Oxfordshire County Council v Clarke [1996] UKEAT 1279_95_1009

EAT

Oxfordshire County Council v Clarke

[1996] UKEAT 1279_95_1009 · 1996-09-10

BAILII case number:

[1996] UKEAT 1279_95_1009

Appeal No.

EAT/1279/95

EMPOLYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS At the Tribunal On 10th September 1996 HIS HONOUR JUDGE J HICKS Q.C. MS S R CORBY MR T C THOMAS CBE OXFORDSHIRE COUNTY COUNCIL APPELLANTS MR S CLARKE RESPONDENT Transcript of Proceedings JUDGMENT Revised 19th September 1996 APPEARANCES For the Appellants MS S ASHTIANY (Solicitor) Messrs Cole & Cole Solicitors Buxton Court 3 West Way Oxford OX2 0SZ For the Respondent MR A HUNTER (of Counsel) Messrs Darbys Solicitors 50 New Inn Hall Street Oxford OX1 2DN JUDGE HICKS Q.C.: Mr Clarke had been employed by Oxfordshire County Council from May 1974 until 17th May 1994 and his final position was that of Quality and Personnel Manager to the County Engineer's Department. He was dismissed on 17th May 1994 for what can be summarised as falsification of travel claims. The Industrial Tribunal, consisting of the Chairman sitting alone, after a three day hearing in April 1995 decided that the dismissal was unfair but that Mr Clarke had contributed to it to the extent of 100%. We are concerned with an appeal by the Oxfordshire County Council against the finding of unfairness and a cross-appeal by Mr Clarke on the finding of 100% contribution. Since the grounds of the appeal turn on the procedural unfairness which the Chairman of the Tribunal found to have existed I must, albeit briefly, summarise the course which the disciplinary proceedings took. It was at the end of November or early December 1993 that concerns were brought to the attention of Mr David Hook, who was the County Engineer to whom Mr Clarke reported. Mr Hook instructed the Treasurer's audit section to undertake an investigation, as a result of which Mr Clarke was informed on 25th April 19 of the need for him to attend a disciplinary interview. The first interview took place on 3rd May and on that occasion Mr Hook, who conducted the interview, and who was therefore and remained in effect the disciplinary body of the County Council at first instance, put to Mr Clarke various information and documents which had been obtained as the result of the investigation to date. That included a comparison between the distances which Mr Clarke had claimed for certain journeys and the standard mileage which was generally recognised as appropriate for those journeys, a summary of visits to the area offices (because one of the matters alleged against him was that he had not made certain visits or, on the other hand, that having visited area offices and locations he had not as his claim assumed returned to his own office), thirdly a copy of his travel claims forms for that period, which of course was the basis of comparison between what he claimed and what the Council was alleging were the true facts. After that interview Mr Hook reviewed the situation, recalled Mr Clarke and informed him that he was going to suspend him on full pay pending further investigations and that a disciplinary meeting would be reconvened on 12th May, for the purposes of which he asked Mr Clarke to produce his office desk diary and travel diary and any back claim forms in the office. In the interval between 3rd and 12th May Mr Hook also instituted a more searching investigation by other Council officers into the suspected excess claims. In the course of that investigation various employees were interviewed who might be described generally as primary witnesses, in the sense that they were being asked about not only their records, but also their recollection, of such matters as what visits Mr Clarke had made to the offices where they worked, or if they were Head Office employees whether he had returned to the office as he had claimed on certain days, so that at the second hearing on 12th May Mr Hook had those witness statements, which were however not produced to Mr Clarke, although the substance of what the Council relied upon in those statements was put to him as part of that interview. After the meeting of 12th May, which was a lengthy one and of which a full summary extending to sub-headings (a) to (q) is set out in the Chairman's full reasons, Mr Hook took the view and, after a short adjournment, stated to Mr Clarke as his interim conclusion that there had been overclaims on some return journeys, that Mr Hook believed that on occasions Mr Clarke had claimed for return journeys when he had gone straight home and that Mr Hook was incredulous about the number of visits to certain sub-offices in particular, and unexplained visits to other locations. In Mr Hook's view Mr Clarke had demonstrated by his own admissions that he not planned and undertaken his duties in an organised and efficient manner. Mr Hook went on to point out to Mr Clarke that the normal consequence for deliberate falsification of claims and records, which would amount to gross misconduct, was summary dismissal, but he said that there were still some matters he wished to investigate further before reaching a final conclusion, and he therefore appointed 17th May for a third and final disciplinary meeting. At that third meeting there was a reference by Mr Hook to some further and final investigations which he had undertaken. He said that as a result that there were still many occasions where no corroboration could be given by staff in relation to approximately one hundred visits claimed over a ten-month period. There had also been some telephone monitoring showing that Mr Clarke had been at his office at times when he was claiming travel allowances for journeys necessitating absence from that office. In the light of those additional matters he informed Mr Clarke that he was convinced that there had been deliberate falsification of travel claims and asked Mr Clarke whether he had any questions or comment. Mr Clarke stated that he did not think there was anything he could add. The meeting adjourned and, after a short break, Mr Hook informed Mr Clarke that in his view gross misconduct had occurred by virtue of deliberate falsification of claims and records. In brief, he dismissed Mr Clarke with immediate effect, although with three months' pay in lieu of notice, and he reminded Mr Clarke of his right of appeal. That then, as I have said, was the effective date of dismissal as stated at the outset of the reasons of the Tribunal Chairman, although it is right to say that there having been a subsequent appeal it may be more accurately stated that the dismissal took effect at the close of that appeal process. That appeal was before three members of the Council's personnel sub-committee and, as we understand it, those therefore were all non-staff members, whereas the disciplinary procedures hitherto had been conducted by Mr Hook, Mr Clarke's line manager. We must come back to the nature and circumstances of that appeal, because it is one of the matters canvassed in the Notice of Appeal and argued before us, but for present purposes, to bring the matter to a conclusion as far as the background history is concerned, it suffices to say that the appeal was dismissed and Mr Clarke's dismissal confirmed. Against that very brief and general background to history the appeal falls in Ms Ashtiany's skeleton argument, very helpfully and clearly, under three distinct points and into three distinct phases. The first arises in this way. In paragraph 33 of his decision the Tribunal Chairman deals with the question of the fairness or reasonableness of the decision to dismiss. In paragraph 32 he had uncontroversially found that the Council had shown what the reason for the dismissal was, namely conduct. He then goes on in perfectly orthodox fashion to consider the next point: whether the dismissal was fair and reasonable in accordance with the provisions of Section 57(3), as amended, of the 1978 Act then in force. He says this:

"33 ... In a case like the present one, in which there has been a suspicion or belief of misconduct by an employee, what the Tribunal have to decide is whether the employer who discharged the employee, on the ground of the misconduct in question, entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time [He refers to the case of British Home Stores Ltd v Burchell, and quotes this passage from the judgment in that case:] "that is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief, that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief and thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case". [The Chairman notes that that decision was subsequently upheld by the Court of Appeal] 34 In the view of the Tribunal, the respondents have fully complied with the requirements laid down in those cases. 35 Where the Tribunal does take issue with the respondents, is over the manner in which the results of their investigations, which resulted in very grave allegations, were presented to this very senior and long serving member of staff. While the respondents are not obliged to act as a lawyer would in bringing a prosecution, they should have presented the allegations in such a way that Mr Clarke would have the opportunity, and the time, to meet each and every allegation upon which they relied. He should also have had the opportunity to read the statements of the witnesses and to question them."

Ms Ashtiany's first point is that paragraph 35 is simply and flatly inconsistent with paragraph 34, that the Chairman's having found that the respondents had fully complied with the Burchell requirements, as we may compendiously call them, that should have been the end of the matter. We are quite satisfied that there is nothing in that point. It is clear that the Chairman of the Tribunal in finding, as he did, that the respondents had fully complied with his summary of the Burchell requirements, was leaving over what is commonly called the question of procedural unfairness, because he turns immediately to that point and, indeed, the rest of his decision until it finally comes to question of the internal appeal is concerned with that very point of procedural unfairness. It is absolutely plain in our view that when he says that the respondents have fully complied with the requirements laid down in Burchell he is treating the third of those requirements, on which Ms Ashtiany fastened, namely that the employers had carried out as much investigation into the matter as was reasonable, as effectively relating only to the depth and extent of the investigation, and not as pre-judging the question to which he is about to turn as to whether not only that investigation, but more importantly perhaps the conduct of the disciplinary hearings themselves, was fair and reasonable. We reject that head of appeal. The next group of grounds on which Ms Ashtiany relied - and we think that in substance this is a single ground - is that when the Chairman then turns to this question of fairness of procedure he falls into errors of law which are themselves marshalled under three heads in the skeleton argument. The first complaint that Ms Ashtiany makes is that, having in paragraph 35 held that the employers should have presented the allegations in such a way that Mr Clarke would have had the opportunity and the time to meet each and every allegation, it was incumbent upon the Tribunal Chairman to state specifically which allegations had not been put to Mr Clarke sufficiently or with sufficient opportunity to meet them. The second head is that in paragraph 37 of his reasons the Tribunal Chairman says:

"37 Among the deficiencies to which the Tribunal has referred, is the mixture of investigatory and disciplinary procedures in some of the interviews between Mr Hook and Mr Clarke. ..."

He goes on to refer to three disciplinary meetings which he has already set out in full in his findings of fact and draws attention in particular, among other things, to the fact that those meetings consisted largely of questions and answers. The third sub-head in this area of appeal is that the Tribunal Chairman, as I have already related in the quotation from paragraph 35, says that Mr Clarke should have had the opportunity to read the statements of the witnesses and to question them, and that ground of complaint by the Tribunal Chairman of the employer's procedures is echoed or repeated again in later paragraphs where, in particular in regard to the meeting of 12th May, he says that Mr Clarke did not have the opportunity to question any of the witnesses, who by that time had made their statements. Ms Ashtiany sought to treat each of these individually. As we understand it she was effectively submitting first, as regards the matter of lack of particularity in dealing with the allegations not presented, that that was a specific misdirection on the part of the Tribunal Chairman. Secondly, the reference to a mixture of investigatory and disciplinary procedures again shows, in her submission, the Chairman falling into a an error of law in holding that to be a matter of procedural unfairness. Thirdly, in regard to the witness statements, she relied on familiar authorities to the effect that there is no requirement in law that an employer carrying out a disciplinary hearing is obliged to show witness statements to the employee, or to offer the witnesses either to give oral evidence or simply to be available for cross-examination. We take the view that it is not right to divide this head into compartments in that way. The issue is not whether as a matter of law any one of these comments on the procedure followed by the employers would of itself amount inevitably and every circumstance to procedural unfairness. We do not think that the Tribunal Chairman's reasons can fairly or properly be read as advancing any such proposition. These are no doubt convenient categories into which can be grouped the matters which he took into account in reaching his final conclusion that the manner in which the disciplinary hearings were conducted, viewed as a whole, did not reach the required standard of fairness and reasonableness. In relation to these heads, we were referred by Ms Ashtiany to various authorities. Under the first head she referred us to the case of Meek v City of Birmingham District Council

[1987] IRLR 250

CA, and in particular to the passage in the judgment of Bingham LJ in paragraph 8 of the report as follows:

" It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; ..."

There can certainly be no complaint, and as we understood it Ms Ashtiany made no complaint, that the Tribunal Chairman's reasons did not give an outline of the story. It gave more than an outline; it gave a very full account of the story. Similarly, it certainly gave a summary of his basic factual conclusions. Her complaint is that there was not a sufficient statement of the reasons which led him to reach the conclusion which he did on those facts. That criticism concentrated on the phrase that the employers "should have presented the allegations in such a way that Mr Clarke would have had the opportunity, and the time, to meet each and every allegation upon which they relied". As I have said, we take the view first of all that it is not the right approach to deal with these sub-heads as if they were separate and distinct grounds of appeal. The question is, taking this element of procedural fairness as a whole, whether the Tribunal Chairman fell into any error of law in his approach to the matter. But secondly, what he is saying in that particular phrase, even if one is going to descend to the level of particularity of picking out a couple of lines in his reasons, is that they, the employers, should have presented the allegations in such a way that Mr Clarke would have had the opportunity to and the time to meet each and every allegation upon which they relied. He has already set out in quite considerable detail the way in which the matter unfolded and therefore the facts which he is referring to when he reaches that conclusion. But in any event, and more importantly, I repeat that he is clearly not setting that out as the only ground upon which he reaches his overall conclusion that there was not sufficient fairness and reasonableness in the procedure which the employers followed. As to the second matter, the question of the mixture of investigatory and disciplinary procedures, I have given a very brief account of the history. The Chairman's reasons go into that history in quite considerable detail. We reject the proposition that he was not entitled to take that into account in reaching his overall conclusion. There is in relation to the investigatory and the disciplinary stages of a dismissal, as in a number of other aspects of disciplinary proceedings in the employment context, a whole spectrum of possibilities. At one extreme would be a rigid adherence to the separation which obtains for instance in the sphere of criminal law where the police are the investigatory agency, the Crown Prosecution Service is the prosecuting agency, and the Judge and jury are the tribunal of decision, and a rigid separation is maintained between those three stages. Nobody suggests that an employer is required to maintain that kind of rigid distinction. At the other extreme is perhaps such a case as where an employer through the agency of a single manager, or the proprietor of the business, embarks upon a consideration of the employee's conduct and carries on a process which at no stage whatsoever can be said to disentangle investigation, allegation and decision. If there is such a melange as that then we think that nobody would defend that as being a fair and just procedure. In between there is a very wide spectrum and, as the Tribunal Chairman reminded himself, one of things to be taken into account in considering how far what happened in a particular case was fair an reasonable is the size of the employer's undertaking. It may be quite impossible in the case of a small employer for any rigid demarcation of functions by managers to be maintained, and what is required in such a case may be quite different from what should be done by a large employer. There is no doubt that this employer was a large and fully advised employer in such matters; in seeking to produce what will be a fair and reasonable process when dealing with employees. Where along that spectrum the line is to be drawn between a degree of informality and mixture of processes which does not prevent the process as a whole from being fair and reasonable, on the one hand, and cases where it has become such that there is unfairness or unreasonableness, is essentially a matter for the Industrial Tribunal, and we can interfere and should interfere only where we are persuaded that the Tribunal has misdirected itself in law. There is on this aspect manifestly no explicit misdirection. We find it simply not made out that some implicit misdirection must be deduced from the way in which the Tribunal Chairman dealt with the matter. I say that in a sense by way of conclusion, having canvassed only two of three sub-heads. But that is the conclusion we reach having taken into account also the third head of the way in which witness statements were dealt with. I deal with that very shortly, if only because Mr Hunter did not dispute the proposition of law which we are concerned with: that there is no legal requirement that employers must always produce witness statements to the employee or produce witnesses, either to give oral evidence or to be cross-examined. Indeed Ms Ashtiany referred us very naturally and properly to the case of University of Ceylon v Fernando [1960] 1 AllER 631 PC, which might be thought a very strong example of the application of that principle, since the witness in question was described by the Privy Council as the one essential witness against the plaintiff, and they said that the charge in the end resolved itself into a matter of her word against his. It is explicitly said in the part of the opinion of the Privy Council which was read to us that Miss Balasingham (the witness in question) was not produced for cross-examination, and we are told that not only was that so but that the plaintiff was not even shown her witness statement. It was a case of expulsion of a student from a university. But what the Privy Council said was that the omission to produce Miss Balasingham for cross-examination, or "to volunteer the suggestion that the plaintiff might wish to Miss Balasingham", could not regarded as sufficient to "invalidate the proceedings of the commission as failing to comply with the requirements of natural justice in the circumstances of the present case." The difference between the jurisdiction which the Privy Council was exercising and that which we are exercising is that the Privy Council was hearing a full appeal on law and fact, and it was open to them and indeed incumbent upon them to reach their own decision as to the effect of this omission. We are not engaged in that process. We are considering whether some error of law is shown in the way in which the Tribunal Chairman approached the question. The important words, therefore, for our purposes, in that quotation from the University of Ceylon case are the closing words of what I have just read, "in the circumstances of the present case". That is, in our view, reinforced by what immediately follows:

" Counsel for the university very properly referred their Lordships to passages in Osgood v. Nelson and in other authorities which tend at first sight to state the requirements of natural justice more favourably to the party charged than of the authorities to which their Lordships have so far referred: see, in particular, the references to cross-examination in Osgood v. Nelson. But their Lordships are satisfied that, when the facts and circumstances of these cases are looked into, they contain nothing to justify the conclusion that the requirements of natural justice were not sufficiently observed on the facts and in the circumstances of the case now before them."

This, therefore, was a matter in which the Tribunal Chairman would have been wrong had he directed himself that as a matter of law the employers must produce witness statements or tender the witnesses for prosecution, but there is no such explicit direction and we find nothing in the way in which he approaches the matter to lead us to suppose that implicitly he gave himself any such misdirection; he took this matter into account with others - in particular the two other groups of matters which we have identified - in reaching his conclusion on the question were the employers fair in the way in which they conducted their disciplinary process. That was proper question for him to ask. He asked himself that question, he answered it, and not finding any error of law in his approach we reject that part of the grounds of appeal. The third and distinct point in the Council's appeal against the finding of unfair dismissal turns on the internal appeal conducted by the Council. The Tribunal Chairman dealt with that in this way:

"41 To summarise the situation at that stage, Mr Clarke had been dismissed without knowing precisely upon what documentation the allegations were based or upon whose testimony they were founded. The respondents had built up a formidable case against him and he should have had every opportunity of meeting it. Although the appeal was fully and fairly conducted the Tribunal cannot, on this occasion, say that it sufficed to overcome those deficiencies. Although the documentation was produced, the witnesses were not. This is a case in which the respondents should have proceeded with scrupulous production of all the evidence and the Tribunal finds that they did not do so."

It is not in dispute as a matter of law between the parties that, where there has been procedural unfairness in the initial stages of a disciplinary process, those deficiencies can in suitable circumstances be cured if there is a fair and proper appeal. But that is not necessarily the result. The question the Industrial Tribunal Chairman had to ask himself is in essence the very question which is stated in the Chairman's reasons, was this appeal such that it sufficed to overcome the earlier deficiencies which he had found, and which we have held he found without error of law. The principal case that was cited to us on this point is the case of Whitbread & Co Plc v Mills

[1988] ICR 776

EAT. In that judgment at page 795 Wood J says this:

"Each set of circumstances must be examined to see whether the act of omission [complained of in the disciplinary procedures] has brought about an unfair hearing. If it has, then whether or not an appeal procedure has rectified the situation must depend upon the degree of unfairness at the initial hearing. If there is a re-hearing de novo at first instance, the omission may be corrected, but it seems to us that if there is to be a correction by the appeal then such an appeal must be of a comprehensive nature, in essence a re-hearing and not a mere review."

It was Ms Ashtiany's submission that this appeal was a re-hearing. I do not think that she tackled the question of whether it was, in the phrase first used by Wood J, " a re-hearing de novo at first instance", but she certainly submitted that it was a re-hearing and that therefore, having been found by the Tribunal Chairman to be fully and fairly conducted, it was inconsistent with that, and therefore must be a misdirection, for him to find that it failed to overcome the earlier deficiencies. We do not take that view. First of all, if it is to be said that there was an explicit misdirection in this respect, one would primarily and as it were as the best evidence of that expect to find in the Tribunal Chairman's reasons a statement that the appeal was by way of re-hearing, and he does not say that. When Ms Ashtiany asks us to go behind that and look at the evidence that was before him to say that "well, although he does not say that, it was self-evident or perhaps uncontroverted that it was a full re-hearing", then we do not find ourselves able to reach that conclusion. The evidence to which she particularly directed us was that of Councillor Rita Milne, one of the members of the Appeal Committee. She gives an account, which as we understand it was unchallenged, in which she sets out the material which was before the appeal sub-committee, and that certainly included four - although not all, because there were nine altogether - of the original witness statements of what one might call the witnesses as to primary fact. To that extent the appeal committee was therefore in a position to look at the original evidence, and she certainly says they read it. But she also says this - and this seems to us to be quite significant, and to make it difficult and indeed impossible for us to go behind the Tribunal Chairman's reasons and to say that not only could he have found, but he must have found had he mentioned it, that there was a full re-hearing -she says this:

"2. ... These appeals followed a set procedure which is set down and contained in pages 132 to 134 of the agreed bundle. ..."

Now 132 and 133 are in fact concerned with the disciplinary procedure as a whole. It is page 134 that is concerned with the appeal procedure, and it is quite short and the relevant part is as follows: "The Chairperson should follow the procedure below.

[1]Introductions.

[2]Invite the officer presenting the complaint to state the complaint against the employee.

[3]Invite the employee to question the presenting officer on the statement of the complaint.

[4]Invite the employee or his/her representative to state his/her case.

[5]Invite the officer presenting the complaint to question the employee on his/her statement.

[6]Invite other members of the panel to put questions to either party and ask own questions.

[7][Is concerned with the summary by the officer presenting the complaint].

[8][Summary by or on behalf of the employee, after which we come to the matters dealt with in the absence of the parties]." Now that, on the face of it, is quite plainly a procedure directed towards an appeal by way of review rather than an appeal by way of re-hearing. It may be - it is not for us to find what the facts were, but it may be - that this appeal was somewhere in between. Not only does Councillor Milne say that they followed that procedure, but on the other hand she also says that they had a good deal of material which would involve some knowledge by them, and therefore very likely investigation by them, of the underlying facts. But it seems to us to be quite impossible to say, on the basis of that, that in the absence of a statement by the Tribunal Chairman that he found this to have been a full re-hearing (let alone "a full re-hearing de novo at first instance" in the words of Wood J. in Whitbread or a re-hearing "of a comprehensive nature" ,to use another phrase from Whitbread) he not only could have found that to be its nature, but must have done so and that therefore he must be presumed to have done so even though he does not say so. In those circumstances the apparent contradiction between the full and fair conduct of the appeal and the finding that it was insufficient to overcome deficiencies in the earlier disciplinary procedures disappears, in our view. There is nothing at all inconsistent with finding that there was a full and fair appeal falling short of a complete re-hearing, but that because it fell short of a complete re-hearing it failed to overcome the earlier deficiencies, and it is in that context that we read the Tribunal Chairman's reference to the fact that although documentation was produced the witnesses were not. Again, as with the earlier disciplinary procedures, we do not understand him to be saying that there is a rule of law that in order to cure earlier defects an appeal must include in every case the production of witness statements and witnesses. He is referring to that as part of his reasons for the conclusion that the appeal did not suffice to overcome the earlier deficiencies. We therefore find no error of law in his treatment of the appeal stage. For those reasons we dismiss the appeal. THE CROSS-APPEAL The cross-appeal finds Ms Ashtiany and Mr Hunter, as so often happens, in something of a reversal of roles. Now, says Mr Hunter, on the face of the Chairman's reasons for dealing in the way which he did with contribution he fell into an error of law, and it is Ms Ashtiany who submits that on a fair approach to his reasons there is no explicit misdirection and no misdirection should be implied. What the Chairman said on this point is very short, in paragraphs 42 and 43. Having dealt with the complaints about both the initial disciplinary procedure and the appeal he goes on to say:

"42 Equally, however, the evidence which they had was such that they were entitled to conclude, as they did, that he was guilty of the allegations complained of (see for example paragraphs 15 and 16 and 24(f), (l), (m) and (p) above and the admissions made by Mr Clarke). 43 For the above reasons, the Tribunal finds that Mr Clarke's dismissal was unfair, but that he contributed to it to the extent of 100%. Not having enough work to do, he took the opportunity to make speculative journeys around Oxfordshire and then made them the subject of the claims which the respondents investigated."

Mr Hunter's analysis of those two paragraphs, and the construction which he asks us to put upon them, is that in the first part of paragraph 42, where the Tribunal Chairman says that the evidence which the employers had was such that they were entitled to conclude that the employee was guilty of the allegations, he is dealing with what one might call the second Burchell point, and is concerned only with the employer's state of mind, and that his own conclusion is confined to the very last sentence, the second part of paragraph 43, that the employee not having enough work to do took the opportunity to make speculative journeys around Oxfordshire and then made them subject of claims. He says that that means that the Tribunal Chairman is simply finding that the employers genuinely believed the allegations of dishonesty which they were making, but that the Tribunal Chairman confined his own finding to the much less serious allegation of making unnecessary journeys. Viewed as an exercise in meticulous examination of the language we see the way in which Mr Hunter puts it. But we are satisfied that that is not a fair understanding of what the Chairman was saying and meaning. First of all the Burchell test is concerned with the employer's state of mind: that the employer had in his mind reasonable grounds on which to sustain his belief. It is a small difference, but an important one, that paragraph 42 does not address it in that way. It says that the evidence the employer had was such that they were entitled - objectively as we understand it to mean, or to put it another way that in the Tribunal Chairman's view they were entitled - to conclude that the employee was guilty of the allegations complained of. Nor is it just a matter of a meticulous examination of the words - as it were being more pedantic in reply to Mr Hunter than he has been himself. It is a matter of substance, because it must be remembered that this Tribunal Chairman had just at some length and with some detail come to the conclusion that so far as procedural conduct was concerned, as far as their conduct of the disciplinary process was concerned, the employers were not entitled to reach the conclusion they did. So where he now says that they were entitled he must in our view, not just as a matter of semantics but as a matter of fairly understanding his mind, be expressing his own view. The allegations complained of course included all the allegations; he does not meticulously go through each of them and the examples he gives are, as Mr Hunter has said, mostly (but as one of my colleagues pointed out, not all) related to what he refers to as "speculative journeys" rather than false claims. But he gives them by way of example. That, to our mind, cannot detract from the fact that he must be expressing, and intending to express, and should fairly be understood as expressing, his own view that the employee was guilty of the allegations complained of. In that light, we regard the last sentence "Not having enough work to do, he took the opportunity to make speculative journeys ..." as simply another example of that, as indeed something of a throwaway sentence at the end of the judgment. In our view this Chairman did address his mind to the question of whether as a matter of fact the employee had contributed to his dismissal by his conduct. He did find as a fact that that conduct substantially was such as was relied upon by the employers in dismissing him, and that being so, it seems to us, he was justified (and it was a matter for him to assess the percentage) to assess the contribution at 100%. Mr Hunter very properly reminded us of the authorities which point out that to assess the contribution at that level, which amounts to depriving the employee altogether of compensation for the unfair dismissal, is an unusual - "exceptional" is the word he relied on - course but nevertheless the words of the statute are quite plain in our view. Section 74(6) of the 1978 Act provides:

" (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."

Of course there may be other factors which go into what is just and equitable. But where the only factor which the Tribunal takes into account is the extent to which the dismissal was caused or contributed to by the action of the complainant, then if the conclusion - the finding of the tribunal - is that is was wholly so caused, exceptional though that may be, it is quite impossible to say that it is not a proper consequence to assess the reduction at 100%. The cross-appeal therefore fails. We may add that both as to the appeal and the cross-appeal there was no allegation of perversity. Both the appellant and the cross-appellant are therefore under the onus of persuading us that there was some misdirection by the Tribunal Chairman, and where they cannot point to an explicit statement by the Chairman of some proposition which is wrong in law then it is a very heavy burden if one is not advancing perversity as a ground to say "Ah, but he must implicitly have misdirected himself, although he does not say so." For those reasons we dismiss the appeal and cross-appeal.