MR P R HUBBERSTEY v SOUTH RIBBLE BOROUGH COUNCIL [2002] UKEAT 0097_01_0509

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0097_01_0509Case No Appeal No. EAT/0097/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P R HUBBERSTEYAPPELLANTSOUTH RIBBLE BOROUGH COUNCILRESPONDENT
Before
Mr Recorder UnderhillDate 5 September 2002
[1]APPEARANCES For the Appellant MR P HUBBERSTEY (In Person) For the Respondent MR PAUL GILROY (Of Counsel) Instructed by: Messrs Cobbetts Solicitors Ship Canal House King Street Manchester M2 4WB MR RECORDER UNDERHILL QC The Appellant was employed by the Respondent Council from 3 June 1998 to 3 March 2000 as a technical officer supporting the Council's IT and telecoms systems. In March 1999 he suffered severe leg injuries in a road traffic accident. In May 1999 he returned to work in a wheelchair but he had subsequent absences as a result of further operations.[2]In early 2000 there was a dispute between the Appellant and the Respondent in particular his immediate superior, Mr Frew, over the extent of his ability to work and the duties that he was expected to perform. This culminated in his resignation on 28 February with effect from 3 March. The Appellant brought proceedings in the Employment Tribunal alleging unfair (constructive) dismissal and disability discrimination. So far as the disability claim is concerned he claimed both under section 5(1) that he had been treated less favourably on the ground of his disability - for example, by being excluded from certain training courses - and under section 5(2) that the Council had failed to comply with its duties under section 6 to make reasonable adjustments.[3]The Employment Tribunal after a three-day hearing dismissed his application in all respects save one. Very broadly, they dismissed his claim of discrimination contrary to section 5(1); and as to his claim under section 5(2), they found that the Respondent had taken all reasonable steps to assess the extent of his disability and had only given him work to do which they reasonably believed was within his scope. They found by contrast that the Appellant in his dealings with the Respondent had been uncooperative and unreasonable. In paragraph 8 of the Extended Reasons, after observing that the issue before them was "largely one of credibility" they stated that:
"the Council asserted that every effort had been made to ascertain Mr Hubberstey's medical position and to bring about such adjustments as were reasonable in the light of the knowledge the Council had. Our conclusion is that, in almost every respect, that accurately reflected the situation."
There was accordingly no question of the Respondent having acted in any way which could have constituted constructive dismissal, and the unfair dismissal claim was likewise dismissed.[4]The one respect in which the Applicant was successful can be described as follows. In paragraph 4 of the Extended Reasons the Tribunal, after referring to the health and safety assessment carried out following the Appellant's second return to work in July 1999, found as follows:
"(v) One of the recommendations made in the health and safety assessment was that he should work from a desk which had no modesty panel; he had difficulty bending his leg and in order to use a desk with such a panel, he would have to sit "side on". (vi) There was some work being carried out within the Information Technology ("
IT") Department over the weekend of 14 and 15 August. When Mr Hubberstey returned on 16 August, his computer had not been moved to the desk without the modesty panel. (vii) He was clearly upset at this and went home. (viii)He was off work for a week (during which he received full wages) and returned again on 23 August. (ix) Once again, the move had not taken place but it was accomplished within a few minutes. At paragraph 25 of the Extended Reasons the Tribunal said as follows:
"25 We then returned to the provision of the desk without a modesty panel. The adjustment in this respect was a very easily accomplished one: the simple shifting of a computer from one desk to another. The Council were aware that that was the adjustment required well before Mr Hubberstey returned to work on 16 August. The fact that there was other work being carried out the weekend before his return does not in our view, satisfactorily explain the failure to undertake such a simple task by that date In any event, the Council was clearly aware of how seriously Mr Hubberstey was taking that matter by his actions on 16 August. It seems to us there was even less explanation or excuse for the failure of the Council to accomplish that task by his return on 23 August."
They then said at paragraph 31:
"Mr Hubberstey was clearly upset by the fact that his work station was not ready for him. In all the circumstances of this case we consider an appropriate award of compensation to be £100."
That award was plainly made - though the Tribunal do not spell this out - as an award in relation to injury to feelings under section 8(4) of the 1995 Act.[5]The Respondent applied for a review of the Tribunal's decision as regards the single respect in which they had found for the Appellant. The ground for the review was that the modesty panel incident had occurred more than three months before the issue of proceedings and was accordingly out of time. We shall have to return to the circumstances in which the review was in due course held, but the outcome was that the Tribunal altered their original decision and dismissed the entire claim.[6]The Appellant's notice of appeal to this Tribunal was drafted without legal assistance and is somewhat discursive. In its judgment given at a Preliminary Hearing on 11 June 2001 with Sir Christopher Bellamy in the chair - we will refer to this for convenience as "the Bellamy Tribunal"- the Tribunal identified four arguable points of law. We will deal with those presently. However there are three features of the interlocutory history of this appeal which we need to mention first.[7]First , the formal order issued by the Appeal Tribunal bore no relation to the judgment given by the Bellamy Tribunal. It recorded that "the Appeal be allowed to proceed to a full hearing against the compensation award of £109 [being the award of £100 plus £9 interest] and against the Employment Tribunal review decision in accordance with the judgment of the Employment Appeal Tribunal". An appeal against the Review Decision was indeed one of the points identified by the Bellamy Tribunal in its judgment, but the Order as drawn does not refer to any of the other points; nor had the Bellamy Tribunal, at least expressly, permitted an appeal against the compensation award of £100. It is difficult to see how this mismatch between the Order and the judgment occurred; but Mr Gilroy, who appears for the Respondent today, accepts that the judgment must trump the terms of the formal Order; and we accordingly proceed on the basis that the four points identified by the Bellamy Tribunal are those which we have to decide. We have also decided without any dissent from Mr Gilroy that we should consider the appeal against the award of £109.[8]Secondly , there was no provision for the lodging of an amended notice of appeal. This has made it difficult to identify with precision what the precise issues are which we have to determine. They are of course explained in general terms in the judgment of the Bellamy Tribunal but they are not formulated as they would have been in a notice of appeal. This has led to some uncertainty in our preparation for the appeal, but we are confident that the true issues have been fully argued before us.[9]Thirdly , it appears from the judgment of the Bellamy Tribunal that some documents were put before them by Mr Hubberstey (or by Ms Simler who appeared on his behalf under the ELAAS Scheme). Those documents were all documents which had been in the full bundle of documents before the Employment Tribunal. However, no bundle of documents was prepared for this hearing: before the hearing we not only did not have the full bundle of documents that was before the Employment Tribunal, we did not even have the documents that had been shown to the Bellamy Tribunal. The latter omission was put right in the course of the hearing, but even now we have seen only the Appellant's selection of key documents. Mr Gilroy has rightly reminded us that we should be very chary of drawing any conclusions from a selection of the full material that was before the Employment Tribunal. These difficulties have not in the end given rise to any real problem provided that we remind ourselves to focus on the comparatively narrow points of law identified by the Bellamy Tribunal.[10]We should also mention that the Respondent itself made an application for disclosure of the Chairman's notes. That application was refused by letter from the Registrar dated 5 October 2001 enclosing a letter from Sir Christopher Bellamy giving reasons why the Chairman's notes were unnecessary. That letter is useful as summarising in short terms what the points were on which the Bellamy Tribunal allowed the appeal to proceed.[11]There is one other important preliminary matter. Mr Hubberstey, who has appeared today without representation and argued his case very clearly and effectively, has referred us to the judgment of Bell J in this Tribunal in Morse v Wiltshire County Council [1998] IRLR 352 , and in particular to paragraphs 40-46 in that judgment at pages 356-7, and also to the judgment of Judge Levy in Edwards v Mid Suffolk District Council (which is not reported) at paragraph 42 of the judgment. These make it clear that an Employment Tribunal in dealing with a disability discrimination case, and in particular one in which section 6 is in issue, ought to follow a logical sequence in addressing the questions to which the statute gives rise. There are indeed other authorities to the same effect. The Tribunal did not explicitly follow that course in this case. Having set out in paragraph 4 of the Extended Reasons their findings of primary fact, they proceeded in paragraphs 5 and 6 simply to summarise the effects of sections 5 and 6 of the Act (not very completely); and having made the observation in paragraph 8 to which we have already referred, they proceeded to make findings on each of the Appellant's particular complaints seriatim and without specific reference to the statutory provisions in any particular case. There is force in Mr Hubberstey's criticism that this was not the best way for the Tribunal to proceed. Where the Reasons are not explicitly structured by reference to the particular legal issues there is a real risk that a Tribunal will fall into legal error. However, it does not follow from the fact that a more structured approach was not taken that the Tribunal necessarily addressed the wrong questions. Whether they did so has to be judged from a review of the Reasons as a whole. In the present case our task is fortunately more limited because of the limited grounds on which the appeal has been permitted to proceed. Some interesting questions to which Mr Hubberstey alluded, - for example, the question of whether retrospective justification is permitted under the Act - simply do not arise in relation to the particular complaints which he made in this case and the basis on which the Respondent defended them.[12]Mr Hubberstey also pointed out that the Reasons contain no assessment of the extent or nature of his disability, or of the evidence about it that was available to the Respondent. As Judge Levy pointed out in Edwards, an assessment of that evidence will normally be essential in a disability discrimination case. However, each case must be considered according to the particular issues to which it gives rise. In the present case the medical nature of the Appellant's injury was straightforward. He had suffered severe injuries to both legs and was initially in a wheelchair and subsequently very restricted in his mobility. Sophisticated questions of medical assessment were unnecessary. The baasic question was whether he could walk and if so how far. None of the issues before us, or indeed we think before the Tribunal, turned on any detailed assessment of those questions.[13]We can now turn to the four grounds of appeal identified by the Bellamy Tribunal, together with the issue as to the quantum of the award. (1) The passwords point[14]The Tribunal found, at paragraph 4(xii) of the Extended Reasons, that on 7 January 2000 Mr Frew produced a memo setting out a detailed analysis of the job roles of Mr Hubberstey, identifying those which he considered that Mr Hubberstey was able or unable to carry out. That memo was one of the documents put before the Bellamy Tribunal and now before us. Its essence was to identify "the tasks you could easily undertake whilst you continue to remain deskbound" - in other words, the tasks that could be done from a single workstation and terminal without the need for the Appellant to move about the building. Some of the tasks involved him working on parts of the IT system by way of remote access for which a computer password was necessary. The Appellant complained that he was not given all the necessary passwords. He also, as we understand it, complained that some of the jobs that had been identified as not possible for him to do would in fact have been possible if he had been supplied with the necessary passwords.[15]Following that memo there was a series of meetings, including one on 14 February 2000, culminating in a memo from Mr Frew of 15 February 2000. This read in part as follows:
"I am writing to inform you that I am now confident I have sufficient information to objectively review the task list we originally drew up to accommodate you during the immediate period of recovery following your return to work, after your last operation. As such you will now be required to carry out all the duties identified in your job description, with the following conditions: you will not be required to lift or carry any equipment you will not be required to attend any off sites that would involve having to use a staircase. These conditions will be reconsidered following your consent to the request of a medical report from either your Hospital Consultant or the Authority's Occupational Health Advisor."
We interpose to say that the Tribunal found that the Appellant had as at that point refused to agree to such a report being obtained. "The meeting scheduled for 16 th February is now cancelled, as I feel that any issues regarding training or a 'lack of information' should be directed, in the first instance, to your immediate supervisor." The Appellant responded with a memo of the same date in which he complained among other things of being denied access to the necessary passwords.[16]In relation to the events of the 14 and 15 February the Tribunal found as follows:
"23. By the meeting on 14 February 2000 it is clear that Mr Frew was beginning to be frustrated by Mr Hubberstey and that, it seems to us, is hardly surprising. It appears to us that Mr Hubberstey was doing all that he could to be as awkward as possible in relation to the Council and Mr Frew in particular. It was for that reason that the memo of 15 February was expressed in somewhat brusque terms. 24. However, the effect of the memo was perfectly proper. It reflected what Mr Frew reasonably and properly assessed (in the absence of the further report which he wished to obtain) Mr Hubberstey was able to do."
[17]In his Originating Application the Appellant complained about being denied access to the passwords in question on the basis that that constituted a refusal to make reasonable adjustments as required by section 6. The Tribunal dealt with this as follows:
"11. Insofar as he was denied pass words, we see nothing sinister in the Council's actions. The need for access of that sort was more restricted on the "end user" side of the IT Department where Mr Hubberstey worked. We accept that in one respect, namely the access to the Novell System, pass words had been withdrawn from a number of employees and not just Mr Hubberstey following a problem with the system when it had been remotely accessed (involving, as it happened, Mr Hubberstey himself). 12. As far as the duties identified by Mr Frew as being within Mr Hubberstey's capabilities were concerned, we are satisfied that had he sought the pass words required to carry out those duties , they would have been given to him."
[18]At the Preliminary Hearing the Bellamy Tribunal, having referred to paragraphs 11 and 12 of the Tribunal's Reasons as just set out said as follows:
"14. The difficulty we see with that reasoning by the Tribunal, which may of course be resolved at the hearing of the main appeal, is that we are not dealing here with the passwords necessary for access to the Novell System; we are dealing in particular with passwords necessary for Mr Hubberstey to carry out the tasks, which Mr Frew apparently indicated in the job description, could be carried out from Mr Hubberstey's desktop. It does appear from material before us that Mr Hubberstey had asked for those passwords and did not in fact receive them. 15. We are therefore, at the moment, not satisfied that the Tribunal gave sufficient reasons at paragraph 12 of its decision, for saying that if Mr Hubberstey had sought the passwords required to carry out those duties, they would have been given to him. It may very well be, as I have said, that there is a full explanation and indeed a full justification for the approach that the Tribunal adopted, which will be fully elaborated on the hearing of the main appeal."
[19]That is the issue which we have to determine on this occasion. It appears to be essentially a point based on the failure of the Tribunal fully to explain their reasons, in other words on the principles most commonly referred to by reference to the decision of the Court of Appeal in Meek v Birmingham City Council [1987] IRLR 250 . There can of course be no question, in the absence of the Chairman's notes or the full documentation, or our considering whether the conclusion of the Tribunal was one which was open to it on the evidence.[20]We have considered carefully whether the impugned finding does contravene the principle in Meek . We do not believe that it does. The Tribunal have made an explicit finding of fact that the Respondent would have given the Appellant all passwords necessary to carry out his duties. We do not believe that it was necessary for the Tribunal to set out the precise basis of that finding of fact. A discretion has to be allowed to a Tribunal to what extent it is necessary to set out the detailed reasoning behind each finding of fact. There are circumstances, as most recently illustrated in the decision in Anya v The University of Oxford [2001] ICR 847 , where it is necessary in order for the Tribunal's thinking to be fully understood that the way in which individual points have been resolved should be fully explained, but there can be no universal rule to that effect. It is clear from the remainder of the Tribunal's findings of fact that there were several discussions over the crucial period between the Appellant and Mr Frew of which we do not have the full details before us. We do not think it is legitimate, by plucking out what appears to be a possible discrepancy between the Tribunal's findings and an individual document, to infer that there is a crucial lacuna or flaw in the Tribunal's thinking which had to be fully explained. We accept that the Tribunal's findings of fact on this and other issues are fairly brisk in form. Nevertheless, it is clear that each disputed primary issue such as the question of access to passwords was individually considered and a conclusion reached on it. The Tribunal are the only legitimate finder of fact and we can see no error of law in the way in which they have expressed their conclusions.[21]We have not in these conclusions relied specifically on any particular authority but there are well known authorities including Martin v MBS Fastenings (Glynwed) Distribution Ltd [1983] ICR 511 which reinforce the approach which we have adopted. (2) The Remote Access Point[22]It emerged in the course of argument that what the Bellamy Tribunal had identified as a distinct point about whether the Appellant had been afforded the opportunity to work by remote access was in truth the same factual point as the passwords point. The reason why passwords were required was in order to permit remote working. We accordingly need say no more about this issue. (3) The work cover point[23]The factual basis of this point is as follows. At paragraph 4(xiii) of their Reasons the Tribunal found as follows:
"The Council operated a rota for people working on the help desk (as Mr Hubberstey did). Mr Hubberstey appeared on that rota, which meant that on the relevant days he was obliged to attend work at 8.30am. Since in the early days following his return he was not able to drive, but had to rely upon Mrs Withnell, who was looking after him, that caused her to have to re-organise her arrangements."
Part of the Appellant's complaint was that reasonable adjustment would have meant that he should have been released from the obligation to do this particular duty. He was already, he explained to us, on flexible working; but he told us that the imposition of this particular obligation could potentially have created difficulties for him. We did not fully understand why this duty, as opposed to his obligation to come in on whatever other times were fixed according to his flexible working arrangements, required an adjustment; but it is unnecessary for us to resolve that difficulty in view of the way in which the Tribunal dealt with it and our conclusions on it.[24]The Tribunal held in relation to that complaint, at paragraph 14 of the Extended Reasons:
"We do not consider that he was "pressured into providing office cover in the mornings"
. It was made clear that he should report to his supervisor if this gave him any difficulty but the only difficulty that appeared to exist was that of Mrs Withnell." In relation to that finding the Bellamy Tribunal said, at paragraph 20:
"The issue on that aspect appears to us to be whether the Council should formally have adjusted Mr Hubberstey's obligations instead of leaving him in a situation where he was obliged to do that which his disability made it more difficult for him to perform."
[25]In our view the finding of the Tribunal at paragraph 14 was, albeit somewhat obliquely expressed, clearly intended as a finding that no adjustment was needed because Mrs Withnell was in fact willing and able to assist the Appellant on these days but that if that turned out not to be the case his supervisor would be prepared to consider any necessary adjustment. The Appellant before us acknowledged that Mrs Withnell - and it is no doubt a credit to her - was always willing to bring him in in time for his 8.30 duties when those came up on the rota, and to that extent the point was, in a phrase that he himself volunteered, "academic". In our view the Tribunal was entitled to find that circumstances never arose in which an adjustment was required. (4) The Review[26]The position in relation to this needs to be set out in a little detail:-(i) On 11 December 2000 the Respondent applied for a review on the basis that we have already indicated. The limitation point had not apparently been taken at the hearing because the Respondent had not anticipated the situation in which it would lose on this single point.(ii) By letter to the Respondent's solicitors dated 15 December 2000, copied to the Appellant, the Tribunal acceded to the request for a hearing. They identified in the letter that:
"At the hearing the Tribunal will if necessary consider whether it was just and equitable that the claim should have been determined even if it was out of time."
That is of course a reference to the provisions of paragraph 3(2) of Schedule 3 of the 1995 Act. (iii) On 5 January 2001 the parties were notified that the review would be heard on 21 March 2001 at 9.45 am. (iv) On or about 10 March 2001 the Appellant wrote to the Tribunal requesting an adjournment of the review hearing. Confusingly the letter bears the date 10 February 2001; but it was clear from the internal evidence that it was in fact written after 23 February, and the Appellant has told us that it was probably written on 10 March. That fits in with the date that it was received by the Tribunal, which was 13 March. The Appellant relied in the letter essentially on two points. First , he explained that he had had a further operation on 23 February to remove metal work from both his legs. He said that he thought it unlikely that he would be able to physically attend the hearing, and in any event he said that he did not think he would be in a mental state to do so, referring to the fact that he was still taking opiate based pain killers. Secondly , he made the point that there was in any event no urgency and that the review should await the outcome of the appeal. We should observe that he may have been over-pessimistic about his physical and mental abilities within a month of the operation, because it is clear from a subsequent letter that by the date of the review hearing he had in fact returned to work and indeed had very recently resumed driving himself. (v) By letter dated 14 March the Tribunal forwarded the Appellant's letter to the Respondent's solicitors, stating that they would not normally postpone pending an appeal, but were minded to do so given the sum involved. The Respondent's solicitors however replied by fax giving reasons why they believed the review should proceed; and on 19 March the Tribunal wrote to the Appellant enclosing the Respondent's solicitors reply and saying that the matter would remain listed for review in accordance with the date previously notified. By this stage it was of course only two days before the hearing; but that reflected the fact that the application for adjournment had itself only been received less than a week previously and that the Respondent's comments had to be obtained. The Tribunal's letter was not in fact received by the Appellant until the day of the hearing and after he had already left for work. (vi) The Appellant did not attend the hearing. He sought to explain to us why he had not. He accepted that he knew that he could not be sure that the review hearing was not going ahead; but he also said that he thought it very probably was not, both because of the indication that the Tribunal had been minded to postpone it and indeed because he was confident of the strength of the case for an adjournment which he had put forward. His reason for not attending seems to have been a combination of that feeling that the case had probably been postponed in any event and the difficulties in attending. Although he had very recently resumed driving himself to work, he explained to us that his journey to work was a short and easy one, whereas attending the Tribunal would have required a 20 mile drive from Preston to Liverpool in the rush hour. He did, however, tell us that if he had known that the hearing was going ahead he would probably have gone to it. He accepted that he had not telephoned the Tribunal on either the 19th or the 20 th to find out what was happening. He had phoned on some previous occasion, we are not clear when, and been told that the Chairman would be writing to him. (vii) The Tribunal heard the review application in the Appellant's absence. In their decision – not promulgated till 6 April 2001 - they held that the application in relation to the modesty panel incident was indeed out of time. They then said as follows:
"11. Clearly, the application was "out of time"
. However, the Tribunal could still go on to consider it (and thereby "retrospectively validate" the original declaration) if we concluded that it was just and equitable that it should have been heard. However, the burden rest with an applicant to establish that this exception applies. Mr Hubberstey ws not present before us nor was he represented and accordingly he could not discharge that burden upon him. (He had been expressly alerted to the possibility that this question would have to be raised when informed of this hearing). 12. It follows that the Tribunal could not and should not have made a declaration in his favour following the hearing in November 2000. We therefore determine that upon review, the interests of justice required that the finding of unlawful discrimination within the decision should be revoked and the result is that in all respects the application is dismissed."[27]At the Preliminary Hearing the Bellamy Tribunal said this at paragraph 27:
"There appears to us to be an arguable error of law in the subsequent review decision of 6 April 2001 as to whether the Tribunal attached undue weight to the absence of Mr Hubberstey before them and whether they failed to take into account what appears to have been his application to postpone the hearing."
[28]We have considered first whether the Tribunal were right to, in effect, decline to consider the question of whether it would be just and equitable to extend the time in the absence of any specific application from the Applicant to that effect. The statute does not impose any strict legal burden in relation to the question of an extension. However, we do not believe that the Tribunal should be taken to have been referring to any such legal burden. Rather we understand them to have been making the broader point that in the absence of any considerations being put forward by the Appellant they had no material on which they could exercise their discretion. In our view this was a legitimate approach for them to take. It has been held by this Tribunal in Dimtsu v Westminster City Council [1991] IRLR 450, approved by the Court of Appeal in Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 , that a Tribunal is not obliged to draw an applicant's attention to the possibility of an application based on the just and equitable exception at all. It seems to us that it must also follow that a Tribunal is not obliged to consider such an application in the absence of an applicant to make the point.[29]The question then becomes whether the absence of the Appellant from the Tribunal was itself the result of an error of law – i.e., in effect, whether the Tribunal were wrong in law to have refused his application to adjourn. We have not found this straightforward and have given it careful consideration. Certainly the application by the Appellant was not an unreasonable one. However, the question for us is rather whether it was an application which any reasonable Tribunal must have accepted. We do not think that it can be put that high. The point based on the pending appeal was arguable either way and certainly did not compel the Tribunal to give an adjournment. If the Appellant has a point it relates more to the application based on his health. However, it does not seem to us that the material before the Tribunal was in any sense overwhelming. The operation had occurred a month previous to the appointed date. There was no medical evidence before the Tribunal that the Appellant was not fit to attend. We in fact now know that the Appellant had himself returned to work: the Tribunal did not know that, but it supports the argument that a view that an operation of this kind did not necessarily disable a party from attending the hearing was not an unreasonable view. The hearing was not likely to be long or particularly taxing. It involved a single point on which short submissions would have been required. We also observe that it would have been open to the Appellant to put in written submissions.[30]The Appellant says that the Tribunal should have appreciated that its letter of 19 March might not reach him in time to let him know the decision: first-class post regrettably does not always arrive on the following day. That may be so, but that situation was created by the Appellant's own delay in applying; and it would of course, as we have already observed, have been possible for him to clarify the situation by a phone call to the Tribunal on 20 March.[31]We accordingly do not believe that the decision of the Tribunal on the occasion of the review, or the associated decision not to adjourn the hearing, was wrong in law. (5) The Award[32]This ground of appeal concerns the award of £100 in relation to the injury to feelings caused to the Appellant by the modesty board incident. The Appellant submits that the award was so wholly inadequate as to be wrong in law. In the light of our finding on the previous point it is not an issue which arises for decision. It would no doubt be open to us to deal with it by way of alternative, but we prefer not to do so. We have heard brief submissions from the Appellant and Mr Gilroy but we have not been referred to any of the relevant authorities. We would only say that although the award is undoubtedly very small the incident to which it related was also minor, and we are not convinced that if the point had been open to us we would have been satisfied that an award of £100 was outside the discretion of the Tribunal. That however is not to be considered to be a definitive ruling.[33]In these circumstances the appeal is dismissed.