United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANTHONY KORN (Leading Counsel) and MR MOHINDERPAL SETHI (Junior Counsel) Instructed By: Morgan Walker Solicitors 124 New Bond Street London W1S 1DX
For the Respondent	MR ANDREW GEORGE Instructed By: Mishcon de Reya Solicitors 21 Southampton Row London WC1B 5HS


 


THE HONOURABLE MR JUSTICE KEITH

Introduction

1. The applicant, Rajat Bhatia, was found to have been unfairly and wrongfully dismissed by the respondent, Sterlite Industries (India) Ltd ("the Company"). A date was fixed for the hearing to determine what awards should be made. Prior to the hearing, the Company applied for an order requiring Mr Bhatia's solicitors to disclose information on various topics to it and to provide it with copies of further documents. That application was refused, and the Company appeals against the decision of the employment tribunal refusing that application. The Company did not attend the hearing, but made written representations instead. After reserving its decision, the tribunal awarded Mr Bhatia the sum of £806,384.34 by way of compensation for his unfair dismissal (while making no award by way of damages for his wrongful dismissal since that would have resulted in double recovery for Mr Bhatia). The Company is also appealing the amount of that award.
2. At the conclusion of the hearing, we said that the award of compensation to Mr Bhatia would be set aside, and the case remitted to a differently constituted tribunal for the amount of Mr Bhatia's compensation for unfair dismissal and his damages for wrongful dismissal to be reconsidered. We said that we would reduce our reasons for doing so into writing, and this we now do.

The relevant facts

3. The engagement of Mr Bhatia. The Company is incorporated in India. It is listed on the National Stock Exchange of India and has interests in the mining, metals, manufacturing and telecommunication sectors primarily in India, but also in Australia and the United Kingdom. Mr Bhatia's employment with the Company commenced on 24 April 2000. His job title was Vice-President responsible for mergers and acquisitions. According to his letter of appointment, he was to be "deputed to [the Company's] London office for an initial period and would be transferred back to India after completion of the assignment". No particular assignment was set out in that letter, though it said that Mr Bhatia was to identify companies which were suitable for merger or acquisition in liaison with reputable investment bankers, and to carry out due diligence enquiries and valuations on those companies with a view to their eventual merger or acquisition. His salary while in London, described as "an all inclusive compensation", was to be the equivalent of US$11,700.00 a month. He would be entitled to a performance bonus, which was described in the letter of appointment as follows:

"Performance Bonus: Besides the cash compensation as mentioned above, you will be entitled for performance bonus which will be directly linked to the effective conclusion of the M&A deals in which you play a leading role. The exact scheme will be evolved after mutual consideration. The Performance bonus can be paid in the form of cash or stock options."

The period of notice was to be one month on either side.

3. The Company's liability to Mr Bhatia. The tribunal was to find that Mr Bhatia was summarily dismissed by the Company on 17 July 2000, and that the dismissal was wrongful. The reason for his dismissal in lay language was that he was a whistle-blower, though in the more prosaic language of section 103A of the Employment Rights Act 1996 ("the Act") what the tribunal found was that the reason for his dismissal was that he had made a protected disclosure. That finding had three consequences. First, the fact that he had been employed by the Company for less than one year did not mean that he had not acquired the right not to be unfairly dismissed: see section 108(3)(ff) of the Act. Secondly, his dismissal was automatically unfair: see section 103A of the Act. Thirdly, the normal limit of £50,000.00 on the compensatory award (which was the limit appropriate to an employee whose effective date of determination was 17 July 2000) would not apply, and the compensatory award would be at large: see section 124(1A) of the Act.
4. The need for a further hearing. The tribunal's decision was sent to the parties on 2 May 2001. It referred to the evidence of Mr Bhatia that his post with the Company had been one "which carried the prospect of an extremely high bonus of about £1,000,000". The tribunal anticipated that the parties would attempt to agree the amount of compensation for Mr Bhatia's unfair dismissal and the damages for his wrongful dismissal. But in case agreement could not be reached, the tribunal gave the parties permission to restore the case for a further hearing provided that that request to restore the case was made within three months. Agreement was not reached, and accordingly the tribunal was requested to restore the case for a further hearing. On 8 August 2001, the tribunal notified the parties that the further hearing to determine what Mr Bhatia's compensation and damages should be would take place on 30 October 2001. In the rest of this judgment, all references to dates are dates in 2001 unless otherwise stated.
5. The Company's request for documents and further information. The Company had been represented by solicitors and counsel at the previous hearing. By 3 October, it had decided to represent itself. On that date, the Company sent a fax to Mr Bhatia's solicitors requesting information on various topics and copies of various documents. So far as the documents were concerned, it asked for the documents to be delivered to it in India by courier by 10 October. Mr Bhatia's solicitors faxed their reply on the same day. They simply said that they would be providing the Company with Mr Bhatia's witness statement before the hearing, and that any documents which were relevant would be attached to that statement. On the following day, 4 October, the Company sent a further fax to Mr Bhatia's solicitors. It insisted on having the documents which it had asked for by 10 October. It asked for additional information to be provided by 10 October, and for Mr Bhatia's witness statement by 12 October. And by another fax which it sent to Mr Bhatia's solicitors on 8 October, it asked for additional information and copies of further documents.
6. On 12 October, the Company sent a fax to the tribunal. It informed the tribunal that it would not be attending the hearing, but would be making written representations to the tribunal. The Company asked the tribunal to order Mr Bhatia to provide it with copies of (a) Mr Bhatia's witness statement, (b) any documents which he proposed to rely on at the hearing, (c) the contract of employment for a new job which Mr Bhatia had recently started in the United States on 6 August, and (d) any documents relating to the bonus scheme in his new employment. The Company also asked the tribunal to order Mr Bhatia to provide it with information about (a) the attempts which he had made to mitigate his loss, (b) any attempts he had made to find jobs in India, (c) his earnings in the two years before he worked for the Company, (d) his earnings between the date of his dismissal and the start of his new job, and (e) the advice which he had allegedly received that his employment with the Company carried the prospect of a bonus of about £1,000,000.00 (which was to be the most important issue at the hearing). Since the Company's written representations had to be presented to the tribunal not less than 7 days before the hearing (see para. 10(5) of the Employment Tribunals Rules of Procedure), the Company asked for the order requiring the information to be disclosed (and the documents to be provided, though the fax did not expressly say so) "as soon as possible and in any event within 7 days of the order being granted". The fax concluded:

"In the event that the information is not supplied expeditiously, we reserve the right to apply for the hearing on 30 October to be postponed."

7. The Company's fax of 12 October gave detailed reasons for why it needed this information and copies of these documents. The documents of which it sought copies were plainly relevant, and the only thing which the Company did not tell the tribunal was (a) that it already had a copy of Mr Bhatia's contract of employment in his new job, (b) that parts of the document had been blacked out to prevent the Company from knowing by whom Mr Bhatia was currently employed, and (c) why the Company needed to see the parts which had been blacked out. The information which the Company sought was plainly relevant as well. At first blush, it might have been thought unnecessary for the Company to need to know about Mr Bhatia's earnings in the two years before he started working for the Company, but as the Company stated in its fax of 12 October those earnings would "give some indication of the kind of remuneration package which [Mr Bhatia] would have expected from his new employers", i.e. the Company. Since there was a significant difference as to the level of the bonus which he would have earned with the Company had he not been dismissed, the level of the bonus which he had received in his previous employment might cast some light on the level of the bonus he would have been paid by the Company.
8. On the same day, Mr Bhatia's solicitors sent a fax to the tribunal suggesting that the order sought by the Company was unnecessary. They said that some of the information sought had been provided to the Company at the previous hearing, and that the rest of the information sought (to the extent that it was relevant) would be provided to the Company "in good time before the hearing".
9. The proposed reliance on expert evidence. On 18 October, Mr Bhatia's solicitors sent a fax to the tribunal, with a copy to the Company, informing the tribunal that they were in the process of instructing a firm of remuneration experts to give evidence at the hearing relating to the level of bonuses awarded for the relevant period to employees in similar positions to Mr Bhatia. They said that the Company would be provided with the expert's report before the hearing.
10. The Company's request for a postponement. In the meantime, though, the Company had not had a response from the tribunal about the various orders it had sought on 12 October, nor had it been provided by Mr Bhatia's solicitors with the information or copies of the documents it had sought. Accordingly, it sent a fax to the tribunal on 22 October asking for the hearing to be postponed from 30 October. On the following day, Mr Bhatia's solicitors sent a fax to the tribunal, to the effect that Mr Bhatia had purchased his tickets to London, and that he would be severely prejudiced if the hearing was delayed. They did not say whether Mr Bhatia could change the date on his tickets at little or no expense (which is what one might have expected) or why he would be prejudiced if the hearing was delayed.
11. The tribunal's response to the Company's two requests. On 24 October, the Company was informed that its application for the production of documents and the disclosure of information had been refused. It was informed of that by telephone by a clerk working in the regional office. No reasons were given for the refusal, the Company was not told who had made the decision, nor did it ever receive confirmation in writing of the decision. The Company was disappointed with that order, and on the same day it sent a fax to the tribunal asking for "a copy of the reasoned order refusing our request". The document which was sent in response was a document which recorded that the Company's other application, i.e. its application of 22 October for a postponement of the hearing as opposed to its application of 12 October for an order for the production of documents and the disclosure of information, was refused. The tribunal's letter, which was dated 25 October, is worth setting out in full:

"1. I refer to your recent request for a postponement of the hearing in this case.

2. A Chairman of the Tribunals has considered carefully all you say and has balanced that against the desirability of bringing this case to a hearing without delay.

3. The chairman Mr Latham, refuses your request for the following reason(s):

4. The [Company] should submit any submissions as soon as possible, and the Tribunal will take into account any explanations as to their delay. Please also refer to [Mr Bhatia's] letter dated 19 October 2001.

5. As the matter is listed for a Remedy Hearing the same tribunal as determined the Merits Hearing will be hearing the remedy matters"

12. We make three comments on that letter. First, no reasons were given for the refusal to postpone the hearing. Secondly, the reference to Mr Bhatia's letter of 19 October was in fact a reference to his solicitor's fax of that date to the Company, a copy of which had been faxed to the tribunal. In that fax, Mr Bhatia's solicitors had said that copies of the documents on which Mr Bhatia proposed to rely at the hearing had already been sent to the Company. In fact, that was not quite correct, because copies of some additional documents were only sent to the Company on 25 October, namely Mr Bhatia's CV and a schedule of losses prepared by Mr Bhatia. In addition, Mr Bhatia's witness statement and the expert's report were not sent to the Company until 26 October. Thirdly, in para. 4 of the tribunal's letter of 25 October, the tribunal was obliquely referring to para. 10(6) of the Employment Tribunals Rules of Procedure, which permits an employment tribunal to consider written representations even if they are submitted less than 7 days before the hearing. The tribunal was therefore telling the Company that it was not too late to submit its written representations, and provided that the delay in submitting them was explained, the Company may be permitted to rely on them.
13. The Company's written representations. As it was, the Company submitted written representations to the tribunal on 29 October, which took into account and commented upon the additional documents sent to the Company on 26 October (including Mr Bhatia's witness statement and the expert's report), and the tribunal considered those representations. The Company's accompanying fax (which was dated 27 October but sent on 29 October) referred to the fact that it had only received Mr Bhatia's witness statement and the expert's report on 26 October, and continued:

"We have sought to reply to the matters referred to [in Mr Bhatia's witness statement and the expert's report] as best we can in the circumstances but, given that our operation is based in India, we have not been in a position to commission our own expert's report or to fully respond to [Mr Bhatia's] witness statement (which would have been the case if the order had been granted). Hence our application for an adjournment. We would add that it remains our contention that we have been seriously prejudiced in preparing the written representations by the Employment Tribunal's refusal to grant the Orders sought in our earlier letter and the late service of the material referred to above. We have already preferred an appeal which is registered as number 1443/01."

The reference to an appeal was to the first of the two appeals currently before us. It had been lodged on 25 October, the day after the Company had been informed that its application for an order for the production of documents and the disclosure of information had been refused.

The first appeal

14. As we have said, no reasons were given for the tribunal's decision to refuse the Company's application for the production of documents and the disclosure of information. We imagine that the decision was made by a chairman to whom the file had been passed, who may or may not have been the chairman who refused the application for a postponement of the hearing. It may be that by the time the file had been placed before the chairman, a week or so had elapsed since the application had originally been made. Since (a) the hearing would only have been a week or so away, and (b) Mr Bhatia's solicitors' fax of 19 October would have told the chairman that copies of the documents on which Mr Bhatia proposed to rely at the hearing had already been sent to the Company, it may be that the chairman thought that that had amounted to sufficient disclosure. It is just possible to get that from the reference to Mr Bhatia's solicitors' fax of 19 October in the tribunal's letter of 25 October, but that is not a sufficient basis to assume that that was the chairman's process of reasoning.
15. There was some debate before us as to whether there was an obligation on the tribunal to give reasons for its decision to refuse the Company's application for an order for the production of documents and the disclosure of information, or whether it was simply a case management decision to which the obligation to give reasons did not apply. As Lord Phillips M.R. said in English v. Emery Reimbold & Strick Limited [2002] 1 WLR 2409 at [13]:

"Where a judicial decision affects the substantive rights of the parties we consider that the Strasbourg jurisprudence requires that the decision should be reasoned. In contrast, there are some judicial decisions where fairness does not demand that the parties should be informed of the reasoning underlying them. Interlocutory decisions in the course of case management provide an obvious example."

But we do not think that we need to decide whether the tribunal's decision was one for which reasons were required, because we have concluded that this was an application which the chairman could not reasonably have refused. What follows are our reasons for that conclusion.

16. This was a case in which there was no statutory limit on Mr Bhatia's compensation. A very large sum was being claimed. For that reason, the case was way outside the ordinary run-of-the-mill cases in which a tribunal has to assess compensation for unfair dismissal. What Morison J. said in Buxton v. Equinox Design Limited [1999] ICR 269 at pp.274G–275A was therefore relevant:

"What one might describe as the relatively brief and informal hearing on remedy appropriate in unfair dismissal cases may not be appropriate where the compensation is uncapped. In the former category of case, the judgment and experience of the lay members may be especially important in relation to the state of the job market in their locality and the potentiality for the applicant obtaining new employment, and thus, the tribunal may not be assisted by much, if any, evidence. But where the case involves unlimited compensation, it will often be the case that the remedies hearing should involve the parties in careful preparation under the management of the tribunal. For this purpose, directions may be required involving, amongst other things, an exchange of statements of case and any witness statements."

This was therefore a case in which, even before the promulgation of new regulations governing the procedure of employment tribunals, the tribunal should at least have considered using its case management powers to make appropriate directions for the remedies hearing once it had been informed that the parties had been unable to reach agreement and it was being asked to restore the case. It was, on the face of it, not the sort of case in which it would have been sufficient for Mr Bhatia's solicitors to follow the usual practice of providing the Company, just a day or so before the hearing, with Mr Bhatia's witness statement and copies of those documents on which they proposed to rely but which had not been provided to the Company before.

17. That was all the more so in the light of the new para. 4 of the Employment Tribunals Rules of Procedure, which expressly empowered the tribunal to make such directions as appeared to it to be appropriate to ensure that cases were managed properly, and to further the overriding objective of the Rules as identified by para.10 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001. We do not go so far as to say that the tribunal in this case should have made appropriate case management directions of its own motion. But we do say that in a case such as this, if one party asks for an order for the production of documents and the disclosure of information which are plainly relevant, and when that party clearly explains why they are relevant, there can be no sensible reason for not ordering their production and disclosure. In short, this was a substantial piece of litigation, and although it was properly being litigated in the employment tribunal, it had to be managed in a way which was commensurate to the issues involved and the amount of money at stake.
18. For these reasons, it would not have been sufficient for the tribunal to rely on Mr Bhatia's solicitors' assertion that copies of the documents on which Mr Bhatia proposed to rely had already been served on the Company. As we have said in para. 13 above, that was not quite correct, even though the tribunal was not to know that. But in case the documents which Mr Bhatia proposed to rely upon did not include all of the documents which the Company had asked for, or did not contain all of the information which the Company had sought, the order which the tribunal should have made was to require Mr Bhatia to produce the documents and disclose the information, save to the extent that he had already done so. After all, Mr Bhatia's solicitors had never claimed to have already provided all of the documents or disclosed all of the information sought.
19. We recognise, of course, that the Company made things difficult for itself by not asking Mr Bhatia's solicitors for the documents or the information it sought until 3 October. Had the Company made this request earlier, it would have been able to apply to the tribunal earlier than 12 October for the order it sought on that date. But that could not have been a sufficient reason for the tribunal, in a case of this kind, to refuse to make an order of the kind sought by the Company. The effect of delay on the part of the Company was simply that the Company would have less time to absorb the documents and the information which it ought to have been supplied with than would otherwise have been the case.
20. We make two final points on this part of the case. First, Mr Andrew George for Mr Bhatia made the point that the Company was not disadvantaged in any way by the tribunal's refusal to make the order sought. The application was made on 12 October, a Friday. Even if on Monday 15 October the tribunal had ordered the documents to be produced and the information to be disclosed within the 7 days requested by the Company, Mr Bhatia's solicitors would have had to do that by 22 October. In view of the time difference between London and India, that would have given the Company only 6 working hours or so to incorporate what it gleaned from the documents and the information into the written representations which had to be submitted by 23 October. In fact, the Company had all the documents by 26 October, and the tribunal was prepared to consider the Company's written representations even though they were not submitted until 29 October. The Company therefore in fact had 3 days to incorporate what it had gleaned from the documents and the information with which it had been supplied, which was longer than the time which it would have had to do that if the tribunal had made the order which the Company had sought.
21. This argument ignores the facts that the tribunal might have waived compliance with the 7 day rule even if an order of the kind sought by the Company on 12 October had been made, and that between 26 October and 29 October a weekend intervened. But more importantly, although Mr Bhatia's solicitors had provided the Company by 26 October with all the documents and the information which it proposed to provide, Mr Bhatia's solicitors had not provided all the documents and the information which had been sought. They had provided no documents relating to Mr Bhatia's earnings in the two years prior to his job with the Company, and although the index to the bundle of documents which Mr Bhatia's solicitors prepared for the hearing on 30 October indicates that it provided some documents relating to the applications which Mr Bhatia had made for other jobs, the information about his attempts to mitigate his loss by finding alternative employment was minimal.
22. Secondly, the fact that the Company was not intending to attend the hearing and was proposing to submit written representations did not justify the Company receiving the documents on which Mr Bhatia proposed to rely earlier than would have been the case if the Company had intended to attend the hearing. The time when the Company would in the normal course of events have presented its case on what compensation or damages Mr Bhatia should be awarded would have been at the hearing itself. Its right to submit written representations enabled it to present its case on what the compensation or damages ought to be despite not attending the hearing, but the price which the Rules required it to pay for that privilege was that it had to make those representations prior to the hearing, i.e. on what it thought Mr Bhatia's case was going to be at the hearing, rather than what his case actually turned out to be. If, therefore, Mr Bhatia's solicitors could not be criticised for providing documents and information after the time when the Company's written representations had to be submitted, the Company cannot legitimately complain if it had to make its representations without knowing what the documents contained or without knowing what the information amounted to. None of this was directly relevant to the first appeal, but we have dealt with the topic since we were addressed on it.

The second appeal

23. Prior to the service of Mr Bhatia's witness statement and the expert's report on 26 October, the Company knew nothing about the basis of Mr Bhatia's claim that, had he not been dismissed, he would have been paid a substantial bonus by the Company. The Company did not know, for example, whether his case was that the bonus was to be based on a percentage or a multiple of his salary (which could properly be described as a bonus), or was to be linked to the number of successful deals in which, but for his dismissal, he would have been engaged (which would be more akin to commission). If the former, the Company did not know how it was to be said the percentage or the multiple was to be arrived at. If the latter, the Company did not know the basis on which it was going to be said that (a) a particular deal was successful, (b) Mr Bhatia had been sufficiently involved in it to justify the payment of a bonus, and (c) the amount of the bonus should be calculated.
24. There was little that the Company could do to prepare its case on the bonus until it had that information. Although it knew from Mr Bhatia's solicitors' fax of 18 October that they were in the process of instructing a firm of remuneration experts to give evidence at the hearing relating to the level of bonuses awarded for the relevant period to employees in similar positions to Mr Bhatia, the Company could not instruct its own expert to cover the ground which Mr Bhatia's expert was to cover until it knew at the very least whether it was a bonus or commission which Mr Bhatia was saying he would have earned from the Company had he not been dismissed.
25. It was only when Mr Bhatia's witness statement and the expert's report were served on the Company on 26 October that the Company knew that both alternatives were being advanced by Mr Bhatia as part of his case. In para. 12 of his witness statement, he referred to the Company's offer to pay him "a bonus of up to ten times [his salary] depending on performance". In para. 14 of his witness statement, he referred to his expectation (based on the language of his contract of employment) to be paid the equivalent of commission on successful deals in which he had been involved. The expert's report also referred to the equivalent of both bonus and commission: an annual bonus of 10-20% of annual salary and a commission of 1-1.5% on successful deals. But we do not think that the Company could reasonably have been expected to commission its own expert's report without being told beforehand whether it was alleged that it was bonus or commission or both which Mr Bhatia would have been paid had he not been dismissed. Only then could the Company have commissioned a report which covered the ground which Mr Bhatia's expert would have covered.
26. The second appeal challenges the process of reasoning by which the tribunal assessed Mr Bhatia's compensation. But it also attacks the decision on procedural grounds. The argument is as follows. When the Company first asked the tribunal on 22 October to postpone the hearing on 30 October because it had not been provided with the documents or the information which it had sought, it had not known whether Mr Bhatia would be relying on expert advice. All it knew was that on 18 October Mr Bhatia's solicitors had been in the process of instructing an expert. Apart from not knowing the precise ground which the report was to cover, the Company did not know whether an expert had in fact been instructed, whether he would be able to provide a report in time for the hearing, or whether Mr Bhatia would want to rely on it. The Company could not therefore rely on the fact that on 18 October Mr Bhatia's solicitors had been in the process of instructing an expert as a reason for asking for a postponement of the hearing.
27. However, the passages which we have referred to in the Company's fax to the tribunal of 27 October (though sent on 29 October) should have been read by the tribunal as a further request for a postponement of the hearing in view of the fact that it was only after the previous application for a postponement had been made (22 October) and refused (25 October) that Mr Bhatia's witness statement and the expert's report had been served on the Company. On receipt of the fax on 29 October, or at the hearing itself on 30 October, the tribunal should have reconsidered whether justice to the Company required the hearing to be postponed. The tribunal's decision shows that the question of a postponement was not reconsidered, and the Company's case is that the tribunal fell into error in not doing so.
28. We agree. The comments which we have already made about the case not being a run-of-the-mill case in which the tribunal assesses compensation for unfair dismissal apply here as well. This was not a case in which it was appropriate for important materials to be served only one or two working days before the hearing. But in addition, the very late service of the expert's report should have alerted the tribunal to the need to consider whether it was still feasible for the hearing to go ahead on 30 October. As Lindsay J. said in De Keyser Ltd v. Wilson [2001] IRLR 324 at para. 36(i) in connection with expert evidence which it was proposed to call in an employment tribunal:

"Careful thought needs to be given before any party embarks upon instructions for expert evidence. It by no means follows that because a party wishes such evidence to be admitted that it will be…..A prudent party will first explore with the employment tribunal at a directions hearing or in correspondence whether, in principle, expert evidence is likely to be acceptable."

Mr Bhatia's solicitors did not take that course, and it may have been too late for the tribunal to give thought to whether this was an appropriate case for expert evidence to be called on the topic which Mr Bhatia's solicitors had in mind. But if a tribunal thinks that it is appropriate for expert evidence to be given on a particular topic, it should consider (a) whether in the interests of saving costs a single expert should be jointly instructed by both parties, and (b) what the timetable for the disclosure of the expert's report should be even if there was to be no joint expert. At paras. 36(ii) and (x), Lindsay J. said:

"(ii) Save where one side or the other has already committed itself to the use of its own expert (which is to be avoided in the absence of special circumstances) the joint instruction of a single expert is the preferred course.

(x) Where there is no joint expert, the tribunal should, in the absence of appropriate agreement between the parties, specify a timetable for disclosure or exchange of experts' reports and where there are two or more experts, for meetings….."

29. What happened in this case was that, without discussing the matter with the Company or exploring the appropriateness of such a course with the tribunal, Mr Bhatia's solicitors decided to instruct an expert on their own. Less than two weeks before the hearing it informed the Company and the tribunal what it was doing. They gave no indication of when a copy of the expert's report would be produced to the Company (save that it would be before the hearing). When the tribunal was informed of what Mr Bhatia's solicitors were in the process of doing, it did not address the question whether there was sufficient time for that report to be disclosed to the Company so that it could make an informed response to the report and consider whether it wished to instruct an expert of its own. And when the Company not surprisingly asked in its fax of 27 October (but sent on 29 October) for a postponement of the hearing, the tribunal did not address the question at all.
30. For the reasons given in para. 26 above, the Company could not have taken steps to avoid the need for a postponement by instructing an expert of its own. Since Mr Bhatia's solicitors had not told it what ground the expert's report was to cover, the Company could not have done anything to seek expert advice until after it had absorbed the contents of Mr Bhatia's expert's report on 26 October. By then, it was far too late to do anything productive for the hearing on 30 October.

Conclusion

31. For these reasons, we have concluded that the tribunal's exercise of its discretion in allowing the hearing on 30 October to go ahead was so flawed that it amounted to an error of law in the light of (a) the information and documents which the Company should have had but did not have, and (b) much more importantly the late service on the Company of the expert's report. We therefore allow both appeals, and as we announced at the conclusion of the hearing, we set aside the award of compensation for Mr Bhatia, and we order that the case be remitted to a differently constituted tribunal for the amount of Mr Bhatia's compensation for unfair dismissal and damages for wrongful dismissal to be reconsidered. The remittal of the case will enable the Company to respond to the expert's report in such a way as it chooses, whether by making more informed submissions on the expert's report, or by submitting an expert's report of its own and if it so chooses by calling the expert to give evidence.
32. We have considered whether it is appropriate for the Company to be permitted to attend the hearing and call evidence, in view of the stance which it decided to take for the hearing on 30 October, i.e. to rely on written representations only. But that decision was made before the Company knew that expert evidence was to be called, or what the contents of Mr Bhatia's witness statement were to be, and in the light of what the Company now knows (and should have known when it committed itself to rely on written representations only), it may well want to approach the hearing in a different way. We think that the Company should be entitled to do that. It is not as if the Company would be getting a second bite at the cherry: the first bite it had was not a proper bite at all.
33. We have also considered whether the new hearing should be limited to what Mr Bhatia would have earned by way of bonus had he not been dismissed, or whether it should also be open to the Company to argue afresh what Mr Bhatia would have earned by way of salary (less mitigation) had he not been dismissed. We have concluded that both bonus and salary should be reconsidered by the tribunal. It is true that the expert's report related only to the bonus, but since the information which the Company was provided about Mr Bhatia's attempts to mitigate his loss was minimal, we think that the tribunal should be entitled to reconsider Mr Bhatia's claim for loss of earnings as well.
34. There are two final points we should make. First, we have not addressed (and we did not call upon either Mr Anthony Korn for the Company or Mr George to address us) on the Company's substantive attack on the award of compensation. Since the issue is to be re-litigated, it would not be appropriate for us to comment on it at all. Secondly, we leave it to the tribunal to make such case management orders for the efficient conduct of the new hearing as it considers appropriate. In view of what has happened in the past, it may be appropriate for Mr Bhatia's solicitors and the Company's new advisers to try and agree on what needs to be done. If they cannot agree, the tribunal can be asked to hold a hearing so that appropriate case management directions can be given.