MR R LEESON v MAKITA MANUFACTURING EUROPE LTD [2001] UKEAT 0911_00_2012

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0911_00_2012Case No Appeal No. EAT/0911/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R LEESONAPPELLANTMAKITA MANUFACTURING EUROPE LTDRESPONDENT
Before
MR COMMISSIONER HOWELL QCMR J HOUGHAM CBEMR R THOMSONDate 20 December 2001
[1]APPEARANCES For the Appellant ALISON DOWNS Freemans , Solicitors Jordan House, Hall Court Way Telford, Shropshire TF3 4NN For the Respondent RICHARD LEIPER of Counsel instructed by Engineering Employers Federarion Broadway House, Tothill Street London SW1 9NQ MR COMMISSIONER HOWELL QC We have before us an appeal and cross-appeal against the decision of the Shrewsbury Employment Tribunal sitting on 3 May 2000, set out in extended reasons issued to the parties on 12 June 2000 at pages 4-7 of the appeal file before us. In that decision the Tribunal held that the Appellant Mr Rae Leeson, who had been summarily dismissed from his employment as a senior maintenance engineer with the Respondents Makita Manufacturing Europe Limited on 12 May 1999 after nearly four years' continuous employment with them, had been fairly dismissed. However they reached that conclusion by holding that he had been dismissed for a different reason from the one specified by the Respondents at the time of the dismissal and also in their notice of appearance before the Tribunal dated 13 August 1999 as their sole reason for dismissing Mr Leeson, which had been his alleged gross misconduct in attempting to defraud the Company. Mr Leeson appeals against the tribunal's finding that his dismissal was for some other reason and was fair; the employer cross-appeals on the ground that the tribunal ought not to have rejected its case that Mr Leeson had been fairly dismissed for gross misconduct.[2]As already noted the sole reason actually specified by the employer for Mr Leeson's dismissal had been his alleged fraudulent misconduct; and on that his complaint of unfair dismissal succeeded, the Tribunal holding unanimously that no reasonable employer could have concluded from the actual facts in the case that he had attempted to defraud the company. Instead, however, they reached their own separate conclusion as the basis for disallowing his claim, that there had been another reason of equal importance in the mind of the manager who made the decision to dismiss and confirmed his dismissal for alleged fraudulent misconduct by letter of 13 May 1999: namely the concern of the Respondents' managers to be seen to be tackling absenteeism in the company following a directive from the President of the Japanese parent company. They further held this separate reason to have amounted to "some other substantial reason" within section 98(1) Employment Rights Act 1996 for the actual dismissal imposed, and the Respondents to have acted reasonably in treating it as sufficient reason for his summary dismissal, even though no mention of it had been made at that time at all.[3]On Mr Leeson's appeal against that conclusion, Mrs Downs who appeared on his behalf contended that the Tribunal had misdirected themselves first in finding that he had been dismissed on a ground not stated to him at the time, not relied on in the employers' IT3 Notice of Appearance and not asserted by them at any stage of the Tribunal proceedings as a separate reason for dismissal independently of the one they specified; and secondly in holding that any dismissal on such an alternative ground could have been fair in the circumstances of this case. On behalf of the Respondents, Mr Leiper in a well presented argument contended on the cross-appeal that the Tribunal's rejection of the misconduct ground was unjustified, and they should have held Mr Leeson's summary dismissal on that stated ground was fair. In answer to the appeal, he said that the Tribunal had in any event been entitled to reach the conclusion they did on the alternative ground they identified, since this had been suggested by the Chairman himself in the course of the Respondent's evidence as a possibility and by being so mentioned had been sufficiently "ventilated" to become a proper issue in the proceedings even in the absence of any formal amendment to the Respondents' notice.[4]The material facts were that Mr Leeson, who had no relevant warnings on his employment record for absenteeism, was away from work throughout the week beginning Monday 26 April 1999 because he was ill with tonsillitis and vertigo. There is now no dispute that he was genuinely ill with these conditions, and unable to work that week: he had visited his GP on Monday 26th, and been certified unfit to work for a week and given antibiotics. By Friday 30 April he had started to improve, and decided he was feeling well enough to go out. What he did was go out with his wife to the local golf course, taking his golf clubs. There according to his evidence they went round the course playing golf, albeit what he described as a "non-competitive round", which gave him the benefit of some fresh air and exercise after being confined indoors all week.[5]The next three days were the bank holiday weekend. On the morning of Tuesday the 4th May, Mr Leeson returned to work as normal and submitted a sickness absence form for the preceding six days, so as to claim sick pay under the Company's sick pay scheme. In the meantime however another employee reported to the personnel manager, Mr Molyneux, that he had seen the Appellant out on the golf course on the Friday when he knew he was off sick. That led to a disciplinary meeting on 12 May 1999 at which the Appellant was told by Mr Molyneux he was being summarily dismissed, for gross misconduct in attempting to defraud the Company by making a claim for sick pay when he had been well enough to play golf.[6]Mr Leeson's summary dismissal on that sole ground was confirmed by Mr Molyneux in a letter the following day, 13 May, saying:
"I am writing to confirm that … ... following your claim for company sick pay when you were playing golf the company has terminated your employment for gross misconduct for attempting to defraud the company. You will not be entitled to any notice."
Summary dismissal on that ground was imposed in spite of the fact that Mr Leeson had duly supplied his employer with the medical certificate from his doctor confirming that he had been unfit to work on Friday 30th April when he was seen on the golf course. His evidence, which was unchallenged, was that the fraud charge was the only ground discussed or given to him as a reason for his dismissal at the meeting of 12 May.[7]Mr Leeson exercised his right of appeal against his summary dismissal, and submitted in support a letter from his doctor dated 24 May 1999 (page 9 of the appeal file) which said:
"I saw Mr Leeson on 26.4.99. He had quite bad tonsillitis & pharyngitis, for which I prescribed an antibiotic & gave him a sick note for the rest of that week. This was because he was unfit to do his job, and did not mean that he should be confined to home. Fresh air & light physical activity at one's own pace can be helpful in these circumstances."
The appeal hearing took place before Mr Harris, the general manager of production, on 25 May. The Appellant argued that in view of the letter and previous medical evidence he had not been guilty of any misconduct and should not have been dismissed on that ground. However that was met by Mr Harris and Mr Molyneux saying that this could not be accepted, as the managers were under a direction from the President of Makita that absenteeism had to be reduced, and this was company policy. The Appellant's evidence to the tribunal was that up to that time he had been unaware of any special policy or directive that would turn what he had done into an act of misconduct or a disciplinary offence. Again, that evidence was unchallenged.[8]Mr Harris dismissed the Appellant's appeal against his summary dismissal for gross misconduct. He explained this and his reasons in a letter dated 8 June 1999 (included in our appeal file as pages 9a and 9b) as follows:
"I have now fully investigated your appeal against the grounds you were dismissed upon. My decision is as follows. You were absent from work having been signed off by your doctor until 4 May 1999 for tonsillitis and vertigo. On returning to work you completed an absence form for tonsillitis but failed to bring to the Company's attention that you participated in a recreational activity, i.e. playing golf, during one of your days off sick. The letter you handed to me at the meeting held on 25 May 1999 at Makita site 1 from a Dr Marray confirms that you were unfit to do your job but did not state you should be confined to your home. 'Fresh air and light physical activity at ones own pace can be helpful in these circumstances' was the advice given to you and this has also been taken into consideration. During the above mentioned meeting on 25 May 1999 you stated you did not feel fit enough for work on the day in question, but you were able to play golf which is a physical activity. From the minutes of the meetings held on 5 May, 12 May and 25 May 1999 you have consistently felt that a sickness certificate issued by the doctor used for statutory sick pay or social security purposes overrides your contract and the terms and conditions stated in the Company handbook at Makita. As a Supervisor you should be aware of the Company's policies and that we are trying to reduce absenteeism to the national average following a directive given in this matter. You felt it was not relevant to your appeal. I also confirmed this matter with the Production Director. After the consultation I was left with a clear understanding that we must improve on our current position as it is more than double the national average. In a company of our size the role of the Personnel Manager is to make sure that Company policies/directives are being administered throughout each department in a fair and consistent approach. The decision which was made had to adhere [sic] to any member of our organization who participated in a recreational activity such as golf whilst on sick leave. It would be true to state that if a member of the Company took part in such an activity then all Company members could participate in such activities whilst absent from work through sickness. Therefore I find the decision made by the Personnel Manager was correct and can not uphold your appeal."
[9]It was common ground before us that nothing was produced at that meeting, or to the Tribunal, to substantiate the suggestion made in the fourth paragraph of the letter that there was some material provision of Mr Leeson's contract or the company handbook which had the effect of turning what Mr Leeson had done, by going out on the golf course while still medically unfit for work, into an act of misconduct if it had not ordinarily been so.[10]Mr Leeson complained to the Tribunal that in these circumstances his dismissal for fraudulent misconduct had been unfair. This was resisted by the employer, on the single ground that his dismissal for that reason had been justified. The IT3 notice of appearance dated 13 August 1999 at page 19 stated the grounds on which the application was resisted simply as:
"The Applicant was seen playing golf whilst certified as unfit for work by a Doctor and subsequently claimed sick payment. The matter was fully investigated. At a Disciplinary Meeting at which the Applicant chose to be unrepresented it was concluded that the Applicant was guilty of an act of gross misconduct. He was dismissed. He took up the Right of Appeal but the dismissal was upheld."
It is common ground, and completely beyond dispute, that there was no suggestion there of his dismissal having in fact been for some other reason; and no application to amend the grounds put forward by the employer was ever made.[11]It is also common ground that the first and only suggestion of there having been some other and distinct reason for the Appellant's dismissal came not from the Respondents themselves or their witnesses, but from the Chairman in the course of the proceedings before the Tribunal. This occurred when the Respondent's witnesses, in particular Mr Harris, had been stressing the importance of the Company's policy on absenteeism to justify the imposition and upholding of a summary dismissal in Mr Leeson's case. The Chairman intervened during the evidence with the suggestion that the pressure on the company's managers to be seen to comply with the President's directive on reducing absenteeism might itself be capable of amounting to "some other substantial reason" for their dismissal of Mr Leeson, even if that could not be defended on the misconduct ground the employer had consistently given for it so far.[12]That intervention, according to the recollection of Mrs Downs who was present at the Tribunal hearing, occurred in the course of the oral evidence being given by the Respondent's witnesses, towards the end of the morning and shortly before the luncheon adjournment. Nothing further was said about it at the time, and although both the Respondent's witnesses and the Appellant himself who gave his evidence afterwards were asked some questions about the company's problems with absenteeism and the directive from above, Mr Leeson's unchallenged evidence was that he had been unaware of the policy directive until it was mentioned in the course of the appeal hearing on 25 May 1999, by which time he had already been dismissed.[13]The evidence was then concluded without any further specific reference being made to the Chairman's suggestion that the dismissal might have been justifiable for some other reason than Mr Leeson's gross misconduct. In particular there was no application or suggestion that the Respondents' notice should be amended or an additional issue formulated, and in Mrs Downs' words the suggestion was 'simply left in the air'. Since she did not understand it to be a separate issue she was required to address in the case, her cross-examination of the Respondent's witnesses did not seek to explore how any such separate reason could be said to have been an actual reason for the dismissal imposed on Mr Leeson on 12/13 May, or the basis on which it could be said that he had, after all, been dismissed on this independent ground and not for the gross misconduct consistently specified to him; or how what he had done could be properly considered "absenteeism" when he was genuinely unfit to come to work, or what the justification might be said to be for summary dismissal without prior warning for a single instance of it in the absence of knowledge on Mr Leeson's part about the company "policy".[14]In those circumstances Mrs Downs did not make submissions on these points, or address the possibility of such an alternative reason being relied on by the employer for the dismissal, in her closing submissions to the Tribunal: nor was she invited to do so. She quite properly told us that she could not now recall whether the possibility of some other substantial reason for the dismissal had been mentioned in the course of the Respondent's submissions after she had concluded the Appellant's case; but emphasised that in view of the way the matter had proceeded she did not understand it to be an issue in the case she had to meet. As she pointed out it was for the employer to establish why Mr Leeson had in fact been dismissed, and to show that its actual reason for dismissal was within the category of potentially fair reasons under section 98(1) and (2) Employment Rights Act 1996 , and the employer's case had throughout been that Mr Leeson was justifiably dismissed for fraudulent misconduct.[15]The Tribunal's reasons for holding the Appellant to have been fairly dismissed, not for that reason but for the different one they identified, appear from the following paragraphs of their extended reasons:
"2. The applicant was employed by the respondents from 31 July 1995 until 12 May 1999. The effective date of termination of the applicant's employment was 12 May 1999. When the applicant was dismissed he held the position of a senior maintenance engineer. 3. The reason for the applicant's dismissal was that he played golf whilst he was off sick. The respondents had an extremely bad absenteeism record and the applicant was a first line manager. It was important to the respondents to be seen to be tackling the absenteeism problem and they accordingly dismissed the applicant. The respondents also believed that the applicant had attempted to defraud the company by claiming under the sick pay scheme inappropriately, when he was playing golf. 4. The Tribunal's view of the evidence was that these two reasons were of equal importance in the respondents' manager's mind when he dismissed the applicant. 5. The category of such reasons for the purposes of the Employment Rights Act 1996 was conduct, and/or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. . ... 8. The Tribunal heard evidence from the respondents that they were a part of an international group of companies (a multi-national) and that they were the worst company in the group for absenteeism. One department of 215 had an absence level of over 13%, approximately 28 staff per day reporting in sick. At the time of the applicant's dismissal the company average was 8+%. The industry average was approximately 4.5%. 9. On Tuesday 4 May 1999, Craig Christie, the senior personnel officer, spoke to Richard Molyneux, personnel manager, to say that on Friday 30 April, he had gone to play golf at Horsehay, and whilst on the putting green he had observed the applicant coming off the course having completed a round of golf. Knowing that the applicant was absent from work with vertigo and tonsillitis he felt he had to report the events. 10. Later that day, the applicant completed and submitted an absence form indicating that he had been absent through sickness for six days prior to his return to work that day. The applicant claimed sick pay under the Company's sick pay scheme whereby he was entitled to full pay. 11. On 12 May, there was a disciplinary meeting, the notes of which are at pages 8-10 in the bundle of documents. The applicant's employment was terminated. 12. The applicant admitted playing golf, but indicated that he was feeling much better and that he thought that the exercise would do him good. He said that he did not play a competitive round of golf, but that he strolled round the course with his wife, albeit playing golf. 13. The applicant appealed against the decision to dismiss him to Mr Paul Harris, the general manager of production. He turned down the applicant's appeal. In evidence, Mr Harris said that he took the following factors by way of guidance: "(a) Did the company have a policy on sickness (b) Had we received instructions and set targets on sickness (c) Were the targets within reasonable standards (d) The importance of a sick scheme for our staff (e) How to apply the same conditions to all employees from the Operator to the Managing Director." 14. In evidence, Mr Harris stated: "
I upheld the decision on the following facts. Whilst I understand the content of the doctors letter, Rae Leeson appealed against dismissal on the grounds of gross misconduct against the Company, and it not being acceptable to play golf whilst certified sick. I regard golf as a recreational activity. If I could accept this action then any staff member would be entitled to the same treatment. The commercial ramifications could be dramatic to disbanding our sick scheme, therefore bringing hardship to the staff who need it most. I could imagine there are many ways to recoup from vertigo but playing golf in my mind is not one of them as at the appeal meeting Rae Leeson described the symptoms as being drunk without the fun part, experienced dizziness, nausea, uncertainty and mental stress. Another factor was Rae Leeson was in charge of a small number of staff as a Senior Engineer. To improve our Company all senior managers should set examples for juniors to follow, therefore, a breach of discipline and authority had started to occur. I then asked myself this one question: No matter what the industry an individual works in, from ours to the legal profession if a member of staff supplied a sick certificate and was seen playing golf it would be reasonable that the individual would have his employment terminated under gross misconduct." ... 16. The Tribunal unanimously concluded that no reasonable employer could conclude that the applicant had attempted to defraud the company. The applicant was indeed off sick, and had a doctor's note in support. The Tribunal accepted that the applicant had been feeling better, and that was why he decided to play golf. That did not necessarily mean that he was fit enough to return to work. Indeed, the respondents did not expect him to actually return to work that day. However, the Tribunal did decide that the respondents did act reasonably in treating their other principal reason as sufficient reason for dismissing the applicant. 17. The Tribunal considered that the decision of the respondents did come within the range of reasonable responses of a reasonable employer. ..."[16]It is convenient to deal first with the Respondents' cross-appeal. Despite the submission by Mr Leiper that the Tribunal had wrongly substituted their own view for that of the employer in holding a summary dismissal on the stated ground of gross misconduct necessarily unfair, we think there is no real substance in the contention that this conclusion was based on any error of law. The tribunal expressly directed themselves in paragraphs 16-17 of their extended reasons to the correct test for judging issues of reasonableness under section 98(4) Employment Rights Act 1996 , referring to the 'range of reasonable responses of a reasonable employer'; and in our view the evidence and the tribunal's findings led quite properly to the conclusion that a summary dismissal for fraudulent misconduct despite the medical evidence and admitted fact that the Appellant was medically unfit to work on the day in question fell outside that range.[17]The cross-appeal is therefore dismissed. The issues on the appeal are therefore whether given the rejection of the employer's case based on Mr Leeson's alleged dishonesty and misconduct, the Tribunal could properly have concluded in the light of the evidence and the way the matter was put before them that(a) his dismissal had been shown under section 98(1) to have actually been for some different reason than such conduct, and(b) his dismissal for that other reason had been fair in all the circumstances under section 98(4).[18]Again it is convenient to take the latter issue first. As we indicated to the parties at the conclusion of the hearing we are unanimously of the view that the appeal against the Tribunal's decision has to succeed in any event on that ground. Assuming for the moment that the question of the dismissal having been for some different reason than the misconduct alleged was properly introduced into the proceedings, and accepting for the moment the Tribunal's finding that the relevant reason was the desire of its managers to "be seen to be tackling the absenteeism problem", the upholding as fair of his summary dismissal for that reason alone cannot in our judgment be allowed to stand. What it amounts to saying is that Mr Leeson was fairly dismissed because the managers decided to punish him as an example in order to encourage the others, even though he was not actually guilty of misconduct himself.[19]No reasonable Employment Tribunal could in our view have held a summary dismissal for such a reason to be within the band of reasonable conduct for a reasonable employer on these facts, and in our judgment this Tribunal materially misdirected themselves in holding that it was. The conclusion, expressed in the single sentence at the end of paragraph 16 that "the Tribunal did decide that the respondents did act reasonably in treating their other principal reason as sufficient reason to dismiss the applicant", is not supported by any stated reasoning; and in particular there was neither evidence nor any finding that the potential application of the 'policy' as a ground for immediate summary dismissal had ever been brought to Mr Leeson's attention, or to show how this single act of 'absenteeism' (if it was proper to view it as that at all) could fairly be viewed as a ground for summary dismissal in the absence of any sustainable finding of misconduct and without any prior warning or other disciplinary proceedings. At the very least, a dismissal for a substantially different and separate reason from that stated to the employee at the time would have been procedurally unfair. We add that we were not by any means ourselves satisfied that the evidence before the Tribunal did show the employers to have been taking such an extreme and unreasonable position as the Tribunal's finding of the "alternative ground" independent of misconduct appears to suggest. A far more natural and reasonable interpretation of what was said in Mr Harris' letter of 8 June 1999 quoted above, and by Mr Harris himself in evidence about the "one question" he asked himself, is that the company policy was his reason for confirming the penalty of dismissal for the gross misconduct and fraud found against Mr Leeson in the original dismissal decision, both that finding and the penalty being confirmed by Mr Harris on the appeal.[20]In our judgment the appeal is also entitled to succeed on the first ground argued by Mrs Downs, that the tribunal erred in law in basing their decision on their own assumption of an alternative and separate reason for dismissal, when(a) the Respondents themselves had never put forward this as a separate and independent ground divorced from the misconduct allegation, and(b) the possibility had only been touched on by a suggestion from the Chairman part way through the evidence, and never properly introduced into the proceedings as an issue.[21]Both sides referred us to established authority on when it is proper for a Tribunal to rely on an unpleaded reason for dismissal as constituting 'some other substantial reason' for the dismissal within section 98(1) of the Act, when the employer had not identified this as having been the actual reason for the dismissal but relied instead on a specific ground within one of the categories of potentially fair reasons within section 98(2), such as misconduct or redundancy.[22]Mr Leiper contended, and Mrs Downs quite properly conceded in her skeleton argument, that the relative informality of proceedings before Employment Tribunals means that they are not bound by strict and formal rules of pleading, so although it is always desirable for the matters in issue between the parties to be defined beyond doubt by amendment to the originating application or respondent's notice, the important question is not a formalistic one. Instead it is the practical consideration of whether any alternative reason to be relied on in favour of the employer under section 98(1), and most importantly any alternative factual basis to establish such a reason, has been clearly enough raised as a question needing to be addressed so that the complainant and his or her representative have a fair opportunity of understanding what case from the other side they have to meet, and deploying their own evidence and argument on any issues that raises. It is the substance of the case asserted in answer to the complaint that matters, not the legal interpretation or "label" to be applied to it.[23]We agree that those are the principles to be applied in this context, and it is only necessary to refer to two of the authorities cited to us to illustrate what lies behind them. The first is a well known passage from the judgment of Lord Browne-Wilkinson in Murphy v Epsom College [1983] ICR 715, a case of a redundancy dismissal which the Tribunal found fair on the alternative ground of 'some other substantial reason' even though the employers had not argued for this at the hearing. Referring to the case of Nelson v BBC [1977] ICR 649 in the Court of Appeal and an earlier decision of the Appeal Tribunal holding that it was not necessary to 'plead' some other substantial reason in the full technical sense of the word, Lord Browne-Wilkinson said:
"However, in our judgment, in the light of the Nelson case it is probably necessary that the matter should be expressly ventilated in the Industrial Tribunal before it reaches a decision on the matter so that the parties can have a full and proper opportunity to deploy their case on the matter. Natural justice requires that the party should not have a case decided against him on a ground on which he has not had an opportunity to be heard."
[24]A similar issue arose in the EAT in Hannan v TNT-IPEC (UK) Ltd [1986] IRLR 165, where the Tribunal below had found the reason for dismissal to have been one not in terms either pleaded or canvassed in argument at the hearing before it. Hutchinson J in the judgment of the Appeal Tribunal reviewed the authorities and gave further helpful guidance on what is meant by the requirement that the possibility of an alternative reason should be 'expressly ventilated' even if not defined as a separate issue by amendment, saying:
"22. It seems to us that one can summarise the distinction between the two lines of authority to which we have referred in this way, that where the different grounds are really different labels and nothing more, then there is no basis for saying the late introduction, even without pleading or without argument, is a ground for interference on appeal; but that where the difference goes to fact and substance and there would or might have been some substantial or significant difference in the way the case is conducted, then of course an appeal will succeed if the Tribunal rely on a different ground without affording an opportunity for argument."
[25]In that case the EAT concluded that the substantive issues and the nature of the evidence made the different formulation of the reason one of labels only. There being "no grounds for thinking the case would have been conducted in a significant way differently or more thoroughly investigated or the cross-examination or the evidence called would have been in any way significantly different had the case, as ultimately relied upon by the Industrial Tribunal, been pleaded or canvassed in evidence", it could be seen that no injustice had in fact been suffered by the failure to introduce the additional ground by way of amendment, and the appeal was dismissed.[26]In the present case however it could not in our judgment be said that the alternative reason for dismissal suggested by the Chairman was simply another way of labelling the dismissal actually imposed by the employer for gross misconduct and fraud. As explained above the Tribunal's separate reason was necessarily independent of the misconduct charge, which they quite properly held unsustainable, and it raised additional issues of fact.[27]Nor in our view can the alternative possibility be said to have been introduced with anything like the clarity required to make it into an issue "expressly ventilated" in the proceedings in the sense explained above. The factual case it involved under section 98(1) was necessarily inconsistent with the employer's actual reliance on fraudulent misconduct, maintained by it throughout the evidence. Because Mr Leeson's representative did not understand there to be any separate issue requiring to be addressed on the employer's reason for dismissal, there was no proper exploration of the evidence or cross-examination directed to the kind of questions such a different factual case would have thrown up, such as those in paragraph 13 above: she did not address any submissions to the tribunal on such issues, nor was she asked to. A more experienced advocate would no doubt have covered the position by stating simply and clearly at the end of her closing submissions that she had refrained from saying anything about the chairman's suggestion as it had not been taken up and defined as an extra issue in the case or dealt with in the evidence; but we think that given the way the suggestion arose there was a responsibility on the Tribunal itself to ensure that if any additional factual or legal issues it raised were to be regarded as part of the case the complainant's evidence and argument was expected to meet, they were clearly so identified. For the duty of the Tribunal itself to ensure that the issues before it are clarified with a view to the just handling of the proceedings see rule 9(1), Sch. 1 Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 SI No 2687 as in force at the time of this Tribunal hearing.[28]In our view therefore the tribunal did err in deciding the case on a factual ground that had not been alleged in the employer's pleading or otherwise adequately introduced as a separate issue, and this case is not within the exceptions identified by Hutchinson J where it can be seen that no injustice has resulted from the manner in which the substantive issues were dealt with at the tribunal, so the first ground of appeal also succeeds.[29]The result is that we allow the appeal, dismiss the cross-appeal and set aside the Tribunal decision. As it was common ground we should if we reached those conclusions, we substitute our own decision that Mr Leeson's dismissal for alleged gross misconduct and fraud was unfair, on the tribunal's finding that no reasonable employer could have found those allegations proved. The case is remitted to a differently constituted Tribunal to consider and determine the appropriate remedy for that unfair dismissal. That consideration is to include any relevant question of whether or to what extent Mr Leeson's own actions contributed to his dismissal, or any compensation otherwise payable to him should be reduced.