United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR KENNEDY IN PERSON
For the Respondent	MISS ANNA BEALE (Of Counsel) Instructed by: Messrs Gotelee & Goldsmith Solicitors 31-41 Elm Street Ipswich Suffolk IP1 2AY

SUMMARY

The decision of the ET that the Claimant was unfairly dismissed cannot be reversed. There was no improper conduct on the part of the ET. Its procedural decisions were well within the ambit of its discretion.


 


HIS HONOUR JUDGE SEROTA QC

1. These are reserved judgments on appeals by the Respondent from decisions of the Employment Tribunal at Bury St Edmunds, chaired by Mr J D Hobson as follows. On a Merits Hearing, sent to the parties on 4 December 2003, the Employment Tribunal found that the Applicant had been unfairly and wrongfully dismissed and at a Remedies Hearing, Extended Reasons being sent to the parties on 4 May 2004, the Applicant was awarded compensation in total sum of £12,724.44, made up of compensation for breaches of contract, wages due on holiday entitlement of £975.25 compensatory award, (66 weeks less incapacity benefit and income received from a new employer) in the sum of £12,283.80 and loss of future earnings for 9 weeks of £48.96 per week, total of £440.64.
2. On 27 January 2004, Mr Justice Burton ordered there should be a Preliminary Hearing in relation to the appeal from the Merits Decision. On 12 March 2004 the Employment Appeal Tribunal presided over by Hooper J ordered there should be a Full Hearing, save in relation to one ground (Ground B) and gave directions that the Applicant should bring certain documents relating to his Standing Orders and Direct Debits for mortgage and other payments to the final hearing. It should be for the Employment Appeal Tribunal at the final hearing to decide whether they should be admitted in evidence. We have seen the documents but they were of no help to us in deciding this appeal. On 15 June 2004 His Honour Judge Birtles ordered there should be a Full Hearing for the appeal from the Remedies Decision.

Factual Background

3. We set out the factual background briefly as it is fully set out in the Extended Reasons of the Employment Tribunal. Mr Kennedy runs a small business with some seven employees trading as Snappy Snaps, with shops in Ipswich and Bury St Edmunds. These shops are engaged in photo processing and retail photographic sales.
4. On 17 May 1999 Mr Warwick began to work for the Respondent as a photographic printer/sales assistant. Initially he worked part-time in Ipswich but became full-time in September 1999. By 2001 he was the manager of the Ipswich shop. He later worked at Bury St Edmunds, also as the manager. However he began to suffer from depression and returned to his job as being a printer/sales assistant. We note that when he began to suffer from depression he was assisted by Mr Kennedy who did not reduce his salary and permitted him to work in Bury St Edmunds whereas he would rather the Applicant had worked in the Ipswich shop.
5. In June 2002 the Applicant was absent from work from stress and depression. He had concerns that the cheque paying his salary would arrive late and thus cause difficulty for him in paying bills due at the beginning of the month. He raised the matter with the Respondent who reassured him. The Respondent was, however, unsuccessful in relieving the Applicant's concerns. The Applicant's concerns were unjustified and were a function of his depressive illness.
6. On 28 October 2002 there was a telephone conversation between the Applicant and the Respondent. The Respondent maintained that the Applicant made an abusive demand for his salary cheque. The Applicant admitted that he was anxious and that he may have raised his voice but denied being abusive. The Employment Tribunal was satisfied that nothing the Applicant did or said in that telephone conversation could amount to gross misconduct. After the telephone conversation he went home suffering from stress. His GP, whom he saw later that day provided him with a medical certificate excusing him from work for a period of one month by reason of depression.
7. Later that evening the Respondent left a message for the Applicant on his answer phone telling him that he had been summarily dismissed. The Applicant attempted to arrange to meet the Respondent but the Respondent refused a meeting.
8. The Originating Application was presented on 27 March 2003 and it initially contained claims under the Disability Discrimination Act 1995 and a claim for automatic unfair dismissal. It was asserted that Mr Warwick had been dismissed for asserting a statutory right. These allegations were withdrawn before the original hearing date which had been set for 22 May 2003. The hearing did not take place on this occasion and was adjourned on 27 October 2003. It is clear from correspondence we have seen that these claims were included on advice from Mr Warwick's solicitors and were withdrawn following advice from the solicitors.

The Tribunal's Decision on Liability

9. The Employment Tribunal found that the purported reason for Mr Warwick's dismissal was for making an abusive telephone call and leaving work without regard to the effect of doing so on colleagues and customers. The Employment Tribunal did not consider that Mr Kennedy seriously considered the possibility of Mr Warwick being ill. The Employment Tribunal concluded there was no fair reason for the dismissal and that the manner of dismissal was unfair. There had been no investigation and Mr Kennedy's decision was based on assumptions that would not have stood the test of reasonable investigation. The Employment Tribunal concluded that there was no contributory fault and that there should not be any Polkey reduction.

The Employment Tribunal Decision on Remedies

10. The Employment Tribunal concluded that Mr Warwick's claim for compensation was not limited to sick pay because it found that the manner of his dismissal had caused immediate deterioration in his health and that his subsequent inability to work on health grounds was thus the responsibility of the Respondent. The Employment Tribunal went on to hold that Mr Warwick was contractually entitled to six months sick leave on full salary. The Respondent had sought to argue that the Applicant should give credit for insurance payments he had received or was entitled to receive under an income protection policy he had taken up. The Employment Tribunal concluded that the Respondent was not entitled to the benefit of such payments as this was not a dismissal on the grounds of incapacity. The Employment Tribunal also made reference to the somewhat unwise letter written by the Respondent to Topps Tiles, one of the subsequent employers of the Applicant which was misleading in that it failed to point out that the Employment Tribunal had found that Mr Warwick had been unfairly dismissed. Mr Kennedy apologised for this.

Grounds of Appeal and Submissions in Support

11. Ground of Appeal (A) in relation to liability raises various matters as to the conduct of the proceedings by the Tribunal. Mr Kennedy maintains he was precluded from cross-examining Mr Warwick on the suggestion that he had added claims for disability discrimination and automatic unfair dismissal so as to be vexatious and pressurise him. Further, there was no reference in the Originating Application to unfair dismissal as such and the Employment Tribunal was wrong to allow Mr Warwick to raise such a claim. Mr Kennedy submitted that the claims for disability discrimination and automatic unfair dismissal had been put forward by the Applicant's solicitors maliciously with the view to getting an out of court settlement. He maintained that had he been permitted to cross-examine the Employment Tribunal would have made different findings on the evidence. He commented that the chairman in a letter to the EAT referred to the claims as not being vexatious. This, submitted Mr Kennedy, showed that the issue had been prejudged. The Second Ground of Appeal (B) was to the effect that the Employment Tribunal should have granted an adjournment after a letter from Mr Kennedy of 24 October because of what he described as "obstructive tactics" of Mr Warwick in relation to producing unedited bank statements. Mr Kennedy was of course present at the hearing of 27 October and did not make a further application on that occasion for an adjournment. Mr Kennedy maintains he never saw a letter from Mr Warwick's solicitors to the Employment Tribunal objecting to an adjournment. Had he seen this letter he would have responded. Mr Kennedy told us that the issues with which he was concerned was that Mr Warwick had given an explanation as to why he was so concerned as to late payment because he had Direct Debits and was required to pay a mortgage to his bank; this, Mr Kennedy maintained is how the matter was put in the Originating Application. Mr Kennedy was anxious to show that in fact Mr Warwick had Standing Orders which could have been changed and he sought extensive disclosure in relation to Mr Warwick's bank statements with a view to show that Mr Warwick was wrong in saying he could not change the payment dates because these were Direct Debits not Standing Orders and that explanation was false. It would seem that Mr Warwick was reluctant to disclose all details of his bank statements, one of his bank accounts was held jointly with his partner and he had redacted statements provided to Mr Kennedy. The evidence suggested that the mortgage was paid by Standing Order to his joint account from which it was in fact paid by Direct Debit to the bank.

Mr Kennedy's Ground (D)

12. Mr Kennedy challenged the finding in paragraph 5 of the Employment Appeal Tribunal's summary reasons:

"' …the Tribunal accept the evidence of the applicant that his concern was simply that he might not have enough money to enable him and his partner to meet their bills at the beginning of each month'. The Applicant had conceded that this was all part of his illness."

Mr Kennedy submitted this was inconsistent with the evidence and may be wrong in law. He maintained that the Applicant told him "dishonestly on 28 October he could not change his bills because they were Direct Debits rather than Standing Orders." In fact they were Standing Orders rather than Direct Debits. He was also dishonest in claiming his wages were due on 28 October. Mr Warwick was dishonest in claiming time off work. The Employment Tribunal should have regarded Mr Warwick as dishonest but they did not do so. Mr Kennedy maintained that Mr Warwick was also dishonest in stating that he had been off work for two weeks in June 2002 when he had only been off in fact for seven days. This was something that the Employment Tribunal did not deal with. In the circumstances it was perverse for the Employment Tribunal not to find some form of contributory fault.

13. In his submissions Mr Kennedy maintained that Mr Warwick showed no contrition and offered apology. He had always helped him, for example by helping him financially by giving him a pay rise yet when he reverted to his role as a printer he did not reduce his salary. Mr Kennedy received no recognition of this in the Extended Reasons of the Employment Tribunal. Mr Kennedy therefore, considered that the Applicant's claim that he had been pushed into depression to be offensive. Mr Kennedy stressed that he has allowed him to work at Bury St Edmunds which was not where he wanted him to work. He maintained there was ample evidence to show that Mr Warwick's evidence and assertions were false. He returned to the issue as to whether the Applicant was dishonest in saying he could not change his monthly bills because they were Direct Debits rather than Standing Orders.
14. In so far as the Remedies Award was concerned Mr Kennedy raised the following matter in his Notice of Appeal and his submissions. His first Ground (A) was that Mr Warwick had taken out an income protection policy with St Andrews Group and said that he had not received benefits under the policy because he was not eligible, because his disability began while he was still at work, and because he had suffered from depression before entering into the policy. This appears in fact to have been confirmed by a letter dated 23 May 2003 from Direct Line Insurance. Mr Kennedy complained that Mr Warwick had not given full disclosure in relation to the details of insurance benefits claimed, so that he could show he had mitigated his damages. The Employment Tribunal should have enforced an Order against him for disclosure of the documents relating to his incapacity insurance. Mr Kennedy complained he was not allowed to thoroughly investigate whether had Mr Warwick correctly completed application forms to the insurance company he would have received benefit.
15. In his submissions Mr Kennedy submitted that regardless of whether insurance money should be taken into account there was a refusal or failure to comply with the Order of the Employment Tribunal and Mr Warwick's solicitor should have been penalised.
16. The second Ground relied upon (B) was that Mr Warwick was not entitled to be paid in full for the day of his dismissal as he had used up his sickness pay entitlement. Further the Employment Tribunal should have found he was only entitled to ten days sickness pay and accordingly on the day he left he should have not been paid in full but should have received only statutory sick pay. Further, because he had used up his ten days sickness pay any compensation should have been assessed on the basis that he would not have worked for the next month. The Employment Tribunal was perverse in saying he would have returned to work if not dismissed even though he had a "sick note" for a month. This finding was perverse because if he had a sick note, Mr Kennedy asked forensically: why would he not take the entire month off work? The third Ground of appeal (C) in relation to remedies was to the effect that Mr Warwick had perjured himself in relation to his claim for incapacity benefit. Mr Kennedy suggested that he had been earning more than the permitted limit while working with Persil, but that at the same time he was claiming and continued to receive Invalidity benefit.
17. Mr Kennedy drew attention to a letter dated 23 March 2003 sent to him by Jobcentre Plus to the effect that:

"We are now currently looking into the fact that Mr Warwick was working while receiving Incapacity Benefit and we had no correspondence from him to make us aware of this fact."

It is evident that this letter was written after a telephone conversation between Mr Warwick and an employee of Jobcentre Plus, Miss Theresa Blair. Jobcentre Plus asked Mr Kennedy to provide details of Mr Warwick's employment with Persil "as up until that point Mr Warwick had been in receipt of Incapacity Benefit with no record of him participating in any kind of Permitted Work." It is said that this is highly damaging to Mr Warwick's credibility and the evidence he gave to the Employment Tribunal. Mr Kennedy also sought to rely upon a further letter dated apparently 3 March 2004 from Miss McCarthy at Jobcentre Plus, again after a further telephone conversation Mr Kennedy had had with Miss Blair in which he had informed Jobcentre Plus that Mr Warwick had been working for Persil since April 2003. Miss McCarthy wrote:

"At the time we were unaware of this information and Miss Blair asked you to provide any details that you had about this, to our office.

The fact that Mr Warwick was working whilst in receipt of Incapacity Benefit is being looked into."

18. Mr Kennedy, in his submissions suggested that these letters were an important reflection on Mr Warwick's credibility and show that he had committed fraud and perjury. Mr Kennedy referred to paragraph 5 of Mr Warwick's second witness statement:

"I initially managed to find a position with Persil Services Limited, a photographic lab within Sainsburys. I applied for this position via the internet through Reed Recruitment. It was a part-time position, 15 hours per week. Under the incapacity benefit scheme, I was allowed to work 15 hours per week. My income went over the £67 per week limit and accordingly, my benefits stopped. I started working for Persil Services on 22^nd April 2003 and I stopped working there on 14^th December 2003. I had found myself another job with Topps Tiles Limited as a sales selling tiles and flooring adhesives etc. …"

Mr Kennedy maintained that the witness statement could not be correct in the light of the letters from the Jobcentre and the evidence contained in those letters would have impacted on his credibility.

19. The letters were fresh evidence that he could not have obtained with due diligence prior to the Remedies Hearing and in his opinion would have had a significant effect on the decision.

The Applicant's Submissions

20. Mr Warwick drew attention to various factual matters which we will not set out here in detail. Where relevant we will refer to them our conclusions. He drew our attention, in relation to procedural matters, to the Employment Tribunal's power to control procedure set out in Rule 11(1) of the Employment Tribunal Constitution and (Rules of Procedure) 2001 and referred to the wide discretion in the Chairman who had the right to limit cross-examination. Reference was made to the case of Zurich Insurance v Gulson [1988] IRLR 118. In that case the EAT held that it was the duty of the Tribunal to keep the inquiry before it within what it considered to be reasonable bounds and stressed that a party did not have an absolute right to cross-examine come what may. It was submitted that the various case management decisions taken by the Employment Tribunal of which Mr Kennedy complained are all well within the scope of the Employment Tribunal's discretion.
21. Ms Beale, who appeared on behalf of Mr Warwick, then drew our attention to what is now an extremely well-known passage in the decision of the Court of Appeal in Yeboah v Crofton [2002] IRLR 634, Mummery LJ, paragraph 93 had this to say in relation to appeals on the ground of perversity:

"Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has 'grave doubts' about the decision of the Employment Tribunal, it must proceed with 'great care': British Telecommunications plc v Sheridan [1990] IRLR 27 at paragraph 34.

Over the years there have been frequent attempts, consistently resisted by the Employment Appeal Tribunal, to present appeals on fact as questions of law. The technique sometimes employed is to trawl through the extended reasons of an employment tribunal, selecting adverse findings of fact on specific issues on which there was a conflict of oral evidence, and alleging, without adequate particulars, supporting material or even proper grounds, that these particular findings of fact are perverse and that therefore the overall decision is perverse. …

Inevitably, there will from time to time be cases in which an employment tribunal has unfortunately erred by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence. In such cases the appeal will usually succeed. But no appeal on a question of law should be allowed to be turned into a rehearing of parts of the evidence by the Employment Appeal Tribunal. I am, of course, well aware that this is easier said than done, especially when, as here, neither side was legally represented on the first level of appeal. As the Employment Appeal Tribunal was well aware, unrepresented litigants have understandable problems in separating questions of law from proof of facts and in distinguishing the making of legal submissions from submissions of fact, even giving evidence in the course of submissions.

22. Ms Beale drew our attention to Wileman v Minilec Engineering Ltd [1988] ICR 318 in which the Employment Appeal Tribunal held that the rule in Ladd v Marshall [1954] 1 WLR 1489 applied to applications to adduce fresh evidence on appeal in Employment Tribunals. The position is, of course, enshrined in the Employment Appeal Tribunal Practice Direction 2002. In the Practice Direction parties are told that if they apply to adduce fresh evidence they must address the following points:

(i) the evidence could not have been obtained with reasonable diligence for use at the Employment Tribunal.

(ii) it is relevant and would probably have had an important influence on the result of the case

(iii) it is apparently credible."

23. The effect of the Practice Direction, that we have cited, was reflected in the orders made by the Employment Appeal Tribunal for a Full Hearing. Ms Beale drew our attention also to the well-known decision of the House of Lords in Parry v Cleaver [1970] AC1 in which there is a well-known passage from the speech of Lord Reid:

"As regards money .coming to the plaintiff under a contract of insurance, I think that the real and substantial reason for disregarding them is that the plaintiff has brought them and that it would be unjust and unreasonable to hold that the money which he prudently spent on premiums and the benefit from it should enure to the benefit of the tortfeasor. Here again I think that the explanation that this is too remote is artificial and unreal. Why should the plaintiff be left worse off than if he had never insured? In that case he would have got the benefit of the premium money: if he had not spent it he would have had it in his possession at the time of the accident grossed up at compound interest. …"

Conclusions

24. Finally, Mr Kennedy wishes to re-visit factual issues and has addressed arguments to us in relation to documents that he claims go to Mr Warwick's credibility. He showed no understanding of the fact that the manner of his dismissal of Mr Warwick was considered by the Employment Tribunal to be wholly inappropriate; nor does he seem to have appreciated that appeals to the Employment Appeal Tribunal are on points of law, not on facts. He has made frequent allegations against Mr Warwick of dishonesty, perjury and fraud and as we noted during the hearing such words seemed to trip too easily off the tongue.
25. We see nothing that could possibly suggest that the conduct of the Chairman showed bias or anything like it. In relation to the first ground of appeal the question whether or not Mr Warwick was malicious in asserting in his Originating Application he was dismissed for asserting of breach of a statutory right or was automatically unfairly dismissed went only to credit. The Employment Tribunal was perfectly entitled on the facts before it to limit cross-examination in this regard because the material before it did not justify the allegation. It is clear from the letter from Mr Warwick's solicitors of 23 December 2002 that he had been acting on their advice in relation to his claims under the Disability Discrimination Act and in respect of automatically unfair dismissal. On 10 March 2003 his solicitors, on his behalf, withdrew the claim under the Disability Discrimination Act because they agreed, having received confirmation from the Respondent's solicitors, that the small business extension applied. On 15 May 2003 they withdrew the claim for automatic unfair dismissal on the basis that Mr Warwick had been dismissed for asserting a statutory right. At no time had there been any suggestion by Mr Kennedy's solicitors when acting for him that the claims had been made maliciously. We have had the benefit of a note from the Chairman pursuant to Mr Kennedy's complaint that he was prevented from cross-examining as to whether Mr Warwick was malicious in originally including the abandoned claims in his Originating Application:

"I interrupted to point out to Mr Kennedy who had complaints of automatic unfair dismissal and disability had been withdrawn. He said that he wished to question the Applicant. The Chairman told him that he wished to argue that the complaint to automatic unfair dismissal and disability discrimination had been included maliciously or vexatiously to enable the Applicant to put additional pressure on him to achieve a settlement.

I told Mr Kennedy that there was nothing on the papers, or in the evidence heard from the Applicant to suggest that this was a vexatious or malicious complaint and reminded him that in any event the complaints had long since been withdrawn. I also had it in mind that these matters had already been discussed and dealt with at the commencement of the hearing.

And further that, the Applicant has responded that both had the benefit of legal advice when the proceedings were commenced, cross-examination of Mr Warwick as to why he had included then withdrawn other complaints was no longer relevant to the remaining issues of unfair and wrongful dismissal."

26. It seems to us that the decision of the Chairman was well within his discretion for the efficient management of the case having regard to Rule 11(1) and the decision of the Employment Appeal Tribunal in Zurich Insurance -v- Gulson.
27. Mr Kennedy was permitted to make submissions to the effect that Mr Warwick's claims of disability discrimination and automatic unfair dismissal had no hope of success and represented the attitude of mind whereby he "tried to throw the book at Mr Kennedy and force him to a settlement"; see paragraph 23 of the Employment Tribunal's extended reasons in relation to liability.
28. In so far as Mr Kennedy might suggest that the decision of the Chairman revealed any bias or apparent bias on his part, the submission seems to us to be hopeless. No fair minded and informed observer could possibly consider that the Chairman displayed any bias at all in saying that the claim was not made maliciously on the material before him.

Merits - Ground (C)

29. It is important to bear in mind that the Respondent was successful on the issue between the parties as to how payments of salary were to be made because Mr Warwick withdrew his claim for automatic unfair dismissal. Furthermore, the Employment Tribunal did not accept that Mr Warwick's financial fears were justified but that he held them as a function of his illness; we have already referred paragraph 5 of the Employment Tribunal's summary reasons. It is difficult to see how this finding, that the Applicant had an unreasonable concern he might not have sufficient monies to pay bills at the end of the month if his salary cheque was paid late, could be undermined. It is unfortunate, if it be the case, that Mr Kennedy did not see the letter from the Applicant's solicitors of 24 October but we can see no grounds for granting an adjournment in any event. The matters complained of by Mr Kennedy relate solely to credit and the Employment Tribunal was well within its discretion in refusing an adjournment. Indeed, it seems to us that an Order for further disclosure in respect of an issue going to credit would have been flawed had it been granted.
30. We note that Mr Warwick submits that this ground of appeal is out of time because the decision to refuse the adjournment was made before 27 October and the Notice of Appeal was presented on 13 January 2004, outside the 42 day period provided for appeals to the Employment Appeal Tribunal where no reasons for the decision are given (see Employment Appeal Tribunal Practice Direction – paragraph 3.1). We prefer to deal with this issue on its merits. We do not dismiss the appeal so far as this ground is concerned on the grounds that it is out of time although we accept that it probably was.

Merits - Ground (D)

31. The crucial finding, in our opinion made by the Employment Tribunal was that although Mr Warwick's fears may not have been correct as to his ability to pay bills at the end of each month if he was paid late they were real and a function of his illness. We have already referred to paragraph 5 of the Summary Reasons and we also referred to paragraph 17 of the Extended Reasons:

"17 The Tribunal accepts the evidence of the applicant that he was suffering from depression. As Mr Warwick said "small things became big problems". With regard to his anxieties over whether he would be paid on time Mr Warwick said "That was the whole thing".

We also refer to paragraph 26 of the Extended Reasons:

"The depression of the applicant caused him to be uncommunicative and also lead to his suffering anxieties about when he would be receiving his pay cheque which were not entirely justified but which were nevertheless real."

32. Mr Kennedy asserts that the Applicant was dishonest in claiming that his wages were due on 28 October. This is not in fact the case and in his Originating Application Mr Kennedy claimed he should have been paid on the last day of the month. As we have already said the Employment Tribunal was satisfied that Mr Warwick's concerns in relation to late payment flowed from his illness. In relation to the period during which he had previously been off work Mr Warwick accepted in evidence that he made a mistake.
33. This is essentially, it seems to us an issue of perversity. Following the guidance given in Yeboah v Crofton Mr Kennedy has come nowhere close to satisfying the high burden cast upon him. The Employment Tribunal heard the evidence and was entitled to conclude on the evidence as they did. There is nothing in this ground of appeal. So far as contributory fault or a Polkey reduction are concerned although Mr Warwick's conduct was no doubt a source of irritation, the Employment Tribunal took all these matters into account. It found for example that Mr Warwick had raised his voice during the phone call on 28 October and had demanded payments of salary before they were due. The Employment Tribunal, however, concluded that his conduct was not blameworthy because of his illness. Looking at his conduct in the round they were entitled to conclude that there should be no deductions.

Remedy - Ground (A)

34. At the Remedies Hearing it was conceded, correctly, by Mr Kennedy's solicitor, Mr Berry, that following Parry v Cleaver Mr Kennedy was not entitled to credit for the benefits received or receivable under Mr Warwick's insurance protection policy. We can see no basis upon which Mr Warwick, in those circumstances had any obligation to disclose or account for insurance payments. It is irrelevant so far as his claim against Mr Kennedy is concerned whether or not he mitigated his loss by pursuing an insurance claim. The Employment Tribunal was perfectly entitled to take the view that further disclosure was both unnecessary and inappropriate.

Remedy - Ground (B)

35. Mr Kennedy again comes nowhere close to discharging the Burden cast upon him as showing the decision of the Employment Tribunal was perverse. Even if Mr Warwick were only entitled to ten days sick pay and had used up his entitlement, as Mr Wright pointed out during the hearing there was nothing to suggest he was to be paid by the hour and so if he only worked for part of the day there was no justification for saying he was only entitled to receive statutory sick pay for that day's work.
36. Further, the Employment Tribunal found as a fact that he was entitled to receive full pay rather than statutory sick pay for the following month because the recurrence of his depression had been caused by Mr Kennedy's conduct. The Employment Tribunal was also entitled to accept Mr Warwick's evidence that although he had a note from his doctor excusing him for work for one month, financial pressures placed upon him would have required his prompt return to work even if his doctor considered it best for him not to return.

Remedy – Ground (C)

37. This ground of appeal again is directed to credibility. Mr Mallender pointed out during the course of the hearing that if in fact Mr Warwick had been overpaid Invalidity Benefit Mr Kennedy should have paid a greater amount in compensation had the "true" position been known. The point is hopeless because as it seems to us the "new" evidence fails to satisfy all three of the Ladd v Marshall tests. Firstly, Mr Kennedy knew from Mr Warwick's witness statement and disclosure that he was working and receiving Invalidity Benefit prior to the hearing, so he could have obtained further information if it had been relevant. Secondly, the information would not have had a significant effect on the hearing because it goes to credibility and nothing else. Thirdly, we know in any event from Jobcentre Plus that the allegation made by Mr Kennedy is incorrect and the true position is set out in Jobcentre Plus' decision of 26 June. The decision maker (his signature is indecipherable) concluded that as from 26 June 2003 there had been a relevant change of circumstance since the decision was given in that Mr Warwick had been working and was treated as capable of work on each of the weeks from and including 22 April 2003. It is also apparent that Mr Warwick had promptly notified the position relating to his earnings to Jobcentre Plus on 28 April 2003. A Document of this date has been supplied to us and it confirms the oral evidence given by Mr Kennedy in his witness statement. It is regrettable that Mr Kennedy has sought again to make allegations of fraud and dishonesty when there is no justification for them. This ground of appeal also has no merit and must be dismissed.
38. In the event there is no merit in any of the grounds of appeal and the appeal is therefore dismissed.