United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR COLIN WYNTER (of Counsel) Instructed by: Messrs Lovells Solicitors 65 Holborn Viaduct London EC1A 2DY
For the Respondent	MR SIMON GOLDBERG (of Counsel) Instructed by: Messrs McCarron & Smallcombe 1 Beach Road South Shields Tyne & Wear NE33 2QA


 


MR RECORDER LANGSTAFF QC

1. This appeal, from a Decision of the Employment Tribunal at Leicester, appeared at first blush to give rise to procedural issues relating to the determination of Mr Prince's claim under the Disability Discrimination Act 1995. As the hearing progressed, it became apparent that the central question might, rather, be whether the Employment Tribunal had adequately set out its reasoning in the Extended Reasons for its Decision, promulgated on 13 March 2001.
2. The Decision

By its Decision, the Tribunal held as a preliminary matter that Mr Prince was disabled within the meaning of section 1 and schedule 1 of the Disability Discrimination Act 1995. It has yet to determine other substantive claims which Mr Prince made.

3. The Decision shows that the hearing was in two parts. During the first part, the Tribunal heard evidence, and considered the contents of an agreed bundle of documents including clinical notes and medical reports. It also watched two surveillance videos taken of Mr Prince, in July and in September 1999.
4. During the second part of the hearing (just over a month after the first) the Tribunal, in the absence of the parties, considered additionally a transcript of a covert tape recording made by Mr Prince of an interview which he had had with Dr Deacon, a specialist in Occupational Medicine with the Appellant company, a statement from Paula Frost, an Occupational Health nurse with the Respondent (postdating the first day of hearing), and a letter from Mr Prince's General Practitioner, Dr Gallagher, again postdating the first day of hearing.
5. The conclusion to which the Tribunal came was that Mr Prince was disabled. That required the Tribunal to be satisfied that (in the words of section 1(1) of the Disability Discrimination Act 1995) Mr Prince had:-

"…..a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day-to-day activities."

The Tribunal were satisfied that Mr Prince had a physical impairment: this was spondylolysis accompanied by pain. It was common ground that this constituted a physical impairment. Accordingly the only issue was the extent of the effect of that impairment on normal day-to-day activities. The Tribunal dealt with this issue in two stages: first to ask whether or not there was an adverse effect, and secondly, to evaluate whether or not it was substantial It said, in paragraph 8(ii) and (iii):-

"ii) Does the impairment have an adverse effect on day-to-day activities? The fact that a person can carry out an activity is not determinative of the issues. If, as we find is the case, the applicant has developed some coping strategies that does not negative the existence of an adverse effect e.g. when bending, riding a bicycle in a straight back fashion (which he does on medical advice) or reversing his car through the mirrors (Goodwin second requirement)."

(That was a reference to the approach commended in the case of Goodwin -v- The Patent Office [1999] IRLR 4.)

"……….part of the coping is to take painkillers.

iii) Is the adverse effect "substantial"? Put another way can we describe it as only being "minor or trivial". We have to form the view as to how the applicant would be without the painkillers i.e a deduced effect. The medical evidence points to there being a considerably greater degree of pain than is the case when he takes the medication. We conclude that without painkillers the adverse effect on the applicant is more than minor or trivial (Goodwin's third requirement)."

6. The conclusion as to adverse effect (as opposed to the degree of that effect) was based upon findings of fact which the Tribunal recorded in paragraph 7. In particular, the video films demonstrated to the Tribunal that Mr Prince appeared to have a stiff-backed appearance. This was confirmed by Mr Sanderson, a Consultant Orthopaedic Surgeon who had the current clinical care of Mr Prince. It appears that the Tribunal also identified a limp, with the help of Mr Sanderson, although it was barely detectable or "virtually normal".
7. The Tribunal also found Mr Prince's evidence that he was more comfortable standing up than he was sitting down, to be consistent with his actions in his house, when covertly filmed. They noted in particular that he reversed his car through the use of mirrors because he could not easily turn his head, that he had worked out a system for tying his shoelaces and putting on his trousers, and required the use of painkillers to cope.
8. We should observe at this stage that we do not think it could seriously be argued that the Tribunal did not have the evidential material upon which it was entitled to reach a conclusion as to some adverse effect. The battle ground between the parties, on appeal, in the light of that, had to be restricted to whether or not the Tribunal approached the question of determining the extent of that adverse effect properly.
9. It had been in issue before the Tribunal whether the Respondent was exaggerating the effects of his physical impairment, even to the extent of malingering. Thus Dr Deacon gave evidence that Mr Prince was exaggerating. In a medical report he said:

"…….his mobility was not significantly restricted in the course of everyday activities. ……..

As regards lifting, I do accept that he is unfit for heavy manual work. However, the ……surveillance evidence again shows that he is able to lift, carry or otherwise move everyday objects."

Mr Sanderson, on behalf of Mr Prince, reported that he did not believe that Mr Prince was malingering one little bit and commented that he was a genuine person who genuinely wanted to get better.

10. It is plain that the difference between the medical experts depended in part upon their assessment of the Respondent. Their evidence, and the credibility of the Respondent's accounts to them of his condition were explored before the Tribunal.
11. The Tribunal noted (at paragraph 7(iii) ) that the Respondent had told an Occupational Health Health nurse in the employment of the Appellant that on 28 May 1999 he was:

"having to walk with crutches".

On 26 August 1999, he claimed that he was:

"still incapacitated having to walk with a stick"

Yet the second video film taken on 6 and 7 September 1999 did not show any stick, and at most the faint limp already described.

12. The Tribunal found that on 26 August 1999, Mr Prince had claimed that he was not able to pick up his children or sit for long periods, and on 3 September 1999, Dr Deacon, whilst examining Mr Prince noted from what he said that he claimed not to be able to pick up his children, aged 2½ and 6 years of age. Yet Mr Sanderson observed in a report before the Tribunal that the video showed one occasion when he was carrying a small child

" …….which is a little at odds with what he said he could do ……"

13. Mr Prince claimed to be taking painkillers in the course of a day. He claimed (and the Tribunal accepted at paragraph 7(v) ) that on the occasions of the videos being taken he was taking his full dosage of medication. He told the Chairman in answer to a question that he took some fourteen painkillers in a day: the Tribunal recorded the claim as being that he was taking ten painkillers in a day. They added, however, that Dr Deacon, for the Appellant was sceptical about that, and went on to say:-

"Nevertheless, the letter from Dr Gallagher states that currently the Applicant is taking Codeine Phosphate 30mg, one or two four times a day plus Paracetamol as needed. We accept the applicant's evidence and find that he is regularly taking heavy doses of painkillers."

14. It is these alleged exaggerations and the way the Tribunal dealt with them which have given rise to the appeal.
15. The Chairman's Notes of Evidence show that in cross examination Mr Prince said (in respect of 28 May 1999):

"I never said I had to walk with crutches"

He repeated this when further questioned by one of the lay members of the Tribunal.

16. It appears that what happened was that Mr Prince claimed to have covertly tape recorded his conversation with Dr Deacon, and that the tape recording would prove that he had never mentioned to the doctor that he had used crutches. Although the tape was produced at the hearing for the purpose of playing before the Tribunal, no appropriate tape recorder could be found. Accordingly, an agreed transcript of the tape was prepared, and submitted to Tribunal after the close of argument on the first day. The transcript shows that, contrary to Mr Prince's assertion through his Counsel that he had never mentioned using crutches, he actually said, in answer to the question:

"Did you have a crutch or something last time?":

"Yeah."

And when he was asked:

"The fact that you're on your walking stick today rather than your crutches down that give me a feeling that you're a wee bit better then?"

he replied:

"I stopped using the walking stick because it would ……crutches is just uncomfortable."

17. As to medication, in the transcript of his tape recorded conversation with Dr Deacon, he was asked what pills he was taking. The taped transcript reads as follows in answer:

"A = …..painkillers, ….co-codamol. I can't remember. One is quite a long name. Quite a strong one, I know that.

B = And another one. Is this a painkiller?

A = Yeah. Only take them when I need to take them. I don't take them every day now.

B = You take as required.

A = Don't want to be stuck on them relying on a painkiller."

It is said that that transcript dating from September 1999 was inconsistent with Mr Prince's evidence, as recorded by the Tribunal. Moreover, Dr Gallagher, in the letter to which the Tribunal referred, said this:

"You requested details of this man's painkillers which he is taking for his back pain. My records show that since June 1999 he has been prescribed a number of painkillers starting with Ibuprofen 400 mg 3 times a day which was changed to a trial of Nefopam on 05.02.99 and a trial of Tramadol 50 mg 3 times a day on 13.12.99. None of these tablets were particularly effective and on 28.09.00 he was started on Codeine Phosphate 30 mg 1 or 2 four times a day +/- using Paracetamol as needed. It does appear that has had some relief with taking Codeine Phosphate and he still uses it from time to time when his pain is not manageable without medication."

This last sentence was said to be inconsistent with Mr Prince's claim to be taking regular heavy doses of painkillers.

18. Submissions

Mr Wynter, for the Appellant, argued that the critical question in determining whether or not the admitted disability had a substantial effect on normal day-to-day activities was whether or not the Applicant could be believed in the evidence he gave. Mr Wynter argued that since Mr Prince had asserted that he never said to Dr Deacon that he had ever used crutches, yet the tape transcript showed that he had done so; since he claimed in evidence to be taking ten painkillers in the course of a day (or possibly fourteen) yet the letter from the General Practitioner did not confirm this; and since he could be seen on video lifting a child's cycle and a child, yet claimed to be unable easily to lift, it was incumbent upon the Employment Tribunal to give some explanation why it was that the Tribunal felt able to come to the findings of fact it did. The Decision of the Tribunal, if it was not to be perverse, had to be justified by some reasoning which set out the extent to which the Tribunal made findings on what he submitted was the central issue of the credibility of Mr Prince.

19. In effect, what Mr Wynter was submitting to us was that the Tribunal needed to explain more than the facts upon the basis of which they concluded that Mr Prince succeeded, and the Appellants failed. They needed also to explain why they reached the finding as to credibility of the Respondent which was implicit in their findings of fact. Since Mr Wynter was inclined to accept that the general rule was that a Court is not required to say how and why it has reached a decision on a question of credibility (as distinct from a question of liability) we invited the further submissions of both parties as to what, if any, guidance might be gained from the decision of the Court of Appeal in Meek -v- City of Birmingham District Council [1987] IRLR 250. To give both parties the opportunity of addressing the issues fully, we invited the submissions, if any were thought appropriate, to be addressed to us in writing, following the conclusion of oral argument together with any considered view as to how the Meek doctrine might affect a case such as this which we have to consider.
20. Mr Wynter, in his written submissions, referred us to the general proposition as set out in the judgment of Bingham LJ at paragraph 8:

"the parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises ……"

The aspects of the evidence and reasoning which are required to be set out will depend on each particular case and the extent to which any particular issue may have been treated by the Tribunal as having a significant determining effect. Mr Wynter pointed out that here the credibility of Mr Prince had assumed an importance. It was to enable a transcript of the tape to be provided that there had been an adjournment at all. The transcript of the tape was relevant only to whether the Respondent had indeed told Dr Deacon that he had been using crutches. (We comment, by parity of reasoning, that it might additionally be said that what was also in issue was the credibility of Dr Deacon, and the accuracy of his report).

21. He referred us to Anya -v- University of Oxford and Another [2001] ICR 847. In that case, two candidates were shortlisted and interviewed for a new research post. The disappointed candidate complained that his rejection had been on the ground of his race. He relied upon acts of discrimination against him in the two years previous to his interview. When the Industrial Tribunal dismissed the complaint, they simply accepted the evidence of a Dr Roberts (one of the interviewing panel, and the postdoctoral supervisor of the Appellant) as truthful. They did not examine the truth, or otherwise, of the matters which the Appellant had raised as incidents of discrimination against him earlier in his membership of the university. Lord Justice Sedley said (at 856, para 14):

"Such a conclusion was without doubt open to it, but only provided it was arrived at after proper consideration of the indicators which Dr Anya relied on as pointing to an opposite conclusion. His case was that the evidence showed two critical things. One was a preconceived hostility to him: this depended on matters of fact which it was for the industrial tribunal to ascertain or refute on the evidence placed before them. The other was racial bias against him evinced by such hostility: this was a matter of inference for the industrial tribunal if and insofar as it found the hostility established."

He went on to explain that in their Decision, the Employment Tribunal had reached no findings as to the accuracy of the allegations of prior hostility. Accordingly, the necessary context within which the allegation of bias at interview had to be viewed was neither established nor refuted. As he explained at paragraph 19:

"One has only to ask whether this"

(i.e. rejection of the claim)

"…….would necessarily have been the outcome if Dr Anya's allegations of prior hostility had been made out in order to see what was lacking in this decision. The industrial tribunal with respect to it, has started at the far end of the process of reasoning and has never returned to base. Having concluded that Dr Roberts was essentially truthful (we do not know whether or not it thought the same of Dr Anya), it has abandoned the remainder of the enquiry. It makes no findings about the substance, much less the significance, of the inconsistencies which it has noted in his and in Professor Cantor's evidence; no evaluation of the further inconsistencies which it has found between the university's documents and its evidence; no findings as to whether the applicant had, as he contended, been repeatedly sidelined by Dr Roberts in the course of his research work; no finding about the significance of the differences in the way he and Dr Lawrence were treated; and no indication of the significance, if any, of the interview panel's departures from university policy or good practice. Nor therefore has it been in a position to decide whether any hostility it might have found was in any significant degree racially motivated."

22. Mr Wynter in particular sought to rely upon passages in Anya which cited that which was said in The Ocean Frost [1985] 1 WLR 57 by Lord Goff:

"It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence …reference to the objective facts and documents, to the witnesses' motives and to the overall probabilities can be of very great assistance to a judge in ascertaining the truth".

He noted that this had been adopted in the Court of Appeal decision of Heffer -v- Tiffin Green (17 December 1998) where Henry LJ concluded, relevantly to the present case:

"Nor were the crucial contemporary documents given proper, detailed and dispassionate consideration. In my judgment they cannot be explained away …..by an uncritical belief in Mr Heffer's credibility ……"

Mr Wynter argues that the Employment Tribunal in the present case worked from a conclusion that the Respondent was honest (despite the contradiction and confusion in his evidence) to an acceptance of the primary facts, without a critical review of those facts placed against the context, documentary and otherwise. The uncritical belief in the Respondent's credibility was similar to that condemned by Morison in Tchoula -v- Netto Foodstores Ltd (EAT, 6 March 1998):

"A bald statement saying that X's evidence was preferred to Y's is, we think, both implausible and unreasoned and therefore unacceptable….What a tribunal should do is state their findings of fact in a sensible order (often chronological), indicating in relation to any significant finding the nature of the conflicting evidence and the reason why one version has been preferred to another".

Mr Wynter further emphasised that the need for an adequately reasoned decision was a requirement of Article 6 of the European Convention on Fundamental Human Rights, which by sections 2 and 6 of the Human Rights Act 1998 a court is required to take into account.

23. For the Respondent, Mr Goldberg argued from first principles that this Appeal Tribunal could only interfere with the Decision of an Employment Tribunal which had been reached by a misapplication of law, where there was no evidence to support any decision reached, or where a Tribunal had reached a decision that no reasonable Tribunal, properly directed in law, could have reached. This could not be said to be a case in which there was no evidence entitling the Tribunal to conclude as it did. Nor could it be said to be perverse: the real issue was whether or not there was a misapplication of law in failing to explain sufficiently the reasoning by which it had reached the conclusion it did. As to this, he accepted that there would be cases such as Anya -v- University of Oxford in which a Tribunal would have to go further than simply record a preference for the evidence for one of the parties over that of the other. He pointed out that it was open to a Tribunal to accept part, and to reject part, of the evidence of any witness. It was going too far to require a Tribunal to record its reasoning why it preferred one witness to another. It was going too far to require a detailed exploration of the issue of credibility in respect of each of the critical facts. He pointed out that Mr Wynter had appeared before the Tribunal and had urged them (as they record) to treat the evidence of the Respondent with "extreme caution", no doubt for reasons given by him to the Tribunal at the time.
24. He argued, in his further written submissions, that the very paragraph from Mr Justice Morison which Mr Wynter referred to in his submissions to us was one which had been honoured by the Employment Tribunal in the acceptance, and not in the breach. He pointed out that Anya -v- University of Oxford was not a case which could be extended from facts such as those before it to the general proposition that a Tribunal would have to set out in detail findings of fact underlying each and every conclusion it expressed. An argument to this effect had been mounted before the Court of Appeal in the case of Miriki -v- General Council of the Bar [2001] EWCA 1973. In giving the judgment of the Court at paragraph 46, Peter Gibson LJ described Anya as being a case in which the complaint related directly to the alleged discriminator and his previous conduct, and added that one could readily see why it was important in that case that the Tribunal should have made the findings which it omitted to do. He distinguished Anya on the facts from the case of Miriki before him, and added (of general significance):-

"Each case must be decided in the light of its own particular circumstances. It cannot be right that in every case the tribunal must make express findings on every piece of circumstantial evidence, however peripheral, merely because the applicant chooses to make it the subject of complaint."

Mr Goldberg characterised the argument for the Appellant as being one which sought to raise the issue of credibility beyond the importance which it had before the Tribunal. The reasoning of the Tribunal made it clear that credibility was not a central issue. Simply because the Appellant raised it did not place the Tribunal under a duty to make express findings upon it.

25. Conclusions

We are satisfied that there was, here, evidence upon which it was open to the Employment Tribunal to reach the Decision they did. It has to be remembered that the issue was not whether there was an impairment, nor whether it had an adverse effect on day to day activities. Both were conceded. The only issue was as to the extent of the adverse effect. In determining whether that effect was "substantial", the guidance of the higher Courts has been unanimously to the effect that it is only if an adverse effect can properly be described as minor, or trivial, that it will fail to qualify as being substantial. Moreover, it is established that where medication is taken, the relevant enquiry is not as to the extent of the adverse effect during those periods when the medication is effective, but as to whether that effect can be dismissed as merely minor or trivial in the absence of such medication.

26. The Employment Tribunal concluded that the effect was more than minor or trivial, without painkillers, in paragraph 8(iii), in these words:

"….The medical evidence points to there being a considerably greater degree of pain than is the case when he takes the medication. We conclude that without painkillers the adverse effect on the applicant is more than minor or trivial."

27. Since the Tribunal have set out as fact that the pain from which Mr Prince suffered had an objective, mechanical cause (a screw impinging upon a nerve), and that this had been relieved by a painkilling nerve root block injection but would return, they would be entitled on this basis alone to conclude that there was considerable pain relieved by medication, let alone from the matters of fact which they extensively set out as deriving from video films and medical evidence in paragraph 7. The evidence of the presence of pain, its effects, and how it was controlled by medication did not come from Mr Prince alone.
28. In short, therefore, the only question that we have to ask ourselves is whether or not this Tribunal has said sufficient in relation to the issues of credibility for the Appellant to understand why it lost. The proper approach to the giving of reasons is that set out in the judgment of the Court of Appeal in Meek -v- City of Birmingham City Council [1987] IRLR 250. The decision of an Employment Tribunal is not required to be an elaborate formalistic product of refined legal draftmanship, but it must contain (per Bingham LJ at paragraph 8, page 252 these three things:

"(i) an outline of the story which has given rise to the complaint;

(ii) a summary of the Tribunal's basic factual conclusions and

(iii) a statement of the reasons which have led them to reach the conclusion which they do on those basic facts."

29. At first blush, it might seem that whereas the credibility, or the opposite of a witness might be part of the reasoning by which basic factual conclusions are reached, credibility (or lack of it) cannot of itself be one of those basic facts. Credibility is never an issue in the sense of being determinative of a case. The facts are determinative. To speak of credibility as being an "issue" is to equate credibility with primary fact. A cause of action is made out if the facts are established, not if the witness for one party lacks credibility, in general terms, and the other party's witness has it. To elevate credibility to the status of determinative fact is to commit exactly the error which Sedley LJ identified in Anya -v- University of Oxford: there the "fact" that a witness was regarded as honest (and, inferentially, credible) was treated as determinative whereas it was the facts, rather than the credibility of the witnesses, which required to be assessed.
30. However, we accept that there may be cases in which the critical finding of fact is so dependent upon whether one witness's version, or that of another, is accepted that a conclusion as to which of the two is credible will effectively be the factor which determines what the decision on fact will be. Though it may be rare that such an issue is determinative, as opposed to merely influential, this does not mean to say that it is not, in such a case, one of the "reasons" which have led the Employment Tribunal to reach the conclusion which they do in respect of the basic facts.
31. To this extent, we accept Mr Wynter's submissions.
32. Where we cannot accept Mr Wynter's submissions, however, is in his characterisation of the present case as being one in which a decision upon a critically disputed matter of fact could be reached only by determining the credibility of the principal players, and expressing that as a conclusion. This was not a case (as he sought to characterise it) in which the Tribunal approached the issue by making a bald statement that they preferred Mr Prince's evidence to that called on behalf of the Appellant. Although the Tribunal do say:

"We accept the applicant's evidence and find that he was regularly taking heavy doses of painkillers"

it would be over analysing the decision to think that the Tribunal were here finding that on every matter upon which he gave evidence Mr Prince was to be accepted. It is plain that the Tribunal did not, for instance, accept that Mr Prince had never claimed to have been walking with crutches. They made it plain that they accepted as a fact that he told an Occupational Health nurse (Paula Frost) that he did so. They found that a week before a video was taken (which they thought would show to a casual onlooker what would appear to be an individual going about his activities in a normal way) he was claiming that he was :

"still incapacitated having to walk with a stick, not able to pick up his children or sit for long periods."

Accordingly, this Tribunal did not accord the Applicant uncritical acceptance of whatever he said.

33. That part of the Applicant's evidence which the Tribunal expressly did accept, that without painkillers he would be suffering considerably more pain than would be the case when he took them, did not stand on its own: it had the powerful support of a Consultant Orthopaedic Surgeon about whose credibility there appears to have been little issue. The Tribunal set out in some detail (particularly in paragraph7(v) ) examples of the impact on the Applicant which they were prepared to accept. These are drawn from the totality of the evidence, both medical and lay, having heard and seen the witnesses. The acceptance of them was considered in the light of arguments which strenuously challenged the good faith of the Respondent, and argued that he had exaggerated his behaviour. Acceptance of it did not depend upon the acceptance of Mr Prince's evidence on its own.
34. Since the ultimate conclusion was one of the weight to be given to the various factors, we have to remind ourselves that the assessment of the severity of an impairment is very much a matter for the fact finding Tribunal, and cannot be interfered with by this Tribunal on appeal unless it appears manifestly excessive, wrong in principle, or perverse. It cannot be said, even with the challenges to some parts of the evidence, that it was any of these.
35. We accept the guidance of Peter Gibson LJ in paragraph 46 of Miriki, as cited to us by Mr Goldberg. This is not a case (as was Anya -v- Oxford) in which a decision as to general honesty and reliability was substituted for a finding of the relevant facts. This was a case in which it was relevant, but not so critical that the reason for the Tribunal accepting it in respect of the specific instances in which they did required to be further explained. If one were to adopt the approach in Morison J in Tchoula -v- Netto Foodstores Ltd, endorsed by the Court of Appeal in Anya, this Tribunal did indeed set out the rival evidence, and the facts it found. Sufficient is said for the parties to know why the impairment of Mr Prince could not be brushed aside as insubstantial.
36. Two matters have given us some hesitation. The letter from Dr Gallagher, on a fair reading, suggests that the Respondent's claim to be taking ten painkillers a day was an exaggeration. However, the acceptance of the Respondent's evidence by the Tribunal was:

(a) an acceptance which the Tribunal was entitled to make (it would be difficult to think how one could give detailed reasons for accepting evidence that a witness was taking medication beyond recording the fact that it was so accepted, although some explanation of the difference between Mr Prince's account and that of Dr Gallagher's letter might have been desirable).

(b) an acceptance not of any specific number of painkillers but rather the "regular" taking of "heavy doses" of painkillers. That is not necessarily inconsistent with the last sentence of Dr Gallagher's letter.

37. Secondly, we have been given some hesitation in the light of the argument Mr Wynter addresses that the Tribunal specifically adjourned final consideration of its Decision pending receipt of a tape recording, and further material, in the light of the questions as to the Appellant's (and Dr Deacon's) credibility which had been raised during the course of the first day's hearing. He argued attractively that if the Tribunal had expressly adjourned for the purpose of considering material on credibility, that gave an importance to the question, and required it to be separately addressed in the reasoning which followed.
38. We have to remind ourselves first that the Tribunal did not itself record why it was that a second day's hearing was necessary, and in particular, did not say that that was specifically in order to resolve issues of credibility which it regarded as critical. As we have indicated earlier in this judgment, issues of credibility, though important, were not as critical in the present case as they would be in many. Secondly, it was open to the parties to make further written submissions at the time of submission of further material. Neither did so. The Tribunal thus did not have further submissions which it might normally be expected expressly to resolve. We might add, for good measure, that the Tribunal itself recorded the additional material which it had received, and specifically noted that it was evidence which had not been tested by cross-examination. Some of it is indeed reflected in specific findings of fact made.
39. Although we can understand and to an extent sympathise with the puzzlement of the Appellant that no specific and emphatic reference was made to the fact that the Respondent appeared to be suggesting one thing in cross-examination which he was disproving by his own tape recording, we do not think that the failure of the Tribunal to deal specifically with that matter goes beyond being desirable (or even advisable) to the extent that it became an error of law in the context of the present case.
40. We should make it clear (because this case will return to the Employment Tribunal, which has yet to determine the substantive claims before it) that our judgment does not, and cannot, preclude the Appellant from raising again any of the issues of credibility raised before us at those substantive hearings. The fact (if it be the case) that the Respondent may have given any Tribunal good cause to treat his evidence with the extreme caution which Mr Wynter urges is plainly relevant in relation to resolving the evidential issues which are yet to arise in respect of the questions of unfair dismissal, wrongful dismissal, and alleged breach of the Disability Discrimination Act, just as the true extent of any disability may be relevant to questions of compensation if they ever arise. Whether and to what extent that will play a part in the resolution of those claims will be a matter for the Employment Tribunal to determine in due course. Out decision is merely that the appeal must be dismissed, since, not without hesitation, it appears to us to have been open to the Tribunal not only to reach the conclusions they did, but to express them in the terms they did, without going so far as to err in law.