each assistant uses only one till, or enters a unique identification reference, or both, but it is apparently common ground that neither of those conditions obtained in this case. The second was whether the employers were right in their assertion that the transactions did not appear. Again the opportunity of inspecting the roll for those purposes was not only desirable in the first place but was made the more so in the light of her not surprising claim that she could not on 9 March remember transactions which had occurred in February (we do not seem to have the date or dates), for a sight of the vouchers and till roll was the best hope of jogging her memory. It was also relevant to her suggestion that there could have been a mixed transaction.
In our view the failure to show Miss McGloughlin the vouchers was in the circumstances a clear breach of fairness in the employers' investigation. The failure to produce the till roll is not quite so straightforward, on the tribunal's finding that it was already with the police, but some effort was nevertheless called for; it was unfair to make no attempt whatever to give her an opportunity of inspecting it, if necessary at the police station, or at least to obtain a copy for her to look at.
We are also disturbed at the Industrial Tribunal's finding that at the disciplinary hearing Mr Roskin did not advise Miss McGloughlin that a possible outcome was her dismissal, especially in conjunction with the explanation (apparently accepted by the the tribunal, since there is no adverse comment) that "he had not made up his mind to dismiss her at the commencement of the hearing". That displays, to our minds, a complete misapprehension of the purpose and effect of ensuring that a person subject to a disciplinary hearing understands its nature and importance, including the possible outcomes.
We therefore find ourselves in the position that of the grounds for finding the employers' procedure unfair to which we attach weight one (the failure to produce the voucher) is not expressly relied on by the Industrial Tribunal, although it may have been intended to be covered by the reference to the till roll and can be understood as part of the failure to investigate the explanation of forgery. The second (the failure to produce the till roll) is on the face of it mentioned, albeit in terms which do not address the problem of its not being immediately available, and again it can be understood as part of the failure to investigate the explanation of a mixed transaction. The third (the failure to advise of the possible outcome of dismissal) is not relied on by the tribunal at all, or indeed taken in the Notice of Appeal.
Mr Head expressly declined to submit that the application must be remitted to the Industrial tribunal if we found the tribunal's decision to be sustainable for other reasons, as we do - or, more strictly, for reasons partly those of the tribunal and partly not. In his reply he went further, and stated that he would prefer to have the question of unfair dismissal dealt with here. We prefer, however, not to deal with the matter on the basis only of that concession, if it is rightly categorised as such, but on the stricter test stated in Harvey on Industrial Relations at paragraph T[1716], citing the cases of Dobie, O'Kelly and Morgan, that this tribunal may dismiss an appeal notwithstanding a misdirection, but only if it considers that the decision is "plainly and unarguably right". We do so consider, and therefore dismiss the appeal against the finding that Miss McGloughlin was unfairly dismissed.
In the Notice of Appeal and in Mr Head's skeleton submissions there was also a challenge to the majority decision of the tribunal, in paragraph 14 of their reasons, that "there was no contributory negligence" as being perverse. Although not abandoned that ground was not developed to any significant extent in Mr Head's oral submissions and we reject it. In dealing with the primary issue of the fairness or unfairness of the dismissal the tribunal, as it rightly reminded itself, was not to substitute its own decision for that of the employer. In order to persuade it to make a finding that there was contributory conduct, however, the employers would have had to lead evidence and invite findings as to the truth or untruth of the original allegations against Miss McGloughlin. Nothing in the tribunal's reasons or in the Appellant's submissions shows whether that was done at all, or if so how, and the chairman's notes of evidence were not called for. In those circumstances there are simply no materials on which we could be invited to find, or could properly find, that the tribunal's conclusion was perverse.
Following the finding of unfair dismissal the Industrial Tribunal adjourned the question of compensation and in due course awarded Miss McGloughlin the sum of £3,640 but ordered her to pay £350 to the employers in respect of their costs thrown away by an adjournment caused, as the tribunal found, by her failure to produce relevant medical evidence. The employers appeal against the compensation award, which they allege is too high, and Miss McGloughlin cross-appeals, contending that it is too low and also seeking to set aside or reduce the order for costs.
Substantially the whole of the tribunal's reasons for its decision on compensation is relevant to some aspect of the appeal or cross-appeal, and we therefore set it out in full:
"1. This matter came on before the Tribunal on 16 November 1993, and subsequently on 1 March and 11 April when the Tribunal majority decided the applicant had been unfairly dismissed and adjourned the question of compensation to 19 May.
2. On that date the matter had to be adjourned further because of the failure of the applicant to adduce medical evidence confirming her inability to take on full-time employment.
3. The matter now comes before the Tribunal today to determine the amount of her loss and the Tribunal has had benefit of a medical report and of further evidence from the applicant from a Mr Schofield on behalf of the respondents and has perused Exhibit A4 and R5 which is correspondence relating to the loss alleged.
4. We are satisfied that following the applicant's dismissal, her health deteriorated as set out in R5 pages 3 and 5 being medical reports from the applicant's doctor R K Bajaj and as a consequence of that deterioration she was unable to take on full employment.
5. She was advised by health councillors to try and get into a routine of being able to get to work each day and was fortunate that friends of the family at that time owned a Wine Bar and which allowed her to go in for a couple of hours per day as and when she felt up to it.
6. The owner of the Wine Bar subsequently changed by the new owner Mr Schofield has confirmed that the applicant continued to go into work but she did not receive wages, nor did she receive any tips or benefits in kind.
7. The unanimous decision of the Tribunal on the question of loss is that as a consequence of being accused of theft by the respondents which she regarded as false, this being her first and only job, she was unable to go to work or enable to seek employment.
7. The applicant is entitled to a basic award calculated at 5 weeks at her gross previous weekly wage with the respondents of £140.00 per week which total £700.00.
8. She is also entitled to a compensatory award as a consequence of our finding as set out above. From the date of her dismissal on 13 March 1993 to date is a total of 73 weeks at a net average wage was £114.00 per week and her loss amounts to £8,322.00.
9. From this must be deducted earnings she has received between the period of 16 May 1994 and today's date 9 August 1994 amounting to £1,831.00.
10. In addition there must be also deducted the amount of benefits received by this applicant as a consequence of her ill health totalling £3,751.00, the last 2 figures totalling £5,582.00 and when credit is given for that amount the loss to date is reduced to £2,740.00.
11. In addition thereto she is entitled to £200.00 for loss of protection for loss of statutory industrial rights.
12. The grand total of the award is made up of £700.00, £2,740.00 and £200.00, a grand total of £3,640.00. The Recoupment Regulations do not apply."
Mr Head submitted in support of the appeal that the finding in paragraphs 4 and 7 of the tribunal's reasons that Miss McGloughlin's illness arose from the dismissal by reason of the accusation of theft was perverse and not based on any competent evidence. We reject that submission. The doctor's report of 13 June 1994 stated that she suffered from anxiety and depression after her dismissal and referred to a diagnosis by a specialist clinic of a depressive illness due to stress. It dealt with her treatment, the course of her illness and her recovery after "winning her case". She herself apparently gave evidence of causation. The assessment and evaluation of that evidence and the findings of fact to be derived from it were entirely a matter for the tribunal and there is no reason to infer that it erred in law in its execution of that task.
Another submission was that the tribunal should have based its compensation calculations on what Miss McGloughlin would have received if absent sick but still in the Appellants' employ. The only basis for such an approach would be that her illness was not caused by her dismissal, and this submission therefore merely duplicates the first and falls with it.
Finally it was alleged that the tribunal was perverse in finding that Miss McGloughlin was unable to "take on full employment" (paragraph 4) or to "go to work or ... to seek employment" (paragraph 7), in the light of its findings as to her ability to work unpaid in a Wine Bar. The circumstances are explained and considered in the tribunal's reasons and we see no inconsistency, perversity or error in law.
We therefore dismiss the appeal against the assessment of compensation.
The cross-appeal on compensation challenges the deduction of £3,751 benefits, which in fact consisted of Invalidity Allowance. The Industrial Tribunal give no explanation of this deduction. Mr Benson, for Miss McGloughlin, relies on the decision of the Employment Appeal Tribunal in Hilton International Hotels (UK) Ltd v Faraji [1994] IRLR 267 as establishing that Invalidity Benefit is not deductible.
It is therefore necessary to consider, in the first instance, whether we should follow Hilton, which is of persuasive but not binding authority so far as we are concerned, and in which it was undoubtedly held that Invalidity Benefit is not deductible from compensation for unfair dismissal.
We may summarise the reasoning in Hilton as follows. In paragraph 11 Judge Hargrove notes the provisions of section 74(1) of the Employment Protection (Consolidation) Act 1978 as to compensatory awards and the fact that they do not necessarily produce the same result as the common law of damages. He adds, however, that guidance can be obtained from the general rule derived from British Transport Commission v Gourley [1956] AC 185 which, by implication, he takes to be that only net loss is recoverable, subject to "exceptional cases of insurance". In paragraph 12 he poses the question as being whether Invalidity Benefit comes within an exception to the Gourley rule and observes that it is part of the national insurance scheme and that those in employment must pay the sums levied. He continues: "While some would compare such levies to additional taxation, they are more properly classified with insurance premiums". In paragraph 13 he cites Parry v Cleaver [1970] 1, another House of Lords case on common law damages, in which a police officer's contributory disability pension was held not to be deductible against lost salary, as an example of a case where an "insurance type" benefit was held to be within the exceptions to Gourley and says: "We are of the opinion that the receipt of invalidity benefit can properly be categorised as coming within the 'insurance' group of benefits". In paragraph 14 he says that this view is reinforced by the provisions of the Employment Protection (Recoupment of Unemployment and Supplementary Benefits) Regulations 1977, which provide for the two named benefits to be subject to recoupment but make no such provision in relation to Invalidity Benefit. Finally, in paragraph 15, he meets the objection that an unfairly dismissed employee may receive more than if he had been working by stating that this can happen in a personal injuries case "since only one half of that benefit for a period of five years has to be accounted for in assessing damages".
We must confess that we are unable to see how the recoupment provisions support the decision. They provide for an employer to pay, "by way of deduction out of the sum due under the award, the recoupable amount to the Secretary of State" (reg. 9(8)), and that such a payment "shall be a complete discharge in favour of the employer as against the employee in respect of any sum so paid" (reg.9(10)). The result is that the "recoupable sum" is deducted from the compensation so far as the employee is concerned but not so far as the employer is concerned. The fact that Parliament did not include Invalidity Benefit in that regime cannot, so far as we can see, be an indication either that it should be deducted or that it should not.
As to the "half deduction" in personal injuries cases, we must return to the relevance of the legislation in that field later in expressing our own conclusions, but we note at this stage that the regime as stated in Hilton was substantially altered by the Social Security Act 1989.
That brings us back to the primary ground of the decision. The only reason given for the conclusions that the employee's social security contributions are "more properly classified with insurance premiums" and that receipt of this benefit can "properly be categorised as coming within the 'insurance' group of benefits" is that those in employment "pay the sums levied" for the purposes of the national insurance scheme. For ourselves we find it difficult to obtain any clear guidance from the place of Invalidity Benefit in the social security system. It is true that it is dealt with in Part II of the Social Security Contributions and Benefits Act 1992, entitled "Contributory Benefits", which contrasts with Part III, Non-contributory Benefits", benefits for industrial injuries being in neither of those Parts, but having their own Part V. However, although the benefits in Part II are payable out of "the National Insurance Fund" it is well known that that is not a true insurance or pension fund managed on actuarial principles and capable of meeting claims out of past contributions. Moneys are to be provided by means of contributions by earners, employers "and others", with additions from money "provided by Parliament" (that is out of general taxation) - section 1(1),(5) - and there was no evidence before the Industrial Tribunal or us as to the proportionate sizes of these sources, although Mr Head invited us to take it as common knowledge that the employer's contribution is much greater than the employee's. Moreover we find it very difficult to treat the place of Invalidity Benefit in Part II as being of any great weight in favour of non-deduction in face of the fact that that Part also includes Unemployment Benefit, which on clear authority is deductible from common law damages where statute has not intervened. (As we have already noted it is recouped by the public purse out of compensation for unfair dismissal, so that neither party benefits, and the same is now true in many cases of damages for personal injuries under the legislation referred to later.)
We therefore return to the statute and to principle. Section 74(1) of the 1978 Act provides that, with irrelevant exceptions, the amount of a compensatory award is to be "such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer".
That, it has been held, is a statutory provision constituting its own code for the assessment of compensation, and not to be assumed to be equivalent to the common law of damages. Nevertheless there are many respects in which common law authority is helpful. What is "the loss sustained" raises questions similar to those of the quantification of damages, and whether that loss is "attributable" to the employer's actions and sustained "in consequence" of the dismissal involves familiar issues of causation. As is apparent from the discussion in Hilton such common law authorities as Gourley and Parry v Cleaver are unquestioningly accepted as being of direct authority in the field with which we are now concerned.
The autonomy of section 74(1) remains, however, and one important feature of that provision is the incorporation of the requirement that the award shall be of such amount as the tribunal considers "just and equitable". In our view that is of particular relevance in dealing with a field such as the deductibility of benefits, in which the case law of damages has had to adopt an "all or nothing" approach to a topic in which (to take only the "insurance" exception to Gourley) there can be an infinite gradation from an insurance policy fully funded by the claimant to a pension or benefit to which his contribution has been minimal. We see no reason why an Industrial Tribunal, in awarding what is just and equitable, should be similarly limited.
Another consequence of the autonomy of section 74(1) and of the jurisdiction to do what is just and equitable is, in our view, that in looking to analogous situations it is legitimate to take into account not only case law but the regime of common law damages as a whole, including the statutory element, for it is to be assumed that Parliament itself is aiming at just and equitable solutions. We therefore find it instructive that for a number of social security benefits, including Invalidity Benefit, there are statutory provisions affecting the damages recoverable for personal injury which for smaller awards continue the deduction of half benefit for five years referred to in Hilton (Law Reform (Personal Injuries) Act 1948, section 2, as amended) and for all others impose a system of recoupment similar to that operated under the 1977 Regulations in relation to compensation for unfair dismissal, as described above (Social Security Administration Act 1992, section 82). It would of course be wrong to apply these provisions directly or to treat the detailed distinctions between smaller and larger claims or between the first five years and later as of any particular assistance, but the broad conclusion to emerge clearly from the 1977 Regulations and the statutory provisions as to personal injuries is that throughout Parliament has treated the employer and the employee equally, either by depriving both of the relevant benefits or by dividing the value of those benefits between them by the device of half deduction.
We conclude that in the case of Invalidity Benefit, which is clearly not a pure "insurance" payment, fully funded by the employee's contributions, to produce a "just and equitable" solution requires either detailed evidence of the funding position or a broader approach. In our view the latter is to be preferred, and having regard to the analogy of the statutory system as well as to more general considerations of equity we consider that one half of the Invalidity Benefit received should be deducted. No issue of fact specific to this case is involved, and we therefore see no need to remit the matter to the Industrial Tribunal.
Although we were referred to the Hilton case and briefly addressed on both sides on this topic the statutory provisions to which we have referred above were not canvassed in argument, nor was the conclusion which we have reached above advanced on either side. It should therefore be regarded as provisional in the first instance and this Tribunal's Order is not to be entered until 28 days after this judgment has been handed down, during which period either party may make further written submissions on this point. If such submissions are received within that time the order will not be entered until we have considered them and confirmed or revised our conclusion.
There remains, finally, the cross-appeal against the order that Miss McGloughlin pay £350 costs. The Industrial Tribunal's jurisdiction to award these costs arises from Rule 12(4) of the Rules annexed to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, which provides that where the tribunal has on the application of a party adjourned a hearing it may make an order for costs against or in favour of that party as respects any costs incurred as a result of the adjournment. There is no limitation in sub-rule (4), as there is in relation to the general costs of proceedings in sub-rule (1), that the party against whom the order is made must have acted "frivolously, vexatiously, abusively or otherwise unreasonably". There is therefore a general discretion, limited only by the requirement that it must be exercised judicially.
Mr Benson's first objection is that in making the order the tribunal applied an erroneous view as to the burden of proof on the issue of mitigation. The tribunal describe the order as being in respect of costs "thrown away as the result of the applicant's failure to produce medical evidence at the last hearing to support her claim that she was unable to work between the date of dismissal and the date of securing her present employment". In our view that is not concerned with any general principle about burden of proof. The applicant was advancing a positive case of medical incapacity, and in order to make it good was plainly likely to need professional medical evidence, which she did not have available at the date of the hearing. It was clearly within the tribunal's discretion to come to the conclusion that she should pay the costs thrown away by the adjournment necessary to enable her to produce such evidence.
Secondly Mr Benson says that the order was for too great a sum, since it included costs of preparation as well as of attendance and the former would have been incurred in any event. We agree that it is only wasted costs which should be awarded in such circumstances, but whether costs have been wasted cannot be determined by a simple dichotomy between preparation and attendance, and in any event the tribunal's decision contains no calculation of the sum awarded and we see no reason to doubt that it carried out a genuine assessment in accordance with its own description of the costs in question as being those "thrown away". The sum itself, which is all we have to go on, is certainly not such as to entitle us to infer that the tribunal erred. We therefore dismiss the cross-appeal against that part of the decision.