United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	The Appellant in person


 


THE HONOURABLE MR JUSTICE WALL

1. This is the preliminary hearing of an appeal by Mr Eseigbe against the Decision of the Employment Tribunal held at Watford on two days, 29 and 30 October 2002, with 13 November 2002 spent in discussion. The Tribunal's Decision was promulgated on 23 December 2002. Mr Eseigbe was the Applicant before the Tribunal, claiming unfair dismissal and breach of contract. The Decision of the Tribunal was that he had been neither unfairly dismissed nor was there any breach of contract by the Respondent, his former employer, T-Mobile (UK) Ltd, and it is against that Decision which Mr Eseigbe appeals.
2. We would like to make it quite clear at the outset of this judgment that we acknowledge immediately that Mr Eseigbe is a highly intelligent and articulate man and that he has presented his appeal to us with clarity and moderation. The indication of his intelligence is given by the fact that the dispute between himself and his former employer centres around funding for a PhD, which Mr Eseigbe was due to undertake.
3. The Tribunal, in its Extended Reasons, made it clear, when it heard the case, that the following issues would be addressed on the first occasion, namely: was the reason for Mr Eseigbe's dismissal conduct? If so was the dismissal fair, as laid down by section 98(4) of the Employment Rights Act 1996? And, thirdly, if the dismissal was not fair, did Mr Eseigbe contribute to his dismissal? Tied up with the question of unfair dismissal was the question of selection for redundancy, but we make it clear that as the matter is dealt with by the Tribunal and as presented to us, the issue of redundancy is not one which is material or one which we need to consider.
4. We take the facts very substantially from the Reasons given by the Tribunal, bearing in mind that the Tribunal's findings are criticised by Mr Eseigbe. He was engaged by the Respondent on 11 September 2000 at a reasonably substantial salary. A point which arises (although it is not effectively pursued by Mr Eseigbe) is whether or not he was made aware of the company's disciplinary procedure and whether or not the disciplinary procedure was included in his contract. In discussion this morning, Mr Eseigbe recognised that this was not his best point and we can dispose of it, we think, quite shortly.
5. The contract which he signed had on its reverse a number of conditions which were conditions of the contract itself. Those conditions included a reference to a disciplinary procedure which it was said was enclosed. So, on any view, there can be no doubt in our judgment that the disciplinary procedure was part of Mr Eseigbe's contract. That point does not, accordingly really arise.
6. What happened in a nutshell was this, that the Respondent had a policy of encouraging its employees to undertake further education, which included post-entry training, and as I have already indicated, went up to the level of a PhD. The company, therefore, agreed to fund Mr Eseigbe for a Doctorate in Business Administration, which was due, initially. to commence on 10 November 2000 at the Greenwich School of Management. The arrangement was that one-to-one, the Respondent would pay £16,350 for the fees and would pay those fees direct to the school. The Tribunal went into a little detail about this, but not to any material purpose for our consideration. The money was broken down as to £5,000 from the department for which Mr Eseigbe worked and £11,050 from the Respondent's central funding held for these purposes.
7. Unfortunately, before the Greenwich course could begin, the school, that is Greenwich, informed Mr Eseigbe that the course would no longer take place and so he had to look around for an alternative. He lit upon another course at the University of Newcastle. There were differences between the two; Greenwich was a three year course with a total cost of £15,050, whereas Newcastle was five years with a projected cost of £18,650, and in addition the Newcastle course would require attendance at workshops. In any event it was agreed that Mr Eseigbe would transfer and that the fees paid by the Respondent would be transferred from the one academic body to the other, and that is what happened. The Tribunal found as a fact that there was no other agreement or arrangement, and it also found as a fact that Mr Eseigbe did not notify the Respondent any time before his dismissal that there had been any further agreement between the college or its representatives and himself. That is a finding which Mr Eseigbe challenges.
8. What in fact happened was that course fees were transferred from Greenwich to Newcastle and then refunded by Newcastle to Mr Eseigbe in two separate tranches, totalling £5,900. Mr Eseigbe received this money but he did not tell the Respondent about it and it only came to light during the course of the potential redundancy. The consequence was that when the Respondent discovered what had happened, two cheques dated 19 April and 7 August 2001, both of which had been retained by Mr Eseigbe, a letter was written on 8 February by the Respondent to Mr. Eseigbe. There thus began to be correspondence between Mr Eseigbe and the Respondent in relation to these funds.
9. On 8 February Ms Christine Lambert, Head of Human Resources, wrote to Mr Eseigbe. Amongst the paragraphs of the letter is this:

"On the matter of fees for the PhD paid by One 2 One can you please confirm to me with evidence that the cheques reimbursed to you by the University of Newcastle for £3850.00 - cheque dated 19 April 2001 and £2050.00 cheque dated 7 August 2001 were reimbursed to One 2 One.

Please confirm both of these points by Thursday 14 February 2002"

Mr Eseigbe replied in a letter dated 10 February 2002:

"I can confirm that these monies were paid to me and that One2One was not reimbursed, as there was no reimbursement to be made. The situation is not as sinister as it looks and I will try and explain how this position was arrived at."

We think we should read the explanation that is given in the letter:

"Having been advised in January of last year that the Greenwich/Hull DBA program will not be running, I transferred my admission to Newcastle. The Hull program was a straight 3-yr taught one, whereas the Newcastle one is a minimum 5-yr research program. I notified One2One about the change of institution and sought advice as to how to proceed. As the projected fees were actually more than that paid to Greenwich/Hull (£16,050 paid to Hull; £18,650 for minimum 5-year at Newcastle), I was told that I could have the fees transferred to Newcastle and then put in a new request for any additional funds. On top of the fees would be supervised personal and group sessions in Newcastle as well as 3-5 workshops to be held either in Grenoble or Newcastle. Each of these would cost an average between £700-1000 for travel, board and lodging. Time was now of the utmost import if I was to register in time for Newcastle program. So as to avoid the prolonged approval process, I decided to accept what the company had paid so far and meet any shortfall on fees/workshop costs from my own pocket.

While waiting for Greenwich/Hull to transfer the fees, I sent a cheque to Newcastle to cover part of the fees. It then transpired that there were 2 separate payments made to Greenwich - one for £11,050 and another for £5000 from 2 separate cost centres and that these were not initially linked. As a result, Greenwich/Hull made 2 similar transfers to Newcastle. I believe the first was made c. April and the second c.July 2002 in the same amounts. Upon registration in April, the registry office advised me that I was only required to pay for 2 years at a time, especially as the route was M.Phil for 2 years and then uplift to full DBA. I was advised a refund would be sent to me after the deduction of 2 years' fees. A cheque for £3850 was subsequently received.

At the same time the University made a decision to change the academic year for the program from Jan - Dec to Sep - Aug. I thus had to register effectively for the second year last August. At this time the transfer for £5,000 had arrived. I suggested that as I could pay for 2 years in advance that the registry office deducts fees for another year. This led to a further remittance of £2050. I saw no point in giving the money back to One2One since I knew the monies would be utilised for fees in the coming years. Had the funds been surplus, I would have returned them immediately. I saw nothing wrong in holding my fees on trust for myself. Moreover, I saw no benefit in giving the money back to the company only to request for additional fees in say, 2 years time (when policies and procedures regarding funding may have changed). In addition to accepting to meet any fees shortfall myself, I have also covered my own course costs without resorting to this amount kept aside for fees. So far, I have documented expenses of over £2000 and I expect the final 2 years fees to be paid this summer. I believe that recent events support my decision and I doubt whether there would have been much appetite to pay-off the DBA fees for an employee being made redundant, had I returned the money last August.

I am enclosing a copy of the fees schedule given to me when I registered for the program. You will notice that there is a surcharge of £1,000 per year if on corporate sponsorship. Now that I am no longer with One2One, I believe I can make a good case for this surcharge not to apply to the last 2 years. If this were accepted, for the 5-year program, £16,650 would be due for fees alone.

If the supposition is that I have or am making money from this venture, then that view is incorrect. I have simply done the prudent thing to ensure that I continue and finish the program. Overall, this course was always going to be more expensive than the Hull one. I would suggest that if we net-off the total paid by One2One and the amount due on this program, that One2One will actually end up owing me money. I do not seek to claim any additional sums and have always considered £16,050 to be a sufficient amount in the circumstances. All I was seeking to do is to clarify that the sum involved is £16,050 and not £16,350.

Please feel free to contact me should you require further information."

10. That explanation was plainly not acceptable to the Respondent, because on 13 February, Mr Watson wrote again, inviting Mr Eseigbe to a disciplinary meeting in accordance with the disciplinary procedure, and relating to the two cheques. The actual phrase used is:

"At this interview the question of disciplinary action against you, in accordance with the Company's disciplinary procedure, will be considered with regard to the cheques reimbursed to you by the University of Newcastle"

Figures are given, and the dates. Slightly later in the letter, he says:

"You are entitled, if you wish, to be accompanied by another work colleague or a trade union representative. Please confirm your attendance at the hearing (in writing) ….and confirm the name (and union if applicable) of your companion if appropriate.

A copy of the Company Disciplinary Policy is enclosed."

11. The meeting had to be put off, partly because most unfortunately Mr Eseigbe's wife suffered an ectopic pregnancy, but it finally took place on 8 March, and we have a note of what occurred, clearly taken by someone on behalf of the company. Essentially, during the course of that discussion, as it seems to us, Mr Eseigbe repeated the same explanation that he had previously given. He is recorded as saying:

" that he did not want a cheque for the surplus monies to go back to ONE2ONE because he had fears it would get lost in the system, and when he needed another cheque raised, the monies would be lost. He realised in hindsight that was an error in judgment and acknowledged that he could have got a note done, so it would show on the fees that they were not a refund, and that they still had to be paid and then there would be no dispute.

He said that when he got back from Newcastle, he should have told his manager how much he had been paid. However Mr Edwards informed him that more money (£5000) had been paid to Newcastle which was the contribution from his CC to the fees."

Slightly later on, he is recorded as saying that:

"He thought that because he thought it was a five year programme, and that if the cheques were given back to ONE2ONE they would have been lost (no PO set up as SE believed) he would keep the money, set it aside for when fees were due for years 4/5. He wanted to take control of the situation: he would keep records to show what was spent."

He is then recorded as saying:

"that he should not have handled the situation like this, however it was an unusual situation. He admitted that it was an error of judgment on his part"

He went on to say:

"that when he applied to Newcastle and was accepted, he did not have a schedule of fees, in fact he has since worked out that in total the 5-year cost of fees will be £18,650. To show his commitment to ONE2ONE he had decided not to take a penny more from ONE2ONE, and the he would pay the difference, and underwrite all the other costs, although he knew he could claim for these."

12. Mr Eseigbe said that he did mention the shortfall to his manager, Matthew Crome, who advised that he could apply for these extras costs, but Mr Eseigbe said that he [Mr Eseigbe] would underwrite the shortfall. He showed other expenses he had incurred in the course and also stated that he would give those monies back to One2One. He advised that Newcastle had just held his cheque but not cashed it, and destroyed it once the monies from Greenwich had arrived.
13. Mr Rees, the investigating officer, said that he could not understand why Mr Eseigbe did not present the circumstances he found himself in. The place in Newcastle was on hold with his personal cheque; the fees were in the process of being transferred to Newcastle. Mr Eseigbe said that he had advised his manager and L & D of the transfer to Newcastle, and clarified the position with them, he wanted to expedite so he was able to get on the course as it had already started. Mr Rees pointed out that in his view the monies refunded to him were One2one monies. His manager should have been informed, and an approval process could have been then put in place. Mr Eseigbe responded to that by saying that at the time he had thought that if it had to go through another approval process, he would lose the money and lose the place at Newcastle.
14. Mr Rees said that he was struggling to understand why Mr Eseigbe thought the internal processes would have prevented him [Mr Eseigbe] from gaining his place at Newcastle. Mr Rees said that when the money was refunded he should have asked his manager how to proceed and that he was holding an account for One2One money. Again, effectively, Mr Eseigbe repeated the same point that if One2one had changed its mind he might have lost his place. He accepted however that it was an error of judgment and that he should not have done what he had; that he did not hold the monies to be dishonest, his belief that the money would get lost in the system. However he admitted that he should have brought it to the attention of One2One.
15. The note continues with a series of exchanges, none of which we think we need to read. Once the exchanges had concluded, Mr Rees proposed a short adjournment so that Mr Eseigbe could collect his thoughts and make a final statement to the disciplinary hearing He was given that opportunity, and he did so, according to the note in these terms:

"He said the whole issue evolved around a unique situation, he should have handled it better. He said that he recognised that he had received monies and should have informed ONE2ONE. He felt his motive for his actions were one of self-preservation; he had however, no intention to deprive ONE2ONE of any monies.

Looking back he felt it was clear, that he had made an error of judgment, he felt that it was easier to take the actions he did for expediency only.

He felt that lessons could be drawn from this on both sides. He felt and accepted that his actions were not correct."

16. Liz Bowes, the HR Manager, shortly after that asked whether Mr Eseigbe knew the seriousness of his actions and Mr Eseigbe repeated that there was no intention to deprive One2one of the monies; he just had a blinkered view. There was then a further adjournment at the conclusion of which Mr Rees announced, having considered all the evidence, that Mr Eseigbe had committed, in his view, gross misconduct.

"He had come to the conclusion that Mr Eseigbe had a total disregard and distrust of One2one's procedures and policies. Mr Eseigbe had misappropriated company money; the funds were One2One's and should have remained with the company. Mr Rees said that Mr Eseigbe had already admitted that in hindsight he had made an error of judgment and Mr Eseigbe had not offered any new evidence in mitigation."

The money had not been declared and accordingly, in the view of Mr Rees, Mr Eseigbe would be summarily dismissed.

17. The letter which followed that meeting is dated 7 March.

"I write to confirm my decision……"

and the following bullet points are made:

"• On the evidence of today's investigation, the fact that the two cheques [sums are given] have not been reimbursed to Onee2One, upon your own admission of poor judgment in hindsight, constitutes misappropriation of Company monies.

That facts that contributed to my conclusions are as follows

• (Clear disregard for company process arising from your mistrust in the Company's commitment to your DBA course funding.

( Your own admission that you were refunded the two cheques …. as evidenced by the receipts from Newcastle University you disclosed

( That this refund directly to you only came to light during the investigation arising from your appeal against selection for compulsory redundancy.

( Your confirmation that you had not made your line manager, Dave Edwards, aware of, nor had you sought clarification on how to proceed upon receipt of the 2 cheques from Newcastle University."

This in his view was gross misconduct and the appropriate response was summary dismissal. It was pointed that Mr Eseigbe had a right of appeal on the basis of incorrect procedures, or inappropriate level of sanction, or any other additional evidence he wished to produce, but that if he did not appeal on one of those bases, the appeal would not be granted. He did not in fact appeal and therefore was dismissed.

18. Now had did the Tribunal deal with this matter? It first of all directed itself on the law under section 98 of the Employment Rights Act, which it set out. It then referred to the well known case of British Homes Stores Ltd -v- Burchell and quoted the equally well known passage, but nonetheless a passage which needs to be repeated in nearly every case:

"What the Tribunal have to decide every time is, broadly expressed whether the employer who discharged the employee on the ground of the misconduct in question (usually though not necessarily, dishonest conduct, entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case."

19. And again, the Tribunal reminds itself of the well-known decision in Iceland Frozen Foods Ltd -v- Jones in which it said:

"(i) the starting point should always be the words of section 98(4) themselves:

(ii) in applying that section an Employment Tribunal must consider the reasonableness of the employer's conduct, not simply whether the Tribunal consider the dismissal to be fair;

(iii) in judging the reasonableness of the employer's conduct an Employment Tribunal must not substitute its decision as to what was the right cause to adopt for that of the employer;

(iv) in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

(v) the function of the Employment Tribunal, as an employment jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the range of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair: if the dismissal falls outside the band it is unfair"

20. The Tribunal then moved to its conclusion. First of all, and we think this is important, particularly in the light of the way the appeal was presented to us by Mr Eseigbe, that it came to the conclusion that it was not its function:

" to determine the guilt or innocence of Mr Eseigbe of any alleged misconduct only whether the Respondent's decision to dismiss was fair or unfair. Nothing in our findings of fact or our conclusions and decision should be taken as any expression of view as to Mr Eseigbe's honesty or otherwise."

The substantive conclusion was expressed in these terms.

"28 We are satisfied that the Respondent had sufficient information before it to consider that the Applicant had received money from Newcastle University which was money which should have been properly refunded to the Respondent, that this money had been retained by the Applicant, a situation which he had not disclosed. We are satisfied that the Respondent had this information as a result of the enquiries which it had made and that when it enquired of the Applicant on 7 February the Applicant in his reply of 10 February did not dispute the essential facts. We are satisfied therefore that the Respondent had sufficient information after such enquiries as were reasonable to call the Applicant to a Disciplinary Hearing. At that Disciplinary Hearing the Applicant was aware, despite his submissions to us, of the charge, (though not described in that term) which he had to face and the potentially serious consequences for himself. We are further satisfied that at that Disciplinary Hearing which took place on the 6^th March the facts were placed before him and he was given sufficient opportunity to ask questions and present such information as he wished to. While the Applicant challenged the accuracy of the notes of that Disciplinary Hearing, and we accept that they are not a verbatim account, we are satisfied that the Applicant did not allege at that hearing that there had been a variation to the agreement he had with the Respondent which in any way authorised him to hold money which he accepted before this Tribunal was the Respondent's property. We are not persuaded that, in accordance with the submissions made by the Applicant to us that he was entitled to hold the monies refunded to him without the knowledge or agreement of the Respondent in trust for himself. We are satisfied that Mr Rees after conducting the Disciplinary Hearing was entitled to conclude that the Applicant's actions amounted to misconduct of a fundamental nature such as would entitle the Applicant to be dismissed without notice. In considering the submissions of the Applicant we consider that although the Respondent allowed the Applicant considerable leeway when he was carrying out his operational duties and was able to make decisions relating to the Respondent's monies in carrying out that role, we do not consider that that provides any justification for the Applicant to hold the Respondent monies in this situation in the way that he did or entitled the applicant to believe it was permissible to do so."

21. The Tribunal was satisfied there had been no breach of Article 6; it pointed out that Mr Eseigbe had had a right of appeal and dealt then with the question of the employment contract.
22. Now Mr Eseigbe has to demonstrate to us that there is an error of law in the approach of the Tribunal, and much of his submission to us this morning related to his assertion that what he was being dismissed for was misappropriation of monies in the sense of theft or dishonesty, when the evidence before the Tribunal and before the disciplinary meeting did not warrant that finding. Accordingly, he says in effect that dismissal in those circumstances was both wrong in principle, unfair and unjustifiable. He therefore attacks the Decision of the Tribunal in relation to its analysis of section 98 and submits that the dismissal was, in those circumstances, manifestly unfair. That is the main thrust of his submission and we will return to it in just a moment.
23. The other points which he announced in opening, namely that the Tribunal failed to examine the disciplinary procedure and so on, and that the procedure itself was riddled with unfairness, are not points which we think can have any substance, given the nature of the disciplinary hearing which we have examined in some detail. Insofar as the Tribunal's findings of fact are concerned, the principle is that there was evidence before the Tribunal that Mr Eseigbe had had a discussion with his manager earlier in relation to the differential between the two sets of fees. Mr. Eseigbe also points to the reference in the disciplinary meeting which we have read out earlier, when he says, in terms, that he had mentioned the shortfall to Matthew Crome, who had advised that he could apply for these extra costs.
24. In our judgment, none of the material put this morning before us or, indeed, before the Tribunal comes anywhere near establishing that there was any variation in the original agreement for funding, which would have entitled Mr Eseigbe to retain funds paid to him by the university, and in our judgment, the findings of fact made by the Tribunal - which are pre-eminently for them to make - are not findings which in any sense can be described as perverse.
25. On the principal part of this section 98 fairness point, it seems to us that Mr Eseigbe, naturally enough, has latched on to an emphasised the suggestion, the implication in the dismissal that he was being dismissed for an offence of dishonesty. He has supplied us with dictionary definitions of the word "misappropriation", all of which he submits connote dishonesty.
26. We do not see the case that way. It seems to us that the way the Tribunal approached it, (and it is one with which we agree) is that there plainly was no agreement of any kind for Mr Eseigbe to retain the cheques paid to him by the university, representing overpayments, and as Mr Eseigbe himself recognised at the disciplinary hearing, he really should have informed his employer that these monies had been refunded to him and sought his employer's directions in relation to them. It would have been open to him to negotiate an agreement whereby he kept the money, perhaps in a separate account, used for the particular purpose of fees. Alternatively, the employer might have said, as it would have been fully entitled to say, "Well, no, no, this money is our money, give it back to us and we will make sure your fees are paid as and when they fall due". What was plainly impermissible, on any view, was for Mr. Eseigbe to retain the money without notifying the employer.
27. The first question which therefore arises under section 98, in our view - which is whether or not this was "conduct" - must be answered that it was conduct. Plainly, as the Tribunal found, with a person in Mr Eseigbe's position, it was conduct and conduct of a kind to justify the dismissal of the employee. Having got that far, the next question must be, and there being no dispute on the facts that he did not tell his employer about these cheques, what is the employer to do? The employer holds a disciplinary hearing, at which the explanation from Mr Eseigbe is "I did have this money, I should have told you. It was a mistake, an error of judgment, but I was not being dishonest". It seems to us, as it seemed to the Tribunal, with its reference to Burchell and Iceland Foods that it is open to an employer to adopt a range of attitudes. One employer might possibly have said "Well, he had been through a rough time recently; his wife had an ectopic pregnancy; he has obviously had the stress of choice of redundancy, really we are not going to dismiss him for this, we will give him a final written warning, or we will do something else", but another employer might well say "This is wholly unacceptable conduct for a senior figure in the company, hanging on to our money without telling us about it, whatever his motivation, honest or dishonest. That is simply not acceptable and that warrants a summary dismissal".
28. Within that range of options it is not for the Employment Tribunal, or indeed for this Tribunal, to choose which is the correct one. All that matters is that the conduct was of a nature which entitled the employer to dismiss and the employer's view was within the reasonable band of decisions for an employer to make – that is, that a dismissal was an appropriate option.
29. That is, it seems to us, how the Tribunal directed itself and we can find no error of law in that approach. We have been referred by Mr Eseigbe to a number of authorities, most of which it seems go to the question of the good faith of the Tribunal and the enquiry, and the opportunity for the person being dismissed to know exactly the case that he or she has to meet, and to be told the important parts of the evidence in relationship to it, notably Spinks-v- Express Foods Ltd However, as we have already indicated, the Tribunal was entitled to find that the process of the disciplinary hearing was perfectly fair. There was time given; the accusation was made pretty clear "You have kept these cheques, we want to talk to you about them some more, clearly the implication is that we do not accept your explanation". Mr Eseigbe is heard at the disciplinary hearing, and gives an explanation. The enquiry does not accept it and that he is dismissed.
30. We do think it is important, that like the Tribunal, we should also repeat this, in our view this dismissal does not depend at all on whether or not Mr Eseigbe was behaving honestly. We are perfectly prepared to approach the matter on the basis that he was acting perfectly honestly throughout, albeit misguidedly. On that basis, as the Tribunal found, the conduct within section 98 was, in our judgment, as it was in the judgment of the Tribunal, sufficient to warrant dismissal within the range of options we have already discussed.
31. So Mr Eseigbe should leave this Tribunal quite clear in his mind that he has not been convicted of any form of dishonesty; certainly in our view, the dismissal did not depend in any sense upon his honesty and that insofar as he feels a grievance in that regard, it is misplaced. The reasons for the dismissal, as we have already indicated, were sufficient without introducing the element of dishonesty, as indeed the Tribunal found.
32. In these circumstances, we do not think that any purpose will be served by allowing this matter to go to a full hearing. The Respondent would no doubt appear and be represented; a great deal of costs would be incurred; time would be lost, all, in our view, to no avail. In our judgment, in a sentence, Mr Eseigbe has not demonstrated that the Tribunal showed any error in law. There is no point of law, in our view, to go to the full Tribunal, and therefore it is appropriate for the appeal to be dismissed at this stage.