United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	MR PAUL NICHOLLS (of Counsel) Instructed by: Messrs Dechert Solicitors 2 Sergeants Inn London EC4Y 1LT
For the Respondent	MR MARTIN BLOOM (Solicitor) Instructed by: Messrs Hegarty & Co Solicitors 48 Broadway Peterborough PE1 1YW


 


HIS HONOUR JUDGE J McMULLEN QC

1. This case is about constructive unfair dismissal of a senior manager whose partner leaves and subsequently joins the competition, creating genuine fears in the mind of the Respondent about the leakage of sensitive information.
2. The judgment represents the views of all three members who carefully pre-read the papers and the Skeleton Argument. We will refer to the parties as Applicant and Respondent.

Introduction

3. It is an appeal by the Respondent in those proceedings against the decision of an Employment Tribunal sitting at Sheffield, Chairman Miss H McWatt, registered with Extended Reasons on 19 November 2002. The Applicant was represented by Mr Martin Bloom (Solicitor), the Respondent by Mr Paul Nicholls (of Counsel), who both appear today.
4. The Applicant claimed unfair dismissal, sex discrimination and breach of contract. The Respondent denied sex discrimination and contended it did not dismiss, actually or constructively, the Applicant; but that, if it did, the dismissal was fair.

The Issues

5. The Employment Tribunal dismissed the sex discrimination claim and it is not pursued. No separate finding appears to have been made on the contract of employment claim and, in any event, that issue is not pursued. The essential issues, as portrayed but not defined by the Employment Tribunal, were:

(a) to decide if there was a dismissal, constructive or otherwise;

(b) if there was, was it fair;

(c) if not, what compensation to award.

The Legislation

6. The relevant provisions of the legislation are the Employment Rights Act 1996, section 95 (1) (c), 98 (1), 98 (2) and 98 (4):

95 (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) and section 96, only if)-

…

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.

98 (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show-

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it-

(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) relates to the conduct of the employee,

(c) is that the employee was redundant, or

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

The Decision

7. The Employment Tribunal found that the Respondent constructively unfairly dismissed the Applicant and awarded her £34,250 to which the recoupment provisions apply.

The Appeal

8. The Respondent appeals against that finding. Part of the finding includes an injury to feelings award of £2,500 which, by agreement with the parties, will be dealt with in writing following the judgment of the President in a series of cases relating to this matter.

EAT Directions

9. Directions sending this appeal to a full hearing were given in chambers by me on 17 January 2003. Since then, an application apparently has been made without opposition for the inclusion of an additional ground.

The Parties

10. The Respondent is engaged in the business of operating mobile photography studios. It sets up its studios within shops and at other sites. Customers are invited to pay for photographic portraits within these studios. The Respondent has to arrange schedules of visits attending different areas at different times. Its present at a particular location is foreshadowed by advertising.
11. The Applicant was employed as a Mobile Studio Area Manager, North East Area, pursuant to her contract of employment, contained within the letter dated 23 May 1996. In that role she worked mainly from home travelling to and across her area as required. In order so to enable the Applicant to carry out her work at home she was provided with a computer and also received information from the Respondent about its business. Much of the information was confidential to the business and included a range of information including financial information, budget, promotions and so on. The Applicant is 42 and was employed at a salary of at least £26,000. She was also entitled to a bonus. She had been employed from 1986 until the relationship ended on 17 April 2002.

The Tribunal Findings

12. The Tribunal found that the Applicant's partner had previously been employed by the Respondent and had left several months earlier by reason of redundancy. It was anticipated by the Respondent that he would join some competitive business, as indeed he did. Word reached the Respondent that he had apparently started working on 15 April 2002.
13. On 17 April the Applicant was telephoned in her car when she was going out on the Respondent's business. She was not told the reason for the call but was required to attend a meeting in a hotel foyer. At the meeting it was made plain to her, the Tribunal found, that the Respondents had genuine concerns about the inadvertent disclosure of confidential information. The meeting was conducted by two of the Respondent's officers. The Applicant was relieved of her duties as Area Manager from the moment of the meeting. She was accompanied to her house where she handed over all of the company's property, including her business cards, to which the Group Commercial Manager had agreed that they would not be needed again.
14. The Respondent, at the meeting, indicated that it would attempt to find a role for her in the business and indicated that she was temporarily suspended. The new role, if any were found, would have no access to confidential information. The Respondent's evidence was there was no realistic way of the company finding an alternative role for the Applicant under which she would not be in possession of confidential information and thus "none of us could see a way in which Linda could continue in her current role." It was jointly agreed in the evidence before the Tribunal that no comparable role existed. Alternatives were put, but in reality the employment relationship would have to end, reluctantly for both parties.
15. The Applicant was extremely upset at the way in which the matters had been broached to her and described the meeting as a sham. She said this:

"I was made to both look and feel like a criminal and degraded and humiliated and …you have clearly dismissed me as an Area Manager and I feel the possible options open are unreasonable."

She referred to her loss of trust and confidence in the Respondent.

16. The Tribunal decided to approach the matter by looking at the terms of her contract. It decided that the Applicant was entitled to be employed as Area Manager, that the Respondent had not suggested a variation of the term and there was no question in the Respondent's mind of her being temporarily suspended from the role. The Tribunal found that it was clear to her and to it that her role as Area Manager had, to all intents and purposes, ceased. The offer of alternative roles may have been genuine but was in fact unrealistic, it found.
17. Apart from that, it decided that the events of 17 April were, as it put it, sufficient to destroy her trust and confidence in them. There was no real grounds cause, however reasonable their concerns were, about confidential information being disclosed for them to act in the way they did. They followed no procedures, they gave the Applicant no opportunity to consider her position and respond to their concerns before "suspending her" and removing their possessions from her home, unceremoniously, all this to a long-standing, exemplary, trustworthy employee. In those circumstances the Tribunal found a breach of the fundamental term of mutual trust and confidence.
18. It then decided that the Applicant had been unfairly dismissed. It did so by deciding that the Respondent made no real assessment of what it had described as the high risk of inadvertent disclosure, prior to its decision to dismiss her. The Tribunal noted that no credit had been given to the trustworthiness and integrity of the Applicant herself and found that it did not act reasonably in treating its understandable concern about a leak of confidential information without proper consideration of the Applicant's position. This then constituted unfairness since alternative solutions were entirely unsuitable.
19. The Tribunal, in a passage which is difficult to understand, said this:

5 B (v) "In any event, the manner of her dismissal was substantively unfair – no procedure whatever was followed on 17 April 2002 and what was done was in fact entirely unacceptable in terms of good industrial relations practice.

(vi) The Tribunal were unable and not prepared in this instance to draw any conclusions about the practicality of the Applicant's employment being terminated despite the unfairness of the Respondent's actions – there was no evidence before the Tribunal from which to make such an assessment. The Respondents had not begun to properly or fully assess the reality of their concerns and/or how they could be overcome before concluding that the Applicant's role as Area Manager was no longer a possibility."

20. The Tribunal thus decided and expressly addressed Polkey by deciding that no reduction would be made. It went on to make an award of unfair dismissal which included a sum of £2,500 for injury to feelings, out of a total of £34,250.

Employment Tribunal Directions

21. A significant weakness in this case is the Tribunal's failure, expressly, to set out the statute and the authorities upon which it relied. However, we suppose that the Tribunal did implicitly apply the sections of the Employment Rights Act 1996 which we have cited above. We also have to infer from its reasons that it had in mind the doctrine set out in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 without expressly so referring. It did refer in terms to Polkey v AE Dayton Services [1988] ICR 142 HL.

The Respondent's Case

22. The Respondent submitted that the Employment Tribunal had erred in law in the following respects:

(i) holding the Applicant was constructively dismissed;

(ii) deciding that the dismissal was unfair; and

(iii) declining to draw a conclusion as to the likelihood, apart from unfairness, that the employment would have ended in any event.

23. It was contended that the Tribunal failed to identify any particular term of the contract upon which could be mounted a claim for breach, fundamental or otherwise. As to the Tribunal's approach to the express term of being employed as an Area Manager it was contended by Mr Nicholls that there was no right to work and that the term is to be objectively applied.
24. There was no primary finding by the Tribunal as to what the breach was and it was submitted that the change in the role envisaged by the Respondent away from the Area Manager's position was not a breach; that an employer in such circumstances as faced this one should properly suspend an employee which is the antithesis of repudiation being the carrying out of the terms of the contract for a short period of time; and that the expression of an intention to terminate the contract could not be a breach unless it were wrongful.
25. As to fairness, it was submitted on behalf of the Respondent that the Tribunal had failed correctly to balance the issues and in its statement of the finding on unfair dismissal had failed properly to apply to the circumstances of a constructive dismissal the approach enjoined by section 98 (4); that is, that it is the conduct of the employer which is to be examined.
26. As to the Polkey reduction, it was contended that the distinction between substantial and procedural unfairness was not helpful and that the Tribunal had made firm findings on the joint evidence that the employment relationship would inevitably have come to an end, and so it should have reduced the compensation.

The Applicant's Case

27. On behalf of the Applicant it is contended that there were four issues. As to breach of the express term the Respondent had given no prior notice that the job had actually been removed from her. There was discussion only as to demoted alternatives. As to breach of the implied term, it was contended that any breach of the implied term of trust and confidence, any breach of such a term would be fundamental and give rise to an entitlement in the wounded party to resign forthwith.
28. On section 98 (4) it was contended that the action of the Respondent was unreasonable as a matter of substance and this was not a Polkey case. As to Polkey itself, the essential issue was of procedural unfairness which did not apply here and that the Applicant had been dismissed as a matter of substance unfairly.

The Legal Principles

29. We obtain the legal principles from the following authorities:

(1) There is no express obligation to provide work in the majority of cases. Each case will be determined by reference to a construction of the contractual terms: see William Hill Organisation Limited v Tucker [1998] IRLR 313 per Morritt LJ. Thus, although most contracts provide a specific job title, they do not always lean ineluctably to a decision that the employee has a right to be employed in that position.

(2) In Transco Plc v O'Brien [2002] ICR 721it was held to be a requirement of the employment relationship (see Pill LJ's judgment citing authorities) that:

12 "…the employer shall not, without reasonable and proper cause, conduct itself in the manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee."

(3) It is not sufficient for an Employment Tribunal to cite simply the statute but must give an indication of the correct test and show how it applied it: see Allonby v Accrington and Rossendale College [2001] IRLR 364 in the judgment of Sedley LJ.

(4) In cases where a real difficulty arises in continuing to operate the contract of employment the appropriate approach of an employer is to suspend the employee: Clark v Civil Aviation Authority [1991] IRLR 412 at para 23.

(5) It cannot be a breach of contract to threaten its lawful termination: see Haseltine Lake & Co v Dowler [1981] ICR 122.

(6) In the case of constructive dismissal, the Tribunal is to consider the conduct of the employer in determining whether the reason was fair: see Berriman v Delabole Slate Limited [1985] ICR 546 CA per Browne-Wilkinson LJ who said this:

"In our judgment, the only way in which the statutory requirements of the Act…can be made to fit a case of constructive dismissal is to read section [98] (1) as requiring the employers to show the reasons for their conduct which entitled the employee to terminate the contract thereby giving rise to a deemed dismissal by the employers."

(7) In a case where a dismissal is unfair because an employer failed to carry out a fair procedure, or where the dismissal would have occurred in any event, it is appropriate to reduce compensation by a percentage figure: see Polkey v A E Dayton Services Ltd [1987] IRLR 503.

(8) There seems to be some doubt as to whether it is helpful to distinguish between procedural and substantive unfairness: see the debate in O'Dea v ISC Chemicals Ltd [1995] IRLR 799 CA and King v Eaton Ltd (No 2) [1998] IRLR 686 Court of Session, Inner House, citing O'Dea and Polkey itself. But a reduction of compensation is appropriate where the employee would have been dismissed, whether the unfairness relates to procedural defects or substantive decision-making.

(9) In assessing, for the purposes of unfair dismissal compensation, the hypothetical question is to whether adopting fair procedure would have achieved the same result the Tribunal must conduct its own investigation and reach its own conclusion: see Fisher v California Cake & Cookie Ltd [1997] IRLR 212 EAT Lord Johnston.

Our Conclusions

30. We have decided that the Applicant's submissions are correct and for the most part (except on remedy) reject the submissions made on behalf of the Respondent. Our approach to this question has been made difficult by what we regard as an imperfect set of reasons by the Employment Tribunal. We have already pointed out that the Tribunal does not in terms address itself to the statutes or to the jurisprudence, nor does it identify the issues, nor set out its reasons as clearly as the parties are entitled to see them. It is not for us to construct its reasoning for it.
31. However, in our judgment the Tribunal was correct in its approach to the express term of the Applicant being employed as an Area Manager. The Tribunal reviewed the contract and looked at the role the Applicant performed. It decided that she was engaged, following her promotion in 1996, to be the Area Manager.
32. We cannot see that the Employment Tribunal has fallen foul of the general approach that an employee does not have a right to be provided with work, but simply to be provided with pay. In this case the Tribunal made a firm finding that the job of Area Manager had ceased on 17 April. That was the job to which she had been appointed on promotion and for which she had been engaged for six years.
33. The Tribunal, in the light of what it heard about that job, was entitled to form the view that she was employed to that job only. It will be recalled that no other alternatives had been suggested which were comparable, since the Applicant had been engaged as a highly-trusted employee with confidential information. There appeared to be no other comparable role.
34. Thus, we uphold the Tribunal's decision that there was a breach of the express term. We turn now to the second term, about which we are more confident about the Tribunal's finding and the correctness of it.
35. It is accepted by Mr Nicholls that the events which occurred on 17 April 2002, followed by the Applicant's letter of 19 April 2002, are capable of being a repudiation and acceptance thereof. We hold that what occurred on 17 April was so capable and the Applicant's approach to it was to give her decision on that day and to confirm it in writing two days later. She was in no doubt two days later that the relationship had been terminated, although she does not use, and could not be expected to use, the legal language of constructive dismissal.
36. The Tribunal found, having reviewed the evidence which was put before it live, that what had occurred throughout the day was sufficient to destroy her trust and confidence in them. We do not read that as being anything other than an objective approach. Clearly the formulation is usually one of mutual trust and confidence but the firmness of the finding is not diminished by the use of the word "her" in the formulation of the Tribunal. The Tribunal, as we have cited, found there were no reasonable grounds, notwithstanding the reasonableness of the Respondent's genuine concerns.
37. It is common ground that the implied term of mutual trust and confidence is fundamental and any breach of it will entitle the wronged employee to resign. Thus the Tribunal has made a finding, principally upon live evidence put before it, as to the breach occurring on that date and we see no reason to interfere with it. It is true that at the time the Applicant was operating on the basis that she had been actually dismissed, but we have sympathy with an employee who may not understand the difference between actual and constructive dismissal
38. As to the question of fairness, the Tribunal was at pains to underline its acceptance of the Respondent's case that it had genuine concerns; but the vice in the Respondent's action was in making the decision that she should be removed from the position without making any real assessment, given that the Tribunal again went out of its way to point to the trustworthiness of the Applicant.
39. The Respondent was condemned (in terms which would fall within section 98 (4) if the Employment Tribunal had cited it) for failing to consider what would happen in the Applicant's home if she continued to work in her role with her partner working for the competition. The Tribunal found unfairness in the way she had been treated.
40. The passage that we have cited above, about which we have expressed our lack of understanding, might mean that the decision of the Tribunal was as to substantive unfairness and in any event the procedure adopted by the employer, or rather the lack of it, was entirely unacceptable. We regard that as a difficult concept. In any constructive dismissal there is bound to be an absence of a proper procedure and therefore procedural fairness will rarely arise. The proper context in which to view that unfortunate passage at paragraph 5 (iv) is to regard it as a secondary conclusion based on procedure.
41. Having given our judgment that the Employment Tribunal was not obliged to consider making a deduction, an application was made on behalf of the Respondent. Mr Nicholls made a point about an authority which we had cited, but which we had not given the parties an opportunity to make submissions about; that is, King v Eaton Ltd (No 2) [1998] IRLR 686.
42. It seemed to us that we should give that opportunity. Due to the industry of the advocates over the lunch adjournment they have been able to produce oral arguments to us in relation to that and to another authority, Boulton & Paul Ltd v Arnold [1994] IRLR 532 EAT. These are directed at the correct approach to the application of Polkey.
43. Having heard the advocates fully, we have decided that it is in the interests of justice that we should look again at the decision which we made. Whether this arises under our power to review a decision under Rule 33 (1), or because we pay attention to the overriding objective in the Practice Direction to seek efficiently and expeditiously to do justice, does not seem to be to us to be important. Rule 33 allows us, on application or on our own motion, if the interests of justice require, for us to review an order made. An order has not been perfected. We are in a proto-review situation. But if properly this is to be regarded as a review, so be it.
44. We have approached the submissions with an open mind. With Sir Winston Churchill we reserve the right at any time to admit we were wrong. We have decided that we were wrong in our initial approach to the application of Polkey to this case.
45. We accept the submission that Polkey will apply to straightforward procedural defects, but not exclusively to them, for we bear in mind what Lord Bridge said at paragraph 28 as he drew upon the judgment of Browne-Wilkinson LJ in Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91, from which Lord Mackay cited at paragraph 11 of his speech.

28 "Employers contesting a claim of unfair dismissal will commonly advance as their reason for dismissal one of the reasons specifically recognised as valid by section 57 (2) (a), (b) and (c) of the Employment Protection (Consolidation) Act 1978. These, put shortly are: (a) that the employee could not do his job properly; (b) that he had been guilty of misconduct; (c) that he was redundant. But an employer having prima facie grounds to dismiss for one of these reasons will in the great majority of cases not act reasonably in treating the reason as a sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as "procedural", which are necessary in the circumstances of the case to justify that course of action. Thus, in the case of incapacity, the employer will normally not act reasonably unless he gives the employee fair warning and an opportunity to mend his ways and show that he can do the job; in the case of misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation; in the case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation. If an employer has failed to take the appropriate procedural steps in any particular case, the one question the Industrial Tribunal is not permitted to ask in applying the test of reasonableness posed by s57 (3) is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken. On the true construction of s57 (3) this question is simply irrelevant. It is a quite a different matter if the Tribunal is able to conclude that the employer himself, at the time of the dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with. In such a case the test of reasonableness under s57 (3) may be satisfied."

46. Following the judgment in Polkey, the EAT, Knox J and members in Boulton & Paul Ltd v Arnold [1994] IRLR 532, referred to an alternative strain which was developing between substantive and procedural defects along the line of authorities which seems to emanate from Steel Stockholders (Birmingham) Ltd v Kirkwood [1993] IRLR 515. At paragraph 20 he said this:

20 "We were referred to Steel Stockholders (Birmingham) Ltd v Kirkwood [1993] IRLR 515, where the Employment Appeal Tribunal sitting in Edinburgh dismissed an appeal against a decision of an Industrial Tribunal that the employers in selecting for redundancy had created an artificially narrow pool from which to select for redundancy. Lord Coulsfield at p.517, paragraph 7 said of the passage quoted above from the speech by Lord Bridge in Polkey v Dayton:

'…it is true that Lord Bridge included the adoption of a fair basis of selection among the steps he described as procedural. We do not, however, think that by doing so he can have intended that matters such as the choice of pool in the adoption of criteria for selection should be treated as procedural.'

We would respectfully doubt whether it is for the Employment Appeal Tribunal to adopt a view that this very well-known and frequently quoted passage in a leading case in the House of Lords does not in effect mean what it says. We would, however, point out that it is one thing to categorise the adoption of a procedure as procedural and quite another to categorise a departure from an agreed procedure in favour of an unfair procedure as a procedural step. Moreover, we would gratefully adopt in that context the closing passage in Lord Coulsfield's judgment in the Steel Stockholders case where he said (paragraph 7):

'…We would only add that, while we accept that it is the duty of an Industrial Tribunal to apply the Polkey principle as a rule of law binding upon them, as was held in Hepworth Refractories Ltd v Lingard, 28 February 1999 EAT, it is not their duty to embark upon an independent investigation of the facts and circumstances in order to see whether they can identify some other criterion upon which the dismissal of the Applicant might have been justified when, as was the position, we understand, in the present case, no attempt was made to ask them to do so, or to suggest what that criterion might have been'."

47. We heard submissions on O'Dea which was referred to by the Court of Session, Inner House in King. It was referred to, however, in a summation of the arguments for Counsel and not in the final conclusions of the court. King expressly approves only one aspect of it (the one in fine chance, see citation below), but Lord Prosser, giving the judgment of the House said, at paragraphs 19 and 20 as follows:

19 "We are not persuaded that the various expressions of opinion to be found in previous cases are as difficult to reconcile as may be suggested, or as may have been thought when some of these opinions were expressed. If one reads the whole of the final paragraph of the Opinion delivered by Lord Coulsfield in Steel Stockholders (Birmingham) Ltd, it seems to us that he appreciates that the word 'procedural' does not reflect some precisely identifiable category, far less that it represents a category which could be precisely defined in all cases without enquiry into the facts. In broad terms, it appears to us that there will be situations where one can say that what went wrong was 'merely' procedural. Equally, in broad terms, we think there wiIl be situations where one can say that an employee has been deprived of something of substantive importance, to use a phrase of Lord Coulsfield's. We see no need to discard entirely terminology of this kind. and while in many cases it may be inappropriate to allocate the particular facts to either category, or to do so without enquiry, it seems to us that a distinction between the 'merely' procedural, and the more genuinely 'substantive' will often be of some practical use, in considering whether it is realistic, or practicable, or indeed 'just and equitable' to embark upon an attempt to construct a hypothesis, enabling one to assess what would have happened, if only it had. If there has been a 'merely' procedural lapse or omission, it may be relatively straightforward to envisage what the course of events would have been if procedures had stayed on track, rather than briefly leaving the track in this way. If, on the other hand, what went wrong was more fundamental, or 'substantive', and seems to have gone 'to the heart of the matter', it may well be difficult to envisage what track one would be on, in the hypothetical situation of the unfair-ness not having occurred. It seems to us that the matter will be one of impression and judgment, so that a tribunal will have to decide whether the unfair departure from what should have happened was of a kind which makes it possible to say, with more or less confidence, that the failure made no difference, or whether the failure was such that one simply cannot sensibly reconstruct the world as it might have been. It does not seem to us that there is anything very wrong in using the word 'substantive' in connection with this latter situation.

20 So far as Lord Bridge's observations in Polkey are concerned, it is no doubt correct to say that he is not drawing a categorical distinction between 'procedural' cases and 'substantive' case, or excluding the latter as a category from the possibility of what has become known as a Polkey reduction. If in a particular case it is possible to say (as in O'Dea) that the fact of the matter is that the applicant has lost only a one-in-five chance of being retained, then we concur with Peter Gibson LJ in saying that there is no arguable case that he should have been compensated on the same footing as if he was bound to have been retained. But it does not seem to us that Lord Bridge was considering or commenting upon the question of how or when one might discover what would have happened, but for the employers' unfair acts or omissions; and we cannot read him as trying to lay down a general proposition, to the effect that an employer will always be entitled, however fundamental his unfair course of action may have been, and however speculative the question of what would have happened but for these acts and omissions, to insist upon a tribunal hearing a tract of evidence, designed to reconstruct the world that never was, and ask for a finding as to the likelihood of the employee having been dismissed in that speculative world."

48. In the light of those judgments, it seems to us that the correct approach to the findings in this case was to take the evidence given, as we have said, jointly, to mean what it said; that the Applicant would have been dismissed. The unfairness in this case relates to the way in which the matter was handled on the day.
49. In the light of the joint evidence about the inevitability of the dismissal, the Tribunal was wrong in paragraph 5 (iv) to decide that there was no evidence upon which it could form an assessment and so did not do so for the purposes of Polkey, upon which submissions had been made to it.
50. As a matter of language, it seems to us that the Tribunal would have been bound to go back to its findings and would have come to a very low percentage of the chance of the Applicant surviving the realisation by the employer of its real concerns about the leak of information.
51. Thus, it appears to us that the Tribunal was in error in failing to link its finding to the correct application of Polkey. This was a case in which the Tribunal should have considered the inevitability of the dismissal of the Applicant. What figure it would have attached to that assessment is a matter for it, unless submissions are made to us for us to do so.
52. One conclusion which the Tribunal might have reached would have reflected how dedicated, trustworthy and full of integrity the Applicant was and how reluctant the Respondent was to see her go. She was entitled to twelve weeks' notice and no doubt these responsible employers would have wished to see her go with that plus benefits associated with a period of three month's notice. We note, as the Tribunal did, for it has given us the figures, that she had a company car and she was paid a bonus.
53. Again, those are matters which the Tribunal ought to have considered, for in any case where the Tribunal is to consider a Polkey reduction, it is to consider when the dismissal would have occurred, and that would require a further consideration.
54. Our conclusion is that the finding of unfair dismissal is upheld. The compensation is to be sent back to the Tribunal to determine on the application of the Polkey principle to its finding what reduction it should order and to decide when such dismissal would have occurred.
55. Mr Nicholls did not positively assert that it should go to a different Tribunal and pointed out the obvious concerns of a Respondent going back to the same Tribunal with findings made against it in respect of liability. Nevertheless, it will be recalled that this Tribunal found in favour of the Respondent on sex discrimination. Its decision on liability is not disturbed by us. It is in the interests of justice that the same Tribunal, with our direction on Polkey, consider the matter of remedy and it will be most conveniently dealt with by it. It is to be remitted to the same Tribunal, unless in the opinion of the Regional Chairman that is impracticable, for consideration of remedy in the light of our judgment.
56. The appeal against the award of compensation for injury to feelings I sadjourned for the Respondent to make written submissions within 7 days of the judgment of the President's Eat in Dunnachie v Hull City Council.
57. In the light of the above judgment, the Respondent did not pursue its application for leave to appeal. An application for costs has been made by the Applicant. No ground corresponding to Rule 34 of the Tribunal Rules has been put before us. The sift of this case allocated it to a full hearing as being reasonably arguable. In our judgment this case does not fall within any of the condemnatory epithets of Rule 34 and it is refused.
58. We wish to thank both of the advocates for the expeditious way in which they have discharged their duties to their clients within the time jointly agreed. The appeal is dismissed, subject to the direction which we gave at the outset about the injury to feelings award.