United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS SALLY ROBERTSON (Of Counsel) Free Representation Unit 6th Floor 289-293 High Holborn London WC1 7HZ
For the Respondent	MISS SOPHIE GARNER (Of Counsel) Instructed by: Derby City Council Legal Services PO Box 6290 Council House Corporation Street Derby DE1 2ZL


 


SUMMARY

UNFAIR DISMISSAL

Contributory fault

Unfair dismissal. Tribunal find dismissal procedurally unfair but impose 75% reduction in compensation by way of contribution.

Argued on appeal that the contribution was excessive and that the matters the Tribunal took into account were either (1) not 'culpable' or (2) not 'contributory' to the dismissal.

Appeal dismissed. No error of law established in the Tribunal's approach.


 


MR RECORDER LUBA QC

Introduction

1. This appeal arises out of a complaint of unfair dismissal made by Mr Michael Bell against his former employers, the Governors of the Grampian Primary School. Mr Bell had been employed at the school as an Art Leader and Class Teacher from September 2004 until his dismissal on 30 November 2005.
2. Mr Bell's complaint of unfair dismissal was upheld by an Employment Tribunal sitting at Nottingham (Mr Warren, Chairman). The Tribunal's reasons were sent to the parties on 12 October 2006. The Tribunal having found Mr Bell had been unfairly dismissed then had to consider what remedy to award. The Tribunal decided to award compensation but in the exercise of their statutory powers reduced the compensation otherwise payable by 75%. Mr Bell acknowledges that some reduction in the percentage compensation fell to be made on the factual background to his claim but he contends that 75% is excessive. The former employers do not seek to challenge the Tribunal's finding of unfair dismissal but they do seek to support the substantial (75%) reduction in the compensatory and basic awards imposed by the Tribunal. The single issue on this appeal has accordingly been whether or not the Tribunal erred in law in reducing the compensation award to the extent that they did.
3. Mr Bell has been represented before us by Ms Sally Robertson of Counsel. The former employers were represented by Miss Sophie Garner of Counsel. We are grateful to both representatives for the considerable assistance we have derived from their cogent written and oral submissions. This is an appeal which has been well argued on both sides.

Background

4. The essential factual background to Mr Bell's claim for unfair dismissal is set out at length in the closely reasoned judgment of the Tribunal. The Tribunal was satisfied that, after his relatively short period of employment with the school, Mr Bell was dismissed for misconduct. The Tribunal found (paragraph 105) that the employers genuinely believed that Mr Bell had been guilty of misconduct. However, the Tribunal also found that that belief was not reached after a reasonable investigation. Further, that there had been breaches of the statutory procedures in relation to disciplinary matters. Mr Bell's original claim to the Tribunal had included an assertion that he had been dismissed for making a "public interest disclosure" (in the form of a grievance against his line manager, the head teacher, Mr Perkins) but that claim was "not seriously advanced" at the Hearing and the Tribunal itself was satisfied that that matter had not entered into the employers' mind in the lead-up to dismissal.
5. Before turning to the issue in relation to the reduction in the award of compensation it is necessary to say a little more about the matters which constituted misconduct and upon which the employers acted. The complaints of misconduct that the disciplinary and investigatory processes (which culminated in dismissal) were concerned to examine were set out in a letter sent by the headmaster on 19 October 2005 which listed the following five matters:

"1. Clarification of your comments during our meeting on 21/07/05 regarding reference to the parents of Grampian Primary School community;

2. Clarification of your employment history and qualifications;

3. Your actions and behaviour towards the school's Deputy Headteacher on the morning of 01/09/05;

4. Your failure to attend for duty and failure to notify the school of your absence on Monday 05/09/05, Tuesday 06/09/05 and 12/09/05 in line with the school procedures;

5. The contents of your letter dated 10/09/05.""

6. After consideration by a disciplinary hearing, Mr Bell was sent a letter of summary dismissal indicating that "the allegations of gross misconduct should be upheld" and the allegations of misconduct on which the disciplinary hearing acted are set out in that letter in sub paragraphs marked (a) – (g). The original five matters referred to in the headmaster's letter of October 2005 found themselves recast (in not particularly clear language) in the dismissal letter in the following terms:

"(b) Of inappropriate comments made about the parents of pupils at Grampian Primary School demonstrates a lack of respect to them and undermines the trust and confidence the Headteacher has in you.

(c) That your application form for the position at Grampian Primary School had discrepancies which Governors consider to be a deliberate attempt to deceive.

(d) That you made a deliberate attempt to solicit support for a grievance against the Headteacher whilst asking for additional time to grieve for your friend constitutes a fatal breach of trust and confidence.

(e) That you were in breach of the terms of your contract of employment by failure to notify Grampian Primary School that you were not attending for duties on the 5^th or 6^th and 12^th  September 2005.

(f) That your letter dated 10^th September 2005 is an attempt to bully and threaten the Headteacher and represents a fundamental breach of trust and confidence."

As the Tribunal indicate, this letter of 30 November 2005 is something of a "confusing letter" but as the Tribunal conclude "on careful reading there are five allegations and they are the five that were set out in the letter of 19 October".

7. Indeed, when Mr Bell pursued an appeal against the dismissal notified to him by the letter of 30 November 2005 the reasons given for rejection of that appeal replicated the findings of the disciplinary committee on "the five charges put to Mr Bell" (Tribunal's Judgment paragraph 86). In order to make sense of the distillation of the five matters in the headteacher's letter of 19 October 2005 and the letter of dismissal of 30 November 2005 it is necessary to offer a little more description of each of those five items.

(1) The references to the parents. The Tribunal found that during a meeting with the headteacher on 21 July 2005 Mr Bell had been asked why he thought that a parent usually supportive of the school had reported an incident concerning him (Mr Bell). Mr Bell's response to that question was:

"You know what they are like, they belong in a soap opera – like Eastenders – they'd sell their grandmother – everything is a bit of a drama with them". (paragraph 50).

At a further meeting between the headteacher and Mr Bell on 11 November 2005 Mr Bell was asked to explain the comments he had made regarding the parents. He replied:

"I was referring to the infrastructure of the social dynamic manner."

When he was asked to explain that phrase he simply repeated it. When the headteacher explained that he did not understand what that phrase meant Mr Bell simply repeated it. The Tribunal were satisfied that this matter of the comments relating to the parents was not one which "we would have thought would warrant disciplinary action" (paragraph 93).

(2) The employment history and qualifications. For reasons that the Tribunal explain (paragraph 61), in September 2005 the headteacher had cause to examine Mr Bell's curriculum vitae which had been submitted in support of his original application for employment with the school also had become concerned as to the content. The Tribunal found that those concerns raised matters which were "potentially serious" but that subsequently Mr Bell had established that he had the necessary qualifications to teach primary school pupils. The Tribunal found (paragraph 92) that this issue of the CV and Mr Bell's qualification was "potentially very serious indeed" but once the matter had been clarified and the true facts established "the Respondent should have let this issue go".

(3) The involvement of the deputy headmistress. The Tribunal found that on 1 September 2005 Mr Bell had left a message on the deputy headteacher's voicemail asking her to support his grievance against the headteacher and further to join him by raising a grievance of her own against the headteacher. (paragraph  54). The Tribunal found that that incident was clearly a case of undermining the headteacher's position and was an act of misconduct that would have warranted disciplinary action short of dismissal (paragraph 89).

(4) Failure to notify absence at the beginning of term. The Tribunal found that Mr Bell did not present for work on the first day of the autumn term (5 September 2005) and had not given an explanation why he was not at school on that day. On the following day (6 September) he was also absent but then telephoned to explain that his absence was due to stress and that he was self certifying that he was unfit for work. (paragraph 58). The Tribunal rejected Mr Bell's evidence that he had simply forgotten when term started and it concluded that it did not find his evidence credible (paragraph 58). The Tribunal considered his actions amounted to misconduct such as would warrant an oral warning (paragraph 90).

(5) The letter of 10 September 2005. By letter of that date, as the Tribunal found, Mr Bell threatened the headteacher with involving the media in the dispute at the school. The letter reads:

"Furthermore I am looking forward to putting my case before the Governors and any other parties who may become involved with all the due publicity which will ensue from events at the school, as a result of future disciplinary procedures and/or as a result of my involvement with the media." (paragraph 59).

The Tribunal found that "to threaten the headmaster with publicity is outrageous. It is not the sort of thing one expects from a professional person" (paragraph 91). The Tribunal considered that this misconduct merited a warning, perhaps a final written warning, but not dismissal.

8. Those then in short summary are the five matters upon which the disciplinary process was initiated and upon which both the disciplinary panel and ultimately the appeal panel upheld the dismissal of Mr Bell. As recounted above, the Tribunal found that dismissal unfair for want of compliance with the statutory disciplinary procedures and the failure to conduct a reasonable investigation.
9. Before turning to the Tribunal's decision in relation to a reduction in the compensation otherwise payable to Mr Bell in respect of his unfair dismissal it is necessary first to deal with the relevant law.

The Law

10. Section 122 of the Employment Rights Act 1996 provides:

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

11. That deals with the basic award of compensation. As to the compensatory award Section 123(6) of the Employment Rights Act 1996 provides:

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

12. It was common ground before us that the approach to be taken by the Tribunal in relation to reductions of the basic award and the compensatory award under those two provisions was essentially the same.
13. As the Tribunal correctly directed itself, the leading authority on the correct approach to those statutory provisions is Nelson v BBC (No 2) [1980] ICR 110. In that case, in addressing the statutory predecessor of the two subsections reproduced above, Brandon LJ indicated that there must be some link or causal connection between the conduct of the claimant and the dismissal in question. Brandon LJ said this:

"The first finding which is necessary is a finding that the matters to which the complaint relates were to some extent caused or contributed to by some action of the complainant in connection with those matters. The expression "matters to which the complaint relates," … must, I think mean the unfair dismissal itself for that is the subject matter of the complaint." (page 120 letters D-E)

To like effect the learned Lord Justice says at page 121 H-122A that the provisions require:

"First, a finding that there was conduct of Mr Nelson in connection with his unfair dismissal which was culpable or blameworthy in the sense which I have explained. Secondly, that the unfair dismissal was caused or contributed to some extent by that conduct."

14. From those familiar passages, both Counsel before us accept that there must be something in the conduct of the Claimant which merits the epithets "culpable" or "blameworthy" and further that there must be a relationship by "causation" or "contribution" to the dismissal by virtue of that conduct. To like effect Ms Robertson referred us to the judgment of Browne-Wilkinson J on behalf of this Employment Appeal Tribunal in Gibson v British Transport Docks Board [1982] IRLR 228 at paragraph 29 and the judgment of His Honour Judge Serota QC in Whitehead v The Governing Body of Corley School & others UKEAT/438/06 at paragraph 88. It was likewise not disputed that matters which occur but are outwith the Claimant's control are not to be categorised as blameworthy for these purposes (see Kraft Foods Ltd v Fox [1978] ICR 311). Beyond that, however, there was no agreement between Counsel as to the correct approach on the question of causation and evidence of causation. Ms Robertson's submission, to which we shall have to return in due course, was that unless it could be shown by evidence that specific earlier conduct of the Claimant had acted upon the minds of those responsible for the dismissal then it was not possible to say that the conduct had "caused or contributed" to that dismissal.

The Tribunal's Findings on Contribution

15. Having set out at length their findings of fact and their conclusions on the question of unfair dismissal the Tribunal then turned to the questions of contribution posed by the statutory provisions we have referred to above and to which the Tribunal were themselves referred. They say as follows at paragraphs 107 and 108 of their reserved reasons:

"107. However, Mr Bell is, in our view, guilty himself of culpable and blameworthy conduct:

He made silly comments to Mr Perkins;

He adopted an aggressive and bullying manner with Mr Perkins;

He tried to be clever (we saw that characteristic for ourselves when he gave his evidence);

He adopted an arrogant attitude (we saw that ourselves, for example in his evidence when he referred at one stage to the governors as being "not learned");

He threatened to go the press;

He solicited the raising of grievances by others against his headmaster;

It was apparent to us from reading the documents that he was unhelpful in the process, and

The relationship between Mr Bell and Mr Perkins deteriorated because Mr Bell could not accept criticism or be challenged.

108. We therefore find that he was largely to blame for the events that unfolded and we will therefore reduce his unfair dismissal compensation by 75%."

By an Order made by His Honour Judge Birtles of this Appeal Tribunal on 14 March 2007 the Employment Tribunal was invited to:

"… give reasons, if practicable within 28 days of the seal date of this Order for (a) causation for culpable and blameworthy conduct [and] (b) each point listed in paragraph 107 of their Judgment"

16. Faithful to that request, the Employment Tribunal have furnished extended reasons amplifying each of the bullet points set out in paragraph 107 of their original decision. It is only necessary to extract small parts of their further reasoning for the purpose of this judgment. We will deal with each of the bullet points in turn since each was examined before us in the course of this appeal.

Bullet point 1:

"He made silly comments to Mr Perkins"

17. The Tribunal's extended reasons (paragraphs 4-8) explain the "silly comments" that Mr Bell had made Mr Perkins the headteacher. Also we have summarised them at 7.1 above. As to the impact such silly comments may have made on the final decision to dismiss the Tribunal say this:

"This attitude is bound to exacerbate the situation and not help resolve it. Mr Bell's attitude is, from an early stage, is disrespectful and shows a contempt that is culpable and blameworthy. A more straightforward open approach may have made the disciplinary and appeal committees less inclined to dismiss him; the approach that he adopted is likely to have made them more inclined to dismiss him and therefore is conduct that contributed to his dismissal".

18. Bullet point 2:

"He adopted an aggressive and bullying manner with Mr Perkins;"

19. At paragraphs 9-11 of their extended reasons the Tribunal identify the aspects of the aggressive and bullying manner in relation to the headmaster of which the Tribunal considered Mr Bell had been guilty. Having given the last of their examples of such conduct they say:

"This is not to say that everyone who responds to disciplinary action by raising a grievance is contributing to their dismissal, rather our point is that it is an example of Mr Bell's aggressive attitude which contributed to his dismissal."

20. Bullet point 3

"He tried to be clever (we saw that characteristic for ourselves when he gave his evidence);

The Tribunal in their extended reasons, at paragraphs 12-15, give examples of Mr Bell's "trying to be clever" taken both from his conduct in and of the Tribunal hearing before them but also from his dealings with the employers which (in respect of the latter) "would incline the Disciplinary and Appeal Committee towards dismissing them".

21. Bullet point 4

"He adopted an arrogant attitude (we saw that ourselves, for example in his evidence when he referred at one stage to the governors as being "not learned");

The Tribunal's extended reasons deal with this matter at paragraphs 16-22. They there set out more particularly what they had in mind in referring to Mr Bell's arrogant attitude as displayed not only before them but in his dealings with the employers. The following three paragraphs deal directly with what occurred in the disciplinary committee hearing immediately prior to his dismissal:

"20 He told the disciplinary committee that he was talented and that his breadth of talent was unusual and that being made to apologise for being talented was bullying. He also at that point admitted raising his voice in the hall). He asserted that he was the most qualified teacher at the school.

21 He asked the disciplinary hearing to adjourn because he had somewhere else to go, a prior appointment …

22 When asked during the disciplinary hearing to produce evidence of his qualifications to teach in primary schools he refused, saying the onus was on the Respondent to prove that he was not qualified."

The Tribunal were of the view that conducting himself in such manner "would incline the Disciplinary and Appeal Committee to dismiss".

22. Bullet point 5

"He threatened to go to the press;"

The Tribunal's findings of fact, as we have already indicated, extract the relevant letter in which this threat was contained. The Tribunal's extended reasons at paragraph 24 deal with the matter slightly more fully. It is acknowledged by Ms Robertson that this was a matter that the disciplinary panel took into account. Indeed, it is one of the very aspects of misconduct that they expressly upheld.

23. Bullet point 6

"He solicited the raising of grievances by others against his headmaster;"

This was a matter directly addressed by the disciplinary panel in the dismissal letter and relates to the attempt to elicit the deputy headmistress to lodge a grievance against the headteacher. Accordingly, Ms Robertson does not dispute that the Tribunal were entitled to take this conduct into account in imposing a reduction in the compensatory and basic award.

24. Bullet point 7

"It was apparent to us from reading the documents that he was unhelpful in the process"

The Tribunal make it plain in their extended reasons (paragraph 28) that they are here referring to the unhelpful manner in which Mr Bell responded when questioned about the "Eastenders" comment and to the fact that at later stages in the investigatory process he responded with the standard phrase "same answer" to several questions instead of trying to be helpful. Later at the same meeting when asked to explain an absence he said "you have my answer" and when pressed by the headteacher, who did not know what that answer was, simply responded again "you have my answer". Ms Robertson takes a point that the bullet as framed by the Tribunal in paragraph 107 refers to "from reading the documents" and that there is no document setting out the unhelpful comments that Mr Bell made. Rather the account of them is contained in the witness statement of the headteacher. We consider that to be a singularly bad point. The Tribunal are perfectly entitled to describe a witness statement in the bundles before them as a document" and there is no difficulty in discerning that as their source for the relevant material.

25. Bullet point 8:

"The relationship between Mr Bell and Mr Perkins deteriorated because Mr Bell could not accept criticism or be challenged."

The Tribunal in their extended reasons at paragraphs 29-30 set out with more particularity the specific incidences and facts that they had in mind in reaching that conclusion.

The Appellant's Case

26. Although put in a variety of formulations by the Notice of Appeal, not least in the amended grounds 7.4 and 7.7 (for which we gave permission to amend) the thrust of the Appellant's case is that the Tribunal were wrong to weigh in the balance the "bullet point" matters with the exception of bullet points 5 (threatening to go to the press) and 6 (the attempt to induce a grievance). Ms Robertson, correctly recognised that the subject matters of the 5^th and 6^th bullet points were properly taken into account by the Tribunal in determining whether the basic and compensatory award should be reduced. They are plainly matters which are "culpable or blameworthy" and which are evidenced to have been "contributory" to the dismissal in that they are referred to in the dismissal letter. We remind ourselves that in respect of them the Tribunal had described the threat of publicity as "outrageous" and the attempt to induce a grievance as both "an abuse of the grievance procedure" and as "an act of misconduct". Ms Robertson, with characteristic candour, accepted that those matters alone could sustain a compensatory award reduction and a basic award reduction in the order of 50%, with which she would not have quibbled.
27. However, her fundamental submission is that the remaining matters listed in the bullet points at paragraph 107 of the Tribunal's decision are essentially matters related to the personality or disposition of Mr Bell rather than any aspect of his particular conduct. Moreover, she submits, they are in fact matters which the Tribunal has only recited because they troubled the Tribunal rather than having troubled the employers. It is clear from a reading of the extended reasons given by the Tribunal, as well as their original reasons, that they found Mr Bell a most unsatisfactory litigant. She submits that that is a not a fact which the Tribunal are entitled to take into account in exercising their statutory powers to reduce compensation. Further, she submits there was no evidence before the Tribunal that the matters in bullets 1-4 and 7-8 were actively taken into account by the dismissing body. She reminds us that the Tribunal had before it no evidence from any member of the disciplinary panel nor from the final appeal panel as to what had or had not weighed with those panel members in upholding the allegations of misconduct and in deciding to dismiss. She supports those submissions further with the contention that some of the matters referred to in those bullet points, and in the extended reasons of the Tribunal dealing with them at greater length, are matters related to the way in which Mr Bell did or did not assist himself or contribute towards the sensible progress of the disciplinary arrangements rather than constituting matters of misconduct themselves.
28. Her submissions in this respect were underpinned by references to British Steel Corporation v Williams EAT/776/82, Sidhu v Superdrug Stores plc UKEAT/244/06 and Perkin v St George's Healthcare NHS Trust [2005] IRLR 934.

The Respondent's Case

29. Ms Garner submitted that in truth the appeal before us amounted to an appeal on the facts. The Appellant was, she submitted, simply trying to un-bundle adverse findings of fact made by the Tribunal which they had properly been entitled to make and then take into account in reaching their decision on the appropriate measure of reduction in the award of compensation (such reduction having been conceded to be appropriate in principle).
30. As to Ms Robertson's point that there had been no "evidence" of what was in the minds of the disciplinary panel, she submitted that sufficient indication of what was operating in their minds was contained in the dismissal letter that they caused to be written on 30 November 2005. That she says, contains phrasing such as "inappropriate comments" "undermines the trust and confidence", "deliberate attempt to deceive", "breach of trust and confidence" and other language to the same effect well capable of embracing all of the matters which the Tribunal list in paragraph 107. Further, she submits, that those matters - in so far as contained in documents and statements - were before the disciplinary panel and the Tribunal. Moreover, that the Tribunal was well placed to measure the impact of these matters on the disciplinary panel because it had before it a transcript of the full proceedings before that panel. In any event, she submitted, it was never essential for a Respondent to adduce live evidence from the actual decision makers in order to sustain a compensatory award. She contended that the reverse proposition (i.e. that those persons were always required) would mean that if by reason of death or illness the decision makers were no longer available then a reduction in the compensatory award could rarely if ever be made. The thrust of her submissions was that it was within the reasonable ambit of the exercise of determining what, if any, conduct on the part of Mr Bell had contributed to his dismissal to bring into account all of the matters listed in paragraph 107.

A Separate Ground of Appeal

31. Before stating our conclusions on the main points argued before us, and before determining appeal as whole, it is necessary to deal with a separate ground of appeal advanced as ground 11 of the amended Notice of Appeal. In summary, this contends that the Employment Tribunal wrongly took into account a matter going to the credibility of the Claimant which thereafter infused their decision making and may have infused and led to error in their decision making on this specific question of his contribution to his own dismissal.
32. Put shortly, this relates to a letter which was sent from Mr Bell to Mr Perkins and upon which Mr Perkins was cross-examined before the Tribunal by Mr Bell's Counsel. The copy of the letter which had been included in the bundle for the hearing of the claim had been furnished by Mr Bell and was in fact an incomplete copy of the letter. Only after the cross-examination had the headteacher been able to obtain from his records a full copy of the letter which demonstrated that it had been incomplete and the propositions upon which he had been cross-examined had been wrongly put to him. The Tribunal say as to that incident (at paragraph 9) that "at the very least [it] cast doubt upon the reliability of the documentation supplied by Mr Bell. In our judgment [it] cast doubt on the reliability of his evidence as a whole"
33. Ms Robertson urges that the Tribunal here went wrong. There is, she submits, a perfectly legitimate explanation for the mistake in relation to the incomplete document and it was an explanation tendered to the Tribunal. She submits that the Tribunal were quite wrong to take this matter into account adversely to Mr Bell and in those circumstances their decision is vitiated by this mistake in their approach to his credibility.
34. Upon sight on this matter in the Notice of Appeal, the Employment Tribunal took upon itself to give extended reasons explaining why it had taken the view that it had. Ms Robertson objects to this Appeal Tribunal considering the unsolicited extended reasons and the exposition therein given.
35. We have not considered it necessary to travel to the extended reasons. We are quite satisfied that there has been no error in this respect on the part of the Tribunal. It is quite plain that for other reasons completely unrelated to this document, and the way in which it was disclosed and dealt with, the Tribunal had formed a view adverse to Mr Bell in relation to his credibility. They say (paragraph 6):

"Having regard to the demeanour of the witnesses while giving their evidence as well as to the documentation in the bundles, we found Mr Perkins [the headteacher] to be an entirely honest witness. We found Mr Jenninson equally to be an honest and reliable witness. We have to say that the same could be said for Mr Bell. Our conclusion was based not only on his demeanour and the manner in which he gave his evidence, but also upon the fact that during the course of the hearing certain documents came to light which demonstrated that documents that had been altered had been produced by Mr Bell to his solicitor."

36. As the way in which that paragraph is formulated makes clear, the problem in relation to the documents was merely supplementary to their adverse findings as to his credibility based on his demeanour and the manner in which he gave evidence. Moreover, quite separately (on the question of whether he genuinely forgot the relevant date for the start of term) the Tribunal made a plain finding that "we do not believe him and do not find that credible" (paragraph 58).
37. Accordingly, even if there were some entirely innocent explanation in relation to the mistake over this particular document it would not have influenced the outcome of this Tribunal's considerations. For reasons that they independently expressed, relating to other matters, they found adversely to him in relation to his credibility.

Conclusion

38. Having dispensed with the subsidiary ground of appeal we therefore turn to the main thrust of the appeal as set out above.
39. We do not accept as a matter of law that the burden is always upon the employer to show by direct evidence from the dismissing officer or the dismissing panel what specific factors were in their minds at the date of dismissal (at least in so far as it is suggested, as a mandatory matter, that that must always be derived from direct evidence of the relevant officer or panel itself). We accept Ms Garner's submission that as a matter of sheer practicality that evidence may not always be available. The law is not so foolish a creature as to disable a Tribunal from imposing a reduction of compensation simply by dint of the absence (through death or injury) of the relevant decision taker.
40. We do accept however, Ms Robertson's submission that there must be conduct which is "culpable or blameworthy" and not simply some matter of personality or disposition or unhelpfulness on the part of the employee in dealing with the disciplinary process in which he or she has become involved. In our judgment this is not a case in which the Tribunal was finding simple instances of non-participation or unhelpful participation in the disciplinary process or the appeal process and finding that a reduction was appropriate in the compensation awarded by reason of them.
41. We accept Ms Garner's submission that it is possible to deduce from the terms of the letter of dismissal the fact that the Tribunal were influenced in upholding the five specific allegations by the other general background matters as set out by the Tribunal in the bullet points at bullets 1-4 and 7-8 of paragraph 107 of their decision. In short, the Tribunal were perfectly entitled for the reasons that they gave, (as amplified in the extended reasons) to find that those matters had operated on the minds of the employers and had been part of the background which had induced the disciplinary panel to uphold the allegations and to deal with the matter (albeit unfairly) by way of dismissal.
42. True it is that the Tribunal, in exemplifying some of the matters set out in paragraph 107, do so by reference to the conduct of the employee in the proceedings before them. However, it is equally plain that they were directing themselves to the similarities between that conduct and the conduct that he displayed before his employers. Had the Tribunal directed itself exclusively by reference to what had occurred in the Tribunal hearing we would have had no hesitation in upholding the thrust of Ms Robertson's complaint on this appeal. However, it is clear from a consideration of the documents as a whole, including the full reserved reasons of the Tribunal (and their extended reasons) that what they were referring - to in paragraph 107 was the conduct of the employee as it was manifested in the course of his employment and on which the disciplinary and appeal panels must, at least to a degree, have relied.
43. In the result the grounds of appeal are not made out. The Tribunal was guilty of no error of law. We must dismiss this appeal and do so unanimously.