United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Ms Rebecca Thomas (Of Counsel) (via Bar Pro Bono Unit)
For the Respondent	Mr David Kelly (Advocate) Peninsula Business Services Ltd Riverside New Bailey Street MANCHESTER Lancs M3 5PB

SUMMARY

The employee was the practice manager at a general medical practice. She was dismissed for dishonesty, taking unauthorised pay for overtime hours. She alleged that she had been told by the former practice manager that she should do so, but the Tribunal found that she did not raise this with any of the doctors.

The Tribunal found that there were various defects in the way in which the case was handled. However, it held that the employers had a genuine belief based on reasonable grounds that she had committed the alleged misconduct, and that even had the proper procedures been carried out, the likelihood was that the decision would have been the same. So, whilst not in terms referring to s.98A(2) of the Employment Rights Act 1996, they applied that section and concluded that the dismissal was fair. They further held that even if unfair, this was a case where there should be a 100% contribution with respect to both the basic and compensatory awards.

There are numerous grounds of appeal. The central ones are that the Tribunal misconstrued s.98A (2); it adopted the construction of the EAT in Alexander & Hatherley v Bridgen Enterprises UKEAT/0107/06 whereas it ought to have adopted the different construction suggested in Mason v The Governing Body of Ward End Primary School UKEAT/043305. Further, the Tribunal was not entitled to conclude that the dismissal would have occurred in any event; and the finding of 100% contributory fault was insufficiently reasoned and perverse.

The EAT, having considered both earlier decisions, adopted the construction in Alexander & Hatherley. It also concluded that the Tribunal was entitled on the evidence to conclude that dismissal would have occurred in any event. Accordingly, the finding that there was no unfair dismissal was upheld. Had it been material, the EAT would however have found that the Employment Tribunal erred in law in finding 100% contributory fault.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. This is an appeal against the unanimous decision of the Tribunal sitting at Truro and Plymouth, in which the Tribunal dismissed the claimant's unfair dismissal claim. I will refer throughout to the appellant as the "claimant".

The facts

2. The respondent is a general medical practice in Redruth. It has seven partners and a total of thirty-five staff. The claimant was appointed to be the practice manager in succession to Mr Joseph Hellyer, who had retired. The practice manager would report to the partners as a whole. The Tribunal noted that the management structure in the practice was informal, and ill-defined. Different doctors seemed to become involved in areas of personal interest in a somewhat haphazard way. A significant area of discretion was left to the practice manager, and there were few controls or systems in place to guide her decisions. The Tribunal heard from Mr Rounsevell, a practice manager in another surgery, about the role of the practice manager in doctors' practices generally. He said that the role varies from practice to practice. To some extent, the Tribunal found that they act as a buffer between the Primary Care Trust and the practice. In general terms, they oversee the general administration of the practice.
3. The claimant in this case commenced employment on 1 December 2003. There was a handover period in the two months preceding that date.
4. In addition, the claimant used the services of Mr Hellyer to assist her in the switch to a new payroll system which was operating from April 2004. This arrangement was not agreed with the partners, and the Tribunal found that the claimant deliberately bypassed them and exceeded her authority in the manner in which she engaged and paid Mr Hellyer. The Tribunal placed particular weight on the fact that she had authority to write cheques of up to £200 and she paid Mr Hellyer by writing three separate cheques each falling below that figure.
5. One area of dispute which is central to this case related to the terms and conditions of the claimant. It was accepted that she was entitled to a bonus. The partners further agreed, with some expressing reservations, that since the level of change and investment in the first year would mean that the necessary profit would not be made from which a bonus could be paid, there would be a fixed bonus in the first year, payable by twelve monthly instalments.
6. There was a dispute as to whether the claimant was entitled to payment for overtime. She said that Mr Hellyer had told her that she should receive overtime. He did not, in fact, receive it himself, but she says he did not tell her that. There was no reference to overtime in her contract of employment, although there was for other levels of staff.
7. The Tribunal found that there never was any authorisation to pay herself for overtime worked. They also found, contrary to her evidence, that she did not raise with the senior partner, Dr Davies, nor indeed with any other partner, the question of overtime. The Tribunal found that Dr Davies would certainly not have agreed to overtime being paid without consulting the other partners, and equally, no other partner was aware that she was paying herself for these overtime hours.
8. The Tribunal reported also that she took her holiday without clearly indicating in advance when that would be taken. This was a matter of irritation to the partners. There was a holiday chart on which she could have entered her holidays, but she did not do so for reasons which the Tribunal found to be unconvincing. The Tribunal felt that the lack of transparency was symptomatic of her management style.
9. In February 2005 there were concerns from staff about morale generally, and they came to the notice of the partnership. Dr Rogers raised the issue on 16 February with the claimant at a mid-morning meeting of the partners. The Tribunal was critical that it had not been discussed first with the staff partners, rather than at a general meeting.
10. The claimant signed off sick immediately following this meeting, but she did attend a meeting on 22 February to discuss these issues with Dr Blake. A letter was received from the Primary Care Trust, apparently raising certain concerns about the claimant's performance, though the Tribunal felt that this was probably sent at the request of Dr Blake, even although he denied having solicited it. We have not seen that letter.
11. While she was absent Dr Edmunds, who was the partner involved in particular in scrutinising finance, discovered that she had been receiving the overtime payments to which we have made reference. The Tribunal accepted that he had not known until this time. The claimant was asked to attend an investigatory meeting with Dr Davies, the senior partner, and Dr Foster on 9 March. She was not, in fact, at that stage told what the meeting was about, notwithstanding that she had requested information about the purpose of the meeting. In fact they wished to discuss with her the letter from the PCT and the allegation regarding overtime. The Tribunal was critical of the employers about this concealment. However, during the course of the meeting she did volunteer that she may have misunderstood what Mr Hellyer had said to her about overtime, and she offered to pay the money back. The Tribunal considered this observation to be highly significant, no doubt because it was inconsistent with her claim that she had raised the matter with Dr Davies.
12. She was then suspended and told there was to be a disciplinary hearing. She was sent a letter on that date, 9 March, setting out the complaints which she had to answer. They related both to her relationship with staff as well as the overtime issue. The disciplinary meeting was due to take place on 11 March but in the event she was not well and it was not heard until 22 March. The Tribunal found therefore that she did have adequate time to prepare for it.
13. At the meeting she said that Dr Edmunds had checked the salary payments, including those for overtime. The Tribunal found that he did indeed have access to the system which could have enabled him to check those payments, but he had not in fact done so.
14. Dr Blake, who conducted the disciplinary hearing, did not check with Dr Edmunds whether he had checked the salary payments as Mrs. Kelly-Madden had alleged. Nor did he obtain any evidence or seek to obtain any evidence from Mr Hellyer about what conversations he had had with the claimant about overtime. For these reasons, the Tribunal found that the investigation and hearing were flawed.
15. A decision was taken to dismiss the claimant. The basis of that was alleged dishonesty as regards the overtime payments. Any failings in relation to performance were not seen as dismissible matters in themselves. The Tribunal was satisfied that this was a decision taken by the partners as a whole, and not as Dr Blake had asserted, simply by him.
16. There was an appeal conducted by Dr Craze, another partner, but, as the Tribunal found, that did not rectify failures in the original investigation because he also failed to investigate further with Dr Edmond or Mr Hellyer the points which the claimant had raised. In addition he had been a party to the original decision to dismiss.

The Tribunal's conclusions

17. Having set out the facts, the Tribunal then summarised the legal principles, referring to the well known cases of British Home Stores v Burchall [1978] IRLR 379 EAT, Boys & Girls Welfare Society v MacDonald [1996] IRLR 129, and Sainsburys Supermarket Ltd v Hitt [2003] IRLR 23. They referred to the Burchall test as being "guidelines only", but did in fact analyse the evidence by reference to the three issues posed in that case. There is no fundamental disagreement about the application of these principles save with respect to the construction of s.98A (2) of the Employment Rights Act 1996, to which we return.

18. The Employment Tribunal found that the reason, or at least the principal reason, for dismissal was misconduct, namely the claimant's alleged dishonesty with respect to the overtime payments, and that the employers did genuinely believe that she had committed misconduct. They also found that it was reasonable for the employers to have formed that view. Mr Rounsevell had accepted that the role of practice manager is one which requires the highest standards of trust. The Tribunal concluded that the employers were entitled to find that she had breached that trust and had in principle been justified in dismissing her.

19. However, the Tribunal was dissatisfied that the procedure overall had been fair. As we have indicated, the investigation was inadequate because not all proper enquiries had been made, and further, there was some blurring of the role of Dr Craze on appeal because as one of the partners, he had been involved in the original decision to dismiss. The Tribunal did not itself make a finding that the claimant had been dishonest, but they did state that it was open to the employer in the circumstances to form that view.

17. Notwithstanding the finding as to the unfairness in the procedure, the Tribunal concluded that the dismissal was nonetheless fair. They arrived at that finding by considering what would have occurred if the correct procedure had been followed, and analysed the matter as follows:-

"However, would the respondent has dismissed her anyway if the correct procedure had been followed? The only area which in evidential terms remains unresolved is that of Mr Hellyer. Dr Davies is adamant he never agreed overtime, evidence we accept, as overtime was an issue the partners would have felt strongly about given the bonus arrangement. Flawed though the financial management was, we are satisfied Dr Edmunds did not oversee, other than superficially, the payment of salaries. In our view, Mr Hellyer's evidence would have been tainted. He and the claimant entered into a sensible arrangement in relation to the handover but neither his terms of payment nor her overtime up to the time she says she spoke to Dr Davies were ever ratified. Had Drs Blake and Craze dealt with each part of the process independently the outcome would have been the same as it would if the other points we have identified were dealt with correctly."

18. We confess we have some difficulty in understanding what the Tribunal meant when it said that Mr Hellyer's evidence would have been "tainted". It may be that the Tribunal assumed that he knew that the terms on which he had been employed as a consultant had not been approved by the partners, but that is not altogether clear. However, it is plain that looking at the case overall they took the view that here was a situation where somebody in whom significant trust was reposed had been left in a senior position effectively to run the practice as she thought fit, and yet she had chosen to take overtime payments without seeking proper authority. Moreover, as the Tribunal found, had the matter been raised then the partners would not have allowed her to take overtime, certainly not in addition to the bonus payments which they had, with some reluctance, agreed should be paid in the first year notwithstanding that the relevant profits had not been achieved.
19. The Tribunal then went on to hold that even if they were wrong and the dismissal was to be treated as unfair, nonetheless the basic compensatory award should both be reduced by 100%. The reasons were as follows:

"Whatever the management failings of the respondent, and there were many, the claimant was in a position of authority and trust. The example of the holiday chart illustrates the fact that she set a poor example. On her own words she breached the financial authority in the payments made to Mr Hellyer. We found that a particularly serious matter. She conducted matters in such a way that she exposed herself to a complaint of dishonesty or, in our view, of a fundamental breach of her duties through her own misjudgement."

Grounds of Appeal

20. There are five grounds of appeal, although to some extent they inter-relate.
21. First, it is submitted that the Tribunal erred in law in finding that the claimant was not unfairly dismissed, having regard to the principles in British Home Stores v Burchell [1978] ILRL 379. Indeed, it is suggested that the decision was perverse. (It was also said that the Tribunal erred in stating that these principles were guidelines, whereas they are binding principles. It seems to us not improper to describe them as guidelines, but in any event since they were applied, there is nothing in this point.)
22. Second, it is contended that the Tribunal erred in concluding that the claimant would have been dismissed, even had a fair procedure been followed. In so concluding the Tribunal must have been applying s.98A(2) of the 1996 Act, although they made no express reference to that section. The claimant accepted that the section was potentially relevant but contended that since there were no specific procedures adopted by the doctors' practice, and given the significant breaches of procedure, the section did not in fact bite in the circumstances of this case. In any event, it was alleged that even if the section were applicable, there was no proper evidential basis for concluding that dismissal would have occurred anyway.
23. Third, it is suggested that the Tribunal impermissibly made the fundamental error of standing in the shoes of the respondent employer and reached their own conclusions.
24. Fourth, it is alleged that in concluding that the dismissal was fair, the Tribunal had regard to matters which were not relied upon by the employers and did not, in fact, form any part of their stated reasons for dismissal. In particular, the reference here is to the lack of transparency in communicating holiday arrangements and in the way in which Mr Hellyer was recruited and paid for work in relation to the new pay system.
25. Finally, it is also alleged that the alternative finding of the Tribunal that the compensation should be reduced by 100% for both basic and compensatory awards was wrong in law and that the Tribunal did not give proper or any adequate reasons for that conclusion.
26. We will consider these grounds in turn.

Was the finding of unfair dismissal sustainable?

27. The claimant submits that the Tribunal did not properly address their mind to the question of whether the respondents actually believed that the misconduct had been committed. She says that it was her strong contention that the decision to dismiss had been predetermined and there was no genuine belief in her dishonestly at all. We think this ground is misconceived. Even if a decision is predetermined, that does not preclude the possibility that there is a genuine belief. There is really no basis at all in suggesting that the doctors were acting in bad faith and that this was a trumped up claim brought by the doctors to achieve some other different and concealed objective. The Tribunal was fully entitled to conclude that the employers were genuinely aggrieved at what they considered to be a fundamental and dishonest breach of trust, with the employee taking money for overtime which they felt (although this was not a finding of the Tribunal) she knew she was not entitled to receive.
28. The alternative way in which this point is put is that the decision of the Tribunal was perverse. Given the very high standard required to establish perversity in such cases as Yeboah v Crofton [2002] IRLR 634, we think this ground comes nowhere near to reaching that level. The Tribunal found, in terms, that the partners did not know that the claimant had taken the payment for overtime and that they clearly would not have allowed it had the matter been raised with them.
29. Much emphasis is placed on the fact that the Tribunal found that both Dr Blake and Dr Davies had given evidence which was "unattractive, and on occasions, disingenuous". That was principally in connection with their attempt to explain what the Tribunal found to be obvious flaws and failings in the system set up to ensure proper transparency in the practice, rather than the facts relating to the dismissal itself; although they also rejected Dr Blake's evidence that he had not sought the letter from the Health Trust. However, the fact that the evidence of one or more of the respondent's witnesses is not considered reliable does not begin to demonstrate that a Tribunal must accept the evidence of the claimant. In essence the claimant is seeking to reopen the evidence and to ask this Tribunal to weigh it afresh. That we are not entitled to do. In our view, these submissions do not begin to demonstrate that the Tribunal erred in finding a genuine belief.
30. Equally, there were reasonable grounds for that belief. The Tribunal identified those grounds clearly: they put significant weight to the answer given at the meeting on 9 March, when it was accepted by the claimant that she might have misunderstood what she had been told by Mr Hellyer. Moreover, she had not sought authorisation for the overtime payments, as the Tribunal unambiguously found. It was not in terms in her contract, and it was something which the Tribunal found she plainly ought to have raised with the employers. The Tribunal itself did not conclude from this that she had acted dishonestly, but recognised that that was an inference that could legitimately be drawn by a reasonable employer, as it was by this employer.

Would dismissal have occurred in any event?

31. The claimant is justifiably critical of the Tribunal in that it has not identified in the decision why this may be a material question. However, it is accepted that s.98A of the Employment Rights Act 1996 is potentially relevant in this context. Section 98A(1) provides that a dismissal will be automatically unfair in circumstances where one of the statutory dismissal and disciplinary procedures applies and has not been complied with. It was not suggested that there was a breach of that provision here. Sub-section (2) is then as follows:

"Subject to sub-section (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of s.98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure."

32. This is a difficult section, and it has given rise to conflicting decisions in this jurisdiction. Prior to the coming into force of this section, the House of Lords had established that if a dismissal was found to be unfair for procedural defects then the fact that the employer would have dismissed in any event, even had he complied with all the proper procedures, would not generally render a dismissal fair. It could only do so in the very exceptional circumstances where a reasonable employer could dispense with all such procedural safeguards. The relevance of the fact that the employee might have been dismissed in any event went to the question of remedy and not liability: see Polkey v A E Dayton Services Limited [1987] IRLR 503 HL overruling the earlier Court of Appeal decision in British Labour Pump Co Ltd v Byrne [1979] ICR 347 IRLR 94. The issue which now arises is how far s.98A(2) reverses Polkey, and whether the section applies so as potentially to rescue the particular failings identified in this case.
33. Two questions arise in particular when construing this section. First, what is the meaning of "a procedure" in the context of the subsection? Second, does the phrase "by itself" further limit the category of defects which can be remedied under this provision?
34. In Mason v Governing Body of Ward End Primary School [2006] IRLR 432 the EAT (His Honour Judge McMullen presiding) considered both these elements in the definition. The Tribunal concluded that s.98A(2) was of limited scope and applied only where there was a specific procedure which an employer had adopted. Judge McMullen summarised the position as follows (para 25):

"To a limited extent only, then, the Polkey doctrine is reversed by s.98A(2). That occurs where there is a procedure as we have defined it, written or unwritten, contractual or non-contractual, contained in an agreement or a policy which relates to dismissal of employees and which has not been followed. It does not apply to any more general criticism based upon a failure to comply with the standards of a reasonable employer, whether as exemplified in the ACAS Code or not."

He then considered the significance of the phrase "by itself" as follows (para 26):

"The second limitation is in the use of the words 'by itself' in s.98A(2). A breach of a procedure such as we have described accompanied by a more general criticism deriving from the standards of a reasonable employer or from the Code would not fall within the subsection"

35. Another division of the EAT, in which I presided, adopted a different construction in Alexander and Hatherley v Bridgen Enterprises Ltd [2006] IRLR 422. Both these cases were unfortunately given in ignorance of each other, and in both the observations were strictly obiter. In Alexander and Hatherley the EAT adopted a different construction as the following extract from the judgment indicates:

"The effect of s.98A(2), Mr Barnett [counsel for the employer] submits, is that if the employer satisfies the tribunal that on the balance of probabilities he would have dismissed fairly anyway even if fair and proper procedures had been followed, then the employer cannot be taken to have acted unreasonably under s.98(4) and the dismissal is not unfair (unless for non-procedural reasons).

Mr Toms [counsel for the employee] accepts that the effect of the subsection is in part to reverse Polkey. However, he contends that it does so only in narrowly prescribed circumstances. He distinguishes between what he terms 'procedural' and 'substantive' defects. He points out that the provision refers to the failure to follow a 'procedure'. He submits that a failure to consult is more than simply an error in following a procedure; it is what he terms a substantive matter which goes to the heart of the decision itself. He says that the concept of procedures in that subsection envisages written procedures adopted by the employer and that only relatively minor or technical breaches would fall within the scope of that subsection.

We see no justification for so limiting that provision. There is no basis at all for considering that the concept of procedure merely applies to such procedures as have been reduced into writing by the employer, nor is there any limitation on the nature of the failure to comply found within the terms of the subsection itself. It is of course the case that if there is a fundamental failure, including a wholesale disregard of procedures, then that will almost inevitably mean that there is a breach of the relevant statutory dismissal procedure rendering the dismissal unfair under s.98A(1), and in that case s.98A(2) does not apply at all and the Polkey analysis continues to apply. Subject to that, we see no limitation on the nature of the procedural breaches caught by the subsection. We recognise that the section refers to 'a procedure' but we do not think that this is limited to cases where the employer fails to comply with his own established procedures (whether written or otherwise). In our view it simply means any procedure which the tribunal considers in fairness the employer ought to have complied with. If the employer has failed to comply with a procedure which ought to have been carried out, that will not render the dismissal unfair if the employer shows that the employee would have been dismissed anyway even had that fair procedure been adopted. (To this extent we would respectfully part company with the decision of this tribunal in Pudney v Network Rail [2006] UKEAT/0707/05 (HH Judge McMullen QC presiding) in which, obiter, a narrower construction of the section was suggested, but in circumstances where the wider construction we have adopted does not appear to have been suggested by either party.)

In short, we consider that s.98A(2) applies to all procedures, which we take simply to mean the steps which ought to be taken by an employer before determining that he will dismiss a particular employee. Those steps will of course vary depending on the reason for the dismissal. There is no magic in the word 'procedure' and there is no justification for seeking to redefine some steps which would naturally be described as 'procedural', such safeguards for the employee. All procedural requirements are important for employees."

36. There is one matter of construction which is clear and undisputed. As s.98A(2) makes clear, it is not open to an employer who is in breach of the minimum statutory procedure to contend that, even had he complied with them, the result would have been the same. This is of course an important limitation restricting the scope of the Polkey reversal because the effect is that fundamental procedural defects are likely to involve a breach of the statutory procedures and cannot then be saved by the subsection.
37. We have revisited the analysis of the section in the light of the Mason decision, doing the best we can to consider the matter afresh. Having done so, we diffidently remain of the view that the construction in the Alexander and Hatherley case is to be preferred. We briefly summarise our reasons. We turn to consider the two proposed limitations, dealing initially with the meaning of "a procedure".
38. First, the subsection is in general terms; it refers to "a procedure" without limitation. It does not qualify that limitation by referring to a procedure which the employer has adopted, or a procedure which he habitually uses.
39. Second, had the intention been to adopt any such limitation, we think it would have been incumbent on the draughtsman to identify with some precision how the procedure should be identified. Need it be in writing, or is an informal or customary procedural practice enough? Must it be a generally applicable procedure or can it be adopted for the particular case? We would not have expected such questions to be left for judicial resolution with no guidance provided.
40. Third, if the section merely applies to provisions found in procedures adopted by the employer, then it means that an employer who has such procedures can take advantage of the section but not an employer who has not. Even where the same procedural failing is committed, the mere fact that the employer has the matter incorporated into a procedure will entitle him to benefit from the provision and escape liability where another employer, making precisely the same error, will not. Effectively the statute would operate as a punishment for those employers who have failed to adopt the procedures. This could of course be the intention of Parliament, but it is a curiously indirect and imprecise way of achieving that objective. If that had been the purpose, one would have expected it to be trumpeted loud and clear so that the purpose could more readily be achieved.
41. We turn to consider the alternative alleged limitation. It is suggested that it applies only to a procedural failing which is not at the same time a breach of the ACAS Code of Practice on Disciplinary and Grievance Procedures, or a breach of the standards of a reasonable employer. We have difficulty in reading this limitation into the section. Again, we would have expected any such limitation to be expressed and, where necessary, defined (particularly if the concept of the standards of a reasonable employer is to be included).
42. Second, the fact that procedures may be drawn from the ACAS Code or the standards of a reasonable employer (insofar as that is more extensive) does not prevent them being properly described as procedures. To say that there is a breach of the ACAS Code is to say that there is

a breach of the procedural provisions which the Code recommends ought to be adopted; but it is still properly described as a breach of procedures.

43. Third, we think that the more natural meaning to be given to the phrase, and the reason it is incorporated into the provision, is that it is simply recognising that even if the employer can show that he would have dismissed even if proper procedures had been applied, this does not mean that the dismissal will always be fair. It may still be unfair because in substance the employer was not justified in dismissing the employer. For example, an employer might dismiss an employee for theft on flimsy grounds. He may satisfy the tribunal that he is so prejudiced against the employee that he would have been deaf to any explanations and that compliance with the procedures would have made no difference. However, that would not render the dismissal fair because it would be unfair quite independently of the procedural defects.
44. Finally we also bear in mind that the background to this legislation is the Polkey and British Labour Pump cases, and they applied to all procedural failings, whether adopted by the employer or not, and whether reflecting ACAS or the standards of the reasonable employer or not. That is not to say that Parliament could not have wanted to limit the effect of any reverse of Polkey - and indeed they have done so by excluding the statutory procedures from its scope- but it seems to us to reinforce the argument that Parliament would have made express any such additional limitations.
45. The effect of the limited construction advanced in Mason is indeed very narrow. It would apply only to procedural defects found in procedures adopted by the employer but not reflecting ACAS standards or the standards of the reasonable employer. That would include only certain very minor breaches which in practice would be unlikely to render a dismissal unfair in any event. We recognise of course that many would understandably find such a limitation attractive on the grounds that if the employer has acted unfairly, he should not be allowed to rely on a rule that treats him as having acted fairly, and the section should be given as limited a function as possible. But we do not think that that this interpretation can properly be inferred or implied from the language which Parliament has adopted.
46. In our view the section is broader in its effect. Whenever a Tribunal is minded to find that the dismissal is unfair for procedural reasons alone, it is open to the employer to show that compliance would, on the balance of probabilities, have made no difference. As the authorities now establish very clearly, this means that the Tribunal must be satisfied that it can fairly and properly determine what would have happened had there been no procedural failing. Sometimes it is simply not possible for it to form a view of what might have been, in which case the employer will not have proved the case: see for a recent case where this possibility was recognised, Gover & Ors v Propertycare Ltd [2006] EWCA Civ 286. In other cases the Tribunal will not be satisfied that the decision would in all probability have been the same. But where the employer can satisfy the burden placed on him, and the procedural defects do not infringe the statutory dismissal procedures, the dismissal will be fair.

Was the Tribunal entitled to find that the dismissal would have occurred anyway?

47. On the basis that that is the correct construction, the question then arises whether it was open to the Tribunal to find that the employers would have dismissed in any event in this case. We remind ourselves that this is essentially a question of fact and we should only interfere if there is no proper evidence to support the drawing of this inference.
48. Here, the defects were, in particular, the failure by either Dr Blake or Dr Craze to raise with Dr Edmunds or Mr Hellyer matters which the claimant claimed that she had raised with them. In the case of the evidence from Dr Edmunds, the Tribunal heard evidence from him and were satisfied that he was not, in fact, aware that the overtime payments were being made by the claimant to herself, and the Tribunal was entitled to conclude that this would have been what he would have told the other doctors, had he been asked. Indeed, it is really implicit in the fact that the partnership considered that she had acted dishonestly in paying herself overtime without authority.
49. The evidence of Mr Hellyer falls into a different category. The Tribunal, as we have noted, commented that it would have been "tainted" which suggests at least that they considered that the employers would have been entitled to regard it with caution.
50. It seems to us, not without some hesitation, that that was the conclusion that this Tribunal could properly reach, although we accept that the Tribunal's reasoning on this matter was to some extent rather cursory. In particular we have focused on the fact that earlier in its decision the Tribunal had referred to the evidence of Mr Hellyer as potentially crucial, since understandably Ms Jenkins for the claimant puts considerable weight on that. On the face of it, that statement does not sit happily with the finding that the dismissal was fair without the employer first discovering what his evidence was, but we think in fact the two findings are reconcilable. The evidence plainly was crucial to the extent that if he had denied the conversation which the claimant alleged had taken place and his evidence had been believed, then that would fundamentally have undermined the claimant's case and removed any vestige of justification for paying herself overtime pay.
51. Conversely, however, even had he agreed that the conversation had taken place, and even if his evidence had not been considered potentially suspect, as the tribunal found, nonetheless this would not have gone to the heart of the employer's complaint. Their case was that claimant was in a position of trust, and ought properly to have raised matters with them. She did not seek authorisation and she must have known that Mr Hellyer could not possibly grant authorisation. She also accepted that he may not in any event have said that she could pay herself; she might have misunderstood, she said. She did not even raise the matter of overtime when the question of the bonus arose. Initially at the meeting on the 9 March she accepted that she had not been authorised, but later she sought to contend that Dr Davies had given his authorisation. That, as the employers believed, and the Tribunal found, was untrue. Against this background it seems to us that the Tribunal were entitled to conclude that Mr Hellyer's evidence would have been of limited significance and that even with that evidence the employers would have dismissed in any event and would have been entitled so to do.
52. In short, although the reasoning was somewhat less than satisfactory, and the treatment of Mr Hellyer's evidence (or lack of it) was dealt with in a somewhat cryptic manner, nonetheless the substance of the decision is clear enough. Perhaps, unwisely, this claimant had been left with a considerable degree of discretion. She had used that to pay herself sums of money which she had not been authorised to receive. She says that she had relied upon the statement from Mr Hellyer, that she should pay herself, but she had not at any stage cleared this with the partners, and she must have known that she should. Even had procedures been properly complied with, that basic analysis would have remained the same.
53. On the basis that s.98A(2) is to be construed as we have indicated, that means that the finding of the Tribunal that the dismissal was fair has to be sustained.

Standing in the shoes of the employer.

54. The third ground is that the Tribunal stood in the shoes of the respondent. We do not accept that that is so. They properly directed themselves that they were not to substitute their view for that of the employer and in any event it is rather difficult to see that they did so in circumstances where they have upheld the view of the employer.

Relying on irrelevant matters.

55. The real gravamen of this ground is that the Tribunal to some extent seems to have relied upon matters which do not seem to have played any part, or at least no significant part, in the employer's analysis. In particular, the Tribunal focused on the lack of transparency in the way in which Mr Hellyer was recruited for the additional work at the time she commenced her employment, and - although to a lesser extent - the reluctance to publicise her holidays. We see some force in that observation, although it was not clear from the material before us how far these background factors had been relied upon by the employers as part of the context in which the decision to dismiss was made. There must have been some cross examination on these issues. However, even if the Tribunal did give these matters undue significance, that does not, it seems to us, undermine the fundamental conclusion, reached on evidence quite independently of these matters, that the employer clearly considered that the taking of overtime pay without authority, coupled with the attempt falsely to claim that authority had been granted, itself displayed a fundamental lack of trust from which dishonesty could be inferred..

Contributory fault.

56. Finally, we turn to ground five, which is based on the premise that the dismissal was unfair. Given our conclusion that the finding of fair dismissal can be sustained, this ground is no longer relevant since it goes only to compensation and so we deal with it briefly. (We also observe that if we are wrong in our construction of s.98A(2) then the finding that dismissal would have occurred anyway would be highly relevant to determining the level of compensation).
57. The Tribunal indicated that it would have reduced both the basic and compensatory awards by 100%. The claimant contends that this was not justified. This is an extremely unusual finding for a Tribunal to make, albeit that it is a permissible one in principle. There is no doubt that the Tribunal was entitled to reduce the compensation very considerably, given its findings about the conduct of the claimant. We are also alive to the very limited circumstances in which this Tribunal can properly interfere with a finding of contributory fault: see e.g. Hollier v Plysu Ltd [1983] IRLR 260.
58. However, we think that the particular finding is not sustainable in this case for two reasons in particular. First, the Tribunal put considerable emphasis on the way she recruited and paid Mr Hellyer and also the lack of transparency in the holiday arrangements. However, the relevant contributory conduct must have caused or contributed to the dismissal (section 123). Whilst the Tribunals are enjoined to take a broad common sense view about that (Maris v Rotherham Corporation [1974] IRLR 147), it is far from clear that these factors weighed with the employers at all. They appear to have concerned the Tribunal more than the employers. Second, the blameworthy conduct must be the sole ground of dismissal. If the employer's conduct is also blameworthy then a 100% reduction will be inappropriate. Hence the reason why in Gibson v British Transport Docks Board [1982] IRLR 228 the EAT reduced a finding of 100% to 90%. Given the criticisms of the employer's regulatory and administrative procedures in this case, and the Tribunal's recognition that they contributed to the lack of communication which was in part to blame for what occurred here, we do not think that a 100% finding was sustainable for that reason either. We would not therefore have upheld this finding.

Conclusion.

59. However, for the reasons we have given we dismiss this appeal.