United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A HARDMAN (Advocate) Instructed by: Messrs Turcan Connell Solicitors Princes Exchange 1 Earl Grey Street Edinburgh EH3 9EE
For the Respondent	MR D FAIRLEY (Advocate) Instructed by: Messrs McKenzies Solicitors 26 East Fergus Place Kirkcaldy KY1 1XT


 


SUMMARY

PRACTICE AND PROCEDURE: Perversity

CONTRACT OF EMPLOYMENT: Implied term/variation/construction of term

Head Gamekeeper dismissed in circumstances where Tribunal found that true reason for dismissal was that employers wanted to get rid of him because he had claimed a bonus and raised a grievance about it . The Tribunal found that the claimant had contributed to his dismissal on account of misconduct in remaining in a cottage on the estate, drinking with friends and subordinates, after the 'guns' had departed, consuming his employers' alcohol in so doing. The basic and compensatory awards were, accordingly, to be reduced by 20%. Issues raised on appeal were (1) whether the employee was contractually entitled to a bonus; and (2) whether the Tribunal had erred in providing for only a 20% reduction. The EAT held that the Tribunal had erred in both respects. They were not entitled, on the findings in fact, to conclude that there was a contractual right to bonus. As regards the 20% reduction, the Tribunal had erred in concluding that the employee would not have been dismissed in respect of the misconduct alone; there was no basis in their findings on which they could properly so conclude. The EAT accordingly set aside the 20% finding. Further, there being sufficient findings for the EAT properly to reach a view on the matter, it ordered that there should be a 50% reduction.


 


THE HONOURABLE LADY SMITH

Introduction
1. This is an employers' appeal from the judgment of an Employment Tribunal sitting in Edinburgh, Chairman Mr P Cape, registered on 22 February 2008 finding that the employee was unfairly dismissed, that he was unfairly dismissed for asserting a statutory right not to suffer an unlawful deduction from wages, contrary to s. 104 of the Employment Rights Act 1996, that the employers failed to pay the claimant a bonus to which he was entitled and that both the basic award and compensatory awards to the employee should be reduced by 20 per cent.

1. The appeal concerns only the parts of the judgment which found the claimant entitled to be paid a bonus and that his awards should be reduced by 20 per cent.
2. We will continue to refer to parties as claimant and respondents.
3. Before the Tribunal and before us, the respondents were represented by Mr Hardman, advocate. Before the Tribunal the claimant was represented by Mr G W Cooke, solicitor and by Mr Fairley, advocate, before us.

Background
5. Some time in or about 2001, the claimant commenced employment with the respondents as Head Gamekeeper on the respondents' estates in Perthshire. The 'guiding mind' of the respondents, as the Tribunal put it, was its principal director, Mr Maher Al–Tajir. The claimant received letters from the respondents dismissing him, some four years later, on 17 March 2005. Although the letters set out certain misconduct grounds as justification for the dismissal, the Tribunal found that the real reason for the dismissal was Mr Al-Tajir's desire to get rid of the claimant because he claimed that he had not been paid a bonus to which he was entitled, raising it as a grievance in September 2004. They explain:

" Mr Al–Tajir would brook no challenge and once the claimant continued to pursue matters through the grievance procedure there was a determination that the claimant's employment would be brought to an end." (paragraph 237)

4. The complaint about non payment of bonus was aired verbally by the claimant at a meeting on 28 September 2004. A written grievance about it was intimated by him by letter dated 14 December 2004. There was a meeting to discuss it on 4 January 2005. The claimant's grievance was not upheld at the meeting and by letter dated 11 January 2005 he wrote complaining about the way in which the meeting had been conducted. No further meetings about the grievance took place. A letter dated 9 February 2005, containing three allegations of misconduct was sent to the claimant and a disciplinary hearing was fixed for 16 February 2005 but did not go ahead, on account of the claimant's ill health. The respondents wrote again to the claimant by letter dated 2 March 2005 to rearrange the disciplinary hearing and add a fourth allegation regarding a matter which had by then come to light, a matter which we will refer to as the Ardoch Cottage allegation.
5. In the light of the course of events outlined above, in finding that Mr Al-Tajir had determined on dismissing the claimant once he continued to pursue his bonus claim through a grievance procedure, it is evident that the Tribunal found that that was a decision that was made well in advance of the letter of 2 March and, probably, some time between receipt of the written grievance of 14 December 2004 and the intimation of disciplinary allegations under cover of the letter of 9 February 2005. That was Mr Hardman's approach and Mr Fairley did not take issue with it.
6. We turn now to the two matters that were central to the appeal.

Bonus

7. The claimant first visited the estate in May 2000. He met with Mr Al-Tajir. There was talk of the claimant being paid a bonus for rearing game birds but no details were discussed. Mr Al-Tajir was not opposed, in principle, to paying such a bonus. The claimant visited again in late August 2000. A bonus was again amongst the matters discussed. The claimant wrote a letter to Mr Al-Tajir after that meeting, dated 7 September 2000, which included the following terms:

" I have never been offered a rearing bonus before but I can see why you are offering this as it is such a huge challenge. I would be quite happy to wait until you have confirmation that the capital value of the Estate has risen more than normal before you pay the 10p per bird reared and 10p per bird shot and as you said this will start from day one."

8. The claimant took up employment shortly thereafter and met with Mr Al-Tajir on his first day. Mr Al-Tajir told him that, as regards bonus, the claimant had 'the wrong end of the stick'. The bonus was connected with establishing the shoot and not an increase in the value of the estate. He indicated that he expected the shoot to be established in three years.
9. By September 2004, relationships between the claimant and the respondents had deteriorated. The claimant sent a memorandum entitled 'Employees Bonuses' dated 22 September 2004 which included the following terms:

"In May 2000 – I was invited to Scotland to view the Estate with regard to taking up the Head Keepers position. At a meeting in Keir House with MMT and MW, I was told that a productivity bonus would be paid. I was told 10p per poult reared (as a rearing incentive) and a further payment of more than 10p per bird shot. I was also told that all keepering staff would be entitled to similar bonus but obviously at a smaller amount which was under consideration at the time."

10. A meeting took place between the claimant, Mr Al-Tajir and Mr Logue (also of the respondents) on 28 September 2004. The meeting was a heated affair, conducted by Mr Al-Tajir in an ill-tempered manner but his demeanour changed towards the end of it and he offered to pay a one-off bonus to the claimant and the gamekeepers. The claimant was to be paid the sum of £3,000 to be shared between him and his wife. That payment was a one–off lump sum and not calculated by reference to game bird numbers in any respect.
11. The claimant lodged a grievance regarding the manner in which the meeting of 28 September was conducted and a grievance meeting took place on 4 January 2005. Nothing further passed between the parties regarding the matter of a bonus either at that meeting or, on the Tribunal's findings, thereafter.
12. The respondents' office manager wrote a letter to the claimant dated 24 March 2005, after he had been dismissed, addressed to 'Dear Chris' in which she states:

"I note that there is also a bonus payment due. However, this is to be calculated on the basis of 10p per bird raised and therefore we need all the records to verify what was reared, put out and actually shot for the calculation to be made."

13. There are, however, no findings as to who or what prompted that letter and, in particular, on what basis or on whose information the office manager 'noted' that a bonus was due. The possibility that the source of the office manager's information and understanding was the claimant himself cannot be excluded.

Ardoch Cottage Incident

14. As we have indicated, on the Tribunal's findings of fact, the full details of this incident, in particular of the claimant's involvement in it, did not come to the respondents' knowledge until after Mr Al-Tajir had determined that the claimant was to be dismissed. On 22 January 2004, there was a shoot. The claimant was in charge. In the usual way, the Guns assembled at Ardoch Cottage, on the estate, for breakfast, and returned there at the end of the day for refreshments. The refreshments included alcoholic drinks. The day had been a successful one and the Guns invited the claimant, other subordinate keepers and two of the claimant's friends, who had been working as beaters that day, to have a drink with them. The alcohol being drunk was a supply provided by the respondents and a liqueur made available by the Guns. The Guns left but the claimant, the keepers and the claimant's friends stayed on and continued to drink. In short, a party ensued. At some point, one of the keepers (Jamie Nicholls) who was by then 'in his cups', as the Tribunal put it, confronted the claimant. The claimant sprang to his feet and Nicholls fell to the floor, knocking over and breaking a lamp in the process. The claimant subsequently wrote a memorandum recounting these events and the Tribunal, at paragraphs 83 and 84, appear to have accepted it as largely accurate although "…shorn of the references to alcohol". It is dated 15 June 2004. By that time, action had been taken by the respondents against Jamie Nicholls and the claimant appears to have been asked for information in relation to it. The memorandum refers to two incidents in which Nicholls was violent. The Ardoch Cottage incident is the second one referred to in it. The claimant set out the following account:

"This happened on Thursday 22 January at Keeper's Cottage at the end of a sold Shoot Day. The guests were Danish and back in the cottage at the end of the day they asked if all the gamekeepers could come to the cottage so that they could personally congratulate them on such a splendid day. I rang and asked Jamie, Clive and Alaisdair to come to the cottage. There were also two friends who were waiting for me, they were Ben Clayson and Jim Page. The guns congratulated the keepers and then left. We stayed just a few minutes to discuss some plans for the following day when we would have the same team of guns. The discussions quickly deteriorated into an argument when Jamie accused me and our employer of 'cooking the books' – he was referring to the 5% allowance each keeper is given to compensate for losses to birds of prey! He also made other comments about the Estate Owner which I did not like and so I told him to leave. He jumped up in his usual aggressive manner screaming and shouting abuse and refused to leave. So I jumped up to face him, and I am sure that he was going to throw a punch at me but Ben Clayson quickly intervened by sitting him back in the chair. There was then a similar sinario to the first instant where he wanted to continue arguing and refused to leave. Eventually his wife came looking for him and managed to pursued (sic) him to leave.

As you know he got his final warning in the Estate Office on Monday 2 February."

15. Jamie Nicholls was subsequently dismissed by the claimant.
16. As we have indicated, the respondents intimated three disciplinary allegations to the claimant by letter of 9 February 2005. Those allegations did not include the Ardoch Cottage incident. It was referred to in the letter of 2 March 2005. The letter was written by the respondents' Mr Valder and included:

"The allegations that are to be addressed are as set out in my letter of 6 February. In addition, the investigation into this matter has highlighted the following:

1. You abused the trust of the Directors by abusing company property without authority; namely on the 23 January 2004 you invited some gamekeepers/friends from Kent in to Ardoch Lodge for a few drinks. You proceeded to consume the stock in the Lodge particularly a large quantity of Syndicate No.1 wines, beers and spirits. The Lodge was subsequently found open and in disarray by Mary and Sandra. On clearing up Mary in fact got a severe shock that threw her across the room from one of the broken lamps that had been left plugged in. When asked by Mary and Sandra about the two damaged lamps that were left broken on the floor, the missing alcohol and why the cottage was left open and in such a mess you indicated that MMT and Kelvin Fletcher knew about the situation and that it was not a problem. In fact they did not know what damage you had done and you had no authority whatsoever to use and drink the alcohol. Your friends from Kent were seen leaving the flat above the Balhaldie Office the day after the party, however you had not obtained authority to use the flat on that occasion. You subsequently alleged that the Lodge had been broken into and that alcohol had gone missing."

17. The claimant responded by letter dated 14 March 2005. Regarding the Ardoch Cottage incident, he stated:

"Ardoch Cottage is not totally exclusive to MMT guests because the Cottage is also used by paying clients on the Commercial Shoot Days. It is never used by beaters and not normally used by keepers. I am the only one to go to the Cottage after a shoot day, returning the cleaned guns and Game Cards. You are already in receipt of the reasons why all the keepers and my two friends from Kent were present on that occasion."

18. The reference to being "already in receipt of reasons" appears to be a reference to the Memorandum of 14 June 2004. The claimant thus at no time responded specifically to the allegation that the respondents' alcoholic drink had been consumed by him and his friends and subordinates and that damage had been done to Ardoch Lodge in the course of their party. He did, however, before the Tribunal, in cross-examination, accept that he and his friends, for whom, as the Tribunal said, he had to accept responsibility, had stayed on drinking at Ardoch Lodge after the Guns had left.

Other matters

19. The three allegations made in the respondents' letter of 9 February 2005 were that the claimant had dismissed an employee without prior consultation, that he had used plant, material and company funds for the construction of a pond without authorisation and that he had offered to supply company equipment and day old birds to a neighbouring farm with a view to agreeing with its owner, Mr Wallace, to split the profits arising on a 50/50 basis, all without the respondents' authorisation. Only the last of these three featured in the reasons given by the respondents for dismissing the claimant. It was said to arise from information about the claimant having proposed such an arrangement that was provided by Mr Wallace at the beginning of 2005 although the proposal was said to have been some two years earlier. On the Tribunal's findings in fact, no such proposal was made by the claimant.

The Tribunal's Judgment

Bonus
22. The Tribunal concluded that it was a term of the claimant's contract of employment that he was entitled to a bonus on the basis of 10p per bird reared and 10p per bird shot, payable as from three years after the commencement of his employment but covering also the previous three year period. At paragraph 235, they state:

"On the facts found by the Tribunal, it was a term of the contract of employment between the claimant and Mr Al-Tajir acting on behalf of the respondent that three years after the commencement of the claimant's employment and thereafter the respondent would pay to the claimant a bonus calculated as 10 pence for each bird reared and 10p for each bird shot on the respondents' estate. In calculating the first bonus to be paid the respondent would take into account all those birds reared and or shot in the three year period. That was agreed orally in August 2000 and evidenced by the claimant's letter of 7 September 2000."

Reduction in Awards

20. We have already referred to the findings regarding what happened at Ardoch Cottage on 22 January 2004, the part played by the claimant and the nature and extent of the respondents' knowledge regarding it.
21. The Tribunal comment on the Ardoch Cottage incident in two respects which read rather as though they decided that it was open to them to infer that the respondents did actually know about the alcohol being involved in the incident and about the claimant's involvement. It is not clear whether they go as far as to draw that inference. If, however, that is not what they were doing, we do not understand the purpose of their comments. At paragraphs 85 and 232, they state:

"85. Although the Tribunal was not shown any documents relating to the Nicholls case, it is difficult to imagine that the incident that resulted in the award of a final warning could not have been considered without it being apparent that it resulted from Nicholls having consumed alcohol on the respondents' premises.

…

232. As for the Ardoch Cottage incident, it is difficult to understand how, in the context of Mr Nicholls having been given a final warning for his part in the happenings at Ardoch Cottage and then being dismissed with resulting proceedings, the respondent could have failed to appreciate many months before the matter was raised with the claimant in disciplinary proceedings that the claimant, two friends and his colleagues had spent time at Ardoch Cottage drinking the respondent's liquor."

22. At paragraph 239, they state the following:

" There remains the question whether the claimant caused or contributed to his dismissal. On his own admission, the claimant and those responsible to him together with his friends, for whose actions the claimant must accept responsibility, remained on the premises at Ardoch Cottage drinking the respondent's liquor after the Guns had departed. Nothing was done about this at the time. The Tribunal has no doubt that even if the respondent had the fullest knowledge of what occurred, this would not have been regarded as a dismissal matter had there not been a desire to be rid of the claimant for asserting his right to bonus. Nevertheless, the claimant's actions are properly to be regarded as misconduct. He should not have consumed his employer's liquor once the Guns had departed and he should not have permitted his friends and subordinates to do so. By his conduct he contributed to the dismissal such that it is appropriate to reduce the basic and compensatory awards by 20%."

Relevant Law

Bonus
26. Fundamental principles of the law of contract apply to this issue. As Gloag explains (Contract p.11) :

"In order to create a contractual obligation an agreement must be reasonably definite. Vague general understanding cannot be enforced."

23. The appropriate test cited by Gloag in the same passage is that set out by Lord President Inglis in the case of Macarthur v Lawson [1877] 4R 1134 namely that it must be possible to frame a decree of specific implement which would give the pursuer exactly what he bargained for. That is not to say that there is not room for the implication of terms and the usual rules will apply in that respect. Nor is it to say that it is not open to the court to interpret a contract, bearing in mind that, particularly in the commercial field, the essence of business is the making of bargains. It may, however, be that the conclusion has to be reached that the words used are too vague to have a meaning, are incomplete or are in conflict with one another and in that event, no enforceable contract can be held to have been concluded. Similarly if the conclusion is that parties have not got beyond what is often referred to as 'an agreement to agree', no enforceable contract can be held to have been reached.
24. In the course of submissions, Mr Fairley referred to the review of authorities on this subject contained in 'The Interpretation of Contracts' by Kim Lewison QC. One case that he refers to is that of Brown v Gould [1972]. 1Ch 53 where Megarry J said:

"Mere ambiguities may sometimes be resolved by the application of legal presumptions, and so on; but where the language used is equally consistent with a wide range of different meanings, it may be impossible to discern the concept which the provision was intended to enshrine."

25. He also refers to the case of Murray v Dunn [1907] AC 283 where a building restriction prevented a landowner from erecting any building of an 'unseemly' description and the House of Lords held that the word 'unseemly' was too uncertain to be enforceable. That case is regarded by the author as being in the same category as Re Lloyd's Trust Instruments Unrepd 24 June 1970 where there was a trust 'for my old friends' and Megarry J said :

"If there is a trust for 'my old friends' all concerned are faced with uncertainty as to the concept or idea enshrined in these words. It may not be difficult to resolve that 'old' means not 'aged' but 'of long standing'; but then there is the question how long is 'long'. Friendship too, is a concept with almost infinite shades of meaning. Where the concept is uncertain, the gift is void."

26. So, as Kim Lewison rightly comments, at 8.9, "an alleged contract may fail for want of certainty".
27. We also take account of the authorities referred to in part 8.11 of the extract from that work which support the general proposition that where parties have entered into what they believe to be a binding agreement the court is usually reluctant to hold that their agreement is void for uncertainty. The parties in the present case did not, of course, both consider that they had entered into a contract regarding bonus. The respondents' position was, firmly, that no agreement had ever been reached. It is also necessary to recognise that parties may have got no further than having preliminary discussions about a matter to which they hope to return and reach a precise agreement about at a future date.

Reduction in Awards

28. S.122(2) of the 1996 Act provides:

"Where the tribunal considers that any conduct of the complainant before the dismissal ……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."

29. S.123(1) and (6) of the 1996 Act provide:

"(1) Subject to the provisions of this section and sections 124, 124A and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.

…

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

30. Accordingly, a tribunal has a discretion to reduce the basic award if it considers that a claimant's conduct before the dismissal was such that it is just and equitable to do so. The conduct need not have contributed to the dismissal for a reduction to be made to the basic award. Similarly, a tribunal's discretion to take account of all circumstances when determining what amounts to a just and equitable award of compensation under s.123(1) empowers it to take account inter alia of the claimant's conduct prior to dismissal. The conduct cannot be relied upon so as to render the dismissal fair but it can be relied upon so as to reduce the compensation that would otherwise have been awarded. The power of the tribunal to adopt that approach in such circumstances was confirmed by the House of Lords in W Devis v Atkins [1977] ICR 662 where Viscount Dilhorne said (under reference to the same terminology as s.123(1) which was contained in the statutory provisions then in force):

"The paragraph does not, nor did section 116 of the Act of 1971, provide that regard should be had only to the loss resulting from the dismissal being unfair. Regard must be had to that but the award must be just and equitable in all the circumstances, and it cannot be just and equitable that a sum should be awarded in compensation when in fact the employee has suffered no injustice by being dismissed." (P.679)

and at p.682, he added:

"Having considered these authorities and the statutory provisions it is in my opinion clear that in assessing compensation the tribunal is entitled to have regard to subsequently discovered misconduct and, if they think fit, to award nominal or nil compensation.

It is not therefore necessary to strain the language of paragraph 6(8) so as to avoid a result which Parliament cannot possibly have intended, namely, that a dishonest employee who has cheated his employers and has successfully concealed his defalcations up to the time of his dismissal, whose conduct, if known would justify his summary dismissal, should in addition to the proceeds of his dishonesty, "obtain compensation" from his employers."

31. It is not necessary for a reduction to compensation under s.123(1) to be warranted, that it be established that the employer would have dismissed the employee if he had known about the subsequently discovered misconduct at the time. So, where, for example, an employer unfairly dismisses an employee for 'whistleblowing', a tribunal would be entitled to take account of misconduct such as misuse of his employers' computer systems, a matter unconnected with his dismissal and not known about at the time of the decision to dismiss, on the basis that it was a blameworthy act for which he might but would not necessarily have been dismissed had his employer known about it.
32. Section 123(6) provides for the reduction of compensation on a just and equitable basis but only if the claimant conducted himself in a blameworthy manner known to the employer prior to the dismissal and infact caused or contributed to his dismissal. The statutory provisions make it clear that compensation can only be reduced under s123(6) where the conduct genuinely causes or contributes to the dismissal. In that respect, there is a clear distinction between it and reduction under s.122(2) or s.123(1), where causation does not enter into consideration. Once blameworthy conduct on the part of the employee is established as having caused or contributed to the dismissal then the tribunal is required to make such reduction as it considers just and equitable. As to the approach to evaluating what the extent of the just and equitable reduction ought to be, it is likely to be similar whether the tribunal is considering s.122(2), s.123(1) or s.123(6) because the focus will be on the nature and quality of the claimant's conduct that is under consideration (see: Parker Foundry Ltd v Slack [1992] ICR 302).

The Appeal

Bonus Issue

33. For the respondents, Mr Hardman submitted that the Tribunal's findings amounted to no more than that there was a set of vague and imprecise discussions. There was not enough to show agreement on what could amount to a substantial payment. He relied on Lord President Inglis' 'specific implement' test as referred to by Gloag. He submitted that the unenforceability of what was discussed was highlighted by the fact that there was no agreement as to the nature of the service to be provided by the claimant, there was no agreement as to the term of the arrangement, there was no agreement about when payment was to commence, there was no expression of the date or dates on which payment was to be made, and there was no expression of any method for ascertaining any amount to be paid. Further, to say that the payments would be due when the shoot was established was too imprecise .
34. Mr Fairley submitted that it was beyond dispute that a contract on the matter had been reached. He referred to the office manager's letter of 24 March 2005 and said that it was a clear admission that a bonus was due. He relied on the authorities cited in the text by Kim Lawson QC in section 8.9 to 8.11 and submitted that courts are loathe to hold a condition void for uncertainty. He submitted that the Tribunal had found that there was an agreement regarding the bonus that accrued from day 1 but would be due in three years when the shoot was established. That meant that payment would be due in three years provided the shoot was established by then. As to frequency of payments that was simply a matter of practicality. The respondents were hunting for ambiguities but there were none.

Reduction in Award

35. Mr Hardman drew attention to paragraph 85 of the Tribunal's judgment and posed the rhetorical question: Where does the inference of knowledge of drinking alcohol come from and how could the Tribunal infer from that that the respondents had knowledge that the claimant had been consuming their alcohol during the incident? He, similarly, drew attention to paragraph 232 and posed another rhetorical question: Why is it difficult to understand how the respondents had failed to appreciate many months earlier than they did that the claimant was involved in drinking their liquor in the incident? He then turned to paragraph 239 and the Tribunal's comment that the respondents did nothing about the claimant's misconduct in the Ardoch Cottage matter at the time and pointed out that the Tribunal nowhere made any finding that the respondents had had the requisite knowledge at the time. He turned next to the Tribunal stating that it had 'no doubt' that the claimant would not have been dismissed for the Ardoch Cottage matter and submitted that was plainly perverse; it elicited the reaction "My goodness that must be wrong". There were no findings on which the Tribunal could draw that conclusion. In these circumstances, the basis for their reduction of 20 per cent fell away.
36. He then submitted that the circumstances of the Ardoch Cottage incident were so serious as to warrant a reduction of 100 per cent and that that was reduction which we should apply.
37. For the claimant, Mr Fairly submitted that the Tribunal had not erred. This Tribunal should be slow to interfere in its assessment of compensation. He referred, in that respect to: Nohar v Granitstone (Galloway) Ltd [1974] ICR 273, Gbaja-Biamila v DHL International (UK) Ltd [2000] ICR 730, Hollier v Plysu Ltd [1983] IRLR 260, Warrilow v Robert Walker Ltd [1984] IRLR 304, Parker Foundry Ltd v Slack, Yate Foundry v Walters [1984] ICR 445, and Nairne v Highland and Islands Fire Brigade [1989] IRLR 366. He submitted that Nairne was an extreme case and drew attention to the fact that even in those circumstances the reduction on account of contribution had been 75 per cent not 100 per cent.
38. In any event, 20 per cent was not, Mr Fairley submitted, wholly perverse. The claimant's conduct was not, he said, an abuse of his position nor was it a serious breach of trust; it began with the entertainment of clients and that would have been good for business.

Decision

Bonus

39. We note the Tribunal's conclusion at para 148. They evidently recognised that, given the evidence which they accepted to the effect that Mr Al-Tajir said that the bonus was connected with establishing the shoot (para 152), it was not as simple as saying that the bonus would begin to be payable after three years. Their conclusion had to be fenced with reference to a condition that the shoot required to be established before the bonus would be payable. However, by paragraph 235, the Tribunal disregard their earlier recognition of that feature of what passed between the parties. They hold that the bonus was payable simply after three years. There is no explanation of the basis on which they considered that they were able to do so notwithstanding their earlier recognition of the need for the shoot to be established before the bonus would be payable. There was no basis in the evidence for their approach and their conclusion falls to be set aside for that reason alone.
40. We have considered separately whether the findings as to what passed between the parties could support the conclusion that an enforceable contract regarding a bonus was entered into. We have concluded that they do not. Some of the matters referred to by Mr Hardman would not have prevented such a conclusion being drawn. We do not see, for instance, that the agreement required to spell out the term for which it would subsist; if parties were silent about that it would obviously have been implied that it would subsist for the duration of the contract of employment. However, we are readily persuaded that there are fundamental uncertainties that show that matters were left too uncertain to amount to an enforceable contract. The concept of 'when the shoot is established' is vague and uncertain, similar to the 'unseemly' property or 'my old friends' provisions to which we have already referred. It begs too many questions: what does 'established' mean? How is it going to be assessed? Established in whose view? Does the shoot have to remain 'established' for the bonus to continue to be payable? Separately, is 'reared' meant to refer to reared but not yet released or will the bonus be earned only once a bird is released into the wild? What evidence is going to have to be produced to the employer to vouch the birds reared and birds shot? At what stage after rearing and after shooting will the bonus be payable? At what intervals will payment of the bonus be due? Whilst it was submitted by Mr Fairley that the Apportionment Act 1870 would apply, we are not satisfied that it would, since a bonus cannot be characterised as a periodical payment in the nature of income.

Reduction in Awards

41. Firstly, we are satisfied that it is correct to regard the circumstances of this case as falling within the subsequently discovered misconduct category, notwithstanding that the full details of the Ardoch Cottage incident were known about by the respondents before the dismissal letters were sent. That is because, as we have observed, on the Tribunal's findings, dismissal was determined on by the respondents long before then and long before the knowledge which gave rise to the their letter of 2 March 2005 was acquired. Mr Fairley did not suggest that the case ought not to be regarded as falling within that category.
42. We have considered whether the reduction that was applied by the Tribunal in this case was a reduction under s.122(1), 123(1) or s.123(6) of the 1996 Act or a combination of those provisions.
43. As regards the question of whether or not the claimant's conduct caused or contributed to the dismissal that is, in any case, a question of fact for a Tribunal to determine. We note, under reference to the case of Robert Whiting Ltd v Lamb [1978] ICR 89, which was referred to by Mr Fairley, that there may be cases where it is shown that an employee was dismissed principally for an 'unfair' reason (in that case, a 'bogus' reason) but also for conduct, as a subsidiary reason. It will then be competent for the Tribunal to reduce compensation under s.123(6) on the basis that the conduct contributed to the dismissal. That, however, was not the situation in the present case. The essence of the Tribunal's judgment was that the decision to dismiss was taken by Mr Al-Tajir a matter of months before the dismissal letter was issued; the decision dated back to his reaction to the claimant having raised the bonus issue in September 2004. That was, on the findings, before the respondents knew about the facts of the claimant's involvement in the Ardoch Cottage incident. It could not, accordingly, be said that this was a case where the Tribunal had power to reduce compensation under s.123(6). Ultimately, Mr Fairley seemed to accept that, although his initial approach was to say that this was a case of reduction for contribution.
44. In summary, therefore, we are satisfied that the provisions to be considered in this case are s.122(2) and s.123(1) of the 1996 Act. The Tribunal, nothwithstanding their use of the term 'contribution' do infact appear to have had those provisions in mind given that they have determined that both the basic and compensatory awards should be reduced and that they did not find that the Ardoch Cottage incident caused or contributed to the dismissal.
45. We turn then to address the question of whether the Tribunal erred in basing their assessment of reduction on the conclusion that even if the respondents had had the fullest knowledge of the Ardoch Cottage incident and the part played in it by the claimant, he would not have been dismissed. We are satisfied that they did err. There is no basis whatsoever in their findings for drawing that conclusion. They make no findings as to what would have happened. The only possible source for their conclusion is the use of their imagination in paragraph 85 and the difficulty that they express in paragraph 232. Their comments in these paragraphs may, as we have already observed, be intended to be an explanation that they did infer that the respondents really knew the details at a much earlier stage. If they did draw that inference we cannot see that there was any proper basis for them to do so. They heard no evidence about what emerged in the course of Jamie Nicholls' disciplinary process. All they knew was what was written in the claimant's memorandum regarding the man's conduct that night which was 'shorn of the references to alcohol' and made no mention at all of the part played by the claimant as regards the partying, and that Jamie Nicholls received a final warning as a result. We do not understand the reference to his subsequent dismissal since the Tribunal make no findings at all regarding the time or circumstances of that dismissal. Further, their comment, at paragraph 239, that nothing was done about the Ardoch Cottage incident at the time is irrelevant. It is hardly surprising that nothing was done about something of which the respondents were in ignorance.
46. The Tribunal also failed to consider whether, in the light of the claimant's conduct at Ardoch Cottage, a reasonable employer would have been entitled to dismiss. It is clear from Devis that it is relevant to consider whether or not the employee's conduct would have justified his summary dismissal, whether or not the employer would have dismissed him.
47. In these circumstances, we agree with Mr Hardman that the Tribunal's decision on reduction was a perverse one and cannot, accordingly, stand.
48. We are satisfied that there are sufficient findings in fact for us to consider and determine the matter ourselves, without a remit. We are surprised at the submission that the claimant's conduct ought not to be characterised as gross misconduct. As Head Gamekeeper, he held a position of considerable responsibility and could be expected to set a good example. He was in a position of trust. He set a very poor example and abused the trust that had been placed in him by his conduct. It was a serious matter and not to be shrugged off by reference to the fact that it was all to do with entertaining clients and that was good for business. It was not all to do with entertaining clients at all. It was to do with taking improper advantage of having, before the incident, been involved in socialising with clients. The Guns had departed and the socialising had finished before the incident for which we are satisfied that the respondents could have summarily dismissed the claimant at the time, arose. By his actions, in failing to disclose the true account of what happened that night to his employers, he prevented them from having an opportunity that they ought to have been afforded, to consider their position regarding his continued employment at a stage well in advance of the problem which arose that in fact led to his dismissal.
49. We do, however, recognise that the claimant's misconduct requires to be put in context of the whole circumstances which include that the claimant's employment was ultimately terminated in a dismissal that was substantively unfair. The reasons given were a sham and the real reason was not his misconduct, as explained by the Tribunal. In all the circumstances, we are satisfied that the appropriate reduction in basic award and in compensation is one of 50 per cent and we will substitute that finding for the Tribunal's finding of 20 per cent.
50. Thus, in the result, the claimant's dismissal occurred because he claimed a bonus to which he was not, as we have determined, contractually entitled. The respondents could have avoided the pitfall of their inappropriate reaction to his making that claim had they dismissed him for the Ardoch Cottage incident but they could not do so because they did not know about it at the time. There is, we cannot help but observe a dramatic irony in all this but irony is not, of course, the determinant of legal right or remedy.

Disposal

51. In these circumstances, we will pronounce an order setting aside the finding in paragraph (3) of the Tribunal's Judgment that the claimant is entitled to be paid a bonus and substituting for the determination that there should be a 20 per cent reduction in the basic award and in compensation, a determination that there should be a reduction of 50 per cent in those awards.