MR D GOULD v THE GOVERNORS OF HAILEYBURY & IMPERIAL SERVICE COLLEGE & OTHERS [2002] UKEAT 635_00_1907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 635_00_1907Case No Appeal No. EAT/635/00 EAT/1191/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D GOULDAPPELLANTTHE GOVERNORS OF HAILEYBURY & IMPERIAL SERVICE COLLEGE & OTHERSRESPONDENT
Before
Mr Justice LindsayDate 19 July 2002
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MR WILLIAM BIRTLES (of Counsel) Instructed By: Miss Penny Carne Mylles & Co Keayne House 28 Thames Street Windsor Berkshire SL4 1PR MR JUSTICE LINDSAY (PRESIDENT): We have before us, by way of full appeals, appeals against two decisions of the Employment Tribunal at Reading under the chairmanship of Mr R.H. Trickey. The Appellant is Mr Gould. He is a schoolmaster. It is a fact that he had previously qualified as a barrister. He appears in person. He says that it is always mentioned that he has qualified as a barrister and that it is unfair to have it so mentioned, but I mention it simply because he is not to be taken to be some rustic lost in the interstices of the law but is an intelligent man who has devoted considerable thought to his case. The Respondents, the Governors of Haileybury School and Others, appear by Mr Birtles.[2]Very shortly, the factual background is that on 1 September 1993 Mr Gould was taken on as a schoolmaster at the junior school. In or about June 1997 there was an incident about which we will say nothing save to say that Mr Gould feels that it is unfair that every time the case comes up, as it has done over a number of previous hearings, the incident is mentioned and that it causes his reputation further to be harmed. But there was an incident in June 1997. The school felt that he had no business to be doing as he did. He said that he had the approval or, at least, not the disapprobation of the school matron, but the school determined to be rid of him. He was given very short notice of termination which, in any event, was held not to have been received by him until after the expiry date to which it referred. There had been no disciplinary investigation, no disciplinary hearing and no disciplinary appeal.[3]By way of a number of IT1s Mr Gould launched proceedings for unfair dismissal, unfair constructive dismissal, sex discrimination (both direct and indirect) victimisation, breach of contract and failure to give written reasons for the dismissal. A hearing as to liability was heard between October 1999 and April 2000. The decision on liability was sent to the parties on 4 May 2000. It was, so far as relevant: "2. The applicant was unfairly dismissed by the respondents as the respondents concede. 3. The applicant's claim for unfair constructive dismissal is dismissed on being out of time and it being reasonably practicable for a complaint in that respect to have been presented in time. 4. The respondents have unreasonably failed to provide a written statement giving particulars of the reasons for the applicant's dismissal as the respondents concede. The respondents shall pay to the applicant the sum of £886.38 being a sum equal to the amount of two weeks' pay. 5. There has been an unlawful deduction of the applicant's wages by the respondents and by consent the respondents shall pay the applicant the sum of £20. 6. The applicant's claims to sex discrimination and victimisation fail and are dismissed. 7. The applicant's claims to breach of contract succeed in so far as is shown in the extended reasons for this decision and by virtue of a finding that 30 April 1998 was the effective date of termination of the applicant's employment. 8. In so far as is necessary, the applicant's claims to unfair dismissal on health and safety and trade union grounds are dismissed upon withdrawal by the applicant.[4]Then the decision made arrangements for there to be a remedies hearing. That remedies hearing took place in July 2000. The decision was sent to the parties on 8 August 2000. It was:
"1. As to the applicant's breach of contract claim the respondents shall pay to the applicant the total sum of £7,417.03 including interest up to 31 July 2000 of £1,282.54. 2. The respondents shall pay to the applicant further interest at the daily rate of £1.34 from 1 August 2000 to the date of the sending of this decision to the parties. 3. As to the applicant's claim for unfair dismissal the respondents shall pay to the applicant the total sum of £8,745.88 comprising: (a) a basic award of £880.00 (b) a compensatory award of £7,865.88 Total £8,745.88 4. The total award is £16,162.91 to be paid by the respondent to the applicant."
[5]One Notice of Appeal was received by the Employment Appeal Tribunal from Mr Gould on 23 May 2000, another one on 17 September 2000. Each raises a good number of questions. For example, Mr Gould in his first Notice of Appeal raises grounds in sub-paragraph 6.1 to 6.15 and in the other Notice of Appeal from 6.1 to 6.8 and it is not unknown for a given sub-paragraph to raise more than one issue.[6]There have been a number of decisions at the Employment Appeal Tribunal earlier, by the then President, Morison J and by His Honour Judge J. Altman, and quite a series of preliminary hearing judgments. In the course of those judgments the matters that are capable now of being raised by Mr Gould have been whittled down, so to speak, but there are a number of points left in two separate appeals given the numbers 635/00 and 1191/00 and there is also an application by Mr Gould to amend a Notice of Appeal to raise a new question about costs.[7]With that general opening explanation, we turn to the first of the appeals, 635/00. There was a preliminary hearing here on 7 February 2001. The background to the case was that unfair dismissal had been conceded; sex discrimination and victimisation were dismissed, as we have seen, and breach of contract succeeded. Again, as we have seen, there was a remedies decision awarding a total of £16,162.91 to Mr Gould.[8]A number of issues were allowed to go a little further. First of all, an issue raised in paragraph 6.1 by Mr Gould as to the revelation of what was described as a "without prejudice offer". That issue was adjourned and there was an affidavit from Mr Gould on 29 March 2001 on the subject. Then, under Mr Gould's paragraph 6.2, issues as to "implied terms" were a little considered and, at 6.15, there were a number of matters which Mr Gould claimed had not been sufficiently ruled on, or ruled on at all, by the Employment Tribunal. Those were three matters that still continued after that first hearing of the preliminary hearing in February 2001.[9]There was then an adjourned preliminary hearing at the Employment Appeal Tribunal on 6 June 2001 and limited parts of the Notice of Appeal were permitted to go to a full hearing. 6.1, the revelation of what was described as a "without prejudice offer", was dealt with in this way. The Employment Appeal Tribunal said this:
"Mr Gould has sworn an affidavit on 29 March 2001. It suggests a possibility that the Employment Tribunal's decision of 4 May 2000 derived from a hearing at which without prejudice material had been improperly laid before the Employment Tribunal despite Mr Gould's objection. The Tribunal seems to have dealt with the material as if it was in the public domain. It may be that it had begun life as 'without prejudice' material by way of a without prejudice offer but had become, as is not uncommon, an open offer. That might have been unobjectionable but, on the basis of Mr Gould's affidavit, this issue is one as to which we cannot be sure that there is no arguable issue of law and this issue, therefore, we direct to go to a full hearing (6.1)."
That was 6.1.[10]Then on 6.2, which was the issue of "implied terms", the preliminary hearing said this: However, once the employer has asserted there has been a breach of contract by the employee, if the employer nonetheless fails adequately to describe to the employee with what he is charged in terms of breach of contract, how, under the contract of employment, he is entitled to defend himself, as to any provisions of the contract as to what is or is not gross misconduct (if gross misconduct is alleged) and as to any appeal process stipulated for in the contract, there may then be a breach of contract on the employer's part on the ground that unless the employee is so told of his rights, he is effectively denied them. Moreover, if there is room for such an implied term then a breach of that implied term was indeed asserted by Mr Gould at the Employment Tribunal but not dealt with by the Employment Tribunal. We therefore permit to go to a full hearing the issue of whether the Employment Tribunal dealt adequately with Mr Gould's claims that, by reason of an implied term, the employer, once it was asserting breach of contract, became obliged to inform Mr Gould as Mr Gould alleges in his paragraphs 2(a) and 2(b) and that the employer had breached such (if any) implied term." A little later, the preliminary hearing panel said:
"We also allow to go forward to a full hearing the question of whether the Employment Tribunal dealt sufficiently with Mr Gould's allegation that the employer breached the implied term as to mutual trust and confidence. Save in those two respects, as we have indicated, 6.2 is not to go to a full hearing and is dismissed."
So much for 6.2.[11]The Tribunal dealing with 6.15.1 said this:
"As to 6.15.1, in his affidavit Mr Gould says: 'Under my contract, in my opinion, my employment cannot have ceased before 31st August 1998 (i.e. the end of the summer term). The tribunal did not deal with this submission, and decided that my employment ceased on 30th April 1998 (i.e. at the end of the previous term). This is particularly relevant to my damages owing to the cap on unfair dismissal awards'. We permit 6.15.1 to go to a full hearing; we think there is there an arguable error of law."
[12]So those were the matters that were described as proper to come forward to us for full hearing and those are the issues with which we now need to deal.[13]Firstly, the revelation of the alleged "without prejudice" offer. The facts are these. On 28 August 1997 the school solicitors wrote to Mr Gould "without prejudice", saying this:
"You will be receiving with this letter, a letter from John Hare [and, interposing there, he was the headmaster] terminating your employment with the school as from 31 August 1997."
A little later:
"We are writing now to confirm that settlement offer. If you accept the offer the school will require you to enter into a compromise agreement. In addition to this agreement being signed by you it will also need to be signed by a solicitor who has given you legal advice upon the effect of that agreement. The offer is: 1 Instead of receiving net pay in respect of the period when you were entitled to notice you will receive a sum equivalent to gross pay for the term commencing in September. 2 You will receive a further payment equivalent to a further term's gross pay. (Adding 1 and 2 together that would mean a gross payment of £15, 364.00) 3 You would not be required to make any payment towards the accommodation at the school which you can occupy until 31 December 1997. 4 A suitably worded reference would be provided. We look forward to receiving your confirmation that this offer is acceptable."
[14]By 9 March 1998 Mr Gould's own solicitors believed that settlement had been orally agreed and they drafted an agreement. It purports to be dated 9 March 1998 and it has recitals as follows: "(A) The Employee's employment with the Employer terminated on the 31 December 1997 (B) The Employee has by reason of such termination grounds to present a number of complaints ("the Particular Complaints') to an Industrial Tribunal under reference 3103068 1997. (C) The Former Employee having taken independent legal advice, as described in clause 5 below of this Agreement has agreed upon the terms and conditions set out in this Agreement to settle his claim without further recourse to an industrial tribunal, the High Court or the County Court in respect of the Particular complaints."iHighHigh[15]That draft was sent by Mr Gould's solicitors to the school solicitors. It was signed by Mr Hare on 9 March 1998 on behalf of the school. It was unsigned by Mr Gould. In consequence of receipt of that Mr Gould himself wrote to the Employment Tribunal on 9 March, saying this:
"I confirm that the case has settled as I informed a member of your staff today as the office was closing and as she later confirmed with me this evening."
[16]Accordingly, on 16 March 1998, an Employment Tribunal Decision was sent to the parties that simply said "This application is withdrawn on settlement between the parties" and was signed by the Chairman. However, by 20 March 1998 Mr Gould wrote to the Employment Tribunal as follows:
"Can the Chairman please restore the above case but not allocate it a date at this stage. This is because the agreement has not yet been concluded. I am concerned that it may falter."
[17]Ultimately that led to a two-day hearing before the Employment Tribunal. It was before a full panel of three in public between 19 May 1998 and 24 June 1998 and was by way of review of the decision of 16 March 1998 which had represented a withdrawal of the IT1 on settlement.[18]On 4 September 1998 the decision of that two-day hearing was sent to the parties and the conclusion was:
"The applicant had concerns regarding what he considered to be a moving of the goalpost on an indemnity in favour of the Respondent in case of adverse tax treatment of the agreement. Also the precise terms of the reference to be given by the Respondent were now becoming a matter of dispute. In our view these matters were clearly outstanding and there was no agreement between the parties."
A little later, the Tribunal said:
"This Originating Application should therefore be listed for hearing before a fresh Tribunal with a time estimate of two days."
[19]The Tribunal at that stage had not seen the "Without Prejudice" letter to which we earlier referred but had been told, in the course of the public hearing, of the school's offer. The school appealed that decision to the Employment Appeal Tribunal but lost and, again, the school's offer was referred to in public, although the judgment of the Employment Appeal Tribunal does not in terms mention what sum had been offered. That was 1 December 1998. The case was therefore to proceed at the Employment Tribunal.[20]On 3 December 1998 the school's solicitors wrote to the Employment Tribunal saying that unfair dismissal was admitted. Their letter ended:
"Finally we would add, as will be apparent from the papers, that negotiations took place with the Applicant in March of this year. At that time the Respondent agreed to pay the sum of £15,364 to the Applicant and provide a reference which was to be set out in the schedule to the agreement. The Applicant was asked to provide the initial draft of the reference which he failed to do. The Respondent has always been willing to settle the Applicant's claim upon this basis and is still prepared to do so."
[21]It will be noticed that the reference there was back to March of the year which was the time and date of the proposed compromise agreement. There is, of course, nothing stopping a Respondent from making an open offer and disclosing to a Tribunal that it has done so.[22]Mr Gould's argument is that the Tribunal became biased against him; that the Tribunal was affected in their decisions, in particular, perhaps, their decisions as to costs, by reason of his not having accepted the offer which, presumably, on this argument, the Tribunal must have taken to be a reasonable one. He wishes that on account of that bias we should set aside not the whole of the Employment Tribunal's decision on liability or on quantum but only such parts of the liability decision as were determined against him. One might think that if a Court or Tribunal had truly been biased one would have to sweep away the whole of their decision but Mr Gould is very clear that, if the argument as to the revelation of what he described as "a without prejudice offer" were to lead to an overturning of the awards in his favour, then he would rather abandon the argument altogether. He frankly tells us that he has received the remedy award, has spent it and could not re-pay it.[23]It does not obviously follow that where an offer comes to a Tribunal's notice but is refused that it is the offeree against whom bias is likely, if any bias is likely at all, and it is unattractive to find a party insisting on retaining the benefits of what he himself asserts is the ruling of an unindependent, unimpartial Tribunal. However, we shall assume that Mr Gould can have the plums without the duff; that if bias is indeed proven then the awards so far in Mr Gould's favour will not be overturned. The case, in other words, could be set aside just on the issues which he lost. On that assumption, which is not a decision, we shall proceed with the argument.[24]If the school had said only "We agree to pay £15,364" which, by indicating they were willing to do so, they in effect did, there would be, as it seems to us, no possible complaint. But the school initially referred back to an earlier offer which had been made "without prejudice". The only practical effect, if any, that that reference back could have, in comparison with an open offer being made at the same time, would, as it seems to us, be as to costs incurred between the earlier offer and the later. But in the Employment Tribunal regime costs do not follow the event. The school never got into a position to argue that it had been unreasonable of Mr Gould not to accept £15,364 as at the date of the "without prejudice" offer or at any later date, including 3 December 1998.[25]It is hard to see what prejudice Mr Gould suffered from the fact that there had been a reference back to the offer having been made earlier, given that the school was at liberty to make and disclose, as it did, a current open offer.[26]Then, on 8 January 1999, there was a directions hearing at the Employment Tribunal. That led to an Employment Tribunal Order of 8 January 1999 which begins as follows:
"(a) The respondent concedes that the applicant was unfairly dismissed and is prepared to abide by the terms of the draft compromise agreement by a payment of the sum of £15,364 to the applicant in settlement together with a reference to be agreed. The respondent also is prepared to provide an apology in respect of the unfair dismissal subject to the terms to be agreed. (b) The outstanding issues are the claim of sex discrimination and the applicant's contractual claims in relation to: (i) benefits in kind; (ii) entitlement to further notice; (iii) alleged over-charging for board and lodging."
[27]We accept Mr Birtles' argument that by then there was an open offer by reference to the draft settlement agreement which the schools were entitled to bring to the Employment Tribunal's attention. The Tribunal then proceeded with the substantive case and heard it on 20 and 21 October 1999, 12 and 13 January 2000 and 27 March 2000 and, of course, the panel hearing that substantive hearing knew that the school had conceded unfair dismissal and knew of the sum which had been offered as the directions hearing order had recorded. There was reference to the offer made at the interlocutory hearing but there does not seem to have been made any reference back to the original "without prejudice offer". The Tribunal said:
"It was at an interlocutory hearing of the Tribunal (differently constituted from this one) on 8 January 1999 that a record was made of the respondent conceding the unfair dismissal of the applicant and also of the respondent being prepared to abide by the terms of a draft compromise agreement by a payment to the applicant of the sum of £15,364 in settlement together with a reference to be agreed and an apology in respect of the unfair dismissal subject to the terms to be agreed. Apart from the concession itself as to the unfair dismissal none of the other matters came to fruition and it has to be made clear that the offer of £15,364 was in respect of those claims referred to in the draft compromise agreement which included those of sex discrimination."
[28]We entirely fail to see how Mr Gould suffered any relevant prejudice at that substantive hearing on liability on account of the Employment Tribunal's acquisition of knowledge of the offer. Unfair dismissal was conceded, so disclosure could not affect matters other than as to remedy, which was then adjourned. The Employment Tribunal also does not seem to have known that the offer's very first formulation had been in "without prejudice" form and, even if they had, we fail to see how Mr Gould was thereby prejudiced in the liability hearing, given that the school had openly repeated its offer. Nor can we see how he suffered from the Tribunal's knowledge that the school had made an offer which covered his claims of sex discrimination. The Employment Tribunal never refers to the offer as covering sex discrimination in its later passages when it moved on to dismissing them.[29]As for a claim in bias, which is not only raised in this particular appeal but in the later one we shall come on to, Mr Gould has wavered. In his reply to us he said that his claim was not in fact for bias but one as to improper Court procedure. But there is nothing improper in a Tribunal referring, in the course of a remedies decision, to an open offer publicly made by one party to the other.[30]As for bias more generally, the question is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased: see Magill v Porter [2001], paragraph 103. Relevant knowledge that fairly and openly comes to a Tribunal in the course of the proceedings in issue should not generally found a claim in bias and we see no reason to suppose that it had occasioned bias here. Mr Gould succeeded in a number of his claims. He recovered more than the earlier offer had held out to him and the award was very carefully quantified and dealt with in considerable detail by the Employment Tribunal. We find nothing in the Employment Tribunal's conduct or in its awards to suggest prejudice against the Applicant, still less prejudice generated by some wrongful revelation of a "without prejudice" offer.[31]Mr Gould refers to Article 6 and says that he believes that the Tribunal was, on account of the knowledge of the offer, not independent and impartial and that the hearing in turn was not fair, but he gives, as it seems to us, no reasonable grounds for that belief. We add that the Tribunal, so far as we can tell, never saw the original "without prejudice" letter. We cannot base a decision as to the appearance of bias or as to a want of impartiality and independence, on Mr Gould's mere say so as to its existence. We are unable to find error of law or other relevant ground for undoing the Employment Tribunal's decisions on account of such knowledge as it had of the offer that the school had made. It will be remembered that unfair dismissal was conceded, that a not insubstantial award was made in Mr Gould's favour and that the school's offer had been discussed in open public forum.[32]We therefore dismiss the appeal raised in Mr Gould's paragraph6.1 and turn to his6.2 which should be given the heading "Implied terms of contract".[33]The implied terms to be considered are two-fold. Firstly, whether there was a term to be implied such that, when the school determined to assert that there had been a breach of contract on Mr Gould's part, it became forthwith incumbent on the school to specify what terms of contact had been breached, giving details and, secondly, whether by failing to do so there was a breach of the implied term as to trust and confidence.[34]Mr Birtles argues that in the light of the statutory remedy of unfair dismissal and the implied term of trust and confidence, there is no necessity to introduce, by implication, such circumscribed terms as to the giving of notice of the nature that we have just indicated. We see real force in that but do not need to rule upon it as, where breach of contract is being considered, the date as at which both sides need to be clear as to what breach is alleged is the date of the formal making of the claim by the claimant, namely, in ordinary proceedings, where the writ or the statement of claim is issued or, where the proceedings are in a Tribunal, when the IT1 is presented.[35]The terms of Mr Gould's employment contract were in writing. There was, by the time of the hearing before the Employment Tribunal, no claim by the school that Mr Gould was in breach of contract. The contractual claims are all the other way. Although at earlier stages the school may have spoken of Mr Gould being in breach of contract, nothing came of it; no formal claim for breach of contract was made and unfair dismissal was conceded. In any event it is impossible to see what loss Mr Gould suffered in contractual terms, even if we were to assume a particular contractual term of the kind which Mr Gould has asked should be implied or under the usual implied term of trust and confidence. Moreover, for any such loss to be of any materiality, it would need to be loss not already subsumed within the award for unfair dismissal. We dismiss the appeal as to implied terms of contract.[36]Next, we turn to 6.15.1, as to the termination date of Mr Gould's contract of employment. The relevant term of contract is as follows:
"(2) Subject to Sub-Clause 13(1) a notice by either party to terminate this Contract shall be given to expire on 31st December, 30th April or 31st August in any year provided that if the Teacher is taking up a teaching appointment with another employer at the commencement of a Summer or Autumn term such notice shall be deemed to take effect on the day immediately preceding the day on which the school under the new employer opens for such term if this be earlier than 1st May or 1st September respectively. (3) Notice under this Clause shall be in writing and shall be given not later than: (a) [then, there is a provision that does not apply] (b) after the first school term specified in paragraph (a) of this Sub-Clause not later than the first working day of a school term."
At the end of a very careful examination, the Tribunal held as follows:
"The contract of employment provides that notice to determine is to expire on 31 December, 30 April or 31 August in any year. It is to be served not later than the first working day of the school term. The respondents' counsel conceded that if the notice was served after 31 August, then it takes effect from 1 January 1998. The question is was the notice served on or before 31 August 1997 and we have found that it was not. Therefore, the applicant's damages claim must be calculated in respect of a termination date of 30 April 1998."
We have already quoted what Mr Gould says in his affidavit as to this argument in his 6.15.1.[37]The notice letter, so held the Employment Tribunal, was only three days' notice and in fact was not received immediately. The Tribunal said this:
"The letter was dated 28 August 1997 and told the applicant that his employment was to be terminated as from 31 August 1997. It stated that under the terms of his contract he was entitled to one term's notice and that he would not be required to work that term's notice but would instead receive pay in lieu of notice. He was permitted to continue to occupy his accommodation at the school until 31 December 1997 should he so wish. The applicant says that the letter did not reach him either at the home of his parents or at his school address. We heard no evidence as to the posting of that letter to Torquay or of its hand delivery to the applicant's school address. It was not sent by recorded delivery post. The respondents' counsel concedes that. The respondents' counsel also says that the letter was sent by first class post but with respect to him there is no evidence of that at all."
[38]The school was in breach of contract. After going into the facts the Tribunal held that Mr Gould did not get the notice letter until 9 September 1997 and it is to be borne in mind that it was a letter purporting to terminate employment a good deal earlier, namely on 31 August 1997. Of the various dates contending to be the date as at which the notice would or could take effect, it was, it seems, by 9 September not a notice which could be treated as giving a whole term's notice capable of expiring as at 31 December. Presumably the autumn term had begun by 9 September; perhaps that it why the Employment Tribunal held it to be effective as at the next available date, 30 April 1998. Either it was then effective, 30 April 1998, or arguably, not being expressly limited to expire on 30 April 1998, it could, perhaps, have been argued that it was no good notice for any date at all. The Tribunal heard evidence on the subject. We can see considerable force in the Tribunal's view that, rather than the notice being totally devoid of all force, it should be given force as at the first appropriate available day, notwithstanding that that was not the day that it actually specified but where the day it did specify was an earlier date. We see no error of law in the Tribunal's conclusion and dismiss the appeal as to Mr Gould's 16.15.1. Indeed, as Mr Birtles' has drawn to our attention, Mr Gould's own closing submissions to the Tribunal below asserted that his entitlement to salary and so on ran down to 30 April 1998.[39]We have now dealt with all the matters entitled to come forward to a full hearing in 635/00. We dismiss the whole appeal in 635/00 for the reasons which we have given.[40]Next, we turn to 1191/00. This appeal goes to remedies only. It is concerned, therefore, with the Tribunal Decision of 8 August 2000. When determining at the preliminary hearing stage what was appropriate to go forward to a full hearing, we made some observations at that stage which we ought to mention to set the scene for the matters that can, indeed, be appealed. Thus, there is a question of a ski trip. What was said at the preliminary stage was this: "As a schoolmaster at Haileybury, Mr Gould was put in charge of pupils on a ski trip each year. There was no contractual term relating to this, either to oblige him to go if asked or to oblige the school to ask him to go. Presumably, whether he was selected to accompany the party would depend in part on whether he had been found satisfactory in the course of the year in question in terms of his relations with and authority over the pupils and whether he had been found satisfactory in the past as the master having control of the party, whether he was able and willing to go and whether there were any better competitors for the rôle. What he lost was obviously not, as it would seem to us, the benefit of a ski trip but the chance of a ski trip and, of course, he gained the absence of being responsible for the conduct of the party and any personal outgoings that would be connected with the trip if he went upon it. It is at lowest arguable that when the benefit actually enjoyed is understood and his loss of it by reason of an unfair dismissal comes to be considered, it is no answer merely to say that there was no contractual entitlement to that benefit; see Harvey D1, 2589-2601. It is thus, as it seems to us, arguable , and we would want to underline the word arguable, that the Employment Tribunal's robust paragraph 2(g) is a little too robust. What it says is:- 'The applicant claims that he should be compensated in respect of the ski trip which he undertook for the School each year when he was in charge of a party of pupils for the purpose. We do not accept for one moment that he should be compensated in this way. It was not a term of his contract that he should have the benefit of some skiing holiday. The holiday was not for his benefit but for the purpose of his being in charge of the pupils on such an expedition. The fact that he derived pleasure from such an activity at the cost of the School is neither here nor there. Not until he became employed at Sussex House [and pausing there, that is the next employer that he went to also as a schoolmaster] did the applicant go on a ski trip; he did not do this during 1998 when unemployed'. Although the sum in question might well be relatively small (especially when it is accepted, if it is, that what he lost was merely the chance of a ski trip rather than necessarily a ski trip and that such chance would need to be evaluated in some percentage or similar terms) nonetheless, as we say, the Tribunal's reasoning that there was no contract on the point and that therefore there was no loss on the point seems to us a little too robust and we permit this to go a full hearing, although it may be met by a counter-argument that we will need to discuss below.[41]So much for what was said at the preliminary hearing stage on the ski trip. As to sports facilities there was another claim and that, too, was dealt with at the preliminary hearing stage. The Employment Appeal Tribunal then said:
"In much the same category is the heading Sports facilities, which is 6.4b). Mr Gould, a player of squash and tennis, lost the chance of being able for a time to continue to be able to play squash and tennis for free. Although the cost of replacement is quite commonly the yardstick by which such losses are measured, it does not seem to us to follow that the cash value of the compensation for that loss is necessarily to be measured by reference to what Mr Gould spent thereafter (that is to say, after the unfair dismissal) on the use of such facilities. For example, if a man was so impoverished after a dismissal that he could not afford to play at all, that approach, if right, would quantify his loss at zero and yet plainly some form of loss or damage would have been suffered by such a person. Thus we see there to be an arguable error of law in the Employment Tribunal's approach in its paragraph 2h. Again, we permit the matter to go to a full hearing, although, again, there may be a counter-argument that we may come on to. So that goes to a full hearing."
[42]Then there is a separate subject. Cleaning was dealt with. At the preliminary hearing stage the Employment Appeal Tribunal said:
" Cleaning is another heading. … For corresponding reasons the Employment Tribunal's approach in its paragraph 2k is arguably in error of law."
[43]Then, as to accommodation, the Employment Appeal Tribunal said:
" Accommodation is 6.5 but there was no contractual entitlement to accommodation but similarly, it seems to us, that there is arguable error of law in this area and so that may go to a full hearing, again subject to a possible counter-argument."
[44]On 1 September 1998 Mr Gould took another teaching job elsewhere, in London, Sussex House, at a far better rate of pay than he had enjoyed at Haileybury but with fewer or lesser perks. At the preliminary stage we said:
"The Employment Tribunal concluded that overall the benefits for the new job were comparable to those he had been receiving from Haileybury."
And we later added:
"If, at the full hearing at the EAT or if, thereafter, there is to be a remission following that full hearing, it becomes necessary for reconsideration of quantification of the loss of non-salary benefits, it will become necessary to reflect on the Employment Tribunal's conclusion, which was as follows: "
Whilst we appreciate that it would be more expensive for the applicant to live in London than in Windsor where he had the advantages of accommodation at his School with subsidised meals, which was not the case at Sussex House, nevertheless there is such a differential in the incomes in the two establishments that we believe that the applicant did in fact receive the benefit of comparable employment in financial terms when he joined Sussex House." And then, continuing with the quote with what the EAT said:
"When that is taken into account, it could be taken to be an indication that to compensate separately for non-salary benefits would involve the provision of compensating for something which was not lost, in the sense that, given the salary at Sussex House and the increment in that salary over what had been paid at Haileybury, that difference itself compensated for the loss of non-salary benefits. That is what the conclusion that we have just cited seems to suggest. That will be a factor which may be necessary to be considered at a full hearing."
[45]As for interest, which was an issue which Mr Gould raised, the Employment Tribunal had simply said that no interest is payable on unfair dismissal compensatory awards. In fact the award included interest. At the preliminary hearing the Employment Appeal Tribunal said:
"It is rather hard to know precisely what they had in mind because their conclusion was so very terse and quite how Mr Gould will put the argument will remain to be seen but we are not at all sure that there is no error of law in their dealing with interest in the way that they did and so that is a ground that can go forward to the full hearing."
[46]So those are the issues that have been permitted to come forward to this full hearing. Taking them in a different order and dealing first with interest, the Tribunal in its Decision as to remedy, promulgated on 8 August, had said, on the subject of interest, as we have already seen:
"No interest is payable on unfair dismissal compensatory awards"
[47]Mr Birtles, in his Skeleton Argument, points out as follows:
"The Industrial Tribunals (Interest) Order 1990 (SI 1990 No.479) specifically provides that interest is only payable by an Industrial Tribunal (now Employment Tribunal) when the sum assessed by the Tribunal to be paid as compensation to an Applicant has been unpaid from 'the calculation day' which is the day immediately following the expiry of the period of 42 days beginning with the relevant decision day: see Industrial Tribunals (Interest) Order 1990 Article 2."
[48]In this case the relevant decision was 8 August 2000. The Employment Tribunal decided that no interest was payable other than as it had specified. We will not take up time reading the Regulation but, as it seems to us, the Tribunal cannot here have erred as at 8 August 2000 in not awarding further interest. Mr Gould asserts that he is entitled to interest under the Human Rights Act 1998 . It would be wrong, he says, to allow those who wilfully delay matters thereby to reap benefit. But the provisions in the statutes as to compensation are designed to make good that which is truly lost and, in any event, there is no finding that the school had wilfully delayed anything. We do not allow the appeal on the subject of interest.[49]As to accommodation, the Tribunal said this:
"Prior to his taking up his new appointment with Sussex House the applicant lived at home free of charge with his mother and father in Torquay. He has been to no expense as a result of not having the School accommodation any more and therefore he can have no claim in that respect. Moreover, his contractual right to that accommodation was limited by Clause 7(3) of the contract providing that 'the teacher's occupation of the Accommodation shall not imply that the Employer shall as a condition of employment be obliged to provide the teacher with housing accommodation.' Thus the respondents could have taken away that right."
We are not convinced that Section 123(3) of the 1996 Act enables compensation to be paid only for that to which an Applicant is contractually entitled. The expression "loss of any benefit which he might reasonably be expected to have had but for the dismissal" appears to us not to be restricted only to matters to which there had been a contractual entitlement or in respect of which some contractual expectation existed.[50]However, quite apart from the finding that Mr Gould was put to no new expense, his new job without accommodation paid almost £9,000 per annum more than the job from which he was dismissed, some of which enhancement, common sense suggests, was very probably attributable to the factor that this time accommodation was not provided. Mr Birtles, relying on that and on the language of the Employment Tribunal, argues that the only proper inference from the careful decision of the Employment Tribunal was that it was not just and equitable to compensate the Appellant for the losses claimed and he also makes the point about the not insubstantial difference between the Sussex House rate of pay and the earlier rate of pay. A similar argument is deployed as to the loss of an opportunity to use free sports facilities and to have the advantage of cleaning facilities. The Tribunal had said:
"The applicant also claims compensation for the fact that he is no longer able to us the extensive sports facilities at the School, which include a gold course, tennis courts, a swimming pool and squash courts. He was able to use these facilities free of charge although he had no contract right to them; they were simply available for him and we doubt whether he could have claimed that there was any breach of his employment contract if one of the facilities were no longer to be available. After he left the school he did not involve himself in any of these activities except for tennis on one occasion when he went abroad on holiday. He joined a squash club when he was working at Sussex House but this was after the time of the cut-off point in respect of his remedy in accordance with our finding. It seems that there was a squash facility in Torquay where he lived with his parents but there is no clear evidence at all that he took advantage of these facilities. In his submissions he has said that the cost was too expensive for him when he was out of work. We are not able to make any finding for the applicant by way of compensation in this respect and consider that to do so would be quite inappropriate."
[51]As for cleaning, the Tribunal said:
"The applicant's accommodation at the School was cleaned for him. However, he did not incur any expense under this head following termination of his employment and he can have no claim in this respect."
[52]We see practical force in the Tribunal's view that the difference in salaries between the two jobs must have reflected that there were fewer or lesser perks in the second job than in the former and to that extent an award in Mr Gould's favour would, in effect, be ensuring that he was compensated twice.[53]We see no error of law in the Tribunal's approach as to accommodation, sports facilities and cleaning facilities.[54]That leaves the loss of a chance of Mr Gould being picked to go on the free school skiing trip. It is disputed before us whether there was in fact any evidence as to the probability or otherwise of Mr Gould's being selected to go on the trip, which was due to take place in March 1998. The Tribunal says:
"The applicant claims that he should be compensated in respect of the ski trip which he undertook for the School each year when he was in charge of a party of pupils for the purpose. We do not accept for one moment that he should be compensated in this way. It was not a term of his contract that he should have the benefit of some skiing holiday. The holiday was not for his benefit but for the purpose of his being in charge of the pupils on such an expedition. The fact that he derived pleasure from such an activity … is neither here nor there. Not until he became employed at Sussex House did the applicant go on a ski trip; he did not do this during 1998 when unemployed."
[55]Mr Birtles, in his written Skeleton Argument, says:
"The Respondents submit that so far as the ski trip is concerned it was loss of a chance only and the question of whether or not the Appellant would have gone on the ski trip but for his dismissal can only be answered in this case in the negative in view of the gravity of the allegations made against the Appellant. [Pausing there, that is a reference back to what I described at the beginning as "the incident"]. In particular the Head Master took a very serious view …"
I will not read it out any further because it identifies, in detail, the nature of the incident, but the argument continues:
"Clearly the view taken by the Head Master was that the Appellant was not a fit and proper person to teach at the School. In the circumstances it is inconceivable that he would have been allowed to go on a ski trip."
[56]We would be uneasy in accepting Mr Birtles' argument exactly as it is put. We have no reason to think that the headmaster's view of Mr Gould's conduct, even if that view was wholly unjustified, would not have coloured his selection of who was to go on the ski trip. But no investigation at all had been conducted and even assuming the headmaster's view was genuinely held, the want of any investigation, in our judgment, denies the school the ability to rely on the existence of a genuinely held view which was based on no form of enquiry or investigation at all. However, Mr Gould's deadline for the skiing trip for March 1998, as he himself wrote to the school, was at the end of July 1997. The incident that caused all the upset was, as we have mentioned, on or about 26 June 1997. Even if the disciplinary process had been duly followed by the school, it seems relatively clear that a cloud would still have been hanging over Mr Gould by late July 1997. In the circumstances, however innocent Mr Gould's conduct might later have been found to be, he would, very probably, not have been selected to go on the ski trip, even had the school's disciplinary processes been conducted in some manner beyond reproach. The value of his chance of going on the ski trip was, as it seems to us, negligible. Moreover, even if there was a measurable chance, the ski trip should not be equated with an ordinary ski holiday. The master conducting it would have had duties and responsibilities which no ordinary holiday maker would have. To that extent the trip would not be worth what one might regard as its ordinary face value or costs. Even a 100 percent chance of going on it would not attract a value equivalent to the cost price of the holiday. All in all, we see no error of law in the Tribunal's conclusion as to the skiing matter.[57]We have now dealt with all the matters in 1191/00 which were authorised to go to a full hearing. We dismiss the appeal in 1191/00.[58]That leaves only Mr Gould's application to amend his Notice of Appeal. Miss Carne, solicitor to the School, has sworn an affidavit indicating that from an early date she advised the school that it would lose Mr Gould's claim for unfair dismissal and says also that the school accepted that advice. That evidence came to light only in February 2002 when Miss Carne swore an affidavit which included that. It was that advice that led to the offer having been made, as we have earlier looked at, in August 1997. But, as we have seen, the offer was refused and the case went on. There was no formal amendment to the school's IT3 but from 3 December 1998 or thereabouts, the Respondents had indicated that unfair dismissal was not disputed and by 8 January 1999 liability as to unfair dismissal was formally conceded. Mr Gould argues that this affidavit evidence might now be examined by the Employment Appeal Tribunal. He says that it founds an argument in costs as it shows that the Respondents persisted in the defence of a claim which they knew must fail and did so wilfully and vexatiously and that he thereby incurred costs in taking solicitor's advice from time to time (even though in general he was appearing in person) and that those costs had been quite unnecessary. If we would not ourselves award him costs, he said, then we should remit the matter to the Employment Tribunal for them, by way of review or otherwise, to consider costs afresh in the light of this new evidence. He draws attention in particular to Cartiers Superfoods v Laws [1978] IRLR 315, where the Employment Appeal Tribunal upheld an Employment Tribunal's award of costs against the Respondent employer.[59]It is rare for one case as to costs to provide any truly helpful guidance in another case as to costs save where and to the extent that the former sets out applicable principles. We would not wish to query any matters of principle to be extracted from Cartiers Superfoods but it has to be recognised that it was an extreme case and differed in many respects to the one now before us. Firstly, it was a case only as to unfair dismissal. Had the employer there recognised, as it should have done, that its case in resisting unfair dismissal was manifestly futile, costs would have been greatly saved in Cartiers Superfoods as the case would then have been only as to remedy. By contrast, in Mr Gould's case, there were many other issues that remained to be fought, even after unfair dismissal had been conceded, and further costs other than as to remedy for unfair dismissal were inevitable. Secondly, the employer in Cartiers Superfoods had not even called evidence and had not conceded unfair dismissal, whereas the schools had conceded unfair dismissal and had even made a cash offer. Thirdly, the employers had accused Mrs Laws in the Cartiers Superfoods case of a crime, stealing. Yet, if only they had bothered to investigate they would have established that what she had done had been done openly and under the direction of her manager. By contrast, were the incident in Mr Gould's case to have been investigated, one cannot say for sure what the result would have been. Mr Gould strongly protests his innocence and feels very hurt at the slur on his reputation and the harm to his professional life which the school's response to the incident has occasioned, but the case is plainly not as clear as were the facts in Cartiers Superfoods, where it was established, as a matter of fact, that no blame attached at all to the dismissed employee. Fourthly, the employer's conduct in Cartiers Superfoods was extreme. They had even threatened to sue Mrs Laws for damages were she to go to her own solicitors as to her dismissal. In all these circumstances one plainly cannot make a simple jump from the decision in Cartiers Superfoods to a view that costs must necessarily have been awarded in Mr Gould's case.[60]The first question that we have to ask is as to whether the existence of Miss Carne's evidence could have been reasonably known to Mr Gould at the time of the Employment Tribunal hearing. Plainly, in our view, it could not, but that is far from saying that there has to be a review or that the Employment Tribunal's views as to costs - they made no award - has to be overturned. The Employment Tribunal said nothing as to costs in the liability decision. In the remedy decision they said this:
"The applicant claimed costs against the respondent on the grounds that the respondent had acted unreasonably in conducting these proceedings. Although the applicant represented himself, he claimed that he took legal advice at certain times for which he had to pay. He maintains that the respondent should have admitted unfair dismissal at the outset and not at the stage when they did, because the dismissal was patently unfair. We reject the applicant's claim absolutely because whatever he might say, the respondents had to defend a comprehensive and detailed claim for sex discrimination and victimisation. They defended those claims successfully. The unfair dismissal claim barely featured due to the admission by the respondents. The breach of contract claim was not unreasonably contested. There can be no question of any award for costs."
[61]In other words, whilst they did not know, of course, of the underlying facts with the clarity with which Miss Carne's affidavit later clothed the topic, the Employment Tribunal did have before them the very argument that the schools had persisted in a defence to a claim which they later conceded and which they should have conceded earlier. Against that, the Employment Tribunal reflected that the schools had succeeded as to sex discrimination and victimisation, despite there being comprehensive and detailed claims and, therefore, impliedly, claims which were expensive to defend. They reflected also that the topic of breach of contract was not unreasonably contested by the schools and that unfair dismissal "barely featured" because of the concession. The Tribunal therefore said firmly "There can be no question of any award for costs". The Chairman declined to review that decision.[62]Even assuming in Mr Gould's favour that Miss Carne's revelation of what would ordinarily have been privileged information could properly be received by the Employment Tribunal and assuming also that the authorities that speak of visiting the vexatious protraction of proceeding with costs are concerned not only with what is outwardly manifest as vexatious but also with what, on examining what ordinarily would be privileged material, might be so regarded, even so, we cannot accept, if Miss Carne's affidavit had been in the Tribunal's hands in August 2000 at the date of the remedy decision or at the later date of the review decision, that it would likely to have made any difference. The Tribunal would be entitled to reflect that it was only liability, not quantum, as to which Miss Carne had advised and in respect of which she had had her advice accepted.[63]There was, in the Tribunal's view, nothing vexatious or unreasonable, it would seem, in the school's nonetheless proceeding with arguments as to Mr Gould's contributory fault or as to a Polkey reduction. By conceding unfair dismissal the Respondents did not abandon all ability to raise such issues at the remedy stage. The Employment Tribunal would still be able to reflect that Mr Gould had, for his part, persisted with comprehensive and detailed but unsuccessful claims for sex discrimination and victimisation and also would be able to reflect that little of the costs of the case had involved unfair dismissal and that breach of contract was not unreasonably contested.[64]Whilst Mr Gould, in spasmodically taking legal advice in a case otherwise generally conducted by himself, undoubtedly incurred some costs in relation as to advice as to unfair dismissal, it is far from clear to us that all his produced invoices relate to such advice and not only the considerations already mentioned but even that of proportionality militate against a re-opening of the case on costs, especially where the outcome would, in our view, be likely to leave matters exactly as they are. Even taking Miss Carne's affidavit as furnishing a good ground for a review, we regard a re-opening of a question as to costs as very probably achieving nothing but further anxieties and costs to no practical avail.[65]We therefore do not permit the amendment which Mr Gould proposes to his Notice of Appeal so as to enable him to raise fresh issues as to costs or as to a review on the subject of costs.[66]We now believe that we have dealt with all the issues that have been put before us and for the reasons that we have given we dismiss the appeals.