Newcastle Chronicle & Journal Ltd v Southwell [1995] UKEAT 973_94_3010

EAT
Newcastle Chronicle & Journal Ltd v Southwell
[1995] UKEAT 973_94_3010 · 1995-10-30
MR JUSTICE MUMMERY (PRESIDENT): There are two appeals before the Tribunal. Both arise out of the dispute between Mr Alan Southwell and his former employers, the Newcastle Chronicle & Journal Ltd. The first appeal is against the decision of the Industrial Tribunal held at Newcastle, over a period of four days in May and June 1994. In the extended reasons notified to the parties on 28 July 1994, the Tribunal unanimously decided that Mr Southwell had been unfairly dismissed by the Respondent company. The company appealed against that decision by a Notice of Appeal served on 9 September 1994. The second appeal is against the decision of the Industrial Tribunal at a Remedies Hearing. On 11 October 1994 the Tribunal at Newcastle held a hearing on Remedies. We are told that they heard no further evidence. They came to a decision, notified to the parties on 13 December 1994, that the company should pay a basic award of £1,537.50 to Mr Southwell, and the sum of £11,000 in respect of the compensatory award. The company appealed against that decision by a Notice of Appeal served on 25 January 1995.It is convenient to deal with the background facts to both appeals before considering the arguments addressed on each of them. Mr Lynch advanced arguments on behalf of the company, the Appellant in both cases. Mr Brown responded on behalf of Mr Southwell.The background is that Mr Southwell was employed as a Journalist by the company from the end of April 1973. There was nothing in the findings of fact by the Tribunal, or in the Notes of Evidence - produced by the Chairman - which contain any criticism of the way that Mr Southwell performed his duties over a period of 20 years. There were reorganisations in the company, which led to trouble between Mr Southwell and other employees of the company. In 1992 the News desk and the Features desk were merged to form a Contents desk, the Head of which was Paul Robertson, the Deputy Head - Scott Douglas, and the Assistant Head - Jane Pikett. Those changes followed the appointment of a new Editor in 1992, Mr Neil Fowler.There were incidents documented in the bundle of documents before the Industrial Tribunal, and detailed in the Notes of Evidence. The events which immediately gave rise to this claim occurred at the end of October/beginning of November 1993. In consequence of those events Mr Southwell was dismissed on 5 November 1993. He unsuccessfully appealed against that decision. His dismissal was confirmed on the appeal on 29 November 1993. Because of the way in which he had been dismissed, Mr Southwell presented an application to the Industrial Tribunal on 31 January 1994, complaining of unfair dismissal. He sought compensation. He set out under paragraph 10 of the IT1 his account of the events in October and November 1993, which led to his dismissal. He summarised his case by saying that he had been unfairly dismissed, without any cause being given for imposing on him a final written warning on 3 November 1993. He considered that that sanction was unjustified in relation to the matter for which it was imposed: that dismissal was an inappropriate sanction, taking into account relevant matters; that the appeal had been conducted unfairly, because it failed to take certain matters into account.The response of the company to the claim was that the reason for Mr Southwell's dismissal was misconduct or some other substantial reason. The company's case was set out at length in a fifteen-page annex to the IT3. The only part that it is relevant to note for the purposes of the appeals is that the company's response was that it had acted reasonably in dismissing Mr Southwell for misconduct. They set out reference to letters written by the company to Mr Southwell on 5 August, 3 and 5 November 1993. In their submission they were entitled to dismiss Mr Southwell for the unreasonable attitudes shown by him, in respect of which he had received a final written warning. Dismissal was an appropriate sanction. The appeal was conducted fairly. In those circumstances, having regard to the equity and substantial merits of the case, and the size and administrative resources of the company's undertaking, they have behaved reasonably. The company put forward, as an alternative reason for dismissal, that Mr Southwell was to blame for personality differences that had developed between himself and the staff, and that his behaviour and attitude had led to a breakdown in trust and confidence. In those circumstances, the company had acted reasonably in treating those matters as a sufficient reason for dismissing him.In addition to those two alternative reasons for dismissal, the company contended that, if contrary to their submissions the dismissal was unfair, Mr Southwell had caused or contributed to his dismissal by his actions, contrary to the terms of his contract of employment.Those were the issues for the decision of the Tribunal. In the decision on liability, the Tribunal made detailed findings of fact in the extended reasons. The Tribunal prefaced the findings of fact by stating that extensive evidence was given and detailed submissions made, and that the issue they had to decide was whether the company had shown a reason within Section 57(2) of the 1978 Act ; and if so, the Tribunal then had to decide whether the dismissal of Mr Southwell for that reason was fair, applying the provisions of Section 57(3). We highlight that because it is clear that, at the outset of the decision document, the author of it appreciated the two distinct stages that had to be followed by the Tribunal, in order to resolve this dispute. The Tribunal made comments on the credibility of parties and of witnesses and regarded those as important in this case. They made a general finding that Mr Southwell was a more satisfactory witness, than the witnesses called by the company. In particular, the Tribunal did not find one of the company's important witnesses (the Editor) to be a satisfactory witness. Mr Lynch accepted, as is inevitable, that it is not possible to question that conclusion in this Tribunal, however aggrieved the person is who has been the subject of adverse comment. Questions of credibility of witnesses and parties are exclusively for the Tribunal that sees them and hears them give evidence. That is the Industrial Tribunal. There is no way in which we could possibly be expected to come to a conclusion which controverted the assessments of the Industrial Tribunal.They found the facts. The essence of the matter was the period of twenty years for which Mr Southwell was employed as a Journalist by the company, latterly as Senior District reporter in an office at Consett, County Durham. The Tribunal set out the background to the reforms under Mr Fowler's editorship; particularly, in the formation of the Contents desk, with the staff already identified. In February 1993, Mr Southwell was subject to a Staff Appraisal for the first time in his career. That was produced by Mr Robertson, the Head of the Contents desk. That identified the strengths and weaknesses in Mr Southwell's performance, as perceived by Mr Robertson. His weaknesses were stated to be that he was not a team player. He failed to follow the style book and instructions given to him and had an aggressive approach. The only specific training needs identified were computer literacy, but there was an interesting general comment made to the effect that Mr Southwell was an experienced reporter, but found difficulty in adapting to change. It was observed that he needed to adopt a more flexible approach and change his writing style to suit the paper.We have been referred to other documents that were before the Tribunal, in particular a memorandum by Mr Douglas, the Deputy Head of the Contents desk, and written as far back as March 1993. It recorded various abusive communications that there had been from Mr Southwell to Mr Douglas. It appears that nothing was done about that at the time. There followed a letter on 5 August 1993, written by Mr Fowler as Editor, to Mr Southwell, referring to an incident that had occurred the previous day, between Mr Douglas and Mr Southwell. The letter referred to the fact that Mr Fowler had spoken to Mr Southwell before about his attitude to the Contents desk and that it must improve immediately. The urgency of the situation was recorded when Mr Fowler wrote "This is your last chance". References were made to the dramatic changes in the newspaper in the previous 18 months: the way stories were approached, the way they were written, and the way they were presented. All had to be changed radically. Reference was also made to the need to follow the comprehensive style book. The letter concluded:
"Please be under no illusion. I was appalled by your behaviour on the telephone. It cannot be repeated. There will be no more chances."
Another incident occurred nearer to the time of Mr Southwell's dismissal. That is dealt with in detail in the Tribunal's decision. We do not need to examine the background of the incident. Suffice it to say that a memorandum was written to Mr Fowler on the subject of Mr Southwell on 29 October 1993. That referred to conversations that took place the previous day. Jane Pikett recorded various abusive comments made to her and to Mr Southwell hanging up the phone in the middle of the conversation. There were several conversations during the course of that day. As a result of that Memorandum, Mr Fowler wrote to Mr Southwell at his home to inform him that he was invoking the disciplinary procedure. He required him to attend on 2 November for that purpose. The letter was sent by Registered Post. It was not delivered because Mr Southwell was out. He received a card from the Post Office, but did not go to the Post Office to collect it. The consequence was that he did not attend the meeting proposed for 2 November. The Personnel Officer phoned him up and told him to attend on 3 November. Mr Southwell refused on the basis that that did not give him time to prepare or take advice. There was then a telephone conversation by Mr Fowler to Mr Southwell who told him the same thing as he told the Personnel Officer. Mr Fowler told Mr Southwell to take the afternoon off and consult a solicitor. Mr Southwell said that was not possible for the same reasons. He failed to attend on 3 November. In the meantime he consulted his Union and was put in touch with the Regional Officer. During the morning of 3 November, Mr Southwell sent a fax message to Mr Fowler to say he was now ready to attend a hearing and asked for a suitable time and date. There then followed an incident dealt with by the Tribunal in some detail. That followed the failure of Mr Southwell to attend on 3 November. Mr Fowler and the Personnel Director of the Company, Mr David Rowland, went to the Consett office where Mr Southwell was based; they went along at about 3.00p.m. on 3 November. They took with them a Security Officer. Mr Southwell was alone in the office. It was locked because the premises downstairs were closed. The Tribunal described what happened; various heated exchanges took place. Mr Southwell insulted Mr Rowland. Mr Southwell was told that he was suspended and that a hearing would take place on 5 November. A letter to that effect was written. The letter, signed by Mr Fowler, referred to the events which had occurred and his failure to attend the disciplinary hearing. The letter said that Mr Southwell's conduct was totally unacceptable and stated:
"... this, therefore, constitutes a final written warning under the Company's formal disciplinary procedure.
I cannot understand why you should act so unreasonably and why you should resort to such abusive language with your peers and superiors. However, I am prepared to give you one last opportunity to explain your behaviour.I, therefore, require you to attend a disciplinary meeting in my office on Friday, 5 November at 9.30 am. You have the right to be accompanied by a representative of your choice at that meeting. Please understand that:1) If you do not turn up you will be dismissed by the company.2) If you do turn up and cannot supply a reasonable explanation, the Company will still retain its right to terminate your employment.I want to re-emphasise that this is a most serious situation and that your job is in jeopardy and I want you to appreciate that fact.I expect you, therefore, on Friday and in the meantime I need to inform you that you are suspended from duty (with pay) until the outcome of the meeting."The Tribunal referred to other incidents at the Consett office. In particular, the request made to Mr Southwell for the keys of the office, which he refused to hand over, until he got to the bottom of the stairs. The Security Officer tried to take them, but Mr Southwell insisted on giving them to Mr Fowler or Mr Rowlands, saying to the Security Officer that "he was nothing".There was a dispute of fact about whether Mr Fowler had received the fax sent by Mr Southwell to the office, prior to his going to the Consett office. The Tribunal referred to the letter of dismissal, sent after the disciplinary meeting on 5 November. Mr Southwell's union representative accompanied him at the meeting. The hearing was conducted on the basis of allegations put to him. He was not shown various memoranda, and, the Tribunal found, had no opportunity of questioning their authors. The letter of dismissal refers to the outcome of the disciplinary meeting. It records those who were present. The meeting was stated to be a follow-up of the letter of 3 November:
"During the meeting we discussed your conduct throughout the last eight days with specific reference to the following:
Specific matters are set out:1. You refused to obey a reasonable instruction from your Assistant Head of Content.2. You refused to obey a reasonable instruction [given by Mr Fowler] to attend a disciplinary meeting.... and set for 3/11/933. You refused to obey the reasonable instruction to take time off to see or at least to make an appointment to see a solicitor.4. You blatantly disregarded the instruction not to attend work on 3/11/93 ...5. ... [were] abusive to the Assistant Head of the Content, the Personnel Officer and a Security Officer.6. You have been abusive and impertinent to myself. [Mr Fowler]7. You have used the most extreme of abusive language to the Personnel Director, [Mr Rowland] (on two occasions)."The letter continues:
"In response, you blamed the individuals quoted above for the situation or the situation itself. You showed no remorse for any of your actions.
This conduct is totally unacceptable and I am therefore terminating your employment with this company. You are entitled to the statutory period of notice and I will arrange for monies to be paid in lieu.You have the right to appeal against this decision to the Managing Director. If you wish to invoke the appeals procedure, would you please do so in writing by Friday, November 12, 1993."The appeal to Mr Hill, Managing Director, was dismissed and his dismissal was confirmed.In addition to the documents which set out the uncontroversial part of the findings of fact by the Tribunal, the Tribunal made certain findings of fact crucial to their decision. In paragraph 7 they made a finding of fact in relation to the fax sent by Mr Southwell to Mr Fowler on 3 November. They explained that they were not persuaded about Mr Fowler's version. They said:"... It seemed to the Tribunal that this raised an important issue as to the credibility of the respondent's witnesses, particularly Mr Fowler, its main witness. The Tribunal was satisfied that Mr Seymour had told the truth about this. ... He hardly knew the applicant (they preferred his evidence)... His evidence had not been solicited."...The Tribunal went as far as to say that they were satisfied that they had been misled by Mr Fowler on the question of the fax. The Tribunal made an important finding of fact in paragraph 8:
"The Tribunal from this drew [that is referring to the fax question just mentioned] the regrettable conclusion that the respondent, primarily in the form of Mr Fowler, had decided to dispense with the applicant before the disciplinary hearing took place. This was the only explanation for the visit to Consett and the involvement of the editor of the paper in that way at that time."
The Tribunal examined the letters of 3 and 5 November (already quoted in some detail) and said that their view of the situation, summarised in paragraph 8, was confirmed by the contents of those two letters (Paragraph 9):"The Tribunal was further persuaded to that view [that is the view that a decision had been made before the hearing] by a careful analysis of the letters of 3 November and the dismissal letter of 5 November."...They dealt with the analysis. The Tribunal said in paragraph 11:
"The Tribunal had to look at the whole situation. It was clear that the paper had changed radically under Mr Fowler as Editor. The Contents Desk had huge power and in the form of Miss Pikett and Mr Scott was staffed by young and relatively inexperienced people, with a very different view of journalism to that of the applicant, [Mr Southwell] who enjoyed writing in a style no longer appropriate. The Tribunal concluded that the applicant simply did not fit the new organisation."
The Tribunal referred to this point again in paragraph 13:
"The Tribunal was left with the strong impression that the applicant no longer fitted within the organisation. That might have been a question of capability, but that was not the respondent's case. There was no training offered to the applicant and it was difficult to see what training could have bridged the culture gap between the applicant and his colleagues. The Tribunal was satisfied that for the reasons given the whole investigation, primarily by those who felt themselves wronged, Mr Fowler and Mr Rowland; was flawed and was little more than a sham."
They went on to express the view that the appeal procedure was similarly tainted. The dismissal was unfair.Mr Lynch has criticised the decision on liability in detail. He has taken us not only through a number of documents in the Respondent's bundle of documents. He has also taken us to detailed passages in the Notes of Evidence. His overall attack on the Tribunal's decision is under two main headings. First, that there was an error of law in finding that there was unfair dismissal. Secondly, that there was an error of law in the Tribunal's conclusion in paragraph 15 of the decision; that this was not a case to apply a contributory reduction to an award of a monetary remedy to Mr Southwell. The Tribunal had already decided that that was the only possible remedy and that questions of re-engagement and reinstatement were out of the picture.On unfair dismissal, Mr Lynch made a number of comments about the reasoning of the Tribunal. He identified in the evidence and findings of fact a number of points which, he said, supported his contention that the decision of the Tribunal defied ordinary standards of industrial relations commonsense, and was therefore perverse. He pointed out that the Notes of Evidence confirmed that Mr Southwell had behaved in an unacceptable way, in the way he spoke to other staff, in his general conduct in hanging up the phone in conversations, in acting contrary to instructions given to him, and in failing to show, in respect of all the matters for which his conduct might be criticised, any remorse either before or at the disciplinary hearing on 5 November or the appeal. Mr Lynch relied on the same matters in relation to his submission that the failure to find any contributory fault on Mr Southwell's part also defied logic and commonsense in industrial relations. He referred to the well-known case of Matadeen [1992] ICR 723 .In addition to those general criticisms, Mr Lynch criticised the reasoning of the Tribunal on certain matters. He particularly criticised the use which the Tribunal made of the letters of 3 and 5 November, to support their view that a decision had been made to dismiss Mr Southwell, before the disciplinary hearing took place on 5 November. He criticised the reasoning of the Tribunal on the findings of fact about the visit to the Consett office by Mr Fowler, Mr Rowland and the Security Officer. They said in paragraph 8 of the decision, that the " only explanation" for the visit to Consett and the involvement of Mr Fowler in that visit, was that this decision to dispense with Mr Southwell had already been taken. Mr Lynch pointed to passages in paragraphs 9, 10, 11 and 12, which refer to the Industrial Tribunal's views of and interpretation of events, in such a way as to indicate that the Tribunal was misdirecting itself in law, about the proper approach to deciding unfair dismissal. He said that what they were doing was not looking at the matter from the standpoint of the reasonable employer and deciding what was a permissible option to him. They were committing the cardinal error of substituting themselves, as members of the Tribunal, for the employer. The Tribunal substituted their evaluation of the events described, instead of asking the correct question, whether the company, as employer, had acted within the band of reasonable responses.Mr Lynch also pointed out, correctly, in our view, that there was no clear statement by the Tribunal as to what reason they found had been established by the employer within Section 57(2) for dismissing Mr Southwell. One of the issues for the Tribunal was whether the company had established one or other of the reasons, misconduct or some other substantial reason. The Tribunal, having drawn the distinction in paragraph 3 to the two-stage process for deciding unfair dismissal, failed, at any later point in their decision, to draw a clear line between stating the reason for the dismissal, and the application of Section 57(3).We have carefully considered these arguments which took most of the day. We have come to the conclusion that there is no error of law in the decision of the Tribunal on the question of liability or contributory fault. It is possible to pick holes in some of the Tribunal's reasoning. The failure of the Tribunal to state in clear terms the reason for dismissal is unfortunate, but not fatal. It is the duty of a Tribunal in an unfair dismissal case to state what it finds to be the principal reason for dismissal. The cases in support of that proposition are to be found in Volume 4 Harvey on Industrial Relations & Employment Law paragraph 980 to 985. We accept, however, Mr Brown's submission that this Tribunal in fact states the reason for dismissal. Although it is not done so in express terms, it is sufficiently clear, from reading the decision as a whole, that the Tribunal rejected misconduct as the reason for dismissal. It is clear from the language of paragraphs 11, and 13 in particular, that the reason that the Tribunal accepted as a reason for dismissal with some other substantial reason, i.e. the breakdown in trust and confidence between Mr Southwell and the company and his fellow employees. That is shown by the references in those paragraphs to the inability of Mr Southwell to fit in with the new organisation established under Mr Fowler's regime. Although it is preferable for the reason to be spelt out in clear terms, it is sufficient, for our purposes, if, reading the decision as a whole, one can gather what the Tribunal have found as the reason of the employer for dismissal.As for the other criticisms made by Mr Lynch, we reject the argument that this was a case of substitution. We do not agree that the various criticisms of the reasoning of the Tribunal amount to an error of law. In our view, the crucial point, relevant to both the question of unfair dismissal and the question of contributory fault, is the finding of fact by the Tribunal that the company had decided to dismiss Mr Southwell before the disciplinary hearing of the 5 November. In paragraph 13 of the decision, the Tribunal were even more outspoken than in paragraph 8. They regarded the investigation into Mr Southwell's behaviour at the disciplinary meeting as little more than a "sham". In those circumstances, the Tribunal were entitled to find that the dismissal was unfair, because a procedure had not been followed that was either fair according to the rules of natural justice, or conformed to the company's own disciplinary procedure.We have been taken through nearly all the Notes of Evidence by Mr Lynch and to most of the crucial documents. It cannot be said, in our view, that there was no evidence to support the conclusion of the Tribunal. It cannot be said that their conclusion was inconsistent with uncontradicted evidence. In our view, they were entitled to reach a view of the events which took place at the end of October and the first week of November 1993, as evidencing a decision to get rid of Mr Southwell, ahead of holding any disciplinary meeting. It follows that the decision on contributory fault is also free of error of law. The question whether it was contributory fault, which would have the effect of reducing the amount of compensation awarded, is a question of fact for the Tribunal under Section 74(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."
The dismissal took place on 5 November. Was that dismissal caused or contributed to by any action of Mr Southwell? In our view, once the Tribunal had found as a fact that the disciplinary meeting was a "sham" because a decision had been made to dismiss him, in advance of the disciplinary meeting, the Tribunal were entitled to reach the conclusion that there was no contributory fault on his part to the decision to dismiss him taken on that day. The dismissal the Tribunal could legitimately find, was caused wholly by the employer's company behaving in that unfair way.We can deal more briefly with the question of remedy. Two points are raised. The Tribunal stated, in their extended reasons of the 13 December 1994, that they considered the submission made by Mr McFetrich, the solicitor for the company, that, on the balance of probabilities, Mr Southwell would have been dismissed in any event and that therefore the compensation should be minimal. The Tribunal's conclusion on that question, having regard to what was found as fact in the liability decision, and their conclusion on contributory conduct in paragraph 15 of that decision, was that they were satisfied that a fair procedure could not have resulted in the Applicant's fair dismissal in the circumstances. Stated by itself, it is difficult to see how that could be faulted. It is a conclusion of fact, reached by the application of the well-known test in Polkey . Mr Lynch criticised that part of the decision by saying that the Tribunal had mis-directed themselves in the matters referred to in the last sentence of the second paragraph of that decision. The Tribunal said they were satisfied that the Applicant had been warned as to various matters, and that the matters which arose thereafter, in particular arising from the visit to Consett, could not fairly have led to his dismissal. Mr Lynch's argument was that the Tribunal had misdirected themselves in failing to keep distinct two separate issues, i.e. whether there should be a reduction because of the chance of a future fair dismissal and the question of reduction for contribution. The Tribunal appears to have assumed that, because Mr Southwell had been warned about earlier matters, they were not relevant to the chance of a future fair dismissal. He said in his Skeleton Argument, as elaborated in oral argument, that:
"... the Industrial Tribunal erred in law in that it deemed to be irrelevant matters which were highly germane to the issue before the Tribunal i.e. what was the chance that Mr Southwell would have been fairly dismissed after 5th November 1993."
That excluded from their consideration relevant material. That was an error of law. This argument was attractively presented. We find that it is correct in one small respect. We reject the contention that the Tribunal confused contributory conduct with the question of a deduction from compensation on the Polkey test. It is clear that the Tribunal made their decision on contributory conduct in the first decision. They knew when dealing with Mr McFetrich's submission that they were concerned, on the remedies hearing, with a different matter i.e. whether he would have been dismissed on a fair hearing. They were entitled to refer to the finding on contributory conduct, but it does not seem, on a fair reading of paragraph 2 of the decision, that they thought that the decision on contributory conduct was conclusive of the question whether Mr Southwell would have been dismissed after a fair hearing.Similarly we are of the view that Mr Lynch is over-literal in his approach to the last sentence. We do not read that as signifying that the Tribunal thought that they could not take into account, in deciding the question whether Mr Southwell would have been dismissed in any event, the various matters on which Mr Southwell had been warned. Those words do not indicate that they thought that they were confined, in dealing with the question whether he could have been fairly dismissed, to those matters which arose from the visit to Consett. We agree that the Tribunal could have expressed their conclusions more clearly. We have not been convinced, however, that they have expressed them in a way which reveals an error of law.That leaves us with one final matter on which we have been persuaded by Mr Lynch. It is not quite the same as the Polkey point, which is whether he would have been dismissed, had he had a fair hearing on 5 November 1993. We have expressed our conclusion on that. It does appear that the Tribunal did not expressly address the question, whether Mr Southwell would or would not have remained in the employment of the company, as a matter of probability, in the period following the dismissal letter of 5 November. In the assessment of compensation, they appear to have assumed, that it was likely that he would have remained in employment. On that basis, they made an assessment of compensation which, though not precise, exceeds £11,000. It seems that, when the decision on liability is read as a whole, it may be open to the company to contend that the likelihood was that Mr Southwell would not have remained in the employment of the company for a prolonged period. We refer particularly to those findings that Mr Southwell did not fit into the organisation and did not get on with the people who were in charge of the Contents desk.In our view, the proper course is to remit, on the remedies appeal, the limited question whether it was likely that Mr Southwell would have remained in the company's employment. In our view, this can be fairly remitted to the same Tribunal that decided the question of liability and remedies. It will be for them to decide, after hearing submissions from the parties, whether they need to hear any further evidence, or further argument. It seems to us, though we express no concluded view on the matter, that the result may be that the company is still liable to pay substantial compensation, perhaps even upto the maximum limit. It is a matter of fact for the Tribunal to decide what the likelihood was of Mr Southwell remaining in employment. We make it clear that we do not intend to bind the Tribunal by any expression of view. For all those reasons the result of this matter is that the appeal on liability is dismissed. The appeal on remedies is allowed, only to the limited extent of remitting to the same Industrial Tribunal, the question of the likelihood that Mr Southwell would have remained in the employment of the company.