United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A ELESINNLA (of Counsel) Instructed by: Essex Legal Services New Bridge House 60-68 New London Road Chelmsford Essex CM2 0PD
For the Respondent	MR N TOMS (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW


 


SUMMARY

CONTRACT OF EMPLOYMENT

Disciplinary and Grievance Procedure

The Employment Tribunal had not erred in construing the terms and conditions of employment as not permitting the employer to transfer the employee to other duties; in any event, the use of any power to transfer as a disciplinary sanction was unlawful.

UNFAIR DISMISSAL

Contributory Fault

There was no error of law when the Employment Tribunal expressed the view that there was no contributory fault on the part of the employee.


 


HIS HONOUR JUDGE HAND QC

1. This is an appeal from the judgment of an Employment Tribunal comprising a Judge and two lay members sitting at London (South) over five days in January and July 2008. The Reserved Reasons were sent to the parties and entered in the register on 15 August 2008. The Tribunal found that the Respondent, the Claimant below, who we shall refer to as the Claimant, had been unfairly dismissed by the Appellant, who we shall refer to as the Probation Service. At a preliminary hearing in this Tribunal before His Honour Judge Clark on 15 January 2009 most of the Notice of Appeal was dismissed but grounds 3, 7 and 12 were ordered to proceed to this full hearing.
2. Before turning to them it is necessary to sketch in some of the background and refer to some of the Employment Tribunal's judgment. The Claimant worked for the Probation Service in London from May 1991 until his dismissal for gross misconduct on 11 July 2007. His duties were identified by the Tribunal at paragraph 11 of the judgment as involving the preparation of reports for court. The Tribunal go on to say:

"It was essentially an administrative post providing a liaison between the court and the probation service and involved no 'hands on' traditional probation officer duties (described by the claimant as the 'social worker' aspects of the probation service). He played no part in managing offenders and did not wish to do so."

3. He was, in effect, a Court Liaison Probation Officer. He was promoted to Court Administrator in 1994 and in 1998 his title was changed to that of Probation Service Court Officer. At the same time a letter was written to him, which letter has played a prominent part in this appeal. It is at pages 82 and 83 of the bundle. It was written on 5 March 1998 and, so far as pertinent, it reads as follows:

"Further to our recent discussions regarding the change to Court Work Officer posts, I am writing to confirm the terms and conditions of the appointment.

The appointment will be effective from 1 April 1998.

As discussed the post is graded as Scale 6."

We need not quote further from that paragraph. We omit the next paragraph and the paragraph after that reads:

"Initially you will be assigned to 39 Greenwich High Road, London SE10 although you may be required to work at any unit within the Inner London Probation Service in a post appropriate to your grade."

4. In 2004 the Claimant's job title was changed again, although the job description remained the same. Other changes were, however, afoot and by 2005, what was described by the Tribunal at paragraph 12 of its judgment as a 'corporate decision', had been taken. This, to adopt the words of the Tribunal, 'focused on end-to-end offender management'. In other words, it was envisaged that Probation Officers would carry out a whole range of duties rather than being just confined to one specialism.
5. In 2006, a year after that, things began to happen. So far as this case is concerned they started to happen on 26 January 2006 when an officer of the Probation Service, a Ms Ashley, held a meeting with the Claimant and his colleague, a Mr Suttle. The latter performed the same job at the same court group. What was proposed was that other employees, now called Probation Service Officers or PSOs, would be trained by the Claimant and Mr Suttle to undertake court duties. Neither man was keen on this for the obvious reason that it seemed to them they were being asked to train people to take over their own jobs.
6. The Claimant appears to have been particularly vocal. He is recorded at paragraph 17 of the Employment Tribunal judgment as having voiced concerns about the training of PSOs. The Tribunal found at paragraph 17 that at an early stage he had denied ever having refused to train them and that there was evidence to support that denial.
7. On 10 February the Claimant attended a disciplinary meeting and there was a further disciplinary meeting on 24 February. At the latter he was told he must transfer to other duties. He would no longer be a Court Liaison Officer but henceforth would work at Lewisham as an Offender Manager. This was admitted by Mr LaRose Jones, who was the Probation Service manager conducting the meeting, to be a disciplinary sanction (see paragraph 24 of the Employment Tribunal's judgment). There were no powers, the Tribunal found at paragraph 26 of the judgment, to use a transfer in that way. The only power of transfer that was to be found in any disciplinary procedure was that which appears in the bundle at page 132 in paragraph 1.51 of the disciplinary procedure of 24 July 2006. Under the heading "Alternate options" there is the following:

"In cases where dismissal is an appropriate sanction for the offence, London Probation may, in exceptional circumstances decide to, impose a different penalty including but not limited to the following:

transfer to other duties permanently or temporarily."

8. The Claimant presented a grievance. As the Tribunal found, the grievance procedure took some 16 months to complete. He refused to carry out the tasks associated with the Offender Manager job description. It appears that there were others not carrying out new duties. The Tribunal refer at paragraph 33 to difficulties over negotiations and to the position adopted by the trade union.
9. The passage reads as follows:

"Because of the difficulties of these negotiations National Union advice to members (which included the Claimant) was that members should treat their existing job descriptions as being definitive as to their roles and should refuse to carry out tasks outside those descriptions. The Tribunal heard evidence to this effect from Mr Allwood who had been and still is involved in those negotiations since at the time of the Tribunal hearing the matter was still unresolved."

10. The Claimant was, however, the only officer who was subject to a compulsory transfer. The Tribunal found at paragraph 34 that Mr Suttle who was, it will be remembered, in an identical situation, remained in post as a dedicated Court Probation Service Officer carrying out the duties that he had always carried out whilst the Claimant had been moved compulsorily to Lewisham to carry out Offender Manager duties.
11. During the period that he was at Lewisham it is clear that the Claimant was less than courteous. In paragraph 41 of the judgment the Tribunal refer to his refusal to carry out certain tasks, to the fact that such refusal was followed up by a letter from the Director of London (South) informing him he would be the subject of disciplinary action and that the Claimant's response was to say that he would respond 'within a reasonable time'. As to his brief reply sent on 29 June, the Tribunal found at paragraph 42 that, "On first reading [it] appears to be curt and discourteous".
12. He certainly did not carry out the new duties; that is dealt with by the Employment Tribunal at paragraph 44. The last two sentences read as follows:

"He was accused of and admits to spending time on the intranet and reading the newspaper. Since few tasks which he considered to be within his remit were offered to him it is perhaps understandable that the Claimant should have chosen to occupy his time in this way."

13. At the same time as the grievance procedure was wending its way to a conclusion a protracted disciplinary procedure was taking place. It also went on for many months. Whilst it was going on the Claimant kept a diary. That diary was at the forefront of the submissions of Mr Elesinnla, of counsel, who appeared on behalf of the Probation Service both at the Employment Tribunal and on this appeal. He extracts from the diary, part of which is in the bundle at pages 104 to 123, the proposition that the Claimant was intemperate and from time to time descended to the personal in relation to colleagues. Like many diaries it is not a measured document. Why the Claimant chose to send it to the grievance hearing or how it came to be part of the disciplinary procedure was a mystery to the Employment Tribunal (see paragraph 51 of the judgment) and, equally, is a mystery to us.
14. The Claimant was dismissed on 11 July 2007. That is dealt with at paragraph 59 of the Employment Tribunal's judgment as follows:

"On 11 July 2007 the Claimant was informed that he had been dismissed for gross misconduct (pp208-210). The dismissal letter was prepared by the Human Resources department and signed by Ms Robinson. The basis of the reason given for dismissal was that he had breached confidentiality by putting a notice on the UNISON notice board. This was not one of the charges levied against the Claimant."

15. The letter referred to there is at pages 101 to 103 of the bundle. In its second paragraph the following appears:

"Your hearing was heard in accordance with London Probation's disciplinary procedure, the purpose of which was to consider the allegation that -

You continuously refused to carry out allocated duties (except office duty on a rota basis)"

16. The body of the letter describes the hearing itself and records a number of the submissions that were made by both parties. Its fifth and sixth paragraphs (on page 102) read as follows:

"The initial stage of this process required PSOs working in Courts to train other PSOs in court duty. You refused to take part in this implementation and as such were subsequently transferred to 208 Lewisham High Street.

At Lewisham you persistently refused to undertake work allocated to you for the period June 2006 to December 2006 when you were suspended, although this work fell within the expected range of duties undertaken by Probation Service Officer staff prior to the implementation of the Offender Management Model."

17. The letter draws to a conclusion at page 103; the second sentence on that page reads as follows:

"However your persistent refusal to undertake duties required of you demonstrates a complete repudiation of your role as an employee and amounts to gross misconduct. In addition your actions directly affected other staff within the Lewisham office who were required to undertake this work […] it has been decided therefore to dismiss you from London Probation with immediate effect."

18. The Tribunal deal with the reason for dismissal at paragraphs 69 to 71. At paragraph 70 they find the reason to be misconduct. They go on to consider, having made that finding, whether it was an unfair dismissal. They concluded that it was. This is set out in the single sentence, which constitutes paragraph 74; it reads:

"The Tribunal finds that the dismissal of the Claimant was both substantively and procedurally unfair for the following reasons."

19. Paragraph 75 sets out a series of reasons supporting that conclusion. We discern five different reasons. Firstly, that the order to move the Claimant in terms of location and job content was flawed because it was a decision already taken by Mr Jones prior to the meeting; in other words there was unfair prejudgment. Secondly, it was a disciplinary measure taken without any attempt to follow disciplinary procedures. Thirdly, the sanction of transfer was not permitted under the disciplinary procedures. Fourthly, it required the Claimant to carry out tasks which were outside his existing job description. Fifthly, the terms of the post of Offender Manager had not been settled when this dispute was current.
20. Paragraph 76 identifies another supporting reason, namely that it was accepted by witnesses appearing for the Probation Service at the Tribunal that if a disciplinary sanction had been imposed by Mr LaRose Jones, without following the correct procedures, then that would fit the description of bullying, and would amount to an act of bullying, within the terms of the London Probation Service anti-bullying protocol. Further the Tribunal concluded that bullying cannot constitute a reasonable management decision.
21. Moreover, at paragraph 78 to 81 various other factors are set out. Firstly, that no consideration was given to the transfer of the claimant to alternative employment (see paragraph 78). Secondly, that the jobs were different and paragraph 79 and 80, in effect, comprise a deconstruction by the Tribunal of arguments to the contrary. Thirdly, there was no business necessity for the move (see paragraph 81). Fourthly, the faulty disciplinary sanction of moving the Claimant was linked to and tainted the later disciplinary procedure (see paragraph 82). All of these reasons, as set out above in this paragraph and in paragraphs 19 and 20, are component parts of the decision that this was an unfair dismissal.
22. A useful summation of the decision appears at paragraph 84:

"What in effect appears to have happened in this case is that the Claimant was given an unreasonable and unlawful order to move location and jobs and was then disciplined and dismissed for not having complied with that original unlawful order. No reasonable employer would act in such a manner."

23. Paragraphs 85 to 88 identified yet further flaws in the disciplinary process. We think there is no need to continue detailing them. By now the reader will have grasped that this was a comprehensive set of findings on a number of bases against the employer.
24. What happened then was that the question of remedy was adjourned pending reinstatement, which the Claimant sought as his primary remedy. That is all explained at paragraph 91 of the decision, where it is recorded that the parties were asking the Tribunal for an expression of views. The Tribunal then expressed a view in paragraph 92 about section 32 of the Employment Act 2002. The phrase "expression of views" is somewhat tentative. Even so, the last sentence at paragraph 92 is perhaps not as categoric as one might expect. It reads:

"The Tribunal would be minded to order an uplift of 50 per cent of the relevant element of compensation to reflect this conduct."

25. We mention this because we are not entirely clear as to what it was the Tribunal felt they were doing in the last few paragraphs of their decision. Plainly at paragraph 93 they turn to the question of contribution. They say so in terms. The opening sentence reads,

"The Tribunal was also asked to consider whether the Claimant had contributed towards his dismissal and if so how this would reduce any award made to him."

26. In a sense it was premature to consider that matter, which is an issue under Sections 122(2) (basic award) and 123(6) (compensatory award) of the Employment Rights Act 1996 (as amended). What the Tribunal needed to consider at that stage was the question of cause or contribution in the context of reinstatement (Section 116(1)(c)), which was the remedy that the Respondent Claimant was asking for, or re-engagement (Section 116(2)(c)), which might fall to be also considered in that context. The statutory concepts are closely allied; the statutory language in the various subsections is similar but not identical. We will say a little more about this at the end of our judgment.
    
27. Paragraph 93 in its last sentence identifies the Probation Service's argument as falling into four topics. Firstly, whether the Claimant had been rude to Mr LaRose Jones; secondly whether he had refused to train PSOs; thirdly whether he had not suggested a solution to the problem; and fourthly whether he sent his diary to the grievance panel. What follows in paragraph 94, 95 and 96 is the Tribunal addressing each of those specific topics. So at paragraph 94 they deal both with the rudeness to Mr LaRose Jones and the refusal to train PSOs, they conclude that neither of those amount to contributory fault. In paragraph 95 they deal with the alleged failure on the part of the Claimant to suggest a solution or identify a compromise situation. The first sentence of paragraph 95 reads,

"The Respondent's next argument, namely that the Claimant should have suggested a solution or compromise situation is not accepted by the Tribunal."

28. The rest of paragraph 95 is there to be read by anyone who cares to do so and we will not take time by further quotation; suffice it to say that the rest of the paragraph deals with the same subject matter. Paragraph 96 deals with the sending of the diary. In respect of all four matters, the Tribunal expressly say that they did not contribute to the dismissal. It is said in different ways but that conclusion appears in each paragraph. However, paragraph 97, which is the focus of Mr Elesinnla's submissions, has to be quoted in full:

"Although we feel that in some respects the Claimant displayed a somewhat intransigent attitude towards the Respondent we do not feel that he contributed towards his own dismissal."

29. The judgment, which we have just summarised, having been adverse to the Probation Service, a Notice of Appeal was submitted. It is a comprehensive and clear document. It actually embodies the grounds in the body of the Notice of Appeal, as opposed to them appearing in a separate schedule or appendix. They appear at pages 16 to 18 of the bundle and they are some 12 in number. Of those it is worth pointing out that ground 5, which, as a result of the preliminary hearing, is no longer an active ground of appeal, deals in a different context with the conduct of the Respondent. In the six subparagraphs, comprised in paragraph 5, are set out what are said to be some of the things that he has done wrong.
30. The surviving Grounds of Appeal are 3, 7 and 12. Paragraph 3 of the Grounds alleges an error of law in terms of construction of the Claimant's contract of employment and paragraph 7 is much to the same effect. Paragraph 12 asserts an error of law in respect of paragraph 97; indeed it really asserts two errors. Firstly, that in paragraph 97 there is a failure to specify the respects in which it is suggested that the Claimant's attitude was intransigent; that is, in essence, an inadequacy of reasons point; in other words a Meek point. Secondly, the word 'intransigence' must be taken to be dealing with the whole of the conduct of the Claimant; in other words it is a summary of it or a broad view of it. So being intransigent or somewhat intransigent really must go to the question of contribution and the Tribunal have simply failed to realise the significance of the way they have been expressing themselves, namely that by finding the Claimant to be intransigent they must be finding him to have contributed towards his own dismissal by the whole of his conduct, of which 'intransigence' is just a convenient summary.
31. We deal first with the construction point raised by paragraphs 3 and 7. This is a point not dealt with expressly by the Employment Tribunal, so submits Mr Elesinnla. It was a point, however, that he had raised before the Employment Tribunal. He makes good that submission by pointing to paragraphs 4(1) to (8) at page 65 of the skeleton argument that he presented to the Tribunal and paragraph 8 of that same document at page 70.
    
32. This argument derives from the fifth paragraph of the letter of 5 March 1998 that we quoted earlier in the judgment (see paragraph 3 above). This, submits Mr Elesinnla, is to be seen as a sweeping mobility clause. It is a clause which gives rise to this proposition, namely that the Court Work Officer, which was the job title at the time, can henceforth be assigned, to anywhere in and, to do anything in, the Probation Service. We do not think that is the correct construction of the letter.
33. We do not think that the later harmonisation, dealt with at pages 84, which is a general letter, and at pages 85 and 86, which are extracts from terms and conditions, makes it at all clear that there was any alteration to the scope of the original mobility clause. We construe the original mobility clause as dealing with the Court Work Officer posts (see the first line of the letter). In our judgment, 'Units' in the fifth paragraph mean court units and "posts appropriate to the grade" mean posts appropriate to the kind of grade that the Court Work Officer is on. It is no coincidence that at page 83 in the first paragraph at the top of the page the following appears:

"As you are aware there is no requirement at this time for Court Work Officers to undertake Saturday and Bank Holiday court duty at Greenwich Magistrates' Court. However, if and when this becomes a requirement you will be required to undertake court duty on Saturdays and Bank Holidays on a rota basis."

34. It seems to us that the above quotation completes the context. This document was talking about those who work in courts and when it refers to transfers, it is referring to transfers from one court centre to another. We think that the 1998 letter is far too slender and slight a platform from which to launch so far reaching a submission as that of Mr Elesinnla. It simply does not bear that construction.
35. Lest we are wrong about that, the matter does not end there. The Employment Tribunal found there to have been a breach of contract because there had been a use of that clause in a disciplinary context, in which the sanction of dismissal was not said to be being considered. We agree that the purported disciplinary sanction of transfer was unlawful. Mr Toms of counsel, who has appeared for the Claimant on this appeal, has pressed us with the alternative argument that breaches of contract are but one matter to consider when the fairness or unfairness of a dismissal is at issue and he referred us to the London Borough of Redbridge v Fishman [1978] IRLR 69. In that case, which is a judgment of this Tribunal given by its first President, Phillips J, at paragraph 16 there appears a discussion of the significance of contractual rights and duties in the context of what was then paragraph 6(8) of Schedule 1 of the Trade Union and Labour Relations Act 1974.
36. So whether or not there has been a breach of contract is but one aspect of the decision as to whether a dismissal might be unfair; an employer might not be in breach of contract but the dismissal could still be unfair, submits Mr Toms. Whilst we think that the remarks made by Phillips J in 1978 are to be given the respect and weight appropriate to that judge, we are not confident that they express anything more than that in some cases the employer may not be in breach of contract but still guilty of unfair dismissal, as to which see paragraph 37 below. Also it occurs to us that Mr Toms could have mounted another argument, namely that there might well be an implied term as to reasonable notice in relation to a transfer and a further implied term as to reasonable user of the power to transfer in some way dependent upon, or riding on the back of, the express term that appears in the letter. We would just make one observation on the point raised by Mr Toms and on the point he might have raised, namely that it may be dangerous, in general terms, to set up reasonableness against breach of contract. When it is the other way around, namely the employee who seeks to assert that his contract protects him, as in effect this Claimant does, it may be somewhat unhelpful to his or her case for the employee to suggest that the reasonableness of the employer in breaching the contract is a consideration to take into account.
37. But these ruminations require no decided view from us and we are not putting one forward. All that we need to say about the construction point is this. Firstly, as a matter of construction, we do not think the clause permitted the compulsory move that was ordered by Mr LaRose Jones in February 2006. Secondly, even if it did we think that the Employment Tribunal was quite correct to identify its use in a disciplinary setting as entirely unlawful.
38. Thirdly, the construction point is not one that we think goes anywhere, as we have endeavoured to demonstrate by a study of the breadth of the Employment Tribunal's judgment. There were many reasons as to why this decision was held to be unfair. Mr Elesinnla recognised that he was, as he put it, in a cul-de-sac, in the sense that the lawfulness of the transfer argument did not dispose of other arguments. There are many other strands to the Employment Tribunal's decision that we judge would be completely unaffected by the conclusion that the Appellant was not actually in breach of contract in moving the Respondent. For those three reasons we reject the construction point.
39. We turn next to the contribution point, namely that paragraph 97 is open to attack under ground 12 of the Grounds of Appeal. At the preliminary hearing in January His Honour Judge Clark allowed that matter to proceed. Mr Elesinnla submitted to us that intransigence in paragraph 97 was to be understood as synonymous with the kind of epithets that Brandon LJ used in the case of Nelson v British Broadcasting Corporation No. 2 [1980] ICLR 110, a case in the Court of Appeal. In his judgment at page 121 between letters F and G Brandon LJ was dealing with whether it is necessary to regard concepts such as blameworthiness or culpability as being indispensable in the context of deciding whether the conduct of an employee caused or contributed to the dismissal. He said:

"It is necessary, however, to consider what is included in the concept of culpability or blameworthiness in this connection. The concept does not, in my view, necessarily involve any conduct of the complainant amounting to a breach of contract or a tort. It includes no doubt conduct of that kind but it also includes conduct which, while not amounting to a breach of contract or a tort, is nevertheless perverse or foolish or if I may use the colloquialism bloody minded. It may also include action which though not meriting any of those more pejorative epithets is nevertheless unreasonable in all the circumstances. I shall not, however, go as far as to say that all unreasonable conduct is necessarily culpable or blameworthy and it must depend on the degree of unreasonableness involved."

40. What had been put to the Tribunal can be understood by reference to the skeleton argument presented to the Employment Tribunal by Mr Elesinnla. At paragraph 7 through to paragraph 10, that is to say between pages 69 and 71, are the matters that Mr Elesinnla put to the Employment Tribunal. During the course of argument there was an exchange between the Tribunal and Mr Elesinnla as to how one was to look at, for instance, the diary. The diary was a matter that was explicitly raised in paragraph 93 and then dealt with in paragraph 96 of the Employment Tribunal's judgment and that was a matter that had been raised in this appeal by Ground 11 of the Grounds of Appeal.
41. But Ground 11 has been dismissed as a result of the preliminary hearing before His Honour Judge Clark. How, then, could it be relevant to us? Mr Elesinnla's answer was that he and HHJ Clark, in the course of argument had refined all the points that Mr Elesinnla wanted to make down to Ground 12 and, therefore, it would be completely wrong on the part of this Tribunal to take a technical approach to the Grounds of Appeal.
42. With some very considerable hesitation we are prepared to adopt that approach. When considering paragraph 97 we will look at all these matters together. First of all, we need to consider what is meant by "intransigence". It is used as an adjective, "a somewhat intransigent attitude", in paragraph 97. It comes from the Latin transigere, to agree or compromise. Interestingly, and somewhat unusually, according to the Oxford English Dictionary, it came into English not directly from the Latin but via Spanish. There was a group in the Cortes, the Spanish parliament, in the middle of the 19th century called Los Intransigentes, the intransigent ones. They were extreme republicans who refused to compromise or agree with anything. Therefore an intransigent person or an intransigent attitude is a person or an attitude that refuses to agree or compromise.
43. It is worth bearing in mind that one of the specific complaints about the Claimant made by Mr Elesinnla at the Tribunal and recorded by the Tribunal was him not suggesting a solution to the problem. Indeed, when one looks at the second sentence of paragraph 7 of the skeleton argument that he presented to the Tribunal, his submission was that there was a refusal to take part in consultation or any constructive dialogue for misguided and bloody minded reasons.
44. Accordingly, it seems to us that the Tribunal in using the word intransigent in paragraph 97 is doing no more than recording that there was a degree of refusal on the part of the Claimant to agree or compromise. If that is a correct reading of paragraph 97 then it seems to us that there is nothing in Mr Elesinnla's point that his main submission, namely that the Respondent was not co-operating, was bloody minded and was behaving badly, has been overlooked by the Employment Tribunal. Indeed, on the contrary, it has been entirely taken on board by the Employment Tribunal in paragraphs 93 to 97.
45. It is true that you do not find in paragraphs 93 to 96 every way in which the matter is put by Mr Elesinnla in paragraphs 7 to 10 of his skeleton argument at pages 69 to 71 of the bundle. But the Tribunal themselves say that not absolutely everything is covered in the judgment. The question in our mind is whether it is adequately covered the scope of the submissions that were made. We do not shut out anything. We have looked at the context of paragraphs 93, 94, 95 and 96. We have looked at the other Grounds of Appeal that have not survived to this stage of the appeal. We think that, taken in isolation, it is not right to describe intransigence as a synonym for bloody minded but taken in the context of paragraphs 93 to 96, the Tribunal is dealing with the arguments that have been raised about the Claimant's behaviour.
46. Turning back to the Meek point, if one looks at paragraph 97 as simply a summation of what has gone before then there is no need to elucidate it further. It is perfectly obvious that it is simply saying in the Tribunal's Judgment that there is no contribution because of what has been decided in the preceding paragraphs.
47. Thus far, by looking at the matter broadly we have been able to accommodate Mr Elesinnla and, on the approach we have adopted we are confident that no error of law arose out of paragraphs 93 to 97. But in view of the fact that most of the Grounds of Appeal did not survive the hearing before His Honour Judge Clark, there has to be a limit to our scrutiny of this aspect of the judgment. What we think we cannot do now is to scrutinise paragraphs 94, 95 and 96, paragraphs in respect of which the Grounds did not survive the preliminary hearing, and say whether or not we agree that the reasoning in them is sound or is dealing completely with the points that Mr Elesinnla made. We do not think those points are open on this appeal because of the order of Judge Clark. These are matters that cannot now be looked into because they are not before this Tribunal.
48. The Tribunal, as we observed earlier, has "expressed a view" in relation to contribution, in the context of the monetary award. Having said that, at paragraph 93 the Tribunal, as we observed earlier, should have been engaged at that stage on a different task, that is to say the task under Section 116(1)(c). Having approached the matter thus, it might be argued that it is not open to the Employment Tribunal to now revisit the question of contributory fault under any of the statutory provisions we have identified earlier; that is, however, a matter for the Employment Tribunal.
49. None of this was raised by the Notice of Appeal, it seems to us that is a matter the Tribunal must deal with and we no more about it., save that we would have thought there ought to be finality as to issues of this kind and, having regard to the first sentence of paragraph 93, it does appear that the Tribunal intended to deal with contributory fault in terms of compensation rather than reinstatement.
50. Be that as it may, for the reasons stated, we have reached the conclusion that this appeal must be dismissed.