BLP UK LIMITED v MR D MARSH [2002] UKEAT 187_01_1004

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 187_01_1004

Case No Appeal No. EAT/187/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

BLP UK LIMITEDAPPELLANT

MR D MARSHRESPONDENT

Before

Mr Recorder Langstaff

Date 10 April 2002

[1]APPEARANCES For the Appellant DR M COHEN (Director) BLP UK Limited BLP House Sandallstones Road Kirk Sandall Doncaster DN3 1QR For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT MR RECORDER LANGSTAFF: This appeal against a decision of the Employment Tribunal sitting in Sheffield, whose reasons were given on 24 January 2001, raises two issues. The first is that of bias in the Tribunal. The second is whether or not the Tribunal erred in the way in which it dealt with compensation.

[2]The History is this: The Tribunal upheld the employee's complaint that he had been unfairly dismissed by the Appellant employer. Against that the Appellant employer appeals to this Tribunal on a number of grounds. That appeal came by way of preliminary hearing before a division of this Tribunal which on 12 June last year determined that it would proceed to an inter-partes hearing only on the two grounds which we have identified. The Respondent employee has not taken the opportunity to be present in person to argue the appeal. This is, he tells us, on the grounds of costs. He has however sent a letter with some detail in it responding to the points identified and asked us to take that into account. Accordingly we have proceeded in his absence. The Underlying Facts

[3]Mr Marsh was a stock controller with over 6 years service in a business which was transferred to the Appellant, whom I shall call BLP in February 1999. There he no longer worked with others, he had purchasing responsibilities and he had to identify and then re-identify stock using an entirely different computer system from that which he had been used to. Mr Kelly, who was Mr Marsh's immediate manager, received a fax on 12 October 1999 from a customer complaining of the late delivery of a stock item. This provoked a review of the stock situation by Mr Kelly, on the basis of which he concluded that Mr Marsh's performance was totally inadequate. The Employment Tribunal found that that review was cursory and did not take account of a number of significant factors. In particular at paragraph 16(p) it identified under sub-headings, 4 specific factors which should have been but were not properly taken into account.

[4]On 18 October 1999 there was a hearing described as a disciplinary hearing in order to discuss the issues to which the facts had given rise and the review which it had occasioned. On 20 October 1999, further matters came for review. On that occasion, Mr Kelly did not accept the explanations given by Mr Marsh and indicated that he would have to decide whether or not he, Mr Marsh, was capable of doing the job. He decided that he was not capable of performing in the function in which he was engaged and he was asked to clear his desk and leave the premises immediately. Against that decision Mr Marsh appealed, but the appeal was by way of review and not re-hearing.

[5]Against that background the Employment Tribunal concluded that BLP had failed to take any account of the true nature of the complaint made by the customer, which was a build up of problems over 2 years for which Mr Marsh was only partially responsible in terms of time; that BLP had relied upon a disciplinary procedure, because there was no capability procedure, and indeed had not followed that procedure in accordance with its requirements; that there had been no specific discussion in which Mr Marsh had been unambiguously told that his performance was not satisfactory, that there had been no full and proper appraisal of his performance, nor had guidance or targets been set; and, that although there was a possibility of alternative employment, BLP had not considered whether or not that employment was appropriate for Mr Marsh. Accordingly the Tribunal came to the not unsurprising conclusion that the dismissal was unfair, and proceeded forthwith to determine compensation.

[6]We shall turn to the issues to which their findings in respect of compensation give rise later in this judgment. It should however be noted that although the decision to which the Tribunal came was essentially couched in language that demonstrated that the procedure by which the dismissal was affected was seriously flawed, that conceals what is perhaps a matter of substance. That is that it appears from the Tribunal's reasoning that there was no good ground to dismiss, and that measures should have been taken in respect of the employee and his ability to perform the job (for which he was employed and for which he had been engaged for the previous 6 years or so) or alternative employment considered, if the employer really thought that the employee, after taking those measures, was unable to perform the particular role he was engaged in. The Complaint of Bias

[7]We have first to determine whether or not we should give leave for the appeal of BLP to be argued on the ground of bias. This matter was not determined by way of a preliminary hearing by this Tribunal on 12 June 2001. Instead at that hearing this Tribunal, presided over by His Honour Judge Altman, determined that further enquiries should be made and information obtained and that, on the grounds of convenience and cost, it should be adjourned to be heard together with the issues in respect of compensation in respect of which this Tribunal accepted there was a substantive appeal.

[8]We began to hear the case in respect of bias upon the basis that it was a restored preliminary hearing. However, such was the force of the argument addressed to us that we thought it right to indicate approximately half way through the hearing that we were satisfied that it gave rise to an arguable case that should proceed formally to a full hearing although we did not invite Mr Cohen, who appeared for BLP to repeat his submissions as part of that full consideration. We treated it thenceforth as a full and substantive appeal on this ground. It will become apparent from what we have to say why it was that we took this course.

[9]So far as the law is concerned, we have little hesitation in accepting that it is largely as expounded to us by Mr Cohen. In the Court of Appeal case of In re Medicaments and (xx). Related Classes of Good (No2)

(2001) WLR 700

, the Master of the Rolls said at page 726:

"We would summarise the principles to be derived from this line of cases as follows. (1) If a Judge has been shown to be influenced by actual bias, his decision must be set aside. (2) Where actual bias has not been established, the personal impartiality of the judge is to be presumed. (3) The court then has to decide whether, on an objective appraisal, the material facts give rise to a legitimate fear that the judge might not have been impartial. If they do, the decision of the judge must be set aside. (4) The material facts are not limited to those which were apparent to the Applicant. They are those which are ascertained upon investigation by the court. (5) An important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice."

This approach comes close to that in R v. Gough (1993) Appeal Cases 646:

"The difference is that when the Strasbourg court considers whether the material circumstances give rise to a reasonable apprehension of bias, it makes it plain that it is applying an objective test to the circumstances, not passing judgment on the likelihood that the particular Tribunal under review is in fact biased. When the Strasbourg jurisprudence is taken into account we believe that a modest adjustment to the test in the R v. Gough is called for, which makes it plain that it is in effect no different from the test applied in most of the commonwealth and in Scotland. The Court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was biased. It must then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility or a real danger, the two being the same, that the Tribunal were biased. The material circumstances would include any explanation given by the Judge under review as to his knowledge or appreciation of those circumstances, where that explanation is accepted by the Applicant for review, it can be treated as accurate. Where it is not accepted, it becomes one further matter to be considered from the view point of the fair minded observer. The court does not have to rule whether the explanation should be accepted or rejected, rather it has to decide whether or not the fair minded observer would consider if there was a real danger of bias, notwithstanding the explanation advanced. Thus in the R v. Gough , had the truth of the jury's explanation not been accepted by the defendant, the Court of Appeal would correctly have approached the question of bias on the premise that the fair minded onlooker would not necessarily find the jury's explanation credible."

[10]In McGill v. Porter

(2001) UKHL 67

, that passage from the judgment of the Master of the Rolls was endorsed with one qualification: where Lord Phillips spoke of a "real danger," that was to be equated and equated only with a "real possibility" of bias. We accept, in addition, that this court does not have to determine whether there was or was not bias. The enquiry is whether, if one cannot say that there was or was not bias, one can say there may have been bias, that is that there was a real possibility of such bias viewed objectively. Secondly, we accept and adopt as the law that if it should be the case that one person of a Tribunal of three is shown to be biased, it is irrelevant that there is no evidence to suggest that the other two forming that Tribunal are not. The fact of bias in one effectively infects the others. We do not think that the reasonable well informed observer would think that there was no real possibility of bias in a situation in which it had been established that at least one of the Tribunal was subject to that possibility.

[11]Finally, we bear in mind what was derived from the decision of the Court of Appeal in the Locabail appeals

[2000] IRLR 96

, as amplified by the decision of the President in this court in the decision of Facey v. Midas

(2001) ICR 287

, that is that the subjective views of any individual providing evidential material as to whether they were or were not biased is irrelevant and must be discounted. That is because such evidence is subjective, whereas our focus has to be upon the impact which objectively would appear to the reasonably well informed observer.

[12]Having thus begun upon this objective enquiry, we have to ask ourselves what material there is here upon which we can first of all establish, to our satisfaction, the objective facts before we proceed to an analysis of whether those facts would alarm the reasonably well informed observer that there was here a real possibility of bias. First and not to be forgotten amongst that material is the Tribunal decision itself, which necessarily sets the context within which those facts occurred. Secondly, there is the affidavit evidence which in this case has been supplied on behalf of the Appellant. That is, because it is on oath, necessarily to be given greater weight by virtue of that reason. There then are the un-sworn comments of others, in this case the chair of the Tribunal and the members of the Tribunal. However, the difference in weight to be given because this is un-sworn has to be tempered by the knowledge that we have that the chair and members were not here invited to provide their evidence upon oath. Accordingly there is a clear and obvious explanation why they did not do so, and although we accept that un-sworn evidence is different in weight to sworn evidence we have properly to put this explanation into the balance as one of the factors which will weigh with us in reaching our decision. Next we have the Respondent's observations conveyed to us in the letter to which I have already referred.

[13]We were in addition, in this case, invited to go further and to hear the evidence of Mrs Walker, who was one of the witnesses who appeared before the Tribunal and whose affidavit is one of the four affidavits which has been tendered on behalf of BLP. We declined that invitation in the exercise of our discretion, not simply because or indeed at all because it was an unusual request. We did it for six reasons. First we considered that it would be unfair to the Respondent to permit evidence to be given of which he had had no notice and which he might have thought to be completely comprehended by the scope of the affidavit. Secondly, we thought it would be unfair to the chair of the Tribunal, who equally would have had no opportunity to hear, to see and to respond to that evidence when it was her conduct which was under criticism. Thirdly, we were told that the evidence would relate to body language and we were concerned as to what help we would get so long after the event from material which, by its nature, we understood might be conveyed to us not simply in writing, but also by some process of demonstration in the witness box. Although we did not enquire too closely into what was proposed, we were conscious of the dangers of taking this sort of evidence and all the more alerted by the fact that it had not been proven capable of being put in writing in affidavit form before hand. Fourthly, no application to this effect was made to this Tribunal when this appeal came for the preliminary hearing. Fifthly, we considered that it would fall foul of the general principles that relate to the admission of evidence at that late stage, to which the decision in Ladd v. Marshall applies, albeit that this was not evidence which would have gone before the Tribunal itself relating to the merits of the originating application. We nonetheless had regard to that case as at least indicating the desirability of hearing evidence at an appropriate time, such in this case as the preliminary hearing before the Appeal Tribunal or at least the making of an application at that stage, rather than at the eleventh hour.

[14]Finally, at the time that we made the decision to hear this as a full appeal, we had been assured by Mr Cohen that we had all the material that we might need before us in order to determine the issue of bias. Having been reminded by this Tribunal of what he had said before we came to that decision, he then wished to recant from it. But by then we had taken our decision. It is right however to report that, had we not had the assurance from which he subsequently recounted, it would not have made any difference to our decision. We would have reached it upon the other five grounds in any event.

[15]We have to look at that evidential material in order to establish what happened by taking account of a number of matters. We have, first, to bear in mind that some of the expressed recollection may be uncertain. For instance, the chairman expressed certainty that there was no submission made to her at any stage by either Appellant or by Respondent to the effect that the Polkey case might have any impact. Yet Mr Crawford, the Solicitor representing BLP at the hearing, has said on affidavit that in his contemporaneous notes there is a reference to the Respondent having raised that issue. We have to consider in the light of that information, therefore, whether some of the information which we have been given - in this case the recollection of the chairman - might be less reliable than one would hope. The alternative would be the unlikely one of Mr Crawford's notes being wrong. Secondly, we have to take into account contradictions that there may be between what is said at one stage and what is said at a later stage. Here, for instance, Mr Cohen urges us to take account of the fact that the Chair, when first told of the allegations of bias, indicated that she could not comment upon an allegation that she had rolled her eyes in response to what was being said. In a subsequent response however, she did comment: she categorically denied having done so.

[16]We have to take account of the fact that some comments made by one or other of the witnesses do not on the face of it make intelligent sense. We have to take account, also, of what is or is not probable, and quite importantly we have to take account of what is not said that we would expect to be said if there were force in any particular point that has been made to us. We ask ourselves who it was who has given us the information, in what circumstances they have responded to a request for information, the probabilities of what they say being accurate and in respect of other evidence, what one would expect. What we have not taken account of are the terms of the notice of appeal in so far as it is sought to rely upon them as evidence, save in the answers which they engender from the Chairman, who addressed some of the matters raised in the notice of appeal directly. But that is of importance because it is necessary to emphasise that there is a wide gulf between some of what is suggested to us by way of the grounds of appeal and that which the evidence produced by the Appellant will actually sustain.

[17]Mr Cohen, who put his case throughout with moderation, with restraint, with good common sense and with a methodically sustained approach has argued that the issue here is one essentially of the perception of behaviour. To summarise the grounds of appeal and his submissions, we hope not unfairly, what is said is that the approach struck by the chair was such as to be aggressive and hostile to BLP's be witnesses, to involve an amount of tut tutting by her, a shaking of the head or rolling of the eyes in response to questions. In short, she took a partisan approach to the hearing before her, which he submitted went so far as to amount to an indication that she had a closed mind. This is not one of those cases of bias in which the bias relates to the connection which the member of the Tribunal may have with someone known to one or other of the parties, nor is it a case in which bias arises out of alleged financial interest. It is a case in which it is said that the reasonable well-informed objective observer would see in the conduct of the chair such a degree of hostility to one side of the argument before her as to demonstrate a closed mind.

[18]Such a case inevitably involves a question of degree. Employment Tribunals, in our view and experience, are entitled to form views, even strong views and to react to the evidence which is called before them. It is very easy for that reaction to be misinterpreted as a reluctance to listen to one side of the evidence. We remind ourselves however that we must always be alert to the danger of an appeal court taking as over-reaction that which is in fact clearly to be observed by the objective onlooker as improper hostility.

[19]So what here do we find as the objective facts? We have concluded that these matters are not in dispute and can therefore be taken as a sound basis. First, we do not think that it is seriously in dispute that the Chairman's questioning of witnesses was, to use her description, pointed. We are satisfied that when it came to the witnesses for BLP, this was particularly so. They gave their evidence first. We conclude that when it came to the evidence of the employee Respondent that there was a difference of approach in the sense that there was less in volume of the pointed questioning. We think, from what we have heard, that we are entitled to infer, and do, that the Tribunal showed a greater warmth towards the evidence of the employee than it did towards the evidence of the employer. We conclude that on one occasion the Chairman described the submissions being made to her or the questioning being run before her by Mr Crawford on behalf of BLP as being "nonsense." We accept, as she does, that she questioned Mrs Walker by amongst other things suggesting to her that she had mistakenly believed that Mr Marsh had not been employed for a year and thus thought that she would get away with a dismissal. We accept that she dealt with one submission made to her by Mr Crawford by suggesting to him that he could not have a bite of the cherry simply because the Tribunal had on an earlier occasion favoured the employee's side rather than his.

[20]The main issue upon which there was disagreement was the nature of what was described as the body language which the chair adopted. It is said in the affidavit of Mrs Walker that the Chairman's body language was hostile, that she fixed her, Mrs Walker in an aggressive gaze, that she snorted and tutted, rolled her eyes, looked up at the ceiling and shook her head. It is said in the evidence of Mr Kelly, who was the other significant witness called for BLP that the Chair never allowed him to finish his answers and that her style of questioning was unpleasant. She was rude and seemed not to care about anything that Mrs Walker had said. Her body language was really hostile. We have taken that material into account in the way that we have described. We have also had regard to what is said by the lay members of the Tribunal, by the Respondent and by the Chair herself. We have concluded that the Chair here reacted in a way which might be capable of showing that she felt less enthusiastic of the case of BLP than she did of the case for the Respondent.

[21]The origin of this now needs to be considered. When the case began, Mr Crawford on behalf of BLP made an application for an adjournment: There had already been just such an application which had been refused a short time before. The application as we see it was one for which there was no good and proper ground in the sense that it was an application which was almost certain to fail, as it did. The application was to adjourn so that Mr Cohen might be present to give evidence orally. As it happened his evidence was available in writing together with extensive notes which he had taken on the occasion to which it related: nor was he the member of staff who took the effective decision to dismiss since his role had been that of the reviewing officer on appeal.

[22]Secondly, an application was made by Mr Crawford to amend the Respondents notice so that the reason for dismissal was not simply capability as it had been in the IT3 but was enlarged to include conduct. This was an eleventh hour sea change, it might be thought, in the case of BLP. It was rejected. Drawing on the materials to which we have referred and in the light of our own experience which we believe we are entitled to take account of, we have concluded that in the light of this material it is quite likely that the Chair did not think that there was much merit in the case which the Respondents had put forward to her in those applications. We think she would be entitled to at least have in the back of her mind the nature of the second of those applications when she came, as she would have to do as a member of the Tribunal, to examine what the reason for the dismissal was. This was the first question to which her mind would have to be addressed under section 98 of the Employment Rights Act 1996 .

[23]We suspect therefore, that when it came to evaluating the evidence of Mr Kelly, who was the first witness, she would approach it with a natural scepticism. When he describes her reaction to him we have to determine whether that reaction was so excessive that it would give rise to a view in the objective informed observer that there was a real possibility of bias. The real possibility would be that of bias in the sense of there being a closed mind. No observer could feel that there was such bias if a Tribunal was reacting not inappropriately, albeit strongly, to the evidence which was being laid out before it.

[24]We have come to the conclusion that the behaviour of the Chair in this respect fell short of that which would be required to show a real possibility of bias. We do so for these reasons: first we note that the only evidence that there is of tut tutting comes from one witness, that is Mrs Kelly. We note that the only evidence of the rolling of eyes comes from one witness, that is Mrs Kelly. If it happened to the extent which would be necessary for anyone to form the impression that there was here a closed mind as opposed to an individual who took a reaction, albeit a strong reaction, albeit perhaps an inadvisable reaction to display to some of the evidence before her, we would expect other witnesses to report it too. None does. We see that the evidence is coloured by perception. The perception of unfair treatment and poor behaviour comes from the witnesses, Mr Kelly, Mrs Walker and from the advocate to an extent, Mr Crawford on behalf of the losing party. We note that Mr Crawford significantly in our view does not endorse any of the complaints in respect of body language. So far as the question of whether or not the Chairman intervened in such a way as to prevent witnesses giving the evidence which they wished to give by failing to allow them to complete their answers, we have Mr Kelly's evidence that she did, we have Mrs Walker's evidence to the same effect but we have to balance that against Mr Crawford's silence and behaviour. He was an experienced Tribunal advocate. He did not, during the course of the Tribunal, at any stage complain to the Chairman and to the Tribunal that the witnesses were not being allowed to finish the answers to their questions. Indeed in his first affidavit his complaint is to describe the questioning as being particularly aggressive. He says that he was not in a position to observe the body language and we are happy to accept that he did not do so and that he may not have been in a position to observe some of it, but this informs our view that if the body language had been so extensive as to give rise to a real possibility of bias, he would, we feel, have noted and remembered it, whether or not he would have felt able to raise that particular matter at the time. Accordingly, we are unable to draw from the material before us thus far the conclusion that there was here evidence from which one could see a real possibility (no higher than that) of bias. I should add for completeness that the aggressive gaze is to an extent accepted by the Chairman in that she says that she gives witnesses a fixed gaze. Whether a gaze is aggressive or not has inevitably to be a matter of perception and is not objectively capable of proof.

[25]However, we would have had little difficulty on that material in resolving this case as though it were a preliminary hearing and rejecting the appeal as unarguable. What has given us pause for consideration has been the further comments which the chairman herself has provided. One of the issues is whether or not a Chair, who should be acting as a judge exhibits bias or the possibility of bias if he or she descends into the arena and takes on the mantle of an advocate. Here Mr Cohen has argued before us that it is not part of his case that a Chairman should not do so in order to evaluate and to test the evidence by the discussion that must inevitably take place to elucidate issues, but he points to the way in which the chairman has dealt with the issues in further comments which she addressed to this Tribunal by a letter of 14 September of last year, He submits to us that that letter reveals such a degree of intemperate, ill judged and inappropriate comment that it demonstrates the behaviour that this Chairman must have engaged in before the Tribunal. If we are of that view of the letter she wrote, he argues, we should be of the view that a leopard does not change its spots; and that if she is prepared to write what she does to us, who are in effect judging her conduct, how much more unrestrained might she be when she is the chair and others are conducting themselves before her.

[26]We regard that submission, with great sadness, as having a certain amount of force in it.

[27]What is said is that the Chairman in her response has demonstrated a partisan approach. She said for instance that; "I cannot challenge Mr Crawford's claim that he felt that he was treated with less courtesy than the Respondent's representative." But goes on to say that although she could not challenge the claim , "it might easily be seen to be misconceived, particularly when one takes into account the apparent weakness of the case he was presenting and/or the fact that that weakness appeared not to have been appreciated prior to the hearing," adding that Mr Crawford may "have had every good reason to feel uncomfortable in the circumstances."

[28]She has commented, in respect of ground 2.1 of the ground of appeal, that the Appellant's comments were "grossly exaggerated and nonsensical." She has complained in respect of a remark which it is said she made, and admits making, to Mr Marsh to the effect of the south being rich and the north poor, that; "Had the appellant's witnesses been listening carefully," they may have come to a different conclusion about that remark. She says that instead of making it by way of banter or joke that she made it in relation to the cross-examination by Mr Crawford in order to stop irrelevant questioning (In parenthesis, Mr Cohen's point to us is that one would expect a chairman, if that was the purpose of the remark, to stop the irrelevant questioning by a more direct and obvious method). She complains that suggestions were made simply to bolster allegations which were being made, that Mrs Walker may have felt uncomfortable because her professionalism was being questioned and in particular at the bottom of page 6 of those notes says; "Is the appellant seriously suggesting…" and continues.

[29]Mr Cohen has drawn our attention to these matters because he complains of the lack of objectivity which he suggests that they display. What most principally concerns him however is a passage which we find at page 8 in response to paragraph 2.2 of the Grounds of Appeal. In that is said:

"the appellants complaints may be viewed as being well particularised. It is however general and non-specific to a very large extent. I do not feel able to be anymore specific in my absolute denial of the allegations. I maintain my belief that the Appellants are misconceived."

Then she adds this:

"I would go so far as to call into question whether or not these allegations were perceived as such on the day or whether they became a reality for the Appellant after consideration of the findings of the Tribunal against the Appellant."

[30]Mr Cohen suggests that this is an attack upon his integrity and is a suggestion that his purpose in drafting and supporting the grounds of appeal is with an intention to pervert the course of justice. It needs to be said that we have formed no such impression of Mr Cohen. It also needs to be said that it is unhelpful to a Tribunal in our position reviewing an issue of bias to have comments from an observer which do not and cannot add to the relevant factual material. We think it a great pity that the Chair has interpreted the request from this Tribunal to provide comments as being a request that she should be an advocate in her own case, whereas one might have hoped for a demonstration of balance and moderation. The Chairman has, we regret, not been able to resist the temptation of becoming an advocate in her own case and in speculating upon matters which are for us to speculate upon, if it is for anyone. We have had to consider whether or not the terms and tone of that commentary are capable of shedding light upon that which happened before the Tribunal.

[31]We think that it is capable of doing so in general terms. But we do not think that there is sufficient in it, despite those aspects to which we have drawn attention, and the greater number of matters arising from it to which Mr Cohen has drawn our attention, to regard it as changing the view which we would otherwise provisionally have formed upon the other material available to us. This is because, first, we have concluded as we have indicated that this Chairman did indeed react to an extent to the evidence and material before us. We think that the evidence of that which has come from her later shows that she is inclined perhaps to react fairly strongly to material which is before her. But this does not mean that she was incapable or becoming incapable of dealing with matters in a fair and balanced way. Secondly, we consider that this is material after the event: it is the third occasion upon which she was asked to provide for comments and we understand the note of impatience at the conclusion of that letter when she indicates that she would not wish to give any more energy to rekindling the flames of the fire. We think that she may have misinterpreted the call for comments from this Tribunal even though perhaps she should not have done so, and that she saw herself as being under attack, as indeed she was in one sense, and responded therefore in the way that she did. But that does not indicate that she acted in the Tribunal in a manner in which the impartial observer would on the occasion of this Tribunal have regarded as so unbalanced as to indicate a closed mind.

[32]Accordingly, we have come to the view that on the evidence we have, that taking everything into account as we do, finding the objective facts as we have attempted to do, and evaluating those against the experience that we have and against the other factors which we have mentioned, we do not find that this appeal is made out.

[33]We are reassured in doing so by that which I referred to at the outset, the context within which the claim is set. We note that it is one of those cases in which one would expect a Tribunal chair to take an increasingly dim view of the employer's case as the evidenced progressed. There was no appraisal, no capability procedure, no targets were set, there was no clearly recorded attempt to ensure that the employee would have an opportunity to improve his performance (preferably against yard sticks). This would have become apparent progressively through the evidence in the morning of Mr Kelly and Mrs Walker. We note that it was thereafter that the evidence of the employee was given. It must frequently be the case that at that stage of a hearing, a Tribunal's views, which are inevitably developing throughout the course of it, would have become rather more friendly toward him than they would have been at the outset towards anyone who had given evidence and involved as they were towards BLP.

[34]We have to deal with the other substantive ground for appeal. This deals with compensation. When the Tribunal came to deal with the question of compensation, it simply recorded this; "The Applicant was entitled to compensation in the following sums." and it set the sums out. It said no more.

[35]We are of the view that no less in the case of compensation than in the case of liability, the parties are entitled to know why it is that they have won, and why it is that they have lost. There is no indication from this Tribunal's reasoning what matters persuaded it as to the amount of the loss and the period of the loss. So far as the basic award is concerned, that is unlikely to be a problem subject only to one matter. The appeal was in part upon the basis that there was no adequate reason given for the award and it is upon that basis that we allow it. It was also that there had been a question of contributory fault raised and a question of whether or not a deduction under the principle of Polkey v. Dayton Services was appropriate. As to that latter deduction there is no direct evidence that the matter was ever raised. Mr Crawford believes that he might have done so but cannot say that he did. The Chairman denies that he did so. As to contributory fault, there is no case here as we see it that can possibly be argued on the findings of fact that there was such fault at all on the part of this employee. The reason for that is well established: in order to find contributory conduct, the conduct has to be culpable. It is very difficult in any capability dismissal for "conduct" of the employee which consists of his lack of capability to constitute culpability as well as incapability.

[36]If that was not obvious, it has been made obvious by decisions of the court of appeal such as Nelson v. BBC . Given the findings of fact here, there was no room in our view for any question of contributory fault. The matter is different when it comes to the question of whether or not there might be a reduction in compensation in respect of what is known as the Polkey deduction. The law is set out in section 123 of the Employment Rights Act 1996 . That provides that subject to the provisions of that section, the amount of the compensatory award shall be, "such amount as the Tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."

[37]The loss which an employee suffers by reason of a dismissal is the difference between having a job and not having a job. The difference insofar as that loss is as attributable to action taken by the employer is the difference between the employee not having a job and the position in which he would have been if the employer had not taken the action about which complaint is made. Thus if the employer is at fault purely procedurally but that given a proper procedure there would have been a dismissal, the loss attributable to the improper procedure is necessarily limited: it will normally be the loss which would have occurred in the interval between the improper procedure and a procedure which might have been properly conducted. Here, however, in addition, we have an indication in paragraph 9 of the Tribunal's decision that they were allowing 13 weeks at a reduced rate of loss. That suggests to us that there was some information before the Tribunal, which is not recorded, which suggests that the employee had some other job or source of income after the first 12 weeks. We do not know for how long his employment at a reduced wage was likely to continue. It seems to us therefore that these matters are quite clear. First, that the basic award was rightly given. It could not be reduced for any Polkey deduction. Secondly, the compensatory award needs to be reconsidered. It may be that it requires to be adjusted to take account of the chances, such as they may be, that this employer would not have continued to employ this employee for good and proper reasons. In so far as those reasons relate to capability that would depend upon a Tribunal's assessment of whether or not the employee would ultimately have proved capable or not given proper training and assistance or whether he was incapable or not.

[38]Secondly, it will involve the Tribunal in assessing whether or not he is still to this day employed at a lower wage than that which he enjoyed with BLP and therefore still suffering a loss in consequence of the action taken by the employer. So, as we see it, the loss which this Tribunal assessed may be too much, it may be too little, we for our part cannot say. That matter therefore has to be remitted to a Tribunal. In view of the fact that the dispute between BLP and the Chairman in respect of the issue of bias has perhaps become partisan in the way that we have described, we do not think it would be appropriate that the matter be remitted to the same Tribunal for re-hearing, however convenient that might otherwise be. We think the proper order is that the case should be remitted for the question of compensation, that is in respect of the compensatory award, to be determined by a fresh Tribunal in the light of such evidence and such submissions as are put before it.

[39]It is not open in line with our judgment for contributory fault to be argued but it seems to us to be entirely open to the employer to argue that a proper procedure might have had an early effect upon the continued employment of the employee if that is the employer's case. We do not attempt in any sense to pre-judge it.

[40]It follows that in respect of the appeal on the issue of bias this appeal is dismissed. In respect of the appeal in so far as it deals with compensation, this appeal is allowed and the matter must be remitted to a fresh Tribunal for re-hearing in accordance with the judgments of this Tribunal.