United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR WHITTAKER (Solicitor) Messrs Sinclair & Smith Solicitors Graphic House 27 Greek Street Stockport SK3 8AG
For the Respondent	MR ELSEGOOD (Representative) Yorkshire Employment Services Ltd Jefferson House 18 Orchard Lane Guiseley Leeds LS20 9HZ


 


MR JUSTICE CHARLES: The parties to this appeal are the Liverpool Victoria Friendly Society Ltd (the Company) who is the Appellant before us and was the Respondent below and Mr N. Deakin (the Respondent before us and the Applicant below).

Introduction

1. The Company appeals against two findings of the Industrial Tribunal sitting at Leeds on 1 July 1997 and sent to the parties on 23 July 1997. These findings are:

(1) the finding made by the Tribunal as to the quantum of damages awarded to Mr Deakin for breach of contract and this appeal relates to the finding of the Tribunal as to the notice that should have been given to Mr Deakin, and

(2) the finding of the Tribunal that the Company should pay the costs incurred from 22 June 1997 to 1 July 1997.

For the reasons set out later we dismiss both appeals.

Background

2. Before dealing with these two heads of appeal we set out some of the history.
3. Prior to the hearing before the Tribunal on 1 July 1997 there had been an earlier hearing on 20 June 1997. At that earlier hearing the Company was not represented. This was a deliberate decision by the Company taken shortly before the hearing. On 17 June the Company's Solicitors, Sinclair Smith of Graphic House, 27 Greek Street, Stockport, under the reference of a Mr Jonathan Whittaker, who is a partner of that firm, wrote to the Tribunal in the following terms:

"We write to advise you that having considered the nature of the application made in this matter that we are writing to ask the Tribunal to accept the Notice of Appearance filed by the respondents in this matter, dated 21st March 1997 as WRITTEN REPRESENTATIONS made on behalf of the respondents. The respondents do not propose to attend the hearing in person and do not intend to be further represented."

4. That Notice of Appearance was signed by Sinclair Smith on behalf of the Company. The particulars of the grounds upon which the Company stated it intended to resist the application run to three paragraphs, the last paragraph is in the following terms:

"If the Applicant was dismissed then the Applicant was dismissed on the grounds of capability and the Respondent company followed a fair and reasonable procedure."

5. As appears from that final paragraph the earlier paragraphs were to the effect that it was alleged that the Applicant had not been dismissed and there had been no fundamental breach of his contract of employment. Unsurprisingly these grounds of resistance do not contain any assertions relating to the amount of any compensation that would be payable to Mr Deakin if he succeeded in his application.
6. Mr Deakin's IT1 is dated 4 March 1997. It is apparent from the Company's Notice of Appearance that from a very early date the Company was represented in these proceedings by Sinclair Smith.
7. So from March 1997 until very shortly before the hearing Mr Deakin and his representatives were correctly of the view that the Company was being represented by Sinclair Smith. Further it is common ground that both Mr Deakin and his representatives were expecting the Company to appear at the hearing which was set for 20 June 1997.
8. Neither Sinclair Smith nor the Company informed Mr Deakin or his representatives of the decision made shortly before the hearing on 20 June 1997 that the Company was not going to appear at that hearing. In our judgment both Mr Deakin and his representatives were understandably and justifiably surprised to find when they attended the hearing on 20 June 1997 that the Company was not going to appear and take part in that hearing.
9. At that hearing the Tribunal found that the Company had acted in breach of Mr Deakin's contract of employment and that he had been unfairly dismissed. The Extended Reasons in respect of that decision were sent to the parties on 19 September 1997 (that is after the Extended Reasons relating to the second hearing). In the Extended Reasons dated 19 September 1997 the Tribunal find that the Company treated Mr Deakin badly. The background to this bad treatment can be seen from paragraphs 1 and 8-10 of those Extended Reasons which are in the following terms:

"1. The applicant commenced employment with the Frizzell Group on 20 January 1995 as a consultant in the Leeds area. On 1 April 1996 he was promoted to regional sales manager. That was not a post he applied for but one he was asked to fill by the respondents when he was told that the previous manager was 'stepping down'."

10. We pause to comment that the previous manager was a Mr Martin Miller who remained as a consultant reporting to Mr Deakin and the Tribunal found that this created a difficult situation which Mr Miller did not take well.

"8. In the interim some problems relating to old business done by the Company had been discovered. One concerned a particular transaction brokered by Mr Miller where all the documents were with a relative of the elderly investor with no power of attorney visible and where several compliance issues had not been met. The applicant had discovered this before his appointment as regional sales manager and had discussed it with Peter Press, the compliance manager. He is the person responsible for ensuring that all dealings were ethical. Mr Press asked the applicant to keep a watching brief on Mr Miller and on Shaun Conboy, the then area manager. That problem was an isolated incident. However, in late September or early October the applicant became aware of a problem concerning unfunded endowment policies. These were 'back to back' products where a lump sum was invested to fund another product. Although this was strictly lawful these particular policies produced an income from that lump sum for only 5 years yet the funding for the second policy was required for 10 years and, therefore, the advice given was clearly unsound. When the first was discovered this was also thought to be an isolated incident or a misunderstanding on the part of the investor. By the end of October, 21 of these had been discovered, largely written by Shaun Conboy who, by that time, had left the firm. The applicant brought this problem to the attention of his line manager, Andrew Russell, and also to Peter Press. Andrew Russell, however, stated that Mr Miller, particularly, was beyond reproach, having met every compliance check, and that the applicant was over-reacting to the problems. He instructed the applicant not to contact Mr Press unless through Mr Russell himself and not to speak to Mr Miller unless somebody else was present. As time went on it became clear that there were in the region of 800 similar back-to-back cases all written from 1992 to 1994. The applicant wanted the problem to be notified to the clients with some proposals before the clients became aware themselves but this was not at that stage done.

9. No monthly Training and Competence meetings were ever held for the applicant with his supervisor, Mr Russell, who explained this simply by saying that he was a 'hands off' manager.

10. On 5 December 1996, the applicant had a telephone call from Mr Russell's secretary informing him that Russell was flying up from Bournemouth to see him. This meeting took place in a public house near the applicant's home. Mr Russell then told the applicant that he had had meetings with Tim Boggie (then a consultant working under the applicant in Leeds) re the unfunded endowments and that responsibility for those was to be transferred to Mr Boggie. Further, all contacts with Leeds Metropolitan University were to be transferred to Mr Miller who was now working in Manchester who would pass back only those leads he would not use. All this considerably undermined the applicant's status and authority."

11. These paragraphs in the Extended Reasons describe a serious situation relating to "compliance issues". In the final paragraph of these Extended Reasons the Tribunal find and state as follows:

"The Tribunal finds that the respondents were in fundamental breach of the applicant's contract and, consequently, he was constructively dismissed. That breach comprised of a lengthy de facto suspension, in effect, on reduced income which had, as the respondents must have known, an increasingly damaging effect on the respondent's reputation. Although the applicant's contract did provide for suspension on full pay, this was reserved for cases of gross misconduct whereas the Respondents did not allege any misconduct at all. Also, their allegations were not properly particularised until after the applicant's grievance hearing, some 2 months after he had been asked to stand down. Further, by their letters of 17 and 27 February, it was clear that the Respondents had, in fact, at some time before, decided to demote the applicant and had no intention of reconsidering that decision. They, therefore, had no intention of abiding by the term of his contract to employ him as area manager. The applicant was given no proper opportunity to refute the respondent's complaints, even if they had been genuine. The Tribunal, however, accepted the evidence of the applicant and his witnesses and their view that his treatment had more to do with his stance in relation to compliance issues than to any other cause. This meant that the position that the respondents purported to demote him to was, as they must have well known, completely untenable for him. He could not work under Mr Miller nor could he restore his reputation in the Industry if he did so.

The Tribunal heard some evidence from the applicant on remedy but the applicant was unable to provide information relating to his notice period at the time of the effective date of termination, the likely income he would have had had if he still been in employment (for which figures relating to income not available until after the applicant left were needed), and re pension benefits. This information had, apparently, been requested by the applicant's representative of the respondents but not received. The Tribunal, therefore, adjourned for a remedy hearing."

12. It is apparent that the Company, and its solicitors, were aware that at the hearing on 20 June 1997 issues relating to the Company's conduct in respect of (i) the selling of policies as to which "compliance issues" had been raised by Mr Deakin, and (ii) Mr Deakin's suspension and the termination of his employment by the Company, would be considered by the Tribunal and that in respect of those issues the Company, and its witnesses, were potentially open to serious criticism and far-reaching adverse findings of fact. Non-attendance had the inevitable consequence that any such findings or criticisms would be made on the basis that the Company had not given evidence and could so assert when dealing with such matters elsewhere.
13. In contrast to the position adopted by the Company in respect of the hearing on 20 June 1997 the Company chose to appear and be represented at the second hearing which took place on 1 July 1997 which was concerned with compensation, and costs. At that hearing similar risks of criticism and adverse findings did not exist. The Company was represented by a Mr David Southall of Sinclair Smith.
14. At that second hearing the Company also produced some documents which it sought to rely on in respect of the quantification of Mr Deakin's claim and, in particular, as to the period of notice that should have been given to him. However, at that hearing the Company did not seek to call any oral evidence.
15. The documents produced were a contract of employment and some correspondence. We shall describe and deal with the effect of these documents, and the reliance that the Company sought to place on them, when we deal with the appeal relating to the quantum of damages.
16. The Extended Reasons of the Tribunal relating to the hearing on 1 July 1997 are dated 23 July 1997 and contain the following paragraphs:

"1. This was the remedy hearing in respect of Mr Deakin's application against the Liverpool Victoria Friendly Society Ltd. Mr Deakin was, as before, represented by Mr A. Elsegood of Yorkshire Employment Services. The respondents, although unrepresented at the hearing, were today represented by Mr Southall, a Solicitor. The applicant gave further evidence on oath to assist in quantifying his loss and produced further documents in support. The respondents did not call any evidence but did produce some documents relating to salary and benefits.

6. ...

With regard to the notice period the Tribunal finds, based on the documents provided today, that the notice was 12 weeks. The contract of employment provided by the respondents today sets out a table of differing periods of notice dependent on the employee's salary group. The respondent argued that since the applicant had started with 8 weeks, 8 weeks was the contractual period of notice. However given his current salary the Tribunal finds that he would have been in salary group A-D and therefore 12 weeks is appropriate. That would result in a net loss of £7,985.00. The total award under Section 3 of the Act therefore is £13,985.00 and the Tribunal order that sum to be paid.

7. On the question of costs the Tribunal have given considerable thought to the fair order in respect of costs. The Tribunal feel that costs from 22 June 1997, i.e., from the close of the last hearing until today, have been occasioned by the respondent's failure to provide the applicant with sufficient information to calculate loss, particularly with regard to pension provision, notice and bonuses. The Tribunal therefore orders costs from 22 June 1997 to today be payable by the respondents and that those costs be treated on the County Court Scale Level 2."

17. We note that the Tribunal seem to have made a mistake as to the date of the earlier hearing but nothing turns on this point.

The preliminary hearing before this Tribunal

18. This was held on 14 July 1998 and on that hearing the Company was represented by Mr Whittaker who put before this Tribunal a skeleton argument. We understand that Mr Deakin and his representative have never seen a copy of this skeleton argument. As to the "costs appeal" it provides as follows:

"3. In relation to the order made that the Appellant should pay the costs of the respondent incurred between 22 June and 1 July 1997 the Appellant says:

(a) The Industrial Tribunal made no finding of fact whatsoever to establish how the Appellant allegedly failed to provide the Applicant or his representative with sufficient information to enable them to calculate loss. There is no indication given in the Extended Reasons issued by the Tribunal that any verbal or written request whatsoever for information was made of the Appellant or its representative at any time between 22 June and 1 July 1997.

(b) The Tribunal does not state pursuant to rule 12 of Schedule 1 of the Industrial Tribunals (Constitution and Regulations 1993) the basis upon which the Tribunal have apparently concluded that the Appellant in some way acted frivolously, vexatiously or abusively, disruptively or otherwise unreasonably. In the absence of any such finding by the Tribunal the Tribunal was mistaken in concluding that it was entitled to exercise its discretion to order the Appellant to pay costs.

(c) The documentation submitted to the Tribunal during the hearings on 22 June and 1 July did not include any requests for information either by the Respondent or by his representative to enable them to calculate loss. As no such requests were made either by the Respondent or by his representative then the Tribunal was mistaken in concluding that the Appellant had, in any way, failed to provide relevant information to the Respondent or to his representative.

(d) The first request for any information which was made by the Respondent or by his representative was on the 23rd and then again on 25 June and such requests were complied with in full as evidenced by the fact that the Tribunal was able to proceed to properly calculate loss in their opinion at the hearing on 1 July 1997 and no adjournment of that hearing was necessary. This must therefore be evidence that the Tribunal was on 1 July in possession of all relevant information enabling to calculate losses of the Respondent.

(e) Neither the respondent nor his representative at any time made any application to the Industrial Tribunal for orders for discovery or inspection of any documents which they had allegedly requested of the Appellant or its representative and which they could claim were being improperly withheld. Furthermore, neither the Respondent nor his representative submitted any written questions to which it required written answers in connection with loss.

(f) There is no implied duty on the Appellant or its representative to supply information to the Respondent or to his representative in connection with the calculation of loss unless it is specifically requested. There is by contrast a duty on the Respondent and/or his representative to properly calculate loss and to provide to the Tribunal during the course of the hearing both by verbal and written evidence that losses allegedly incurred by the Respondent."

19. At the preliminary hearing this Tribunal made an order that the Company do file affidavit evidence within 21 days of such matters it wished to rely on to include the contract of employment and the absence of any matters in relation to costs and that such affidavit was to be served on the Respondents for a reply thereto.

The evidence produced as a result of that direction

20. As a consequence of that direction evidence was put in on behalf of the Company sworn by Mr Whittaker and Mr Southall. An affidavit in reply was sworn by Mr Deakin's representative, Mr Elsegood.
21. Much of the affidavits of Mr Whittaker and Mr Southall contain submissions which, together with the facts asserted therein and relied on by the Company, are reflected in the skeleton arguments put in on the preliminary hearing and on the hearing before us.
22. Mr Elsegood on behalf of Mr Deakin makes the following points in his affidavit in response to the affidavits of Mr Whittaker and Mr Southall:

"3. BREACH OF CONTRACT

a) The Appellants failed to appear at the Industrial Tribunal held on 20 June 1997 although their attendance was expected and, indeed, a bundle of documentation had been promised by Mr Whittaker to be available to me prior to that Hearing. The Industrial Tribunal had received a facsimile on 17 June indicating that the Appellants were making written representation only, but this was not communicated to the Respondent at all. The letter dated 17 June indicated that the Appellants 'do not intend to be further represented'. In due course the Hearing was commenced without the Appellant or the (then Defendant's) bundle of evidence. Please refer to ADE1, attached.

....

The Respondent's (then Applicant's) bundle of evidence did not contain the Contract of Employment under which Mr Deakin was employed at the time of his dismissal, because:

i) Mr Deakin had never received a Contract of Employment in respect of his appointment as Regional Manager or any Statement of Main Terms and Conditions or any statement varying a pre-existing Contract, despite that situation having been drawn to his employers' attention and a request having been made in correspondence dated 13 January 1997 and addressed to Richard Campbell, Managing Director of the employer, to supply such a Contract if it existed.

ii) The Appellants, by failing to attend at the Industrial Tribunal and by not providing a bundle of evidence as promised, denied to Mr Deakin, his Representative and the Industrial Tribunal the opportunity to examine matters they now claim as pertinent.

The documents to which Mr Whittaker refers in his paragraph a) are those which were brought forward to the Remedy Hearing on 1 July, and which the Appellants' Representative - who was not Mr Whittaker - attempted to introduce as new evidence. The Industrial Tribunal ruled that the evidence was inadmissible in relation to the questions of Unfair Dismissal and Breach of Contract, which had already been decided. The members did, however, register the documents and would consider their implications relative to the matter of remedy. Mr Deakin was asked under oath about the Contract of Employment then submitted ('JMW1') and did confirm that it was the Contract of Employment relative to his initial appointment as a Consultant in January 1995. The Industrial Tribunal took due note, however, that it was not the Contract of Employment relating to the job he held at the date of his dismissal, that is for the post of Regional Manager and, accordingly, there was no documentary evidence as to the Terms and Conditions pertinent to that job from which Mr Deakin had been dismissed.

(b) The second bundle of documents attached to Mr Whittaker's Affidavit ("JMW2") was presented to the Industrial Tribunal on 1 July, again as new evidence. It had not been copied or previously submitted to the Applicant or his Representative. It was a complete surprise. The Industrial Tribunal was roundly critical of the Appellants' Representative for bringing new evidence at this stage.

When Mr Deakin was called to the Witness Stand and asked about these new documents in relation to the issue of Remedy, he denied ever having received or having seen the purported Contract of Employment/Appointment Letter which is dated 21 March 1996, at any time prior to that Hearing. He pointed out, and the Tribunal took due note, that none of the documentation bore his signature or any indication that he had received it, quite contrary to the evidence of his signature on the earlier 1995 Contract for his previous position.

Mr Deakin also stated under oath that he had never seen or received the other letter dated 25 March 1996. He pointed out that the letter was supposed to have contained or enclosed the form requesting details of his dependants, yet the form was shown blank. If he had been provided with such a letter, he would have completed the details and his employers would be in possession of the duly completed and signed copy.

The same bundle of documents is produced in connection with Mr Southall's Affidavit, and the same comments therefore apply. However, in Mr Southall's Affidavit at section 2 and at the head of page 2, I observe that Mr Southall has made a statement which may be misleading. He states that Mr Deakin was asked under oath about matters relating to his grade and to a car allowance. What Mr Southall's Affidavit fails to report accurately is that Mr Deakin said he did not know his grade/salary group and that although he recognised the style of the letter, he was certain he had never received one. It was the general format and style used by his employers, but he had not received such a letter. Mr Deakin pointed out under cross examination by Mr Southall that although there was reference to a car allowance, he personally did not receive such a car allowance but had a fully expensed company car. Therefore the letter and the reference to a car allowance did not apply to him in his former position as Regional Manager.

The only Contract of Employment which the Appellants have ever supplied to Mr Deakin, according to his testimony, is that dated January 1995, and that was for the relatively junior position of Consultant. It has no relevance at all to the position of Regional Manager which he took up in March 1996. Mr Deakin could offer no explanation at the second Hearing of letters supposedly sent to him and dated March 1996. The Industrial Tribunal said they preferred the evidence of Mr Deakin on these matters and if, as the Appellants now contended, such documentation had been available, it should have been provided at the original Hearing where it could have been tested in evidence and with witnesses present."

23. Exhibit ADE1 referred to by Mr Elsegood contains the following:

(a) A letter dated 13 January 1997 written by Mr Elsegood to the Managing Director of the Company (in that letter referred to as 'Frizzell Life and Financial Planning Ltd' but which the Tribunal found should have been called 'Liverpool Victoria Friendly Society Ltd' who took over the former organisation in 1996). In that letter Mr Elsegood states (amongst other things):

"On the occasion of his promotion to the position of Regional Manager in April 1996, it appears Mr Deakin was not issued with a Statement of Main Terms and Conditions of Employment containing those details of his new Contract as required by the Employment Protection (Consolidation) Act 1978 as amended by the Trade Union Reform and Employment Rights Act 1995. In particular, in the absence of specific information concerning his period of notice, we anticipate that the period appropriate to a senior manager will be at least 3 months. (It was 1 month when he was appointed as a Consultant). Please confirm."

This letter was written before the termination of Mr Deakin's employment and at a time when he was suspended. It makes a number of other points. Its penultimate paragraph is in the following terms:

"The questions we have asked and the matters to which they refer are entirely within your Company's procedures and records and your own authority to answer within the time period specified. Our client's position is under threat and time critical. Our deadline for receipt of information is noon on Monday 20 January, in default of which we will advise our client to initiate an action."

It is also to be noted that in this letter the points are made that Mr Deakin was not issued with a statement of the main terms of his contract of employment and in the absence of specific information his contentin was that the appropriate period would be at least 3 months. The "notice issue" was therefore raised at an early stage.

(b) A letter dated 16 June 1997 from Mr Elsegood to Mr Whittaker of Sinclair Smith which is in the following terms:

"INDUSTRIAL TRIBUNAL: Case No. 1801162/1997

Mr N Deakin v Frizzell L & FP

We anticipate that the Applicant's bundle of documents will be available for despatch to yourselves tomorrow (Tuesday 17 June) and in your possession by Wednesday 18 June.

Please advise whether and by what date you intend to reciprocate."

24. We pause to comment that this letter which was sent by fax would have arrived the day before Mr Whittaker sent his letter to the Tribunal stating that the Company was not going to appear. It is not disputed that Mr Whittaker did not respond to this letter dated 16 June 1997.

(c) The letter of 17 June 1997 sent by Sinclair Smith to the Tribunal which we have set out earlier.

(d) A letter dated 30 June 1997 from Mr Elsegood to Mr Whittaker in which Mr Elsegood records that he had brought to the attention of the Tribunal that even in response to the sending of Mr Deakin's bundle no communication was received from Mr Whittaker that the Company had decided not to appear at the first hearing.

25. Exhibit ADE 1 also contained some other correspondence before and after the first hearing. We do not understand why Mr Whittaker and Mr Southall concluded that it was not necessary, or appropriate, for them to exhibit the correspondence contained in ADE 1, and in particular the letters we have referred to in sub-paragraphs (a), (b), (c) and (d) to their affidavits. Elsewhere in this judgment we refer specifically to other letters contained in ADE 1.
26. In his affidavit Mr Southall states as follows:

"4 In the course of my preparation for the hearing on the 1st July I considered all the documents which had been produced and I was aware of the suggestion which had been made at the conclusion of the first hearing which was that there had 'apparently' been a request by the representative of Mr Deakin for information to enable his losses to be calculated and that such request had been refused either by the Appellant or by Sinclair Smith Solicitors and their representatives at all relevant times. I could find no evidence whatsoever that any request for information had been made and equally importantly that no complaint had been made either by the Respondent or by his representative prior to the hearing on the 20th June that there had been such alleged failures on the part of either the Appellant or Sinclair Smith Solicitors. I could find no evidence of any such request having been made and I therefore put the Respondent and/or his representatives to strict proof of the date and times of the requests which had apparently been made by the Applicant's representative of the Respondent Company for information and the circumstances in which such information had not been provided. I put the Respondent and his representative to strict proof of the names of the persons to whom such requests were made, the form in which such requests were made, either oral or written and if such requests were made orally why such requests were not followed up by requests in writing either of the Appellant direct or to Sinclair Smith Solicitors who both Mr Deakin and his representative knew very well represented the Appellant Company at all times during the course of these proceedings and had even advised the Appellants prior to the resignation of the Respondent early in 1997."

27. Mr Whittaker takes a similar stance of putting Mr Deakin and his representatives to proof in his affidavit.
28. Following receipt of Mr Elsegood's affidavit no challenge was made to it on the basis, for example, that the Company had not received the letter of 13 January, or that Sinclair Smith had not received the letter of 16 June or Mr Deakin's bundle of documents as referred to in the letter dated 30 June.

Events during the hearing before us

29. Mr Whittaker appeared for the Company and provided us with a skeleton argument. In that skeleton in relation to the "costs appeal" Mr Whittaker made specific reference to another letter dated 30 June 1997 (at page 115 of our bundle and one of the other letters exhibited as part of Exhibit ADE1 to Mr Elsegood's affidavit).
30. Apart from the letter dated 30 June 1997 to which Mr Whittaker drew specific attention, other correspondence in Exhibit ADE1, and exchanges before us between the parties' representatives indicated that there was an issue between them as to what their discussions had been concerning the production of bundles of documents prior to the first hearing on 20 June 1997. Mr Whittaker and Mr Elsegood were not ad idem as to this and we indicated that if they were still in disagreement after the lunchtime adjournment we would be minded to hear evidence from them both.
31. Mr Whittaker's point in relation to the letter dated 30 June 1997 was put as follows in his skeleton argument:

"(b) The Tribunal has referred to page 115 of the bundle at which the Respondent sets out the full list of financial information which he submitted to the Tribunal in advance of the hearing on 1 July and after the hearing on 22 June. It is clear that other than the information referred to in paragraph 5 in connection with pension that all this information was already in the possession of the Respondent prior to the hearing on 22 June and yet the Appellant and/or his representative inexplicably failed to take it to the Tribunal to make it available for their consideration at the conclusion of the hearing on 22 June.

(g) By contrast it is clear from page 115 that all the relevant necessary financial information to enable the employee to calculate loss was already in the hands of the employee and his representative prior to the hearing on 22 June and that if information in respect of pension had been requested then it would have been provided promptly. It is clear that the employee and his representative were at all times in possession of the employee handbook and the Employment Appeal Tribunal should not lose sight of the fact that the Respondent to this appeal was at all times employed as the Regional Manager of Financial Services Organisation responsible for selling financial products to members of the public. Those financial products included pensions and there was therefore no reason to suspect that the employee did not have comprehensive information in respect of every aspect of his pension arrangements."

32. In those paragraphs Mr Whittaker has, like the Tribunal, referred to the first hearing date as 22 June when in fact it took place on 20 June.
33. These factual assertions were not directly supported by the affidavits of Mr Whittaker, or Mr Southall, and it was apparent that they were disputed by Mr Deakin. We again indicated that if agreement was not reached as to these points of fact over the lunchtime adjournment we would be minded to hear evidence on them.
34. After lunch we were informed by Mr Whittaker and Mr Elsegood that there was common ground between them as to the position concerning their discussions relating to the production of bundles and documents. This common ground was that Mr Elsegood had not made a request for specific documents but that they had discussed the production of bundles in general terms. As we understood it this discussion had been during a lengthy telephone conversation on 15 May 1997 which is referred to in the letter dated 26 June 1997 from the Company's solicitors (which is included in ADE1 and to which we refer elsewhere in this judgment).
35. It was common ground that (i) Mr Whittaker did not respond to the letter dated 16 June, and (ii) Mr Whittaker had not informed Mr Elsegood at the time he informed the Tribunal (or at any other time) that the Company was not going to attend at the hearing on 20 June or that the Company was not going to be providing a bundle of documents for use at that hearing. Additionally the statement made by Mr Deakin's representatives in their letter dated 30 June 1997 in ADE 1 that they had sent Mr Deakin's bundle to the Company's solicitors prior to the first hearing on 20 June 1997 but received no response was not challenged. We accept and find that that Mr Deakin's representatives sent such a bundle to the Company's solicitors and received no response to this action.
36. The position was not however agreed as to the documents and information that were available to Mr Deakin and his representative at the time of the hearing on 20 June 1997. As to that Mr Whittaker had indicated it would be difficult for him to obtain instructions over the luncheon adjournment.
37. Before hearing any evidence from Mr Deakin relating to (i) the information and documents in his possession at the time of the hearing before the Tribunal on 20 June 1997, and (ii) his attempts to get, and his receipt of, documents and information after that date and before the further hearing on 1 July 1997, we invited Mr Whittaker to consider whether or not he wanted an adjournment to obtain further instructions. Indeed we made it clear that we would be prepared to grant him such an adjournment. In our judgment surprisingly he did not take up such opportunity.
38. We were surprised because it was clear that Mr Deakin would be likely to give evidence that was contrary to the factual position as opened to us by Mr Whittaker and as set out in his skeleton argument, and thus that was contrary to what we understood to be Mr Whittaker's instructions as to, and understanding of, facts relevant to his argument on the "costs appeal". In other words it was apparent from Mr Whittaker's submissions and his skeleton argument that he was (inter alia) asserting, and Mr Deakin was denying, that Mr Deakin had all the documents and information referred to in the letter dated 30 June 1997 (save for information relating to his pension), and all relevant information to enable him to advance his case on remedy, before the hearing on 20 June 1997. We were assured by Mr Whittaker that he had taken instructions as to these assertions of fact but his stance before us was that if Mr Deakin gave evidence that was contrary to his instructions and understanding he, on behalf of the Company, would accept it and he did not want an adjournment to enable him to take instructions, or obtain information to put in cross-examination.
39. As we have said we found this stance to be surprising and our surprise was increased when Mr Whittaker did not put in cross examination points as to why it was asserted that Mr Deakin had all such documents, and information by 20 June 1997 when Mr Deakin's oral evidence was that he did not and thus, when as expected Mr Deakin gave evidence that was contrary to the factual position being advanced by Mr Whittaker on behalf of the Company, and it seemed to us his firm.
40. We add that Mr Deakin gave his evidence in a fair and measured way and did not seek to take advantage of the position he was in of giving evidence knowing that Mr Whittaker might be at a disadvantage in challenging it. We found Mr Deakin to be an honest witness who was doing his best to provide us with accurate information.
41. The letter dated 30 June 1997 (i.e. the document at page 115 of our bundle) is a letter written by Mr Elsegood to the Secretary of the Industrial Tribunals enclosing further information for the purposes of the hearing due to take place on the next day. This letter contains the following passages:

"The Tribunal asked for certain specific information to be supplied in order to consider the matter of remedy. I should be grateful if you will pass this letter and enclosed information to the Chairman of the Tribunal for her attention. The items enclosed are:

(1) The Applicant's P60 (photocopy) for the year ended 5 April 1997, which indicates remuneration of £56,894.55 less tax of £17,346.00. The Tribunal will already be aware that this period includes three months during which the Applicant was suspended and unable to earn bonuses and commissions, so it therefore underestimates the average earnings of the Applicant.

(2) The Applicant's P11D for the same period, showing the benefits due under his Contract of Employment and their taxable value.

(3) The Applicant's Pay Advice for the month of March 1997 which shows that he received only a proportion of his Basic Salary for that month plus some Holiday Pay and odd items outstanding at the end of the fiscal year.

(4) A Salary Advice relating to the month of May 1997 for the Applicant's new employment which shows his gross monthly salary to be £2,500 and his net to be £1,811.62 (£30,000 per annum gross and £21,739 per annum net equivalent). It also shows that the Applicant is not yet eligible for Occupational Pension in his new employment, although he will be eligible after qualifying service.

(5) A letter of confirmation from Liverpool Victoria Friendly Society to the effect that Mr Deakin was, in his previous employment, subject to a Final Pay Pension Scheme which accrued at the rate of 1/45th of his final salary per year of service. There is attached a section of the Employee Handbook which outlines the nature of the Pension Scheme. (Please note that a volume of related documentation was supplied. This is essentially supportive and is not submitted herewith to avoid the bulk, but will be brought to the resumed Hearing for the scrutiny of the members should they wish to examine it.)

We would also wish the Tribunal to be aware of the exchange of correspondence between representatives of the parties, being a letter dated 26 June 1997 from Sinclair Smith and response dated 30 June 1997 from Yorkshire Employment Services Ltd. Both items are copied here for the Tribunal's attention. [These letters were exhibited by Mr Elsegood to his affidavit].

The Applicant's representatives are extremely concerned by the behaviour of the Respondents and their representatives, and particularly by the allegations made in the letter of 26 June from Sinclair Smith and the attempted revision of the history of this case. That letter indicates that Mr J Whittaker who acts on behalf of Sinclair Smith has already written to the Tribunal to make certain representations, which have not been communicated to ourselves. We see no reason for this except to endeavour to place the Applicant at a further disadvantage by deprivation of information.

The letter from Sinclair Smith indicates they have asked the Tribunal to re-list the case. Although we cannot see any good reason for this and would not wish our client to be further inconvenienced, we defer to the authority of the Tribunal if it comes to the view that the interests of justice would be better served by relisting.

The writer hereby requests that the Tribunal takes this letter as a formal complaint concerning the behaviour of the Respondent's representatives and the continuing attempts at intimidation and misrepresentation. We ask that the Tribunal considers the exchange of correspondence and places whatever weight and credence it chooses upon the allegations made.

As a matter of courtesy we enclose herewith a copy of our formal letter of complaint to the Regional Chairman of the Industrial Tribunals at Manchester concerning what we see as abuse of authority in the attempts by Mr Whittaker, the Respondent's representative, to influence our client's pursuit of his rights by intimidation and the suggestion of special 'inside knowledge' of the members and processes of the Industrial Tribunals.

We can confirm our participation in the resumed hearing."

42. As can be seen from that letter the Tribunal were provided with an exchange of correspondence between Mr Elsegood and Mr Whittaker prior to the hearing on 1 July. By reference to the numbered paragraphs of that letter:

(a) it was, and always had been, common ground that Mr Deakin did not have full information as to matters relating to his pension referred to in paragraph 5, but Mr Whittaker made the point on behalf of the Company (which was not disputed) that Mr Deakin had a copy of the Employee Handbook referred to in paragraph 5 and was someone who was engaged in the sale of financial products including pensions,

(b) in his oral evidence Mr Deakin confirmed, as we had been told on instructions, that he had the items referred to in paragraphs 3 and 4 prior to the hearing on 20 June, and

(c) Mr Deakin also gave evidence in accordance with what we had been told on instructions that, contrary to the assertion made by Mr Whittaker on behalf of the Company, he did not have the items referred to in paragraphs 1 and 2.

43. The documentation concerning Mr Deakin's pension referred to in paragraph 5 as "related documentation" was provided in response to requests made in letters from Mr Deakin's representatives to the Company dated 23 and 25 June 1997 (which are in ADE 1). They do not contain an express request for the Employee Handbook and the second letter indicates that the Company was not being wholly co-operative.
44. Mr Deakin explained that the information he had as to his salary was set out in his IT1 in which he sets out his basic wage or salary and other bonuses and benefits. He went on to explain that, as appears from the Extended Reasons relating to the hearing on 20 June 1997, he had been suspended and for the months of January to March, he had been forbidden to enter the offices and he had no knowledge of his entitlement to bonus.
45. He then explained that after the first hearing he had telephoned his old secretary, and the Payroll Department in Bournemouth, and told them that he needed the items listed in paragraphs 1 and 2 and that after such telephone calls had been made such items just appeared in an envelope with no further letter or compliments slip.
46. In cross examination he accepted that he was paid by a monthly salary cheque but pointed out that his bonus was not included in his salary slips. He then said that prior to the hearing on 20 June he had been told on the telephone that his bonus entitlement was £10,000, had responded that that must be wrong and had later been rung back and told that it was £20,000 and an apology had been made for the error. He said that because he had been suspended and forbidden entry to the office he was not in a position to know whether the Company had been hitting its targets or what his bonus level was. He therefore had to work on assumptions. He said that because he did not know what the region had achieved he could not provide precise figures as to his bonus entitlement and that Mr Vince James who had come to the hearing on 1 July had given some instructions and brought along some information as to his bonus entitlement.
47. We accept Mr Deakin's evidence and add that in our judgment the company and its solicitors must have known that Mr Deakin did not have access to and was not provided with, information that would have enabled him to provide with confidence at the first hearing precise figures as to his bonus entitlement by reference to the performance of his region during his period of suspension and exclusion from the office.
48. Notwithstanding our acceptance of Mr Deakin's evidence, and Mr Whittaker's decision not to seek an adjournment to give the Company an opportunity to put before us further facts, at the end of the hearing before us on 21 January 1999 we ordered that within 7 days the Company should lodge such written submissions, and supporting documents, that it may wish to dealing with the matters of fact put before this Tribunal at the preliminary hearing; the evidence given by Mr Deakin before us; the availability and supply of documents to Mr Deakin prior to the Employment Tribunal hearing; the conduct of the Company in informing Mr Deakin of the level of bonus he was to receive; and the conduct of the Company and their Solicitors during these proceedings. As a result of that order we received a document dated 29 January which was prepared by Mr Whittaker. This document is unsupported by any other documentation, or any evidence coming from an employee of the Company.
49. The position is therefore that throughout these proceedings no employee of the Company has given evidence although a number of factual assertions have been made on behalf of the Company through the Company's Solicitors.
50. Mr Whittaker's further submissions and assertions dated 29 January 1990 are contained in a document which is 11 pages long. Therein he makes the following points:

(A) Paragraph 3 (c) of the skeleton argument produced on behalf of the Company at the preliminary hearing is correct.

We comment that if this paragraph is construed to be referring only to a request for specific documents we agree.

(B) Paragraph 3(d) of the skeleton argument presented to this Tribunal on the preliminary hearing is factually accurate save that a request had been received for a general bundle of documents. Mr Whittaker also says that following the hearing on 20 June specific requests for information were met promptly and well in advance of the second hearing on 1 July.

We comment that (i) this assertion by Mr Whittaker contains an acknowledgement of the point agreed at the hearing that there was a request for a general bundle of documents and that this was not mentioned to this Tribunal on the preliminary hearing, or in the evidence sworn by Mr Whittaker and Mr Southall, and (ii) unless it is confined to the requests for information relating to Mr Deakin's pension, the assertion that requests were met promptly after 20 June is at odds with the position adopted by Mr Whittaker at the beginning of the hearing before us and contains an acknowledgement that Mr Deakin's evidence was correct.

(C) In response to our specific request Mr Whittaker says that he honestly and respectfully is unable to recall why Mr Deakin and his representative were not informed that the Company had decided not to be represented at the hearing on 20 June, or to supply a bundle of documents. He goes on to assure us that it is not his practice to be disrespectful either to the court, or to the parties, or to their representatives. He says it most certainly would be his practice in the normal course of events to advise both the parties and the court of such a decision. He says the only possible explanation that can be offered, as there is no indication whatsoever on his file to the contrary, is that the failure to notify Mr Deakin and his representatives was an administrative oversight. Mr Whittaker firmly rejects any suggestion that the failure was malicious, or deliberate, as he is very clearly aware that to behave in such a manner would be quite unacceptable professionally.

We comment that we find it surprising that Mr Whittaker does not see fit to apologise for what he asserts was an administrative oversight. We also note that he does not give any explanation as to why the Company decided at a very late stage not to be represented but accept that this would be subject to legal professional privilege.

(D) Under the heading:

"The Respondent and his Solicitors were required to explain why it was suggested to the Tribunal on 21 January 1999 that a number of documents in respect of loss shown on page 115 of the bundle before the Tribunal on 21 January 1999 had been in the possession of the employee and his representative prior to the hearing on 22 June when it transpired they were not."

Mr Whittaker says that despite detailed enquiries it has been impossible for him to ascertain the individual identity of the person who assured Mr Whittaker that the relevant documentation to enable the employee to calculate loss had been provided to him, and that in particular the documents at paragraphs 1 and 2 on page 115 of the bundle had been made available. He goes on to say that neither the Company nor his firm have been able to identify the source of this information but that it is believed that it would have come from the Payroll Department.

In our judgment this is an unsatisfactory explanation, and at its lowest demonstrates that proper care was not taken by the Company and Mr Whittaker to ascertain the correct position before Mr Whittaker made his assertions of fact at the beginning of the hearing on 21 January 1999, which by the heading set out above he acknowledges were untrue.

If the assurance we were given by Mr Whittaker that he had taken instructions that Mr Deakin had the documents referred to in the letter is correct we find it surprising that Mr Whittaker cannot remember who gave him those instructions.

We comment again that no apology is given by, or on behalf of, the Company or Mr Whittaker for making these assertions of fact to this Tribunal even though it is now accepted by them that they were untrue.

(E) In respect of the bonus Mr Whittaker asserts that there is nothing sinister in the dispute which arose between the Company and Mr Deakin as to the value of bonus. He says that the figures put to the Tribunal and to Mr Deakin were those which were provided and properly calculated by the National Sales Manager and, as we understand him, that the dispute was as to Mr Deakin's contention that, if he had been allowed to work, his bonus entitlement would have been higher. On that basis Mr Whittaker says correctly that the Company was not in a position to provide figures from its records as to what the bonus entitlement would have been if Mr Deakin had been allowed to continue to work.

We comment that Mr Whittaker's response in respect of bonus does not deal with the oral evidence given that Mr Deakin was given a figure over the telephone which he queried and was then told that his bonus entitlement was twice as much with apologies for the earlier error. Further, Mr Whittaker's explanation does not deal with the point that Mr Deakin was excluded from the office and did not have access to the relevant underlying information to enable him to make a properly informed assessment of his bonus entitlement based on the performance of the region whilst he was suspended which is a different point to that dealt with by Mr Whittaker. Further Mr Whittaker does not comment expressly on the point made by Mr Deakin in his oral evidence that Mr Vince James provided some instructions and information as to bonus at the second hearing but as we read his submissions accepts and asserts that at the second hearing the Company did put figures as to bonus to the Tribunal and Mr Deakin.

The Quantum of Damages Appeal

51. As we have said this is concentrated on the finding of the Tribunal that Mr Deakin was entitled to 12 weeks' notice.
52. In our judgment (a) this appeal is based on an unfair, literal and blinkered reading of the Tribunal's Extended Reasons, and (b) when the Extended Reasons are read against the background known to both parties they show clearly why the Tribunal reached their decision, and why that decision was justified on the evidence and submissions they heard.
53. Indeed, during his submissions Mr Whittaker accepted that if the Tribunal were not applying the contract of employment and documents produced by the Company at the second hearing but was determining, in the absence of a contract of employment for Mr Deakin, what in their judgment would have been a reasonable period of notice for the Company to give to Mr Deakin their decision is unchallengeable. In our judgment: (i) Mr Whittaker was right to accept this, (ii) this is what the Tribunal were doing, and (iii) Mr Whittaker was wrong to refuse to recognise that this is what the Tribunal were doing.
54. As we have explained, although the Company had decided not to be represented at the first hearing it was represented at the second hearing and put some documents before the Tribunal and invited the Tribunal to take them into account. It is relevant on both parts of the appeal to remember that it was the Company who produced these documents and asserted that they were relevant and should be applied.
55. The Company produced a contract of employment at the second hearing (the original contract). But this contract of employment related to Mr Deakin's initial appointment by the Company as a consultant and it was not Mr Deakin's contract of employment at the time he was dismissed.
56. The Company also produced two letters at the second hearing which it and its Solicitors had not copied to Mr Deakin and his representatives before the hearing. One was a letter dated 21 March 1996 (with enclosures which did not include a contract of employment) that purported to confirm an offer to Mr Deakin of the post of Regional Manager in Leeds from 1 April 1996. It also referred under the heading "Company car" to Mr Deakin's grade as grade F and to new terms and conditions of employment, but did not enclose them. The other document was a letter dated 26 March 1996 addressed to Mr Deakin referring to his promotion to an alphabetical salary grade and telling Mr Deakin that he now qualified for membership of the Company's private medical scheme and inviting him to complete an enclosed form relating to it.
57. Both letters bore the signature of a Mr Vince James who attended the second hearing but did not give any evidence.
58. Mr Deakin gave uncontroverted evidence to the Tribunal that he had never received either of these letters. It is plain that the Tribunal accepted that uncontroverted evidence.
59. It follows that at the second hearing the Tribunal did not have before them Mr Deakin's contract of employment, or any documents evidencing its terms. This was, or should have been, well known to both parties.
60. It is apparent from Mr Southall's affidavit that at the second hearing he referred Mr Deakin expressly to the reference in what was said to be Mr Deakin's letter of employment dated 21 March 1996 to Mr Deakin's salary group being grade F. It is also apparent from this affidavit and from Mr Whittaker's affidavit, and the submissions he made to us, that the Company's position at the second hearing was that the letters it produced showed (i) that Mr Deakin was in salary grade F and not salary grade A-D and (ii) that when those letters were read with Mr Deakin's original contract they showed that he was entitled to eight weeks' notice, or that when he started he was entitled to eight weeks' notice and that was still his notice entitlement.
61. In round terms this is an assertion that the original contract identified the salary grades of the Company and that the period of notice to which Mr Deakin was entitled as someone in grade F (or grade 2 when he started) was eight weeks.
62. This is a logical stance based on an allegation that the documents produced by the Company contained, or evidenced, Mr Deakin's contractual entitlement. But it inevitably fails if the Tribunal did not accept either (i) that the terms of Mr Deakin's contract relating to notice had been established before them, or (ii) that Mr Deakin's contract provided that he was within a salary grade and that his contractual notice period was linked to that salary grade.
63. It is apparent that neither of these matters were accepted by the Tribunal, and indeed on the limited evidence before the Tribunal, they could not have been accepted by the Tribunal. That evidence was that the original contract was not Mr Deakin's contract of employment at the time he was dismissed, that he never received the letters and that he did not know his grade/salary group (see the citation above from Mr Elsegood's affidavit).
64. Therefore as the Company knew, or should have known, or at least by the time it brought this appeal should have appreciated:

(a) the Tribunal were not, and could not have been, taking an approach which involved the application of the documents produced by the Company at the second hearing because the Company had failed to prove that they evidenced Mr Deakin's contract, or what the terms of Mr Deakin's contract as to notice were, and

(b) the Tribunal were therefore exercising their discretion and judgment to assess what a reasonable period of notice would be for someone in Mr Deakin's position having regard, amongst other things, to his remuneration and seniority.

65. In our judgment this part of the appeal is based on a continuation of the stance by the Company that Mr Deakin's period of notice should be determined by applying the documents the Company produced at the second hearing and an assertion, as we understand it, that this is what the Tribunal were purporting to do. We accept that if the passage in the Extended Reasons (set out above) dealing with the notice period is read literally and in isolation, it could be said that it provided some support for the argument that the Tribunal were taking such an approach. But in our judgment when this passage is read having regard to the background known to the parties and thus in the knowledge that the "documents provided today" do not identify, define or evidence the terms of Mr Deakin's contract of employment it is apparent that the Tribunal are only referring to them (i) as background, and (ii) as a means of explaining why they have concluded that 12 weeks' notice is a reasonable period of notice for someone in Mr Deakin's position in the absence of evidence that establishes the terms of Mr Deakin's contract of employment relating to notice.
66. This is further demonstrated by the valid point made on behalf of the Company, namely that the Tribunal had no evidence that the salary to which Mr Deakin was entitled at the end of his employment put him within grade A-D referred to in the original contract which provided that someone in those grades, with between two and five years service, would get 12 weeks' notice. The fact that the Tribunal did not have such evidence, and did not seek it, does not show, as the Company argued, that they were accepting the approach urged on behalf of the Company that they should apply the documents it produced but applied them wrongly. Rather it shows that the Tribunal were not attempting to apply the original contract (alone or together with the letters produced) or the Company's salary grades.

As Mr Deakin's representative says in his affidavit:

"It is clear that the Tribunal exercised its discretion in the absence of contractual evidence and set a period of notice.

We agree.

67. Further in our judgment if the Company, and its Solicitors, had behaved reasonably and stood back and considered this appeal sensibly and dispassionately they would have, or should have, realised that this was what the Tribunal were doing and therefore as Mr Whittaker accepted the Tribunal's decision could not reasonably be challenged.
68. Accordingly we dismiss this appeal.

The Costs Appeal

69. The starting points for the argument of the Company on this part of the appeal were that:

(i) the onus was on Mr Deakin to establish and prove his loss,

(ii) Mr Deakin therefore had an obligation to produce, or to make specific requests for all necessary information and documents for him to do this, and

(iii) in the absence of specific requests for the production of documents relating to the quantification of damages the Company had no obligation to provide such documents to Mr Deakin or the Tribunal.

70. In support of these points Mr Whittaker asserted in the written submissions he made after the hearing before us that in the notes sent to the parties in anticipation of a hearing indicate that the onus is on the Applicant to produce information in order to enable the Tribunal to calculate loss. We are not sure which notes Mr Whittaker is referring to but note that in both pamphlets 2 and 3 of the series "Understanding Industrial Tribunals" issued to respectively the applicant and the respondent it is said under the heading "What happens about documents" that the parties should show each other relevant documents and says that if the other party refuses to co-operate an order can be obtained, and under the heading "What should I do to prepare for the hearing" it is said that an attempt should be made to agree who should provide documents to the Tribunal.
71. From those starting points it was submitted that as no requests were made for specific documents before the first hearing the failure of Mr Deakin and his advisers to produce oral and documentary evidence to pursue their case as to loss at the first hearing was entirely their fault and not in any way the result of a failure of the Company or its solicitors. It was pointed out (and was not challenged) that the documents produced by Mr Deakin and his representatives at the first hearing did not include any documents relied on them in respect of Mr Deakin's arguments on quantification of loss.
72. As to the starting points we accept that Mr Deakin had to prove his loss and that therefore it was up to him and his advisers to prepare his case as to loss.
73. Further we accept (i) that there is no rule that a Respondent has to provide voluntary discovery, and (ii) that strictly in the absence of any discussion or contact between the parties a Respondent does not have to volunteer any documents or information, albeit that the notes that are issued by the Industrial Tribunal under the series "Understanding Industrial Tribunals" encourage co-operation as to the production and exchange of relevant documents.
74. However, in our judgment, when there has been discussion and contact relating to proceedings pending before a Tribunal between the parties, or their representatives, what they should respectively reasonably provide, or do, has to be judged in the light of those discussions and the reasonable and justifiable expectations of the parties, and their representatives, having regard thereto. In determining what is, for example, reasonable, and thus unreasonable, or disruptive, for the purposes of Rule 12 in schedule 1 to the Industrial Tribunals (Constitution etc.) Regulations ("the Rules"), in these respects regard should be had to the informal nature of proceedings before a Tribunal (see for example Rule 9 of the Rules).
75. It follows that although we accept the Company's starting point that as the Applicant employee Mr Deakin had the onus of proving loss, and that this carries with it the obligation to prepare his case, we do not accept the rigidity of the Company's starting points as to the production and provision of information and documents relating to remedy, and thus to loss.
76. In our judgment, in determining whether the Company acted "frivolously, vexatiously, abusively, disruptively or otherwise unreasonably" within Rule 12, the nature and extent of the discussion and contact between the Company's solicitors and Mr Deakin's representatives has to be considered. We have set out some common ground, and made some findings, in respect of such discussions and contact under the heading "Background". We make the following further findings as to them:

(1) Mr Deakin and his representatives were reasonably and justifiably expecting (a) to receive a bundle of documents from the Company (through its solicitors) prior to the hearing on 20 June 1997, and (b) that the Company would be represented at the hearing.

(2) Mr Deakin and his representatives were not informed that the Company was not going to attend at the hearing on 20 June 1997, or that it was not going to provide a bundle of documents for that hearing.

(3) At the hearing on 1 July 1997 the Company produced documents (a) which would, or should, have been included in the bundle of documents prepared by the Company for use at the hearing on 20 June 1997, and (b) which were relevant to the Company's case as to the terms of Mr Deakin's employment and are thus of a type which Mr Deakin, and his representatives, reasonably and justifiably expected would be in the bundle which they thought the Company was going to provide, if (as proved eventually to be the case) the Company were alleging that it held documents constituting, or evidencing, Mr Deakin's terms of employment.

(4) Between the hearings on 20 June and 1 July 1997 Mr Deakin and his representatives did not ask the Company or its solicitors for any documents comprising or evidencing his contract but the Company's solicitors in their letter dated 26 June asserted that:

"with regard to damages for breach of contract you will be aware that pursuant to the terms of his contract of employment your client was entitled to receive eight weeks notice",

We note that on that letter Mr Deakin or his representatives, have written in manuscript:

"Not so. He had no contract of employment. We say 12 weeks anyway!

We were not told when this was written and this point is not made in the reply sent by Mr Deakin's representatives to this letter. However it was made in the letter dated 13 January 1997 (referred to earlier) and represents the position taken by Mr Deakin at the hearings.

(5) Between the hearing on 20 June and 1 July 1997 the Company provided Mr Deakin with the documents referred to in paragraphs 1 and 2 of the letter dated 30 June 1997 (page 115 in our bundle of documents), and with documents relating to Mr Deakin's pension entitlement (a) which would, or should, have been in the bundle of documents provided by the Company for the hearing on 20 June 1997, and (b) which were documents that Mr Deakin, and his advisers, reasonably and justifiably expected would be in the bundle which they thought the Company was going to provide.

(6) At the hearing on 1 July 1997 the Company provided on instructions some information as to bonus (a) which information would, or should, have been provided by the Company at the hearing on 20 June 1997, if it had attended that hearing, either orally or by its inclusion in its bundle of documents, and (b) which Mr Deakin, and his representatives, reasonably and justifiably expected would be in the bundle which they thought the Company was going to provide, or would be provided orally by the Company.

77. There was no real dispute as to findings (1) and (2). For completeness we record that we would have rejected any argument that it was not reasonable and justifiable for Mr Deakin and his advisers to expect the Company to appear and produce a bundle of documents at the hearing. Point (4) recites documents, which when read as a whole also demonstrate that the solicitors for the Company had adopted an aggressive approach which was resented by Mr Deakin's advisers. However this, and the fact that on 21 May 1997 Mr Deakin's representatives had sought the issue of witness orders against employees of the Company, because its solicitors had indicated that they were not disposed to permit the Company's managers to attend on a voluntary basis and might simply decide not to attend, do not in our judgment mean that Mr Deakin, and his representatives, should have expected that the Company would not attend and not produce a bundle of documents without giving them any notice. On the contrary, and in particular because these indications were given during, or around the date of, the telephone conversation on 15 May 1997 and thus at, or around, the time that (as is now common ground) it was agreed that bundles would be provided by both sides, in our judgment as a matter of fairness and reasonableness these points introduce an additional need for the solicitors for the Company to tell Mr Deakin through his representatives of any decision of the Company not to attend, or not to provide a bundle.
78. Our findings in sub-paragraphs (a) and (b) of paragraphs (3), (5) and (6) were disputed on the bases that: (i) the bundle that the Company would have produced would not have contained any documents relating to the quantification of loss, and because of that and the Company's starting points (referred to above) (ii) it would not be reasonable, or justifiable, for Mr Deakin and his representative to expect the Company to provide such documents and information at the hearing set for 20 June. We reject these arguments (or assertions of fact) on the facts of this case and generally.
79. On the facts the Company did not take a stance that in our judgment is consistent with its present stance because at the hearing of 1 July it volunteered documents and information (i.e. that referred to in findings (3) and (6)) and did not take what would have been a consistent stance of not volunteering any documents, or information, and asserting that it was up to Mr Deakin to prove his case. As the Company has asserted the hearing set for 20 June was to deal with liability and quantum (if there was time for both on a fully contested basis) and it therefore follows that its approach at the second hearing as to the production of documents and information is a clear indication of what it would have done in respect of the issue of quantum if it had been represented at the first hearing.
80. Generally, and although the onus in respect of compensation and quantum is on the employee, in our judgment no reasonably competent solicitor when preparing a bundle of documents, and generally, for a Tribunal hearing dealing with both liability and quantum would omit documents and information relating to compensation and loss. It would be obvious folly to take such an approach because it would leave their client employer open to the danger that they could not properly counter untrue, or exaggerated, evidence given by an employee. It follows that:

(a) generally an employee and his representatives can reasonably and justifiably expect an employer's solicitor who holds himself out as being competent to include in such a bundle information and material relevant to the issues of compensation and quantum, and

(b) Mr Deakin and his representatives reasonably and justifiably expected the bundle that the solicitors for the Company had agreed to provide to contain such documents and information.

81. Indeed the facts that the Company's solicitors in their letter of 26 June raise points as to Mr Deakin's period of notice, and follow that up by producing documents at the second hearing which they asserted were relevant to that issue confirm these conclusions because they show that when the Company's solicitors prepared for a hearing which was to deal with Mr Deakin's entitlement to notice they did take steps, in the interest of their client, to consider and assert its position and, albeit only at the hearing and therefore late, to volunteer documents in support of its contentions on this aspect of Mr Deakin's remedy.
82. In their evidence Mr Whittaker and Mr Southall assert surprise and disadvantage in respect of the point that Mr Deakin did not accept that he was only entitled to 8 weeks notice by reference to what they asserted was his salary grade. In our judgment any such surprise is attributable to poor instructions and preparation. The Company and its solicitors should have been alerted to the point by the letter dated 13 January 1997 which we have referred to earlier. Further, and in any event, the Company should have known and instructed its solicitors that it did not have (i) a copy of a contract of employment relating to Mr Deakin's last job, or (ii) any record of the letters it produced at the second hearing being sent, or any replies to those letters. If, as in our judgment, they should have done the Company, or its solicitors, had provided copies of those letters to Mr Deakin through his representatives prior to the second hearing and asked whether he had received them they would have been told that he did not. Additionally when Mr Deakin gave evidence to that effect, and that he did not know his grade/salary group, as we understand it, the Company did not seek to rebut that evidence by, calling or seeking to call Mr Vince James.
83. In our judgment the documents referred to in finding (5) were documents which should normally be included in a bundle such as that which the solicitors for the Company had agreed to provide, and this was particularly so in this case because the Company knew, or ought to have known, that they had not been provided to Mr Deakin prior to the hearing on 20 June. In our judgment this is the case whatever use was in the events that happened in fact made of these documents at the second hearing because they contain relevant information in a convenient form.
84. In his latest set of submissions Mr Whittaker accepts that Mr Deakin and his representatives should have been informed that the Company was not going to appear, or produce a bundle. In fact there were three occasions when in our judgment any solicitor in the position of Mr Whittaker and his firm would or should have provided that information, or been prompted or reminded to do so if he had overlooked it. These were: (i) when Mr Whittaker wrote to the Tribunal telling them that the Company was not going to appear, (ii) when Mr Whittaker received the letter of 16 June from Mr Deakin's representative and (iii) when Mr Whittaker received a copy of Mr Deakin's bundle.
85. Mr Whittaker in his latest submissions asserts that his failure to inform Mr Deakin and his representatives was an oversight. We are sorry to have to record that we are not prepared to simply accept that this assertion, made by a solicitor, is true. However we are not in a position to make a finding as to this assertion of fact without cross examination and discovery and we have proceeded on the assumption that it is true.
86. On that assumption, which carries with it an acceptance that the failure to so inform was not deliberate, we are satisfied that having regard to:

(i) the nature and extent of the contact and communication between Mr Whittaker and Mr Deakin's representatives, and

(ii) our findings (1) to (6) and our comments in respect thereof,

such failure of the Company and its solicitors was disruptive or otherwise unreasonable conduct within paragraph 12 of the Rules.

87. Having regard to the way in which the appeal was advanced and the hearing developed before us we have been given more information, and heard more argument, than the Tribunal as to this issue. This would have been relevant on the issue whether we should remit the decision to the Tribunal if we had accepted (which we do not) the alternative attack on their decision namely that the decision was inadequately explained.
88. As to this alternative attack, we have already cited from the two Extended Reasons of the Tribunal. The most relevant paragraphs relating to the costs appeal are:

The Tribunal heard some evidence from the applicant on remedy but the applicant was unable to provide information relating to his notice period at the time of the effective date of termination, the likely income he would have had had if he still been in employment (for which figures relating to income not available until after the applicant left were needed), and re pension benefits. This information had, apparently, been requested by the applicant's representative of the respondents but not received. The Tribunal, therefore, adjourned for a remedy hearing."

7. On the question of costs the Tribunal have given considerable thought to the fair order in respect of costs. The Tribunal feel that costs from 22 June 1997, i.e., from the close of the last hearing until today, have been occasioned by the respondent's failure to provide the applicant with sufficient information to calculate loss, particularly with regard to pension provision, notice and bonuses. The Tribunal therefore orders costs from 22 June 1997 to today be payable by the respondents and that those costs be treated on the County Court Scale Level 2."

The first citation is from the Extended Reasons relating to the first hearing which were provided after the Extended Reasons relating to the second hearing.

89. The first paragraph shows that at the first hearing the Tribunal heard some evidence from Mr Deakin on remedy and that they wanted additional information relating to notice period, figures relating to income that were not available until after Mr Deakin left (and thus as to bonus) and pension.
90. Also these paragraphs have to be read against the background knowledge of the Tribunal and the parties which includes the following facts, namely that:

(i) Mr Deakin and his representatives were expecting the Company to be represented and provide a bundle,

(ii) the Company and its solicitors did not inform Mr Deakin and his representatives that the Company was not going to be represented or provide a bundle,

(iii) some information was produced between the hearings (which we have found should have been in the bundle) and this included Mr Deakin's P60 for the year ended April 1997 showing his remuneration which included basic salary and bonus and information as to his pension (see paragraphs (1) and (5) of the letter dated 30 June 1997, and thus material relating to some of the further information that the Tribunal had indicated at the first hearing it wanted, and

(iv) at the second hearing the Company produced documents upon which it sought to rely on the question of Mr Deakin's entitlement to notice, and some information as to his bonus entitlement, and thus further material relating to some of the further information that the Tribunal had indicated at the first hearing it wanted.

91. Given that background knowledge, in our judgment, the reasons given by the Tribunal encapsulate in an admirable shorthand our far more lengthy reasoning and that if those reasons are read fairly and with an open mind they tell the Company clearly why it was ordered to pay the costs.
92. In short those reasons are that it is disruptive or otherwise unreasonable conduct for an employer through its solicitors to:

(a) agree to provide a bundle which can reasonably and justifiably be expected to contain information in the hands of the employer and not (or possibly not) the employee that is relevant to compensation, but then

(b) decide not to be represented and not to produce a bundle without informing the applicant employee even though the employee's representatives have written as to the despatch of bundles and have sent the employee's bundle, and thereby deprive the employee, and his representatives, of the opportunity to prepare for the case on a different basis and, for example, to make requests for specific information, and then

(c) after the adjournment to provide some relevant information quickly on request thereby demonstrating that if Mr Deakin, or his representatives, had been informed of the Company's change of position they would (or could) have asked for, and obtained, that information before the first hearing, or would only not have done so because of the Company's late change of position, and then finally

(d) at the second hearing to volunteer further documents and information that the Company relied on, thereby demonstrating that this was material that the Company wanted to put before the Tribunal on remedy which it would, should, or could, have included in the bundle, or advanced at the first hearing, if it had not decided without notifying Mr Deakin, or his representatives, not to be represented thereat.

93. Finally we add that it seems to us that in large measure the decision to adjourn to enable information as to Mr Deakin's contract to be put before the Tribunal was taken so as to give the Company the opportunity, that it in fact took, of seeking to establish the terms of Mr Deakin's contract as to notice, and to rebut his case that he had not been provided with a contract of employment or entered into an agreement as to notice on his promotion.
94. It is clear that the documents volunteered by the Company and relied on by it at the second hearing in relation to Mr Deakin's entitlement to notice were considered at the second hearing.
95. It is less clear to what extent the other material that was produced between the two hearings, and at the second hearing, was considered and relied on at the second hearing. In this respect we note that in paragraph 4(i) and (v) of their Extended Reasons relating to the hearing on 1 July the Tribunal state:

The Compensatory Award is calculated as follows:

(i) The Tribunal accepts the applicant's figure regarding his projected bonus and finds that his net average wages from the documents produced today and projected bonus was £1,109.00 per week.

(v) The applicant's lost pension rights are estimated to be:

Loss to date £977.50

Future Loss £2,990.00

Loss of Enhancement of Accrued Pension Rights £1,400.00

-------------

£5,367.50

and that this does not make it clear to what extent (i) the documents referred to in paragraphs 1 and 2 of the letter of 30 June, (ii) the material as to Mr Deakin's pension and (iii) the information as to bonus provided through Mr Vince James at the second hearing were considered and relied on, although paragraph 4(i) shows that some of them were relied on to some extent. However, even if this material was only considered to a very limited extent and notwithstanding Mr Whittaker's points (i) that Mr Deakin and his advisers could have obtained the information contained in the P60 and P11D from the cumulative values in Mr Deakin's pay receipts, and (ii) that Mr Deakin had a copy of the Employee Handbook referred to in paragraph 5 and was someone who was engaged in the sale of financial products including pensions, in our judgment this does not have the consequence that the Tribunal's reasoning or conclusion on costs is inadequate or outside the range of decisions that was properly open to them in the exercise of their discretion. Indeed as we have said in our judgment they were right and this material which was in a convenient form should have been included in the bundle that the Company's solicitors had agreed to provide.

96. Accordingly we dismiss this appeal.

Further Findings

97. At the end of the hearing before us we understood that an application was being, or would be made, on behalf of Mr Deakin that the Company do pay the costs of the appeal pursuant to Rule 34 of the EAT Rules 1993 and we indicated that we would give the parties a further opportunity to be heard on the costs of the appeals if either of them so wished. Accordingly, and although Mr Whittaker in his latest submissions and assertions addressed this issue, we propose to give the parties such an opportunity. Initially they should make such submissions as they wish in writing within 14 days of receipt by them of this judgment. In the same time they should indicate whether in addition they wish to make oral submissions on costs and, if either of them do so indicate, a hearing will be arranged.
98. At this stage, however, we record further findings of fact that we have made in the light of the evidence before us which are relevant to the issue of costs. These are:

(A) At the preliminary hearing before this Tribunal the Company and its solicitors failed to make proper disclosure in that they failed to clearly inform this Tribunal that:

(i) it was the common understanding of the representatives of the parties that they would each prepare a bundle for use at the hearing on 20 June 1997,

(ii) the Company's Solicitors had received the letter dated 16 June 1997 from Mr Deakin's representatives concerning bundles, and later (but before the hearing on 20 June 1997) a bundle, but had not replied to the letter or responded to the receipt of the bundle, and

(iii) the Company and its Solicitors had not informed Mr Deakin or his representatives of their decision which they communicated to the Tribunal by letter dated 17 June 1997 not to participate in the hearing and therefore not to provide a bundle of documents for use at that hearing.

(B) In opening this appeal to us Mr Whittaker on behalf of the Company made assertions of fact which were incorrect and has failed to provide a satisfactory explanation as to why this was the case.

These assertions are contained in paragraphs (b) and (g) of the skeleton argument put before us by Mr Whittaker on the hearing of this appeal on 21 January 1999 which we have set out earlier in this judgment.