ROWE & COHEN v MR R S J RANKIN [2002] UKEAT 0739_01_0412

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 0739_01_0412

Case No Appeal Nos. EAT/0739/01 & EAT/0930/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

ROWE & COHENAPPELLANT

MR R S J RANKINRESPONDENT

Before

Mr Recorder Underhill

Date 4 December 2002

[1]APPEARANCES For the Appellant MR PAUL GILROY (Of Counsel) Instructed by: Messrs Rowe Cohen Solicitors Quay House Quay Street Manchester M3 3JE For the Respondent MR JOHN LAW (Of Counsel) Instructed by: Messrs Jack Thornley & Partners Solicitors 8 Warrington Street Ashton under Lyne OL6 6XP MR RECORDER UNDERHILL QC The Appellants, to whom we will refer as 'the firm', are a firm of solicitors. The Respondent, Mr Rankin, was employed by them as a litigation executive from 9 May 1995 until his summary dismissal by letter dated 20 October 2000. The circumstances of his dismissal are complicated. They can be summarised as follows:(1) In the late afternoon of 1 August 2000 Mr Rankin had a row with Mr Rowe, one of the partners in the firm, about a change in the telephone system in the office.

(2) On 2 August 2000 Mr Rankin phoned in to say that he was too ill to come in to work. He subsequently submitted a certificate from his GP saying that he had a viral illness and should stay off work for ten days. That took him to 12 August 2000: he had holiday booked for the next working day after that.

(3) Mr Rowe was very surprised about the coincidence between the employee going off sick and the row the previous day. He forthwith instructed a firm of enquiry agents to carry out surveillance and see whether Mr. Rankin was indeed too ill to work. As it turns out, his suspicions may to some extent have been justified. Nevertheless, the immediate recourse to measures of this kind could - to put it at its lowest - hardly be described as usual employment practice.

(4) As a result of the report from the enquiry agents, who had observed him drinking in a pub, Mr Rankin was suspended. An initial investigatory meeting took place, and a disciplinary hearing was fixed for 13 October 2000. The charge against Mr Rankin was that he had claimed to be sick when in fact he was well enough to work. His defence - express or by necessary implication - was that he was indeed suffering from symptoms of a viral illness diagnosed by his doctor and that the doctor had told him that he should take ten days off to recover from that illness.

(5) Prior to the hearing there was a fair amount of correspondence and contact between the firm and Mr Rankin and his solicitor. The firm disclosed the evidence on which it was proposing to rely, including the report of the inquiry agents.

(6) The disciplinary hearing duly commenced on 13 October 2000. The case against Mr Rankin was put by Mr Small, the Head of the Litigation Department, to a panel consisting of two other partners, Mr Cohen and Mr Dennison. Mr. Rankin was represented by a solicitor.

(7) In the course of the hearing Mr. Rankin's solicitor disclosed for the first time a report from the GP who produced the original certificate, Dr McGawley, dated 12 October 2000. Her report was summarised by the Tribunal in paragraph 14 of the Extended Reasons as follows:

"That report said that when the applicant consulted her on 2 August 2000 he was complaining of symptoms of stress. She said she "provided him with a ten day sickness certificate (Med 3) stating the allowed ambiguous diagnosis which we agreed should be a viral illness"

. She also said she had sent another form to the Department of Health and Social Security which stated that the true reason for his absence from work was worked-related [ sic ] stress. She added that the applicant was advised to obtain as much rest and relaxation as he could and that there was no restriction placed on his activity or his ingestion of alcohol. She gave details of the drug which she had prescribed." Dr McGawley's contemporary notes, which we have seen, seem to confirm that Mr Rankin's complaint had been about stress at work and that so far as she was concerned the purported diagnosis of a viral illness was purely a cover. We were somewhat surprised to find a doctor colluding with the patient to give a false certificate to an employer. However, it appears from the reference to an "allowed ambiguous diagnosis" that this may be regarded as permissible in circumstances where full disclosure is contrary to the patient's best interests; and it was indeed Mr Rankin's case that he believed that to mention that he was suffering from stress might jeopardise his career. We accept that there may be delicate ethical questions here, and since it is not necessary for us to pass judgment on the doctor's conduct we do not do so. (8) Dr. McGawley's report supported Mr. Rankin's case to the extent that it showed that he had indeed received medical advice to stay away from work, but it undermined it to the extent that he was alleging that the nature of the condition which prevented him coming to work was a viral illness. Mr Rankin argued, however, that he was in fact suffering both from stress and from a viral illness: he had had a sore throat. Thus at worst he was telling a half-truth rather than an outright untruth. There is no clear finding by the Tribunal on whether Mr. Rankin genuinely believed in his own explanation; but the majority appears at least to have taken the view that it was stress, rather than any viral condition, that made him (to the extent that he was) unfit to come to work. (9) On the disclosure of Dr McGawley's report Mr. Small took the view that it might in fact justify a different charge of gross misconduct from that on which he had so far been proceeding, namely that Mr Rankin had deliberately misled the firm about the real nature of his problem. The hearing was adjourned to 17 October 2000 for this point to be considered. When the hearing resumed Mr Small presented the case on the basis of the new charge. (10) Mr Cohen and Mr Dennison took time to consider their decision. By letter dated 20 October 2000 they informed Mr Rankin that they regarded him as guilty of gross misconduct and summarily dismissed him. (11) Mr Rankin appealed. The appeal was to be heard by another partner, Mr Hymanson. There was some to-ing and fro-ing about the form which the appeal would take, and in particular whether it would be heard by Mr Hymanson alone. This provoked an offensive and intemperate letter from Mr Rankin to Mr Hymanson, dated 5 November 2000, in which he described most of the partners in the firm as "the lowest form of pond life", made a number of other abusive remarks about individual partners and expressed the view that it was ironic that a firm with a preponderance of Jewish partners should be behaving like the Gestapo. (12) The appeal eventually took the form simply of Mr Hymanson considering all the papers on his own, without a hearing. He concluded that the decision taken by Mr Cohen and Mr Dennison had been reasonable and that accordingly the appeal would be dismissed. In his letter communicating that decision to Mr Rankin he said that if he had not dismissed the appeal he would have had to refer Mr Rankin's abusive letter back to the partners for consideration of further disciplinary proceedings in any event.

[2]Mr Rankin brought proceedings for unfair dismissal. The Tribunal heard the application over three days in March and April 2001. It reserved its decision. In Extended Reasons promulgated on 8 May 2001 it found by a majority in favour of Mr Rankin on the issue of liability and adjourned issues of remedy to a further hearing. The two members of the majority reached their decision by different routes. The reasons given by the three members of the Tribunal can be summarised as follows. (The Reasons do not identify the members by name: for convenience we have designated them A, B and C and refer to them all as "he".)(1) Member A held (Reasons, para. 29) that the firm had not discharged the initial burden of showing a reason for dismissal coming within s. 98 (1) and

(2) of the Employment Rights Act 1996 (for short, an "admissible" reason). He found Mr Rowe's conduct in starting surveillance on Mr Rankin immediately after he had gone off sick so extraordinary, and the disciplinary case against him so flimsy, that he inferred that there must have been some other reason for the dismissal which the firm had failed to disclose. He therefore did not proceed to consider, even as a fallback, the reasonableness of the decision to dismiss under s. 98 (4). (It is fair to say that he did express the view, in a single sentence, that Mr. Hymanson's conduct of the appeal had not been impartial; but that observation is not, with respect, at all clearly reasoned and we cannot read it as a considered alternative basis for his decision. The summary of his view at the end of para. 29 makes it clear that his decision was based purely on s. 98 (1).) (2) Members B and C both held, by contrast, that the firm had proved that the dismissal was for misconduct, that is because Mr Cohen and Mr Dennison genuinely believed that Mr. Rankin had culpably misled them about the reason for his absence. However :-

(3) Member B held (Reasons para. 30) that it was not within the range of reasonable responses for the firm to treat that conduct as justifying dismissal. He accepted that Mr. Rankin had failed to disclose the nature of his condition but took the view that "... no reasonable employer could have concluded in all the circumstances that the conduct of failing to disclose that the Applicant was suffering from stress was sufficiently serious to amount to gross misconduct ... [or] ... some other substantial reason …" He drew attention to what he described as the "vague" description of gross misconduct in the written disciplinary procedure. He also believed that the evidence supported the view that, although the main reason for Mr. Rankin's absence was stress, he had a viral infection at some relevant point.

(4) Member C, the minority member, held (Reasons, para. 31) that it was within the range of reasonable responses for the firm to treat the concealment by Mr. Rankin of the true nature of his illness as a sufficient reason for dismissal, particularly in view of the fact that he had the conduct of litigation on behalf of the firm.

[3]There was a further hearing on 11 June 2001 to consider the question of remedy. The Extended Reasons were sent to the parties on 2 July 2001. Mr. Rankin had not sought reinstatement or re-engagement, so the only relevant remedies were pecuniary. The basic award amounted to £1,495. As to the compensatory award, the Tribunal calculated the full amount of Mr Rankin's loss at £21,785.51. However, the majority deducted 15% on the basis that it was not just and equitable that Mr. Rankin should receive 100% compensation in the light of his conduct in sending the abusive letter to Mr Hymanson: they acknowledged that since the letter post-dated the dismissal it could not constitute "contributory conduct" for the purpose of s. 123 (6) of the 1996 Act (or s. 122 (2), as regards the basic award), but they believed that a deduction could be made under s. 123 (1). The minority member - it seems very likely that this was A, but it is impossible to be certain - would have made no deduction on this account.

[4]Quite apart from the deduction in relation to the sending of the abusive letter, there was a distinct issue before the Tribunal whether the amount awarded should be reduced under s. 123 (6) in order to take account of Mr Rankin's conduct in not disclosing the true nature of his problem until a late stage in the disciplinary process and (as the firm alleged) in persisting untruthfully in the assertion that he was suffering from a viral illness when he was not. On that issue too there was a majority decision, with each of the three members of the Tribunal taking a different position: - Member A took the view that the issue of contribution could not arise because of his finding that the firm had not shown the true reason for the dismissal. - Another member of the Tribunal - almost certainly B - found that "... although there was an initial failure to tell the truth until late in the proceedings and a persistence in putting forward the viral illness as the reason for disability that conduct was not sufficiently serious to justify a reduction in the compensation." - The third member of the Tribunal - almost certainly C - found that the conduct in question contributed to the dismissal to the extent of 100%. It seems that C certainly took the view, though this is not expressly stated in the liability decision, that Mr. Rankin knew that the certification of a viral illness was wholly false. It followed that the majority decision, albeit reached by different routes, was that there should be no reduction for contributory conduct in this respect.

[5]We have before us the firm's appeal both against the decision on liability and against various aspects of the decision on remedy. Mr Rankin cross-appeals against the deduction of 15%. THE LIABILITY DECISION

[6]Mr. Gilroy, who appeared before us for the firm as he also did at the liability hearing below (but not the remedies hearing) mounted distinct challenges to the reasoning of member A and of member B. But he first of all took a preliminary point as to the overall structure of the decision.

[7]He argued that it was the duty of member A, notwithstanding his decision on the s. 98 (1) issue, to reach a conclusion also on the s. 98 (4) issue; and that his failure to do so is enough to invalidate the decision as a whole. As he put it in his skeleton:

"The process of reasoning adopted by the tribunal amounted to a process of elimination, and by reason of that process (one member ceasing to play a part in the decision-making process after being outvoted on the first issue) the Appellant was deprived of the right to a fair just and determination of the case."

We are satisfied that that submission is misconceived. What the parties are entitled to is the decision of each member of the Tribunal on the ultimate issue in the case, i.e. here whether Mr. Rankin was unfairly dismissed. If there are alternative routes to the resolution of that issue, a member of the Tribunal need only resolve the particular questions, or sub-issues, necessary to the route which he or she adopts. There is nothing inherently wrong in a decision (unanimous or by a majority) on the ultimate issue reached by more than one route. No doubt it is preferable for all members, so far as possible, to cover by way of alternative the issues on which any of their colleagues may have relied, but there is no obligation to do so.

[8]We turn to consider Mr. Gilroy's separate submissions on the reasoning of the two members of the majority. Member A

[9]Mr Gilroy's primary submission was based on procedural fairness. The facts on which the submission is based are set out in an affidavit sworn by him on 25 July 2001, on which we also have the Chairman's comments. They can be summarised as follows:(1) In the course of her closing submissions for Mr Rankin, his solicitor, Miss Routledge, conceded that the firm had established a potentially fair reason for his dismissal within the meaning of s. 98 (1) of the 1996 Act, namely "conduct"; and she therefore proposed to address the Tribunal solely as to the reasonableness of that dismissal.

(2) In the light of that concession Mr Gilroy stated explicitly at the start of his closing submissions for the firm that he would not be addressing the issue under s. 98 (1); and the Chairman (as she confirms in her comments) gave a nod which he took as an indication that that was accepted. Miss Routledge did not demur.

(3) On that basis no submissions were made by Mr. Gilroy, or invited by the Tribunal, on the s. 98 (1) issue.

[10]Mr. Law, who appeared before us for Mr. Rankin, contended that Mr. Gilroy placed too much reliance on Miss Routledge's concession: to concede that the reason put forward by the firm was an admissible reason was not to concede that it was their true reason. That is technically correct, but it does not appear that it was a distinction relied on by Miss Routledge herself, who according to the evidence confined her submissions entirely to the reasonableness issue. In any event, however, even if there were some residual ambiguity, Mr. Gilroy made it plain how he understood the position and both Miss Routledge and the Chairman allowed him to proceed on that basis. In our view it was entirely reasonable for him to understand that the Tribunal was treating the only live issue as that of reasonableness under s. 98 (4).

[11]Mr Gilroy submitted that in those circumstances it was not open to member A to find against the firm on the basis which he did. He may not have been bound by Mr Rankin's solicitor's concession; but if he wished to go behind it was essential that Mr Gilroy should have been given notice that the point was still open and been given the opportunity to make submissions on it. That submission seems to us plainly right: Mr. Gilroy was deprived of the opportunity to make submissions on the issue which, for one of the members of the majority, was decisive.

[12]Mr. Law, however, submitted that even if that were so it does not necessarily follow that the appeal should succeed. He argued that even if Mr. Gilroy had addressed the Tribunal the result would have been no different. He made his submissions on two distinct bases.

[13]First, he submitted that it was clear as a matter of fact that member A would not have been shifted in his view on the s. 98 (1) issue by any submissions from Mr. Gilroy: after all, he felt strongly enough about the issue to ignore Miss Routledge's concession and to differ from both his colleagues. That may well be right as a matter of fact but we do not think that it affords an answer in law. We do not believe that it is right in principle to speculate about what the Tribunal or a particular member would have concluded on a dispositive issue in the case if it had been permitted to be argued, however strong the grounds for such speculation may be. The firm was entitled to as a matter of fairness to have its submissions on the issue heard: that is an absolute. Mr. Law relied on the decision in Glynn v. University of Keele University

[1971] 1 WLR 487

, in which Pennycuik V-C found that a decision by a university Vice-Chancellor (sitting, as he held, in a quasi-judicial capacity) to expel a student for misconduct without a hearing was contrary to natural justice, but nevertheless declined as a matter of discretion to grant an injunction requiring his re-admission. The decision may be regarded as near the border-line: Pennycuik V-C acknowledged that a discretion to refuse relief in such a case should be sparingly exercised and said that he reached his decision after considerable hesitation. There are many broadly analogous cases in which the Court has gone the other way and has emphasised the danger of concluding that if a proper procedure had been followed it would have made no difference: the famous passage from the judgment of Megarry V-C in John v. Rees

[1970] Ch 345

, at p. 402, is often cited. But the short answer is that the present case is not like Glynn . Pennycuik V-C's decision was based not simply on an assessment, however confident, as to what the Vice-Chancellor would in fact have decided but on his judgment that a finding of guilt was, on the material before him, objectively inevitable. In other words, it was a case where only one finding was legally open. This is not such a case: on the contrary, both the other members decided the point the other way from member.

[14]Secondly, Mr. Law submitted that even if member A reached his conclusion by the wrong route he had nevertheless reached the right result because dismissal was plainly not within the range of reasonable options. This is, in effect, a submission that member B reached the only possible result and that member C's dissenting view was perverse. We do not accept that submission. This was not a straightforward case. On the facts as found, neither party comes out smelling of roses. Views might reasonably differ as to the reasonableness of the firm's conduct, reflecting the fact that views might reasonably differ as to the seriousness of Mr. Rankin's behaviour and in particular on whether he had acted honestly. In our view it was open to member C to take the view that dismissal was a reasonable response on the part of the firm.

[15]We accordingly reject Mr. Law's submission that the decision of member A can stand notwithstanding the procedural unfairness which underlies it. Since the decision of member A is necessary to the overall majority decision that Mr. Rankin was unfairly dismissed, the appeal must succeed.

[16]In addition to his point on procedural fairness, Mr. Gilroy argued that member A's decision was in any event bad in law because it was based on what he called an "impermissible exercise in speculation". In view of the conclusion which we have already reached, we do not need to express a definitive view on this point, and we prefer not to do so. However, we are prepared to say this much. We can understand a concern on the part of member A that the Tribunal had not heard the whole background to the dismissal. The Reasons reveal nothing about Mr. Rankin's employment history prior to the beginning of August, but if he had indeed genuinely developed serious work-related stress (which may or may not be in issue) such a condition must have developed over a period. Likewise, Mr. Rowe's conduct in instructing enquiry agents might be less surprising if there were some other context. But at the end of the day a Tribunal is obliged to decide the issues on the evidence presented. There may have been good reasons for the parties focusing the evidence on the immediate sequence of the events leading up to the dismissal. A Tribunal should be extremely slow to go behind the case as presented and the evidence as adduced, even in support of a negative finding that the employers had not proved their case, merely on the basis of a suspicion that there might be more to the story than met the eye. Member B

[17]Mr. Gilroy submitted generally that the decision of member B that dismissal was not within the range of reasonable responses was perverse and/or constituted the substitution by the Tribunal of its own view for that of the employers. If he were right about that it would mean not simply that the appeal succeeded but that Mr. Rankin's application should be dismissed: the submission accordingly adds something to the success he has achieved in relation to the reasoning of member A, which by itself would only lead to a remission.

[18]We do not accept that member B's decision was perverse. As we have already indicated in the context of Mr. Law's mirror-image submission about member C (see para. 12 above), this was not a straightforward case. We would say no more than that a member of the Tribunal who believed that Mr. Rankin was genuinely suffering from work-related stress might take the view that to put forward (with the agreement of his doctor) a different diagnosis was venial, and that dismissal was a wholly excessive response - particularly if the member thought that Mr. Rankin did indeed genuinely believe that he was suffering from a viral illness, so that the diagnosis was a half-truth rather than positively false. We are not to be taken as saying that that is what the Tribunal ought to find. We say no more than that both member B's and member C's conclusions seem to us to have been open on the evidence. It was a matter for the judgment of each member what weight to give a number of detailed circumstances and what overall judgment to make.

[19]Mr. Gilroy had two more specific points. Since even if they were well-founded they would not justify our doing more than ordering a remission - which we are obliged to do in any event in view of our conclusions on the reasoning of member A - we need not deal with them in any detail. But we should do so briefly in case they recur on the re-hearing.

[20]First, he argued that it was wrong for member B to place any weight on the fact that the written disciplinary procedure did not in its definition of gross misconduct refer specifically to misconduct of the kind alleged against Mr. Rankin. He referred to Distillers Co. (Bottling Services) Ltd. v. Gardiner

[1982] IRLR 47

. It seems to us to be plainly correct that employees do not need to be put on express notice that putting forward a misleading reason for absence may - depending, of course, on the particular circumstances - be treated as misconduct justifying dismissal. We do not need to burden an already long judgment with an analysis whether member B's reference to this factor was by itself enough to vitiate his decision in law.

[21]Secondly, he challenged the significance attached by member B to the fact that there was evidence that Mr. Rankin had had a viral infection "at some relevant point" - this seems to have been the evidence that he had had a sore throat. We accept that the expression of member B's reasoning on the whole of this aspect is very telescoped. For the reason given, we see no point in seeking to analyse it in detail in order to see whether it may nevertheless pass muster in law. But in view of the importance which the parties apparently attached to the question whether Mr. Rankin did indeed have a viral illness, it may help if we say this. The basic question for the Tribunal at the re-hearing, if the firm gets over the s. 98 (1) hurdle, will be whether it was reasonable for Mr. Cohen and Mr. Dennison to treat Mr. Rankin's conduct in putting forward the reason that he did for his absence (which on any view was not the whole truth) as misconduct justifying dismissal. That does not necessarily turn on whether Mr. Rankin in fact had, or at least genuinely believed he had, suffered from a viral illness as well as stress. The firm could argue that it was reasonable to dismiss him even if he had had such an illness, because even if he had it appears that it was the diagnosis of stress and not any viral illness which had been the basis for the doctor's certificate. Conversely, Mr. Rankin could argue that it was not reasonable to dismiss him even if he had had no such illness because an employee suffering from stress is entitled to take his doctor's advice in putting forward a false explanation. So the question of the viral illness is not necessarily determinative. But we accept that it may well be an important factor. On the one hand, Mr. Rankin argues that the falsity of the certificate is mitigated if he had indeed had symptoms associated with a viral illness, even if that was not the actual reason why he was being advised to take ten days off work. On the other hand, if Mr. Rankin was falsely claiming to have had such symptoms in order to try to justify the terms of the certificate, that might be regarded as, if anything, aggravating his misconduct. The Tribunal will have to consider whether Mr. Cohen and Mr. Dennison in fact formed any view on the genuineness of Mr. Rankin's claim that he had suffered from a viral illness; and, if they formed the view that it was not genuine, it will have to consider whether that was a reasonable conclusion on the material before them. The Tribunal's findings on those issues need not be determinative; but, once it has made them it will be in a position to consider the reasonableness of the decision to dismiss overall. Summary on Liability

[22]This case will have to be remitted for a re-hearing. We deal below with the question whether the hearing should be before the same or a different Tribunal.

[23]We appreciate that the principal basis for our decision, namely the procedural unfairness considered at paras. 8-14 above, might be regarded as somewhat technical. It will however be apparent that there are other weaknesses in the reasoning of both member A and member B. The different views taken by each of the members evidently created a situation of considerable difficulty for the Chairman, but the overall result is a decision which is not satisfactory in its reasoning. We repeat, for the avoidance of any possible misunderstanding, that that does not mean that the result was wrong: we express no view on that. We have said nothing about the reasoning of member C (save briefly in para. 13 above), not because we have formed the view that it is right but because it does not fall for consideration on this appeal. THE DECISION ON REMEDY

[24]There were initially four issues on remedy raised before us, which we summarise as follows:(a) Mr. Gilroy submitted that the Tribunal had wholly failed to consider whether Mr. Rankin's abusive letter to Mr. Hymanson meant that he would have been (fairly) dismissed in any event, so that any compensation should be minimal. As a shorthand this was described as the " Polkey point", though the circumstances are not quite the same as those in Polkey v. A.E. Dayton Services Ltd.

[1988] ICR 142

(b) Mr. Gilroy submitted that the decision not to make a deduction under s. 123 (1) of more than 15% in respect of that letter was perverse and/or inadequately explained.

(d) Mr. Gilroy submitted that the decision to make no reduction in respect of Mr. Rankin's other misconduct was perverse and/or inadequately explained. We take those issues in turn.

(a) The Polkey point

[25]Mr. Law submitted that the short answer to this point is that there is no evidence that a Polkey point was ever taken before the Tribunal. Mr. Gilroy told us that he flagged it up at the liability hearing, but he did not appear on the remedies hearing and he accepted that he is not in a position to say how the case was argued on that occasion. In those circumstances it seems to us that Mr. Law is right. In our view we ought to start by assuming that the Tribunal has identified and dealt with all the points raised before it. If an appellant wishes to submit otherwise, it is incumbent on him to establish that the point was indeed taken: counsel's statement to that effect will generally suffice, provided that he is not contradicted, but obviously that is only appropriate where he or she was in fact present. In an ideal world Mr. Rankin would have raised the objection expressly in his Respondent's Answer, but we do not believe that the fact that that was not done relieves the firm of its obligation to establish the necessary foundation for its appeal.

[26]However, that may seem an unsatisfactory basis to dispose of what would otherwise be an important argument (since if it succeeded it would mean that Mr. Rankin would be entitled only to nominal, or at least seriously discounted, compensation). We are therefore prepared to say that we do not believe that Mr. Gilroy's point was a good one in any event. We fully accept that if Mr. Rankin had written the letter prior to his dismissal it must, to put it at its lowest, be likely that he would have been fairly dismissed in any event. But the crucial feature here is that the letter was written after his dismissal (albeit that there was a pending appeal) and in response to it. The so-called Polkey exercise involves assessing what would have happened if the employee had not been dismissed in the ( ex hypothesi ) unfair way that he was. It is reasonably plain that if Mr. Rankin had not been dismissed on 20 October 2000 he would not have written the letter of 5 November 2000.

(b) /(c) The 15% deduction

[27]It is convenient to take Mr. Law's cross-appeal first. He submitted that the decision in Soros v. Davison

[1994] ICR 590

establishes that it is not permissible for a Tribunal to take into account under s. 123 (1) of the 1996 Act (any more than under s. 123 (6)), conduct occurring after the dismissal; and that accordingly the Tribunal was not entitled to deduct the 15%. Mr. Gilroy was constrained to accept this. The cross-appeal must accordingly succeed, and Mr. Gilroy's submission that a greater deduction should have been made falls away. The practical result is that the amount of the compensatory award goes up to £21,785.51 - subject of course to Mr. Rankin succeeding on liability second time round and to the question of contribution considered below.

(d) Contribution

[28]It seems to us that the appeal on this point must succeed. Even if on the re-hearing Mr. Rankin is again successful, the reasoning of the Tribunal on the contribution question is wholly dependent on the particular reasoning of the different members on the liability decision, which we have already decided has to be re-considered. The Tribunal conducting the re-hearing should reach its own view on contribution on the basis of the submissions made to it: it is not likely to be assisted by considering what the first Tribunal decided on those issues, given the disparity of views in that Tribunal and the uncertainty of their basis.

[29]We were told that Mr. Gilroy invited the first Tribunal to decide the issues under ss. 122 (2) and 123 (1) and (6) as part of the first hearing; but that it preferred to deal with them in a separate remedies hearing. It is in fact frequently the case that the degree of overlap between the liability issues and those relevant to contribution is such that it makes more sense for them to be dealt with in the one hearing. That is particularly so where there is no issue as to the amount of the unreduced compensation: that is the case here, since the first Tribunal's decision on that issue has not been challenged. We forebear from making any ruling, but we invite the parties and the Tribunal to consider carefully whether there is any point in having a split trial on the re-hearing. CONCLUSION

[30]Both appeals, and the cross-appeal, are allowed to the extent indicated above. We heard argument as to whether the re-hearing should be before the same or a different Tribunal. We are satisfied that there would be great difficulties in the original Tribunal being asked to return to these issues. It is not, as Mr. Law sought to persuade us, a simple matter of asking member A to express a view on the reasonableness issue.

[31]Remission for a re-hearing because of problems in the original decision is always extremely regrettable. The parties may wish, having now had the experience of two hearings at first instance and an appeal at which at least some of the quantum issues have been resolved, to consider whether they cannot now come to terms. We say nothing about the possible outcome of a re-hearing; but the difficulties which the first Tribunal found are a vivid illustration that this is not a straightforward case and there is room for criticism of both parties' conduct.