United Kingdom Employment Appeal Tribunal

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APPEARANCES

 

For the Appellant	MR J V C BUTCHER THE APPELLANT IN PERSON
For the Respondent	MR DAMIAN BROWN (of Counsel) Instructed By: Linklaters & Alliance One Silk Street London EC2Y 8HQ


 


HIS HONOUR JUDGE J BURKE QC:

The Facts

1. We take the facts relevant to this appeal from the findings of fact made by the Employment Tribunal from whom the appeal is brought. The Respondent, The Salvage Association ("the Association"), is a Company incorporated by Royal Charter. At the material time it supplied marine surveying services, principally to London-based underwriters, from its head office in London and from fifteen branch offices in other countries. Its members were marine underwriters; it was governed by a Committee whose members were appointed by Lloyds Underwriters and Companies who were members of the Lloyds Underwriters Association ("LUA") and the Institute of Lloyds Underwriters ("ILU"). An important component of the Association's income was derived from a levy payable by members of the LUA and the ILU, determined by the extent to which they used the Association's services and passed on by those bodies to their members. We understand that the Association is no longer operational, at least in the manner which we have described; the business was sold in March 2001.
2. The Appellant, Mr Butcher, is a Chartered Accountant. He was employed by the Association from April 1992 as its Chief Financial Officer, reporting to the Chief Executive, until his dismissal in May 2000.
3. In 1998 the Association's Chairman took the view that the business, operated as it then was, was not viable and that there needed to be significant change. A Mr Padgett was engaged as a Consultant to produce a business study. He produced his study in two parts, the first in November 1998 and the second in January 1999. Mr Butcher prepared a critical commentary on the study which he sent to the Association's auditors. The Chairman believed that Mr Butcher, in so acting, was seeking to undermine the changes recommended by Mr Padgett and was displeased that the auditors' observations on Mr Padgett's studies were coloured by the comments made by Mr Butcher.
4. On 28 April 1999 the Association appointed Mr Padgett as Chief Executive; his remit was to implement significant change in the direction of the business along the lines recommended in his studies. Mr Padgett was aware of the action taken by Mr Butcher in relation to the auditors; and he found that there was continual disagreement between him and Mr Butcher as to his methods and his time scales. He was also unhappy about the financial reports produced by Mr Butcher for the Committee's Executive and Finance Board. In consultation with Mr Butcher Mr Padgett developed a new and simpler style of financial reporting through management accounts; and in July 1999 those accounts were presented to the Committee in both the old and new style. The Committee decided that it would in future prefer that the management accounts were presented in the new, simpler style. The relevant documents for July 1999 were prepared by Mr Butcher's staff while he was away. When he returned to work he wrote a memorandum about errors in the documents and made changes to them. However before September 1999 Mr Butcher reverted to the old format, claiming that the new format involved the use of an erroneous method of calculation.
5. At the annual pay review for Mr Butcher, which took place in September 1999, Mr Padgett recommended a modest pay increase to encourage Mr Butcher to change and to give him time to adapt but was overruled by other members of the Association's pay panel who felt that a clearer message to emphasise the need for change was required; and no increase was recommended. The panel's reasons for so deciding, including that Mr Butcher tended to make proposals in an excessively complex manner and was apparently unable to support the change process, were provided to Mr Butcher. On 24 October 1999 Mr Butcher met the Chairman, Mr Davies, to discuss the pay review. Mr Butcher told Mr Davies that he was being required by Mr Padgett to present reports in a manner which he believed to be misleading and that he would not do so.
6. Solicitors instructed by Mr Butcher then wrote to the Chairman seeking an opportunity for Mr Butcher to present a grievance as to his pay review; this was permitted; and on 25 January 2000 Mr Butcher addressed and presented papers to the Committee. After he left there was discussion about the termination of his employment; and it was accepted by the Association (although this is not made explicit in the Tribunal's decision) that the Committee made a decision that he would be dismissed; but, because he was for the moment needed by the Association, he was not informed of the Committee's decision. The Committee simply informed Mr Butcher that they saw no grounds for readdressing the pay review and that there had been no material misleading and no suppression of material facts. Mr Butcher was again required to present management accounts in the new format; but he refused to do so, writing:

"I am unable to comply with your orders."

on a note written to him by Mr Padgett.

7. On 29 February Mr Butcher and Mr Padgett met; Mr Padgett said that the relationship between them was unsatisfactory and unlikely to improve; he suggested that Mr Butcher should resign; but Mr Butcher indicated that he did not propose to do so. In early March the Committee delegated to Mr Padgett the task of dismissing Mr Butcher. However, because Mr Butcher's work on the preparation of the annual accounts was needed, Mr Padgett did not immediately discharge the task delegated to him; however on 19 May Mr Padgett gave Mr Butcher a letter which informed him that he was dismissed with immediate effect by reason of his continued under-performance and his inability to fulfil the requirements of his position. Mr Butcher requested an appeal hearing which was denied.
8. In August 2000 Mr Butcher presented an Originating Application to the Employment Tribunal in which he complained that he had been unfairly dismissed and that he had not been given an adequate or true statement of the reason for his dismissal. He claimed that, by raising his concerns as to the figures he was required by Mr Padgett to present, he was making a qualifying disclosure to the Association within Section 43(b) of the Employment Rights Act 1996 and that his dismissal was automatically unfair because the principal reason for his dismissal was his making of that disclosure.
9. The Association in their Notice of Appearance contended that Mr Butcher had been fairly dismissed for capability reasons or for some other substantial reason; the Notice of Appearance was subsequently expanded; but the same reasons for dismissal were relied upon.

The Tribunal's Decision

10. After a hearing over several days in May 2001 the Tribunal unanimously decided:-

(1) that Mr Butcher had been dismissed on 19 May 2000 for some other substantial reason within Section 98(2) of the 1996 Act, the reason being that there were irreconcilable differences between him and Mr Padgett;

(2) that there had not been any protected disclosure;

(3) that the dismissal for the reason identified by the Tribunal was unfair;

(4) that Mr Butcher had contributed to his dismissal to the extent of 50%;

(5) that the true reason for the dismissal was set out in the dismissal letter and therefore Section 92 of the 1996 Act had been complied with.

The issues in the Appeal

11. In his Notice of Appeal Mr Butcher attacked the Tribunal's decision on several fronts which it is not necessary now to describe in full; that is because, at the preliminary hearing of the appeal on 21 January 2002, the Employment Appeal Tribunal expressly permitted his appeal to proceed to a full hearing on limited grounds only; it was not in dispute before us, at that full hearing, that these were the grounds set out in paragraphs 6.5 and 6.6 of the Notice of Appeal. We learned from Mr Brown that Mr Butcher had made an application to the Court of Appeal for leave to appeal against the decision of the Employment Appeal Tribunal at the preliminary hearing which appeal had been unsuccessful. Nevertheless, Mr Butcher sought to argue before us the grounds of appeal set out in paragraph 6.4 of the Notice of Appeal. Our reasons for declining to permit him to do so are set out in a separate judgment on that issue which we gave in the course of the hearing.
12. Accordingly in this appeal the only issues which have arisen for decision are those raised in paragraphs 6.5 and 6.6 of the Notice of Appeal, all of which relate to the Tribunal's conclusion that Mr Butcher contributed to his dismissal to the extent of 50%.

The hearing of the appeal

13. Mr Butcher has provided us and the Association with a very detailed Skeleton Argument and a very substantial number of documents. The Association originally intended to represent itself; it provided to the Employment Appeal Tribunal and to Mr Butcher a one-page Skeleton Argument which was too brief to be of any assistance. Only days before the date fixed for the hearing of the appeal the Association changed its mind and retained solicitors to act on its behalf; as a result Mr Damian Brown of Counsel was instructed very late and drafted a replacement Skeleton Argument on behalf of the Association which was provided to us and to Mr Butcher only on the day before the hearing. Mr Butcher, not unnaturally, considered himself to have been "ambushed" by these events and sought to have some of the arguments in Mr Brown's Skeleton struck out. We ruled on this application at the beginning of the hearing and took steps to ensure that Mr Butcher had a proper opportunity to deal with Mr Brown's Skeleton and with the authorities referred to therein.
14. Partly as a result of the argument between the parties and the need on our part to decide as to the proper scope of the appeal and as to the effects of the very late change of heart on the part of the Association which led to its reliance upon a new Skeleton, referring to authorities with which Mr Butcher did not know he was going to have to deal until the day before the appeal, the appeal was not concluded – and indeed Mr Butcher had not concluded his arguments – at the end of the appointed day, 25 October 2002. The arguments were concluded on 20 December 2002. For that adjourned hearing Mr Butcher prepared a written text of his submissions to which he adhered in large measure.
15. Mr Butcher asked us, at the opening of the appeal, to allow him to have a transcript of the proceedings made by an official court reporter; the Employment Appeal Tribunal had been notified in advance by Mr Butcher of this request and a court reporter, from Smith Bernal Wordwave Ltd, was present with all the necessary equipment, It is extremely rare that a litigant seeks a transcript of the argument in an appellate tribunal and perhaps even rarer that a litigant is prepared himself to pay for the making of such a transcript; but because Mr Butcher plainly felt that such a transcript was necessary to provide him with reassurance as to the fairness of our proceedings, we allowed Mr Butcher to have a record of the proceedings made by the court reporter, on condition that, if Mr Butcher called for a transcript from the court reporter, a copy of such transcript should be supplied to us.
16. A copy of the transcript of the first day's argument was provided to the Chairman of this Division of the Employment Appeal Tribunal without delay; however a copy of the transcript of the second day's argument was not so provided for some time. We have produced this judgment as soon as we could after receipt of the second day's transcript.
17. We should add that, during the second day's argument, Mr Butcher asked for permission to apply out of time for transcripts of the rulings we had given on the first day on the issues arising from the late delivery of the Association's replacement Skeleton and as to the scope of this appeal. Although Mr Butcher had his own recording of what was said that day, we gave such permission and formal copies of those two rulings, prepared from the EAT's taped record, accompany this judgment.

The procedural grounds

18. Mr Butcher submits that the Tribunal reached their decision on contribution by a process which was unfair and unjust, and for that reason alone, their decision should be set aside. His criticisms of the procedure adopted by the Tribunal are summarised in paragraph 6.6 of the Notice of Appeal (save that, there being no longer any valid challenge to the Tribunal's finding that Mr Butcher had not made a protected disclosure, the last sentence of that paragraph, as Mr Butcher accepted, is no longer effective). It appears to us to be both sensible and convenient to address this topic first before considering Mr Butcher's grounds of appeal which went to the substance of the Tribunal's finding as to contribution. If, as a result of procedural error, this matter has to be remitted to the Tribunal for reconsideration, wisdom might suggest that it would be better for us to say nothing in this judgment about Mr Butcher's criticisms of the substance of the Tribunal's decision as to contribution.
19. There is no real dispute as to the relevant sequence of events. On 29 May, the sixth day of the hearing, the evidence was concluded; and final submissions were provided in writing. Whether there were also oral submissions is not wholly clear and does not matter. The Tribunal did not sit on the following day, on which they considered their decision on unfair dismissal. Mr Butcher was informed during that day by a telephone message from the Tribunal, taken by his wife, that the Tribunal had concluded that he had been unfairly dismissed but not on the basis of a protected disclosure and that the parties should attend on the following day. Mr Butcher told us that he appreciated that issues such as contribution would or might then be discussed. We assume that the Association's solicitors or counsel were given similar information; if they were not, that was regrettable but immaterial for present purposes. When the Tribunal sat on 31 May, Mr McMullen QC attended on behalf of the Association in place of Miss Eadie who had professional difficulties. The Chairman orally delivered a précis of the Tribunal's decision that the dismissal of Mr Butcher had been substantively and procedurally unfair but there had been no protected disclosure and gave reasons for those conclusions. The Chairman, according to Mr Butcher (who that evening pooled his manuscript notes and his recollection together into a document which he has described as his "fair note"), then said words to the effect that the Tribunal felt that Mr Butcher had contributed to his dismissal and were minded to say that his contribution to his dismissal was 50% (see paragraph 37 of Mr Butcher's affidavit of 13 September 2001).
20. After some discussion of other matters the Tribunal asked Mr Butcher if he had anything to say as to his contribution to his dismissal. Mr Butcher then addressed the Tribunal on that issue. He said that any contribution attributable to himself was very modest and suggested a percentage figure (to which we shall return) much lower than 50%. He then made detailed submissions in support of that general response. Mr McMullen QC put forward submissions on contribution on behalf of the Association. The parties were then asked to leave the Tribunal room while the Tribunal discussed their submissions. On their return the Tribunal announced their decision that Mr Butcher had made a 50% contribution to his dismissal. The Tribunal then moved to other matters.
21. It is necessary to add to the above account firstly that, because of Mr Butcher's criticisms of this aspect of the Tribunal's hearing and of other matters of the Tribunal's conduct of the hearing, he was required, pursuant to the Employment Appeal Tribunal's established procedures, to support his criticisms by affidavit evidence. The Chairman was asked to comment upon Mr Butcher's affidavit; he commented on the criticism on which we are now focusing in these terms:

"When I delivered a précis of the decision which I had dictated with the assistance of the Members the previous day, I did say that we felt Mr Butcher had contributed to his dismissal and that, subject to hearing representations on the matter, our initial feelings were that it was of the order of 50%. We heard representations from both parties in which Mr Butcher expressed the view that it should not exceed 20%. Having considered the matter afresh, we confirmed that it should be 50%."

Secondly, Mr Butcher informed us at the beginning of the second day of our hearing of this appeal, that the telephone message taken by his wife on 30 May also included the comment that Mr Butcher had contributed to his dismissal.

22. Mr Butcher submitted that the Tribunal had expressed clear views that he had been guilty of contributory fault and as to the extent of such contribution before they had heard any submissions from him as to those matters. He accepted that the Chairman, at the hearing on 31 May, was doing no more than indicating the Tribunal's provisional views; he did not suggest that the telephone message (which may not have been authorised by the Chairman or the lay Members of the Tribunal at all – we have no knowledge as to that) contained more than a provisional view; he accepted that after the Chairman's indication on 31 May of the Tribunal's provisional views, Mr Butcher was thereafter given the opportunity and took the opportunity of making submissions on contribution issues; but, he submitted, it was unfair and inappropriate for the Tribunal to express provisional views as they had. He recognised that it was not uncommon for a Tribunal to seek to help the parties and to shorten proceedings by giving an indication of a provisional view; but he argued that, particularly in a case in which no submissions on the relevant issues had yet been made, any practice on the part of a Tribunal, however long standing or widespread, of indicating preliminary views was not only unfair to the parties but would be seen by the impartial observer to be unfair; and thus what occurred on this occasion was a breach of natural justice and a breach of the provisions of Article 6 of the European Convention of Human Rights which, of course, embrace the well known right to a fair trial and is now firmly embedded in our domestic law.
23. In our judgment it is not, in general terms, unfair, nor is there any denial of natural justice or of the right to a fair trial, if a Tribunal which has heard evidence as to the central events which have led to the termination of the employment relationship, as had happened in this case, regards it as appropriate to give and does give to the parties an indication of provisional views which the Tribunal hold on an issue or issues which are for determination by the Tribunal but which have not yet been the subject of separate submissions from the parties. We should not be thought, in so expressing our conclusion on this part of the appeal, that we are making a general statement which applies to every case; there may be cases in which a Tribunal judges it appropriate to give an indication before all the relevant evidence has been heard or, possibly, in the light of the contents of the Originating Application and Notice of Appearance or other documents, even before the evidence has been heard. Such indications can stimulate agreement between the parties, limit and define the issues to be decided and save time and expense; they may help to focus the attention of the parties on the way in which their evidence and/or submissions can best be presented. It hardly needs to be said that a Tribunal must be careful to ensure that any views so expressed are understood by the parties to be provisional views only. In this case the Tribunal had heard all the relevant evidence; Mr Butcher has not argued that there was any evidence on the issue of contribution which he wished to put forward but which had not been put forward before 31 May; the Tribunal had fully investigated and considered the evidence as to how the relationship between Mr Butcher and the Association – and more specifically between Mr Butcher and Mr Padgett – broke down and had heard and/or read the submissions of the parties on those matters. It is not surprising that they had formed a provisional view as to contribution; and it was, in our judgment a matter for their discretion to decide whether to give an indication of such view to the parties or not.
24. If the Tribunal had expressed a final view before Mr Butcher had any opportunity to make any submissions on the contribution issue or if there was anything the Tribunal said which indicated that they were unwilling to listen to such submissions or to approach them on the basis of a readiness to reach a different view, then plainly the position would be otherwise; but on Mr Butcher's account the Tribunal made it clear that their view was provisional; they said no more than that they "felt" that he had contributed to his dismissal and that they "were minded" to assess that contribution at 50%. According to the Chairman he said that the Tribunal felt that Mr Butcher had contributed to his dismissal and that, subject to hearing representations on the matter, their initial feelings were that such contribution was of the order of 50%. There is no doubt that it was made clear to Mr Butcher that it was open to both sides to make submissions on these issues; and both did so. On either version there is no basis for concluding other than the Tribunal were and were seen to be indicating provisional views only; the fact that the Tribunal were not swayed by Mr Butcher's submissions to a concluded view which differed from their provisional view is no indication to the contrary.
25. Accordingly we conclude that the procedure adopted by the Tribunal did not involve any want of natural justice, any derogation from the right to a fair trial or any error of law.

The substantive grounds

26. We have sought to distil from Mr Butcher's very detailed, courteous and sustained submissions, summarised in his Skeleton Argument and, to some extent, set out in the text of his further submissions on 20 December 2002 and all set out in the full transcript of the proceedings on 25 October and 20 December 2002, the general heads of his submissions, as follows:-

(1) No finding of contribution can be made against an unfairly dismissed employee unless the conduct on his part upon which such finding is based was blameworthy.

(2) Where a period of time passes between the employer's decision to dismiss and the dismissal, only conduct up to the date of the decision to dismiss may be taken into account.

(3) There was no conduct on Mr Butcher's part up to the date of the decision (or thereafter) which was blameworthy; and the Tribunal did not so find.

(4) In particular Mr Butcher's "demeanour and approach" which, from paragraph 21 of the decision, appeared to be the foundation of the Tribunal's conclusion against Mr Butcher could not amount to blameworthy conduct.

(5) The Tribunal gave no or no adequate reasons for their conclusions as to contribution so as to satisfy the well known test set out by the Court of Appeal in Meek v City of Birmingham District Council [1987] IRLR 250.

(6) The Tribunal were not required, if they concluded that Mr Butcher had contributed to his dismissal to the extent of 50%, then to make a 50% deduction on his compensation.

27. The first of these submissions gives rise to no controversy. What is familiarly called "contributory fault" in the context of an unfair dismissal claim may arise under two allied but separate provisions of the Employment Rights Act 1996. Section 122 of the 1996 Act provides for reductions in the basic award payable to an employee who has been unfairly dismissed under Sections 118 (a) of the Act. Section 122(2) provides as follows:-

"122(2) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly."

28. Section 123(6) of the Act provides for a reduction in the compensatory award payable under Section 118(b) of the Act as follows:-

"123(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of compensatory award by such proportion as it considers just and equitable having regard to that finding."

29. It is now and has for some time been beyond doubt that there can be no reduction in the compensatory award on the basis of the employee's conduct unless that conduct was culpable or blameworthy. Early in the history of unfair dismissal litigation the National Industrial Relations Court held in Morrish v Henlys (Folkestone) Ltd [1973] IRLR 61 that the words "caused or contributed" in Section 116(3) of the Industrial Relations Act 1971, which were very similar to those now in Section 123(6) of the 1996 Act, should be regarded as incorporating some degree of blameworthiness and that it would not be just and equitable to reduce an employee's compensatory award for unfair dismissal if he was blameless. This view was approved by the Court of Appeal in Nelson v BBC (No.2) [1979] IRLR 347, in the context of the words of paragraph 19(3) of Schedule 1 to the Trade Union and Labour Relations Act 1974 (which were identical to those of Section 116(3) of the 1971 Act). Brandon LJ at paragraph 43 said, having referred to Morrish:-

"I agree with the conclusion there reached that, on a proper interpretation of para.19(3), an award of compensation to a successful complainant can only be reduced on the ground that he contributed to his dismissal by his own conduct if the conduct on his part relied on for this purpose was culpable or blameworthy."

He continued, in paragraph 44, in these words:-

"It is necessary, however, to consider what is included in the concept of culpability or blameworthiness in this connection. The concept does not, in my view, necessarily involve any conduct of the complainant amounting to a breach of contract or a tort. It includes, no doubt, conduct of that kind. But it also includes conduct which, while not amounting to a breach of contract or a tort, is nevertheless perverse or foolish, or, if I may use the colloquialism, bloody-minded. It may also include action which, though not meriting any of these pejorative epithets, is nevertheless unreasonable in all the circumstances. I should not, however, go as far as to say that all unreasonable conduct is necessarily culpable or blameworthy; it must depend upon the degree of unreasonableness involved."

30. Mr Brown did not seek to suggest that the principles set out in these passages do not apply to the somewhat but not significantly different words of Section 123(6) of the 1996 Act or to the words of Section 122(2) of that Act which relate to the basic but not the compensatory award; neither before us nor before the Tribunal was it suggested on behalf of the Association that conduct which was not culpable or blameworthy in the sense described in Nelson could be relied upon in relation to the basic or the compensatory award.
31. Mr Butcher's second point of law, as to the need to exclude in considering contributory fault in this case any acts after the Association made the decision to dismiss him, which decision was admittedly made on 25 January 2000, seventeen weeks before he was in fact summarily dismissed, promised to be more controversial. Mr Brown at first directed our attention to the differences in wording between Section 122(2) and Section 123(6) of the 1996 Act, the former excluding from consideration conduct after notice was given, thus introducing a temporal element, and the latter requiring that the action of the employee alleged to amount to contributory fault must have caused or contributed to the dismissal, thus introducing a causation element. However, after some discussion, Mr Brown conceded (and our, impression, recollection and note that he made that concession are confirmed by the transcript) that on the facts of this case, for the purposes of both subsections, nothing after the decision to dismiss was taken on 25 January 2000 should have been taken into account in considering contributory fault; and, of course, we shall proceed on the basis of that concession in this appeal.
32. Having thus established both the nature of the conduct on the part of an employee required to establish that an employee's basic or contributory award should be reduced by reason of his conduct and the date up to which Mr Butcher's conduct could be relied upon by the Association and treated by the Tribunal as potentially contributory, we can turn, shortly, to the relevant findings of the Tribunal.
33. Before we do so, however, it is necessary at this stage to return to what happened after the Tribunal had given the provisional indication which we have addressed in the previous section of this judgment. Mr Butcher's "fair note" sets out that he asked the Tribunal to have regard to three periods:-

(1) From Mr Padgett's joining the Association to Mr Butcher's "shopping him" (Mr Butcher's expression) to the Chairman on 26 October 1999, ie Mr Butcher informing the Chairman on that date that Mr Padgett was requiring him to present accounting information in a manner which he knew to be materially misleading.

(2) From then to the decision to dismiss on 25 January 2000.

(3) From that date until the dismissal – during which period Mr Butcher urged, correctly as Mr Brown's concession accepts, that it would be inappropriate to regard anything he did as contributing to his dismissal.

34. Mr Butcher's note records that, in respect of the first period, he submitted that the differences between him and Mr Padgett were at a modest level only and that any contribution attributable to him was very modest, perhaps 10% or at the most 15%. As to the second period he accepted that the evidence demonstrated a major deterioration in relationships between Mr Padgett and himself which he said should be disregarded because it arose from his having "shopped" Mr Padgett as he was legally and professionally bound to do.
35. We have already set out the Tribunal Chairman's recollection, as set out in his comments, that Mr Butcher expressed the view that his contribution should not exceed 20%. Whether Mr Butcher conceded up to 15% or 20% is not of significance; what is of significance is that Mr Butcher appears to have openly conceded that, on the evidence, it was appropriate that there should be some finding of contributory fault, albeit to no very great extent.
36. Mr Butcher did not deny that he had made such a concession; he told us that he made it because, having heard a provisional indication of the Tribunal's view that he had contributed to his dismissal to the extent of 50%, he felt it was reasonable to make that concession in the hope of "negotiating down that contribution figure". He submitted that the Tribunal ought nevertheless to have satisfied itself that the concession was sensible and relevant, that any conduct on his part of which the Tribunal were critical was not caused by the way in which he had been treated by Mr Padgett and that his concession was not simply a forensic attempt to improve on the Tribunal's provisional view.
37. The Tribunal do not in their decision expressly rely upon Mr Butcher's concession; but it is highly unlikely that they did not have it in mind; and, having been given the clear impression by Mr Butcher that he did not dispute that there should be a finding of some level of contributory fault on his part, the Tribunal may have been less explicit in setting out the basis for their conclusions to that effect than otherwise might have been the case. While any Tribunal may need to consider, to the extent required by the individual circumstances of the case, whether a concession made by a litigant in person is sound and sensible, in the context of this case in which Mr Butcher, as he demonstrated to us, was fully aware of the issues and the relevant principles of law, was a master of the facts and plainly demonstrated considerable intelligence and in which Mr Butcher had been assisted by a barrister friend who had on one day appeared for him, there was no reason why the Tribunal should not have taken Mr Butcher's concession at face value; and we can see no basis on which the Tribunal can be said to have erred in law in failing to take any further steps before doing so – insofar as they did so.
38. In paragraph 21 of their decision the Tribunal set out their conclusions on the issue of contribution in these terms:

"21 We find that the Applicant contributed to his dismissal and did so by his general demeanour and approach, which was interpreted by the Respondent in terms that he was not making an effort to make things work. We assess the contribution in percentage terms as 50 per cent."

39. If that paragraph stood alone, we would agree with Mr Butcher's submission that the Tribunal had failed to provide sufficient reasons for their findings against him on the contribution issue. Indeed a finding of contributory fault based only on "general demeanour and approach" would in our judgment be defective for two reasons. First there would be insufficient reasons to comply with the basic requirements set out in Meek that the decision should inform the parties why they have respectively won or lost on a disputed issue; secondly general demeanour and approach do not expressly and need not implicitly include any element of culpability or blameworthiness.
40. However, the words "general demeanour and approach" do not stand alone. In paragraph 21 the Tribunal refer to the Association's belief that Mr Butcher's general demeanour and approach were such that he was not making an effort to make things work; and although the Tribunal do not in that paragraph find that the Association's interpretation of Mr Butcher's demeanour and approach was correct, the true meaning of "general demeanour and approach" can only be understood by reading the decision, in which, in a lengthy and detailed examination of the facts, the Tribunal concluded that the dismissal occurred because there were irreconcilable differences between Mr Butcher and Mr Padgett, as a whole. Paragraph 21 cannot sensibly be sealed off from the remainder of the decision. The Tribunal was entitled and indeed bound, having made their findings of primary fact and their conclusions derived therefrom as to the reason for the dismissal, then to ask themselves two questions, whether Mr Butcher had culpably contributed to these irreconcilable differences and, if so, to what extent; and it is necessary to look at the whole of the decision and not only at paragraph 21 in order to decide whether Mr Butcher's criticisms of the Tribunal's conclusions in answer to those questions are valid.
41. The approach which the Tribunal should adopt in answering those questions has been set out in a number of authorities to which Mr Brown referred us. It is not at all surprising that, in terms of the development of the law of unfair dismissal, they are relatively "old" authorities; the principles relating to contribution were, inevitably, established relatively early in the history of unfair dismissals claims and, for present purposes, have not materially changed. Tribunals are entitled to and indeed should take a very broad view of the relevant circumstances when deciding upon the presence and extent of contributory fault. In Maris v Rotherham Corporation [1974] 2 All ER 776, Sir Hugh Griffiths, giving the judgment of the National Industrial Relations Court in the context of Section 116(3) of the Industrial Relations Act 1971, which as we have already observed, contained words very similar to those in Section 123(6) of the 1996 Act, said that those words:-

"... are words of wide import and bring into consideration all the circumstances surrounding the dismissal, requiring the tribunal to take a broad common sense view of the situation and to decide what, if any, part the applicant's own conduct played in contributing to his dismissal, and then in the light of that finding decide what, if any, reduction should be made in the assessment of his loss."

In Gibson v British Transport Docks Board [1982] IRLR 228, Browne-Wilkinson J, presiding in the Employment Appeal Tribunal, said:-

"What has to be shown is that the conduct of the applicant contributed to the dismissal. If the applicant has been guilty of improper conduct which gave rise to a situation in which he was dismissed and that conduct was blameworthy, then it is open to the Tribunal to find that the conduct contributed to the dismissal. That is how the section has been uniformly applied."

42. In Robert Whiting Designs Ltd v Lamb [1978] ICR 89, by the time of which decision the relevant provision was to be found in Section 76(6) of the Employment Protection Act 1975 which was identical to Section 123(6) of the 1996 Act, Kilner Brown J, presiding over the Employment Appeal Tribunal, said:-

"In our view the proper approach is to decide first what was the real reason for dismissal and then to see whether the employee's conduct played any part at all in the history of events leading to dismissal. In some cases, set against the real reason, it may be apparent that the employee's conduct, even if reprehensible, was of no relevance whatsoever and made no impact on the situation. In the present case the employers made great use of the employee's conduct in the process of dismissal. They had every justification for so doing, for the conduct was extremely reprehensible. The employee's conduct certainly contributed to his dismissal in the sense that it was a factor in the minds of the employers. Put another way, the real reason for dismissal was not exclusive of all other matters and a bogus reason does not necessarily shut out the employer completely if there was material to support the reason relied upon. We conclude, therefore, that the employee's conduct ought to be considered not only with reference to incompetence but also with reference to misconduct. In our view the weight to be given to the employee's conduct ought to be decided in a broad common sense manner."

43. We have already referred to the relevant passage in Nelson v BBC No.2, in which the Court of Appeal gave guidance as to what type of conduct might be regarded as culpable or blameworthy.
44. The Tribunal was, in pursuance of these principles, bound to consider the nature of Mr Butcher's conduct and the extent, if any, to which that conduct was a factor in the decision to dismiss in a broad and common sense manner. Mr Butcher referred us to the decision of the Employment Appeal Tribunal in Parkers Bakeries Ltd v R E Palmer [1977] IRLR 215, in which the Employment Appeal Tribunal, presided over by Phillips J, said, at paragraph 13:-

"Thirdly, in paragraph 15 it is totally unsatisfactory to say, 'We also find that the applicant by his behaviour should make a contribution to his loss which we estimate at 10%'. As has been said more than once, Industrial Tribunals must specify the behaviour, action or conduct which they are taking into account under that head."

The principle there set out is an anticipatory expression of the application of the principles in Meek to the particular issue of contributory fault. Whether the Tribunal in this case have provided sufficient specification of the conduct which they took into account, adopting the broad approach to which we have referred, must be judged by looking at the decision as a whole.

45. Mr Brown reminded us, in the light of Mr Butcher's detailed submissions on the facts, that we may only interfere with the decision of the Employment Tribunal on what are undoubtedly conclusions of fact, in the absence of any other error of law, if the Tribunal can be seen to have reached conclusions which were not supported by any evidence or which were perverse. In Hollier v Plysu Ltd [1983] IRLR 260, the Employment Tribunal held the employee to have contributed to his unfair dismissal to the extent of 75%. The Employment Appeal Tribunal reduced that assessment to 25%; but the Court of Appeal restored the decision of the Employment Tribunal. Stephen LJ, said at paragraph 19:-

"We do not have to decide whether we would have considered Mrs Hollier culpable in that sense, or bloody-minded. For my part I, who did not see Mrs Hollier or hear such explanations as she gave of her conduct, cannot say that the Industrial Tribunal, who did, could not reasonably conclude that she, a trusted employee of sense and experience in a supervisory position, was so culpable. Nor can I say that an Industrial Tribunal, which found in her favour that she was unfairly dismissed, cannot have had proper regard to what was just and equitable in reducing the awards of compensation for her dismissal by 75%. In a question which is so obviously a matter of impression, opinion, and discretion as is this kind of apportionment of responsibility, there must be either a plain error of law, or something like perversity, to entitle an appellate Tribunal to interfere with the decision of the Tribunal which is entrusted by Parliament with the difficult task of making the decision."

46. In his submissions to us Mr Butcher accepted, as he had to, that the cause of the dismissal was the irreconcilable difference between himself and Mr Padgett, although he did not accept that he was at fault. He expressly said, in paragraph 6.3 of his Skeleton Argument, that:-

"The real reason for the breakdown in the relationship was the refusal of the appellant to accept that, in the event of a difference of opinion between him and Mr Padgett as to how financial information should be presented to the Committee, Mr Padgett's view was to prevail."

In the circumstances the Tribunal had to consider, as a matter of fact and impression, whether, in effect, the irreconcilable differences were all Mr Padgett's fault or whether blameworthy conduct on the part of Mr Butcher contributed to those irreconcilable differences and, therefore, to the dismissal.

47. The Tribunal's detailed account of what occurred after Mr Padgett was appointed as Chief Executive of the Association with the specific remit of implementing significant change contains a number of passages in which they were expressly or implicitly critical of Mr Butcher. In paragraph 6 the Tribunal found not only that Mr Padgett took the view that Mr Butcher presented financial reports in a format which was not particularly easy to understand and which did not provide the information required to run the Association as a business but also that members of the Association Board and Committee confirmed that they did not really understand the reports or find them helpful. Mr Padgett discussed with Mr Butcher how better financial information could be presented but there was no meeting of minds. Mr Butcher did not suggest to Mr Padgett that the proposed form of management accounts was flawed or misleading.
48. In paragraphs 7 to 9 the Tribunal found that the Committee, having been given the choice, chose in July 1999 in Mr Butcher's presence and without objection on his part, to have the management accounts presented in Mr Padgett's new format rather than in the previous format used by Mr Butcher; the new format was not intended to be perfect but was intended to provide a simple performance indicator which could be monitored throughout the year. Mr Butcher then prepared a memorandum on his return from holiday as to errors in the July reports prepared in his absence and made further changes to the July report which were not made by agreement. For the September report Mr Padgett instructed Mr Butcher to return to the original new format; Mr Butcher made no suggestion that this would result in the presentation of a misleading picture but later he suggested that the new format involved an erroneous method of calculation.
49. In paragraph 10 to 12 of their decision the Tribunal describe the episode relating to the annual pay review which we have summarised earlier in this judgment; the Association refused any pay rise on the basis of a need to give Mr Butcher a clearer message as to the need for change; yet when on 26 October Mr Butcher met Mr Davies to discuss the pay review, he said that he was not willing to abide by Mr Padgett's direction as to the presentation of the accounts. This is the occasion on which Mr Butcher accepts and indeed asserts to us that he "shopped" Mr Padgett. Clearly he accepts that he was strongly critical of Mr Padgett's requirements as to the accounts, even though the Committee had specifically chosen to proceed on the basis of Mr Padgett's proposals and had refused a pay increase to Mr Butcher to emphasise the need for change, as he was aware. The Committee took the view that Mr Padgett had not misled them and that there had been no suppression of relevant information; and it was in these circumstances that they decided to dismiss Mr Butcher.
50. In paragraph 18 the Tribunal set out their conclusions as to the reason for the dismissal. They described in detail the irreconcilable differences between Mr Padgett and Mr Butcher. They said:-

"It was not, however, the case that the one was always right and that the other was always wrong."

And:-

"The main item of dissention was the difference of opinion between the two men concerning the pace of change."

They went on, in paragraph 19, to find that Mr Butcher was under pressure from Mr Padgett from the very start and was not assisted by Mr Padgett's lack of interest in the problems which Mr Butcher faced but that there was no legal obligation upon Mr Butcher to report as he did to the Chairman on 26 October. In paragraph 20 the Tribunal said:-

"While we accepted much of what was said by the Applicant and his witnesses about the relationship between the Applicant and Mr Padgett, we accepted that the Applicant could be trying on occasions. We appreciated that Mr Padgett was brought in with a special remit. He never lost sight of that remit and did not tolerate anyone whom he thought was standing in his way. We were therefore satisfied that the Applicant was not the sole author of his misfortunes, which we were asked to believe."

51. Mr Butcher is, in view of Mr Brown's concession as to the irrelevance in terms of contributory fault of events occurring after 25 January 2000, entitled to make the point that the Tribunal did not expressly exclude from the factors on which they based their conclusion Mr Butcher's response in February 2000 to Mr Padgett's note, as set out in paragraph 13 of the decision; but the words of paragraph 21 show that the Tribunal were looking not at Mr Butcher's conduct generally but at conduct which contributed to the dismissal; and it is clear from their findings that the irreconcilable differences between Mr Butcher and Mr Padgett were set in concrete by the time that the Association made the decision to dismiss at the end of January 2000 and that it was those differences, by that time plainly established, which the Tribunal describe in paragraph 18 as a state of affairs in which neither Mr Padgett nor Mr Butcher was always right or always wrong, ie to which both had contributed. If, which in view of the terms of paragraphs 18 and 21 is unlikely, the Tribunal did take into account the events described in paragraph 13, those events could not have made any real difference to the ultimate result; at the highest they were a further example of an already well demonstrated attitude of non-co-operation with change on Mr Butcher's part.
52. Leaving on one side the events set out in paragraph 13, it is in our judgment clear from the decision of the Tribunal, when it is read as a whole, that the expression "general demeanour and approach" used by the Tribunal in paragraph 21 to describe Mr Butcher's conduct as a summation of the part the Tribunal found that he had played in the creation and perpetuation of the irreconcilable differences between himself and Mr Padgett, as described in detail in the Tribunal's decision, which led to the dismissal. The expressions used in paragraph 21 do not stand alone and cannot fairly be criticised as though they did.
53. A common sense reading of the decision as a whole demonstrates, in our judgment, that the Tribunal took the view that both Mr Padgett and Mr Butcher had by their conduct contributed to the creation of a situation in which the Committee decided that Mr Butcher should go.
54. Nor, in our judgment, can the Tribunal properly be criticised for failing to consider whether Mr Butcher's conduct was culpable or blameworthy. It is correct that they did not expressly use either of those words, or, indeed, any synonym of either; but no one reading the decision as a whole could fairly regard the Tribunal as having based their conclusions as to contribution on conduct which the Tribunal did not consider as falling within the broad statements of principle in the authorities to which we have referred. The Tribunal's use of language such as "it was not the case that the one was always right and the other was always wrong" and "the Applicant could be trying on occasions" demonstrated that they were critical of Mr Butcher and regarded his obstinacy and refusal to comply with the changes required by Mr Padgett as unreasonable – as they also plainly regarded Mr Padgett's conduct.
55. As to Mr Butcher's argument as to the absence of satisfactory reasons, while, as we have said, we would regard paragraph 21 as insufficient to be (if we may use a shorthand expression commonly used in this context and recently adopted by the Court of Appeal in Anya v University of Oxford [2001] ICR 847) "Meek compliant" if it stood on its own, when the decision is read as a whole and the findings of fact which form the building blocks for the general conclusion expressed in paragraph 21 are identified, the reasons for the Tribunal's conclusions as to contribution can be seen to have been amply set out so as to be Meek compliant so as to comply with the principle expressed in Parkers Bakeries, to which we have referred above. We do not need to reiterate those findings. The decision, in our judgment, conveys to the parties with sufficient clarity the reasons why both Mr Padgett and Mr Butcher were found to have contributed to the irreconcilable differences between them which were the cause of the dismissal and, therefore why on the issue of contribution Mr Butcher lost and the Association won to the extent set out in paragraph 21 of the decision.
56. We should add that we would have reached the same view if Mr Butcher had not made the concession that he did as to the existence of some contributory fault; when that concession is taken into account the sufficiency of the Tribunal's decision is the more evident. It was wholly for the Tribunal to decide what was the level of contributory fault which they regarded as appropriate; the narrative in paragraphs 18, 19 and 20 of the decision satisfactorily explains why the Tribunal assessed that level as they did.
57. We turn to Mr Butcher's submissions which can be grouped together under the general argument that there was no conduct on his part which was blameworthy. It was this thrust of Mr Butcher's argument, directed at the Tribunal's specific findings, which took up much of Mr Butcher's arguments before us. We feel bound to express some doubt as to whether those submissions fell within the scope of the grounds permitted at the preliminary hearing to proceed to a full hearing of Mr Butcher's appeal; but there was no objection from Mr Brown and we will put that doubt on one side.
58. What we cannot put to one side, however, is the truism that it was for the Tribunal which heard evidence over several days from the central characters, Mr Padgett and Mr Butcher and from Mr Davies and his Deputy and which also heard evidence from two experts in accountancy, to decide what had occurred and whether and to what extent the conduct of Mr Butcher was open to criticism. As the words of Stephenson LJ, in Hollier v Plysu Ltd remind us, we can only interfere with the factual conclusions reached by the Tribunal if it is demonstrated that there was no evidence to support any such conclusion or if any such conclusion was perverse.
59. A predominant theme which ran through Mr Butcher's submissions was that, in declining to act in relation to the presentation of management accounts as Mr Padgett wished him to, he was acting in accordance with his duty as he saw it and that when, to use his expression, he "shopped" Mr Padgett to Mr Davies in October 1999 he was acting under a legal duty to report as he did. It was for that reason that Mr Butcher was anxious to appeal against the Tribunal's rejection of his case that he had made and had been dismissed for making a protected disclosure and the Tribunal's decision that the reason for the dismissal was the irreconcilable differences between himself and Mr Padgett. As we have explained, he was not permitted to pursue those aspects of his appeal; nevertheless in submitting that he had not acted in a blameworthy manner Mr Butcher returned more than once to these matters, indeed they formed a central part of his argument. We do not doubt that Mr Butcher feels very deeply that he was under a legal obligation to act as he did and that he was conducting himself correctly in resisting the pressure put on him to provide the management accounts in the form Mr Padgett wished them to be in. However the Tribunal, having heard Mr Butcher and Mr Padgett and the expert evidence, concluded that the evidence fell short of asserting any more than a professional obligation and that Mr Butcher's case that he was under a legal obligation, based on the supposed incorporation of professional ethics into his contract of employment, was contrived in order to seek to promote an issue as to professional ethics into a legal obligation. The Tribunal held and there is now no appeal against their conclusion in this respect, that there was no requirement in his contract of employment other than to present the financial information in the form requested.
60. Having thus rejected Mr Butcher's case that, having concluded that he was under an obligation to present the management accounts as requested, the Tribunal went on to find that those accounts were of the most basic variety, representing only receipts and payments and that both Mr Butcher's format and Mr Padgett's format distorted the position in different ways but that in each case the accounts were accompanied by a narrative explaining to the reader what had been done. The Tribunal plainly took the view, on the basis of the evidence, that Mr Butcher's supposed professional obligations could not be regarded as prevailing over his duty to co-operate with Mr Padgett's and with his employers' requirements as to the presentation of the accounts.
61. In the light of these clear findings, it was in our judgment open to the Tribunal to conclude that, in resisting those requirements and in "shopping" Mr Padgett on this issue to Mr Davies, Mr Butcher was acting in a manner which was unreasonable or blameworthy. There was evidence which entitled them so to find. If an argument on perversity was being put forward – and Mr Butcher did not so categorise his argument orally or in writing, nor does such an argument appear in the Notice of Appeal – we see no basis for it.
62. We turn next to the specific points set out in paragraph 6.5 of the Notice of Appeal in which Mr Butcher contends that the Tribunal does not say what factors, if any, were disregarded in reaching their conclusion as to contribution and that they took into account all of the Association's contentions as to those differences including matters about which the Tribunal were critical of Mr Padgett, matters where Mr Butcher was giving his professional view as a chartered accountant as part of his duties which he generally, according to the Tribunal's findings, discharged well and the instructions from Mr Padgett as to the preparation of the accounts. So far as the instructions are concerned, we have dealt with that extensively earlier in this judgment. It is correct that the Tribunal acknowledged Mr Butcher's general competence and ability in carrying out his duties; there is no suggestion that they took those qualities into account against him or failed to take them into account in his favour. There is no doubt that the Tribunal were, in many respects, critical of Mr Padgett; but those criticisms were to Mr Butcher's advantage; they explain why the Tribunal did not regard Mr Butcher as solely responsible for the irreconcilable differences and, therefore, for the dismissal.
63. In his Skeleton Argument and orally Mr Butcher went more deeply into the narrative; but we do not regard it as necessary for the purposes of this appeal to pursue the details of his submissions. Essentially, Mr Butcher was seeking to persuade us that he was right to resist the pressure put on him to present the accounts in the manner requested. He submitted that, in effect, the whole fault for what had occurred lay with Mr Padgett, that the Tribunal had taken an unfair view of Mr Padgett who was seeking to require Mr Butcher to present the accounts in a materially misleading manner, that a mere disagreement could not reasonably justify dismissal and that the Association had not fairly investigated before deciding to dismiss. However the Tribunal dealt with and made findings on the evidence as to what occurred between Mr Butcher and Mr Padgett and apportioned blame on the basis of their findings. None of Mr Butcher's arguments on the facts, all of which we have carefully considered, has persuaded us that the Tribunal was not entitled to decide that Mr Butcher was guilty of blameworthy conduct to the extent the Tribunal regarded as appropriate. The Tribunal plainly did have in mind that Mr Padgett was also regarded by them as having contributed to the irreconcilable differences which led to Mr Butcher's dismissal; they were alive to the fact that not all of the aspects of Mr Butcher's performance of his duties was the subject of criticism and to the difficulties under which he was working; but they regarded the differences between the two protagonists over the format of the management accounts as central to what occurred after considering the evidence, and made findings of primary fact in detail and concluded, for the reasons they set out, that in relation to those differences there was fault on both sides. We repeat our conclusion that, in arriving at their determination as to contribution the Tribunal in our judgment, committed no error of law.
64. Finally we should refer to Mr Butcher's submission that the Tribunal were not bound, having assessed his contribution at 50%, to reduce his compensation by the same amount. Mr Butcher did not advance any authority for this argument which does not find any place in the Notice of Appeal and which Mr Brown, not surprisingly, did not address. In fact neither in the formal decision of the Tribunal, at page 1 (before the Extended Reasons) nor in the Extended Reasons did the Tribunal specify that compensation should be reduced by 50%. However our instinctive reaction to Mr Butcher's point, having regard to the terms of Sections 122(2) and 123(6) is that it is, at least in the circumstances of this case, incorrect. The position may be different in a case in which the Tribunal has to consider making a reduction in compensation both on the basis of contributory fault and on the basis of the application of what is familiarly called the "Polkey principle". In any other situation it appears to us to be highly unlikely that the emergence of one figure for contributory fault and another figure for reduction of compensation could be appropriate even if the words of the two relevant subsections do theoretically so permit. We have not heard full argument on this point and do not regard it as helpful to venture any further thought upon it. In any event it could not be said in this case that it was not open to the Tribunal to assess the appropriate reduction of compensation at 50%.

Conclusion

65. For the reasons we have set out above this appeal is dismissed.