MR A V MELIA v MAGNA KANSEI LTD [2004] UKEAT 0339_04_1711

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0339_04_1711

Case No Appeal No. UKEAT/0339/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A V MELIAAPPELLANT

MAGNA KANSEI LTDRESPONDENT

Before

Mr Justice Burton

Date 17 November 2004

[1]APPEARANCES For the Appellant MR A V MELIA (The Appellant in Person) For the Respondent MS A RUSSELL (of Counsel) Instructed by: Mssers Vizards Wyeth Solicitors Riverbridge House Anchor Boulevard Crossways Dartford DA2 6SL SUMMARY Unfair Dismissal Various issues of quantum resolved in respect of appeal against Remedies Decision relating to earlier finding in favour of Appellant of detriment due to protected disclosure (s47B) and automatic unfair dismissal (s103A). Primary points were(i) in a case where there was 2.5% pa discount for accelerated payment in respect of some elements of award, also proper to award 2.5% pa premium for delayed payment of others as part of just and equitable compensation, even though interest not statutorily awardable

(ii) the Employment Tribunal was correct to restrict compensation for injury to feelings under s47B by stopping it when it concluded that the repudiatory breaches subsequently accepted as constructive dismissal began, rather than as at the date of the constructive dismissal

(iii) the Employment Tribunal did not err in reducing compensation by 50% on the just and equitable ground by reference to blameworthy conduct which was not contributory fault by reference to percentage chance of fair termination resulting from that conduct ( Devis v Atkins ). THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of an appeal by Mr Melia, the Applicant, against the unanimous Decision of the Employment Tribunal at Newcastle Upon Tyne, after a Remedies Hearing, which lasted two days in November 2003, in Reasons sent to the parties on 2 February 2004, that the Respondent was ordered to pay to the Applicant as compensation for subjection to a detriment (in contravention of section 47B of the Employment Rights Act 1996 ("the 1996 Act ")) the sum of £6,000, and, as compensation for unfair dismissal, the further sum of £12,441.85, being a basic award of £840 and a compensatory award of £11,601.85.

[2]The Tribunal was the same Tribunal which had already made a unanimous finding in favour of the Applicant after a hearing, which had lasted eight days, in July and November 2002, in Reasons delivered to the parties on 12 May 2003, that he had been subjected to a detriment on the ground of making a protected disclosure, in contravention of section 47B of the 1996 Act , and that he had been dismissed, and that the principal reason for such dismissal was that he had made a protected disclosure, and accordingly was unfairly dismissed.

[3]Both judgments of the Employment Tribunal are clear and fully reasoned; but we would remind them, and other tribunals, yet again, as we pointed out in the case of Kirkcaldy , a starred judgment of this Appeal Tribunal (

EATS/0083/03

EATS/0084/03

), that paragraphs really must be consecutively numbered and as reasonably short as possible. All of us, the parties and this Appeal Tribunal, had difficulty dealing particularly with the 40 page Liability Decision, quite apart from the 14 page Remedies Decision, because pages could go past without a signpost as to what paragraph one was dealing with, as the subparagraphs plunged into the lower letters of the alphabet.

[4]The findings at the Liability Hearing, the first two of which we have read, also included the following third and fourth paragraphs:

"(3) prior to and unconnected with his dismissal, the applicant had committed an act – namely, the serious misuse of the respondent's computer system – which was a blameworthy act for which he might but would not necessarily have been fairly dismissed in any event. (4) in due course, this case will be relisted for the hearing of all issues of remedy at which the Tribunal shall take such account of the blameworthy act as it may consider appropriate."

[5]Neither the Applicant nor the Respondent appealed any of the four findings of the Tribunal at the liability hearing; the two in favour of the Applicant and those two further subparagraphs. The Tribunal proceeded, as we have indicated, with the Remedies Hearing, and its Decision after the Remedies Hearing has now been appealed by the Applicant, but not by the Respondent.

[6]The Notice of Appeal put in by the Applicant was originally a lengthy 16 page document, but, as a result both of a preliminary hearing, held on 12 August 2004, and a further directions hearing, held in October 2004, and a considerable amount of co-operation between the parties, seven issues have been left to us for determination at this hearing.

[7]The Applicant was represented at the Liability and Remedies Hearing by Counsel, Ms Gilbert, but he has handled the appeal before us himself, and has done so with conspicuous perspicacity, skill, patience and courtesy. Ms Russell, of Counsel, by whom we have also been ably assisted, appeared as Counsel for the Respondent at both hearings below and has again appeared before us.

[8]The seven issues, to which we have referred, have been of complexity; there are four with which we can deal very shortly indeed, both by virtue of their nature and the way in which matters proceeded before us at the hearing. It was common ground between us that the approach that we should adopt was as follows:(i) That an employment tribunal is, and this Employment Tribunal was, entitled to adopt, in relation to the quantification of compensation for these claims, a broad-brush approach, albeit of course one based upon what was put before it: see Norton Tool Co Ltd v Tewson

[1972] ICR 501

and Bentwood Bros (Manchester) Ltd v Shepherd

[2003] IRLR 364

(ii) That the Employment Tribunal is only entitled to intervene very exceptionally with any decision by an employment tribunal based upon the facts, upon the basis of a case that such decision was perverse, but particularly so where the decision related to compensation: see Foujere v Phoenix Motor Co (Surrey) Ltd

[1977] 1 All ER 237

and Bentwood .

[9]We turn against that background to what we have referred to as the four shorter issues. The first was loss of pension rights. The Applicant obtained, after the termination of his employment by his resignation, which was found to be a constructive dismissal, and an unfair one, as we have indicated, on 7 November 2001, further employment. Consequently, the task of the Tribunal was largely a comparative one between what, in Dunnachie v Kingston Upon Hull CC (No.3)

[2004] IRLR 727

, we have called "old job facts" and "new job facts". One of the issues which the Tribunal had to resolve related to what it described at page 5 of the Remedies Decision, under (f), by reference to a monthly sum of £113.82. The Tribunal noted as follows in that subparagraph:

"There was a dispute between the parties as to the question whether certain other benefits should also be added to this sum. One such item was the monthly amount of £113.82 which was deducted from the applicant's pay and remitted to the pension fund, of which he was a beneficiary."

[10]The Tribunal dealt with that in its Decision, most relevantly at page 7 under subparagraph (k), as follows:

"The pension position was the subject of a considerable amount of oral and then documentary evidence and eventually a significant degree of agreement. It was the evidence of the applicant and accepted by the respondent that, although the contributions made directly to the pension fund by both the applicant and his present employer are somewhat less than those which were made by the applicant and the respondent, the scheme operated by the latter is "contracted out", whilst that is not the position with regard to the scheme operated by Nifco UK Limited [the new employer] so that at least from the date of the hearing there was no continuing loss of pension rights, save in relation to the loss of enhancement of accrued benefit rights…."

Further, on page 8, under (m), the Tribunal:

"We took the view that there should also be included in the applicant's net monthly wage as at dismissal the sum of £113.82 which he had previously contributed to the pension fund. We did so because that was in reality a part of his salary of which he was deprived and which, if it had not been paid into a pension fund, he would have received directly. Of course, for over one year thereafter he did not have the benefit of a pension fund. That ceased to be the position as from 1 February 2003: thereafter, he made contributions to a pension fund before receipt of his net salary and – although these contributions would appear to have been less than he made whilst employed by the respondent – there was no longer any continuing pension loss save in relation to enhancement in respect of the previous fifteen months. We came to the conclusion that at that point this additional sum should cease to be included."

[11]The Applicant has submitted that the Tribunal was wrong in concluding that there was no continuing loss. He asserted that the Tribunal's finding as to parity between the new scheme and the old ignored the fact that the £113.82 had been paid into the old scheme, and was no longer being paid into the new scheme, and thus that a continuing loss ought to have been found in respect of the absence of enhancement of the continuing pension fund, by reference to the £113.82.

[12]We are satisfied, however, that the Tribunal made a finding of fact, specifically by reference to the question as to whether there was any basis for continuation of a loss in respect of £113.82, after the date of apparent parity between the two pensions, and that the Tribunal was satisfied, as a conclusion of fact, that, specifically by reference to the £133.82, there was no longer any loss, because the Applicant was doing as well under the new scheme as he had under the old scheme, taking into account the contribution of the £113.82. If that is wrong, we have nothing before us, and the Applicant accepted he could put nothing before us, to show it, and we are entirely clear that this is a finding of fact with which we cannot, and indeed have no material upon which we could, interfere. Consequently the Applicant fails in this regard; no error of law is shown, and no possible ground to establish perversity where the Tribunal has specifically addressed the question which we are now asked to readdress.

[13]The second issue relates to a loss of entitlement in respect of enhanced accrued benefit rights. The Applicant asserted, in his Witness Statement, which was taken as evidence-in-chief, that he would have remained with the Respondent, in his belief, until 2014. The Respondent asserted, in its submissions, put in in writing by Counsel, that, in its opinion, he would have left earlier. Those submissions are referred to at page 2 under numbered 5 in the Decision, and we have read them at the parties' request.

[14]The submissions indicated as follows. First. in paragraph 11:

"The Respondent accepts the Applicant's calculations of diminution of enhancement of accrued benefit rights. The Respondent submits that due to his length of service with former employers [and there is a reference to a document which apparently consisted of his CV, showing that he had not stayed long with some or all of his previous employers] and the possibility that the Applicant would have sought alternative employment due to his general dissatisfaction with the Respondent, the appropriate voluntary leaving date to be considered is, say, three years from dismissal."

That, of course, would have taken, on the Respondent's case, the loss only up to 2004. in addition, at paragraph 27, the Respondent submitted as follows:

"Insofar as the Tribunal is minded to award a lengthy period of future financial loss, the Respondent submits that an additional discount would be appropriate to reflect the possibility of earlier termination with the Respondent in any event…. In this regard the Respondent relies upon the highly competitive nature of the car manufacture and design market and, also, upon the Applicant's admitted unhappiness in working in an environment where he felt that sufficient resources were not made available to him (see para 6(e) p. of the liability decision)."

[15]The Tribunal has also, at page 4, under (c) of the Remedies Decision, recorded as follows:

"…the evidence which he had amassed and placed before us at the previous hearing did not suggest that his position was as secure as he believed."

That is a reference to the Tribunal's earlier findings at page 4 under (e) of the Liability Decision, and that includes, for example, references to findings by the Tribunal in relation to the Respondent being, at any rate in certain respects, in some financial difficulty.

[16]The Tribunal's conclusion in this regard, faced with the dispute between the two positions, is set out at page 7, under (k), as follows:

"There was also agreement as to the possible figures in relation to the loss of enhancement of accrued benefit rights, the same being set out on A117: the issue for us was the identification of the year when the loss should cease. We came to the conclusion that that year was 2007 which resulted in a net loss of enhancement of £1,736.09 (less any reduction for early receipt)."

Plainly it would have been much more satisfactory if reasons had been set out for this conclusion, which fell between the Applicant's date of 2014, and the Respondent's date of 2004. The Applicant has submitted that the Employment Tribunal was not entitled to prefer, or at any rate come nearer towards, the Respondent's position, set out as it was only in written submissions, as compared with his own, unchallenged, evidence. This was formulated in a helpful letter that he wrote, dated 28 October 2004, after agreement with the Respondent' solicitors, as follows:

"One party's evidence on a specific issue was unchallenged by evidence or cross-examination. The other party made a submission contesting the general but not the specific issue, and the submission was not responded to, ie opposed. The question to be considered by the EAT is whether the Tribunal erred in law by accepting an unopposed submission in preference to unchallenged evidence."

[17]It is plain that the long-standing tradition of advocacy in English courts and tribunals is that every aspect of a witness' evidence that is in dispute ought to be challenged in cross-examination, unless there is specific agreement or direction to the contrary. It is perhaps a development regretted by some that, in more recent years, with the development of witness statements in writing standing, sometimes wholly but at any rate substantially, instead of evidence-in-chief, and case management directions dedicated towards identifying and concentrating upon the major issues, this need to challenge, live, every jot and tittle of disputed evidence has been more honoured in the breach than in the observance, and possibly has been entirely overtaken. Plainly however two matters must remain the governing principles, so far as ensuring that justice is done is concerned. One is that it must be quite apparent what a party's case is, and secondly that there must be no prejudice to either side resulting from the lack of testing of an issue; and certainly if evidence goes to a major issue to be resolved, then both those two principles will direct that there ought to be cross-examination in relation to it.

[18]This plainly was not a major issue; it was one of many issues falling to be dealt with in what was in fact a very detailed hearing, dealing, with very considerable assistance from both parties, with a number of aspects of quantum. We are satisfied that both sides knew what the other side's case was. We have, however, sought to investigate, in the course of the hearing before us, whether it could be said that any prejudice was suffered by the Applicant by virtue of not having his evidence tested in cross-examination. Consistent with the extremely frank and fair way in which Mr Melia has handled the case before us, he told us that, although his Witness Statement is not in the bundle before us, and was not available to either party during this hearing, he did, in his Witness Statement, not only assert the hypothetical opinion that he held that he would have stayed until 2014, but explained why, and in particular gave explanations for the apparent short stays in his previous employment. It is apparent, therefore, to us that he did have, and took, the opportunity of expanding his case, and that if he had been cross-examined, there was nothing more that he could have added, other than to give the explanations again, orally, that he had already given in his Witness Statement. We are satisfied, therefore, that no prejudice was suffered by his not being challenged in this regard, as opposed to being challenged by a subsequent written submission, to which he could have put in further written submissions himself if he had felt that he had anything to add; after all this was not evidence of actual fact, but largely subjective evidence of opinion on both sides.

[19]The issue, then, that we are asked to resolve in the letter of 28 October we are satisfied can be resolved in favour of concluding that, at any rate in relation to this matter, the Employment Tribunal was entitled to accept the content of a submission, rather than the hypothetical evidence, albeit unchallenged, from the Appellant; and, in any event, as is apparent from what we have quoted, the Tribunal did not in fact accept the evidence for either side, but, armed with both sides' case, came down with its own conclusion, somewhere between the two. A Tribunal does not need to accept even unchallenged evidence, even in the absence of submissions to the contrary, and was entitled to make the finding it did in this case.

[20]We are left with the question as to whether the absence of reasoning in the Decision flaws the conclusion. It is quite plain that Meek v City of Birmingham District Council

[1987] IRLR 250

, and any number of cases subsequently, make it clear that a decision must be sufficiently reasoned that both parties understand why the result was come to; and it is, and would have been, much more satisfactory if the Tribunal had briefly set out the competing cases, and explained why both cases were not accepted, and what the reasons were for arriving at its conclusion. But as we have indicated, this was a small part of a very large picture, and we are entirely satisfied that we understand, and that the Applicant understands, why the Decision was arrived at, namely, if the Tribunal had positively recited what we have set out in this judgment, it would have been apparent that they were simply arriving at the conclusion that they were taking into account a number of the submissions of the Respondent, but not to the extent that the Respondent itself was urging. We are satisfied that the Applicant's case on this fails.

[21]The third issue relates to the question of legal fees expended by him, with a view to what he understood, and reasonably understood, was to be a compromise discussion, or meeting, with the Respondent in late 2001, prior to his resignation, which in fact came to nothing.

(h) , in this way:

"By [November 2001], he had already incurred and satisfied a number of expenses in relation to his medical treatment… and also legal advice with regard to the possibility of a severance payment (an amount about which there was initially some confusion but, in accordance with A108A, probably amounted to £592.20)."

The Tribunal's conclusion in this regard was on pages 12-13, under 9, as follows:

"We excluded the cost of equipment for the agency and of psychiatric treatment because they were not due to the dismissal, the legal fees because they were incurred in contemplation of termination but not as a consequence of the dismissal and the second medical report because that was an item of costs."

[22]The Applicant sought to urge us that the Tribunal was wrong in this regard not to conclude that the legal fees were incurred in anticipation of, and consequently be recoverable as part of, a claim for the constructive dismissal; but we are not persuaded by that. However, he also submitted, with greater force, that the Tribunal failed to consider whether that sum was recoverable as part of the detriment suffered by him, or a consequence of such detriment, under section 47B of the 1996 Act . It is apparent to us that the Tribunal ought to have considered that aspect, and did not do so; and that, notwithstanding Ms Russell's attempt to persuade us to contrary, we are satisfied that the Tribunal would have found it recoverable and that the Applicant succeeds in this regard, and that there ought to have been the sum of £592.20 added to the sum otherwise recoverable, pursuant to section 47B and section 49 of the 1996 Act .

[23]The fourth item related to the discount of 2.5% for accelerated payment. We have already read the passage at page 7, under (k), which resulted in the Tribunal concluding, albeit taking the year 2007, and not the year that the Applicant would have wished, in recovery of a net loss of enhancement of £1,736.09; and, as we have recited above, the Tribunal continued "(less any reduction for early receipt)." The Tribunal returned to this at page 13, on the top part of the page, and it said this:

"Fourthly, there was the applicant's pension loss. That to date was agreed in the sum of £2,334.95 whilst the loss of enhancement, based on the appropriate figure for the year 2007, was £1,736.09. However, in our judgment, the latter figure also had to be reduced by 2.5% per annum for each of the four future years: the former sum was one which but for the unfair dismissal would have been paid in the past into a pension fund but the latter was a loss which would not be suffered for some years to come."

Consequently, the Tribunal deducted 2.5% per annum, which is the normal rate, derived, no doubt, from the Lord Chancellor's rules in relation to personal injury cases, as approved and adopted in many cases, including Bentwood .

[24]The Applicant's case in this regard was that the sum of £1,736.09 had already made allowance for accelerated payment, and consequently that a further deduction of 2.5% per annum achieved a double discount, to his detriment. It is clear how the sum of £1,736.09 was calculated, because the page number A117, now before us as page 165 of our bundle, contained a table which gives that figure expressly in respect of a loss up to 2007, a calculation which was agreed between the parties when placed before the Employment Tribunal. We have looked at that table, and at the age multiplier of 3.17, which was adopted in order to arrive at the figure of £1,736.09. We are entirely satisfied, and in the event the Applicant, after hearing the argument, did not continue to submit the contrary, that that multiplier and that calculation does not make allowance for a discount for accelerated payment, and consequently that the Tribunal was not making double deduction, and did not at all. In those circumstances, the Applicant's claim in this regard fails.

[25]We turn then to the three remaining issues, and we deal first with what can be said to be the reverse of the last issue discussed, namely discount for accelerated payment, which was made by this Tribunal, and in relation to which we have found no error by it. Certain of the sums found due to the Applicant were not subject to interest because, unlike the High Court where (by reference to what is now the Supreme Court Act 1981 ) interest is statutorily due on any judgment debt, and backdated not simply to the date of the judgment but to such date as a court concludes was an appropriate date (possibly as far back as the date when the sum accrued due), the Employment Tribunal depends only on its own statutory provisions; and examples of those, if not the only examples, are the Employment Tribunals Interest Order 1990 , relating to the award of interest post-judgment on awards made by an employment tribunal as from the date of the judgment or order, and the Employment Tribunals Interest on Awards in Discrimination Cases Regulations 1996 , which specifically entitle a tribunal to award interest backdated to an earlier date, with regard to discrimination cases.

[26]In the case of Nelson v BBC (No.2)

[1979] IRLR 346

, it was sought by an applicant to recover interest, at a time when none of those regulations were in force. The Court of Appeal, per Brandon LJ, said this at paragraph 78:

"I can deal with this shortly. A general power to include interest in any sums awarded in respect of claims for any debt or damages is given to Courts of Record by s. 3 of the Law Reform (Miscellaneous Provisions) Act, 1934. An Industrial Tribunal is not, in my judgment, a Court of Record and the provision to which I have referred does not therefore apply to it. There is no separate or special statutory provision empowering an Industrial Tribunal to award interest on compensation for unfair dismissal. It follows that an Industrial Tribunal has no such power."

Thus, even in respect of post-judgment interest, at that stage an applicant was not entitled to recover. At least that lacuna has been made good by subsequent regulations, to which we have referred.

[27]An award of interest is at a specified rate, and, somewhat surprisingly, the rate of interest under the 1996 Regulations is fixed as at as high as 7% or 8%, which is not only considerably more than the relevant rate fixed in the High Court, but, we suspect, more than is obtainable almost anywhere else in the United Kindgom, except perhaps in the most speculative of enterprises.

[28]But the Applicant here is not seeking interest. He puts his case much more simply and attractively. He submits that he has suffered loss. He is seeking to recover compensation, such as is just and equitable, within section 123 of the 1996 Act , to which we shall refer; and that, particularly in a case where, as here, a deduction of 2.5% per annum is made from a calculation in order to make an allowance for accelerated payment, so there ought to be an increase or premium of 2.5% per annum in respect of what one might loosely call "decelerated" or "delayed" payment; if the one is doable within the ordinary concept either of common law damages or, here, of just and equitable compensation, so should the latter. No authority has been cited to us by either side which prevents us from doing what we conclude to be justice here, and concluding that the Tribunal should have done the same, had it considered it had jurisdiction to do so. We are satisfied that it is appropriate, particularly in a case where, as we have indicated, and as the Applicant has persuaded us, the reverse being the case by way of discount for accelerated payment, it is, and would have been, and should have been, appropriate in calculation of the compensation to have a premium for decelerated payment at the same rate. This is, of course, considerably less than the annual rate of interest; it is simple fairness to apply the same rate both ways. In those circumstances the Applicant succeeds in relation to this head, and we leave the calculation to the parties as to its effect on the award.

[29]We turn then to the last two issues, which have been central to the Applicant's submissions. His case, in a nutshell, is that he is, and was, and has been found to be, a whistle-blower, protected by the provisions of section 47B of the 1996 Act , and having made a disclosure in the public interest; and that the consequences of the two findings of the Employment Tribunal, to which we now turn, and which form the subject matter of these last two issues in these last two grounds of appeal, are intimidating to would-be whistle-blowers. It is plain that, as a matter of Parliamentary intention, the tribunals must now give, and are pleased to give, protection to whistle-blowers, and the Applicant submits that that must, and should not, be whittled away, as it would be in the two respects which have, in this case, caused him to lose a substantial amount of the compensation that he would otherwise have recovered.

[30]The Applicant's submissions have been powerful, but we must nevertheless apply the statute, albeit, of course, giving it a construction to support the principles to which he had referred, if that could be done consistently with the wording of the statute and with authority otherwise binding upon us.

[31]We must begin by reading section 47B of the 1996 Act :

"47B Protected disclosures (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (2) …this section does not apply where – (a) the worker is an employee, and (b) the detriment in question amounts to dismissal (within the meaning of Part X)."

Dismissal within the meaning of Part X is, and must be, primarily a reference to section 95 of Chapter 1 of Part X, the whole Chapter being headed "Unfair Dismissal". "95 Circumstances in which an employee is dismissed (1) For the purposes of this Part an employee is dismissed by his employer if… (a) the contract under which he is employed is terminated by the employer (whether with or without notice), (b) he is employed under a contract for a fixed term and that term expires without being renewed under the same contract, or (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct." We do not need to read subparagraph (2) of section 95.

[32]Complaints to employment tribunals in respect of a breach, among other sections, of section 47B, are governed by section 48 of the Act , and section 49 of the Act prescribes the remedies (where there is a finding of breach of section 47B). Section 49(2) reads as follows:

"49(2) The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to – (a) the infringement to which the complaint relates, and (b) any loss which is attributable to the to the act, or failure to act, which infringed the complainant's right."

That wording is different from the wording of section 123 of the 1996 Act , so far as recovery of compensation for unfair dismissal is concerned, to which we shall turn, and has been construed, and there is no doubt correctly construed (at any rate there has been no challenge before us today), to include recovery of compensation in respect of injured feelings, which was awarded by the Tribunal in this case, whereas such is not recoverable as part of compensation under section 123 for unfair dismissal, as has now been made clear by the House of Lords in Dunnachie v Kingston Upon Hull CC

[2004] IRLR 727

[33]By section 103A of the 1996 Act , there is further protection in respect of protected disclosure, this time where the Applicant is dismissed as a result of that protected disclosure, dismissal of course including constructive dismissal. Section 103A reads as follows:

"103A Protected disclosure An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."

A complaint of dismissal, either actual or constructive, on the grounds of protected disclosure, contrary to section 103A, thus is successful as a case of automatic unfair dismissal, as it is called; the clause giving compensation for all unfair dismissal, whether automatic or otherwise, is section 123 of the 1996 Act , to which we have referred.

[34]We have already explained that the Applicant accepted the Respondent's repudiatory breach of contract on 9 November 2001, as found by the Tribunal at the Liability Hearing. That, therefore, was the date of termination of his contract of employment; that was the date when he was constructively dismissed.

[35]The Employment Tribunal accepted the submissions of Ms Russell, of Counsel, that in calculating the compensation in respect of the claim for detriment, under sections 47B and 49 of the 1996 Act , as opposed to the compensation for unfair dismissal, it should cut-off the period as at June 2001.

(b) :

"Furthermore, we acceded to Ms Russell's submission that – because the present position is that a Tribunal cannot award within compensation for unfair dismissal a sum of money to reflect the injury to feelings or even psychiatric damage caused by the manner, still less the fact, of that dismissal [the reference to the "present position" is that there was not then the decision in the House of Lords, which has now put the matter beyond doubt] – when considering the appropriate award for the injury to feelings or psychiatric damage caused by the detrimental treatment by reason of the protected disclosure we had to separate from that and effectively discount such of that treatment (and thus its consequences) as effectively amounted to the unfair dismissal. In the context of a case of constructive dismissal, that was a difficult factual exercise. In paragraph 8 of our original decision, we set out the incidents of mistreatment which we considered to be particularly significant: we do not propose to repeat that list. Ms Russell conceded that the efforts to isolate the applicant (in particular, as he soon became aware of them, by changing the entry code on his office door, giving instructions that the new code should not be supplied to him, supplying to the security guards his photographs with instructions that he must not be allowed entry and the repeated refusal to allow him to enter the premises in order to obtain personal possessions, to send him copies of documents or to allow him to contact colleagues) and the incident relating to the package for Mr Koide were sufficiently divorced in time from the dismissal itself as to be the proper subject of an award. We were satisfied that these matters alone caused the applicant significant distress. We were not prepared to agree to Ms Russell's further submission that all other matters were so causally linked to the dismissal that they had to be discounted. We came to the conclusion that the appropriate course was to consider the treatment, and with that the consequences of the treatment, up to the point at which it became so serious that it amounted to a fundamental breach of contract. Temporally, that point was not that date by which the applicant decided that his employment had to end. In our judgment, it was the date by which the conduct moved from being a detriment to being a matter of dismissal. We came to the conclusion that that point was probably in late June 2001. Thus, we included within the detriments the consequences of which we considered such matters a the pressure regarding contact with Dr Shrestha, the curt language used by Mr Feline in his letters to the applicant (including the threats to discontinue the investigation), the way in which Mr Graham was interviewed and at least to the extent of these matters the failure properly to investigate and consider the applicant's grievance. Having said this, we doubted that these factors greatly added to the distress felt by the applicant as a result of the matters which Ms Russell conceded were proper subjects for consideration."

It is by reference to that cut-off point that the Tribunal assessed the compensation in respect of injury to feelings at the sum of £6,000, up to the date of June 2001. The Applicant submits that had the Tribunal extended its consideration until November 2001, it would have been a larger figure. We are unable to know if that is so, and, if so how much larger, but clearly if the Applicant were successful on this head, we would need to remit the matter to the Tribunal to consider what figure, if not the same figure, would be recoverable for injury to feelings if the period to be now considered were extended from June to November.

[36]The Applicant submits that he should be entitled to recover, in respect of injury to feelings, under sections 47B and 49 (recognising as he does that he cannot recover such matters by way of compensation for unfair dismissal), right up to the time of dismissal, as long as he does not recover it in respect of, and consequential to, the dismissal; and he submits that that means, in a case of constructive dismissal, that the time of dismissal must be taken, and this is common ground, as the time when the repudiatory breach is accepted. Consequently, he submits that he is not trespassing on compensation for unfair dismissal, where injury to feelings are not recoverable, if he takes his claim right up to, but not including, the time of termination of the contract, and that he is entitled to recover in respect of consequences of the detriment up until that date.

[37]Ms Russell rested her first opposition to that argument on the opinions of their Lordships in the House of Lords in Eastwood v Magnox Electric plc

[2004] IRLR 733

. That was the case in which, more or less contemporaneously with their Lordships' conclusion in Dunnachie that damages for personal injury or injured feelings were not recoverable for unfair dismissal, the House of Lords reiterated the principle that damages for personal injury were recoverable for breach of the implied term of trust and confidence, or other breach of contract of employment, but not in respect of a claim for wrongful dismissal, or where the breach of the implied term of trust and confidence in question was the dismissal or the repudiatory breach which amounted to the dismissal. The boundary line was required to be drawn by their Lordships for the purposes of the common law of contract between when a claim, which was pursuable in respect of breach of contract simpliciter, ceased to be pursuable because it amounted to a claim for wrongful dismissal; and that, obviously, was of particular significance where the dismissal was a constructive dismissal, ie of acceptance by an employee of a repudiatory breach for example of the implied term of trust and confidence. She drew our attention to the speech of Lord Nicholls, in particular at paragraphs 27 and 31.

[38]At paragraph 27, Lord Nicholls said as follows:

"27. Identifying the boundary of the 'Johnson exclusion area', as it has been called, is comparatively straightforward. [This is a reference to the principle, to which we referred, of no recovery of personal injury damage for wrongful dismissal, iterated in Johnson v Unisys Ltd [2003] 1 AC 518 , and then very recently reiterated in the contemporaneous judgment in Dunnachie ] The statutory code provides remedies for infringement of the statutory right not to be dismissed unfairly. An employee's remedy for unfair dismissal, whether actual or constructive, is the remedy provided by statute. If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. By definition, in law such a cause of action exists independently of the dismissal."

And then at paragraph 31:

"31. Second, the existence of this boundary line means that in some cases a continuing course of conduct, typically a disciplinary process followed by dismissal, may have to be chopped artificially into separate pieces. In cases of constructive dismissal a distinction will have to be drawn between loss flowing from antecedent breaches of the trust and confidence term and loss flowing from the employee's acceptance of these breaches as a repudiation of the contract. The loss flowing from the impugned conduct taking place before actual or constructive dismissal lies outside the Johnson exclusion area, the loss flowing from the dismissal itself is within that area."

[39]Ms Russell relies on that passage effectively to submit that, if only by analogy, the same principle ought to be, and in this case was, adopted by this Tribunal. The Applicant also places some reliance on the passage, particularly in relation to paragraph 31, where the words of Lord Nicholls could be interpreted as being applied in relation to a word that has featured on this appeal more than once: temporally (ie supporting his case that there can be a cut-off just prior to acceptance of repudiation).

[40]It appears clear to us that Ms Russell is right in relation to the proper construction of the decision in Eastwood , so far as concerns claims for breach of contract. Difficult thought the task will be for High Court, or the County Court, or indeed the Employment Tribunal insofar as we have limited jurisdiction in breach of contract cases, in deciding claims for breach of contract, it will be necessary, and hopefully not too impossible, to identify those breaches which sound in damages for injured feelings or personal injury, and those which in fact went on to become the repudiatory breaches of contract which were accepted by the innocent party, in these cases the employee, as terminating the contract. It will not be an easy task, and that much is, it seems to us, recognised by the House of Lords. There are bound to be situations in which the only breaches committed are those which have continued throughout the period and have been subsequently accepted. Even if there is a last straw relied upon, it is still likely that that last straw, together with earlier breaches, will need to be taken together for the purpose of establishing repudiation for the purpose of proving acceptance of that repudiation. There is further difficulty that any breach of the implied term of trust and confidence appears to be regarded now as repudiatory; and so any question of working out which breaches are more serious than others, if they are all breaches of the term of trust and confidence, will be difficult.

[41]But that is a difficulty which is now going to have to be met in those courts and tribunals which deal with breach of contract. Ms Russell submits that the same task must be followed, and was followed here by the Tribunal, and it is fortunate that this Tribunal, without a great deal of hard work or difficulty, did manage to arrive at a cut-off point before which it was satisfied that the breaches, albeit breaches of the implied term of trust and confidence as they had to be, were not the breaches subsequently accepted as repudiatory in the November.

[42]But the Applicant submits, in essence, as we read his submission, that there is no need for a tribunal dealing with a case under section 47B to feel itself constrained by the problems inevitably forced upon those courts and tribunals considering common law claims, by the House of Lords' decisions. Albeit that Ms Russell refers, in paragraph 27 of Lord Nicholls' speech, to his reference to "breach of contract or otherwise", there is nothing in the House of Lords decision in Eastwood which constrains an employment tribunal, deciding the question before us, as to what the cut-off date is (as between recovery of compensation for detriment under section 47B and recovery of compensation for unfair dismissal under section 123) in a case such as this. We agree that the House of Lords can only by applied by analogy, although, of course, the procedure to which it refers, and the though processes which Lord Nicholls describes, will be essential if tribunals are otherwise bound by the same test.

[43]We would have liked to have found for the Applicant, and, until Ms Russell persuaded us to the contrary, that was our intention. It is a nice simple test which the Applicant here invites us to adopt; namely a test of time only. We have already indicated that he points out that there is an easy way of avoiding duplication if the claims for unfair dismissal start with the date of termination, and anything before that is left to a claim for detriment. It may well be that the task for this Tribunal was relatively easy, but, as we have indicated, the tasks for other tribunals may well be very much more difficult; and so, in the interests of tribunals, we would have liked to have adopted the Applicant's test, and perhaps too in the interests of applicants, although, as Ms Russell pointed out to us, it may be that it could cut both ways: a lot will depend, in relation to a particular case of a whistle-blower, as to whether he waits or does not wait a long time before accepting any treatment of him as repudiatory. Equally, of course, it only applies to the recoverability of compensation for injured feelings, because it is only that compensation which is not recoverable for unfair dismissal, but is recoverable under section 47B; economic loss, which is more likely to be suffered by virtue of unfair dismissal, is in any event recoverable under both heads. If the whistle-blower never does resign, then the problem would not arise, either because his employment never terminates, and his only claim remains under section 47B, or because he elects to remain acquiescent in some way, and it is then the employer who is driven to dismiss, so the question of constructive dismissal would not arise.

[44]Notwithstanding our preference to have found for the Applicant, we are clear that the wording of the statute does not permit us to do, however flexibly read, and however read with a view to doing that which the Applicant invites us to do, namely to seek to do our best to protect whistle-blowers.

[45]We have read section 47B of the Act , and do not propose to repeat it. The section does not say that there is a right not to be subjected to detriment, but that there is some limitation on the recoverability of compensation. Subsection 47B(1) sets out the right not to be subjected to a detriment; section 47B(2) does not simply restrict the compensation, but ousts the right – it says "this section does not apply" in certain circumstances. Equally, subsection (2) does not say that the right to recover compensation for being subjected to detriment shall only apply until dismissal, ie thus suggesting, in accordance with the Applicant's temporal proposition that one claims under sections 47B and 49 in respect of detriment prior to dismissal, and under sections 105A and 123 in respect of the period after dismissal. Nor does the section say, as the Applicant would wish, as follows:

"this section does not apply where the detriment in question is dismissal"

. If the subsection so read, then it could well be argued that all that was being addressed was ousting the right of a complainant to complain about a dismissal of him or her as being a detriment, leaving that to be claimed under sections 105A and 123, whereas anything other than the actual dismissal can be claimed under section 47B. The words however are quite clear, namely that the section does not apply where "the detriment in question amounts to dismissal (within the meaning of Part X)". It is thus totally clear that constructive dismissal is imported into section 47B(2).

[46]So far as constructive dismissal is concerned, the act of termination of the contract is that of the employee, which obviously cannot amount to a detriment to himself. The detriment of which he would wish to complain is the conduct of the employer, which has caused him or her to accept the repudiation and resign; and it is that conduct, as described in section 95(1)(c), of an employer which entitles the employee to treat a resignation as a constructive dismissal, and thus to "amount to dismissal (within the meaning of Part X)". It is thus quite clear that there is no other possible construction of the words "amounts to dismissal (within the meaning of Part X)", than that it applies section 47B to constructive dismissal. We can find no other alternative meaning for the words "amounts to", or to the reference to Part X, than that constructive dismissal was intended to be included within section 47B. It may be a matter for the Legislature if, in order to meet what the Applicant would wish the statute to say, some amendment were thought right to be implemented. But it appears quite clear to us that section 47B was intended to apply to anything short of dismissal (including constructive dismissal) and that the detriment which is excluded from section 47B is thus not only the actual dismissal, but also the behaviour of the respondent which amounts to dismissal, within the meaning of section 95. In those circumstances we must find that the Tribunal was correct in its approach to the claim by the Applicant, and the Applicant's case in this regard fails.

[47]We turn finally to the conclusion by the Employment Tribunal that the Applicant's compensatory and basic award should be reduced by 50%. The Tribunal, in the Liability Hearing, made findings of fact as to what had been discovered by the Respondent, and the circumstances in which the Respondent had made the discovery, after the protected disclosure in May 2001. In pages 5-7 of the Liability Decision, all under (f), the Tribunal sets out those discoveries, namely, in essence, that the Applicant had breached the computer system and accessed, impermissibly, confidential computer data in July 2000 (some year or so earlier), and further that he knew that a subordinate, a Mr Thwaite, had done the same, and had condoned or made no report in relation to the latter conduct.

[48]At page 7, half way down the page, the Tribunal's conclusion in this regard is set out:

"In considering this matter, we took full account of the somewhat flamboyant and dramatic style of the applicant's e-mails [which were effectively, on their face, self-incriminatory]. Nevertheless, it was quite apparent to us that even before he sought access to the personnel department's confidential files he knew that he was not supposed to do that and that this view was strongly reinforced by the response of the computer when he attempted to open the file. The matter was no so urgent that it could not wait until the following day (as, in the event, it had to do). The applicant was fearful that his actions would be traced back to him and, when he discovered that that was not the case, he chose not to report that which he had done. Furthermore, he chose not to report the fact that Mr Thwaite – apparently for no good reason at all – had already taken very similar action. We were quite satisfied that this was blameworthy conduct on the part of the applicant. The fact that he was looking for a policy which he was wholly entitled to see did not validate the way in which he went about trying to find it and had no bearing upon his failure to take appropriate steps in relation to Mr Thwaite. Having said that, particularly bearing in mind the obvious points in mitigation, we were not satisfied that the matter would have been viewed by the respondent as being so serious that it would necessarily have led to the dismissal of the applicant once it had become aware of and had investigated the issues. There was certainly a possibility that that would have been the outcome but it was far from being a clear certainty."

At page 40 of the Liability Decision, under 11, the Tribunal returns to this topic as follows:

"There remained the question of whether there had been blameworthy conduct on the part of the applicant in relation to the e-mails exchanged with Mr Thwaite. We have made it clear that we came to the conclusion that these were discovered after a concerted effort to find material which – as a result of the protected disclosure – could be used to ensure the termination of the applicant's employment, if possible without the need for any form of negotiated settlement. In that sense, they were not obtained in good faith. Having said that, the fact remained that in relation both to his own attempt to obtain access to a part of the system into which he must have known he was not supposed to go (notwithstanding that the information for which he was looking was a document which he was entitled to have) and his response to Mr Thwaite's admission that he had made a similar but less defensible attempt the applicant was guilty of blameworthy conduct. We have reached no conclusion on the point but, since in the event the respondent did not expressly dismiss the applicant and as his resignation was not connected to this, it may be that it could not be said that it contributed to his dismissal. However, it may also be a fact which we would have to take into account in relation to remedy in particular the assessment of such compensation as may be just and equitable. As we have made clear, we did consider whether it would be possible to reach any firm finding as to whether the respondent – if not so determined to sever its ties with the applicant because of the protected disclosure – would or would not have fairly dismissed the applicant on the basis of this conduct. In the event, we were not satisfied that it would necessarily have done so. At this stage, that is as far as we are prepared to go. At some point, one or other of the parties may invite us to consider the percentage chance."

[49]It is in those circumstances that the Tribunal recorded its third and fourth findings, which we have recited above, and against that background that the Remedies Decision then took place and that further consideration of this issue was, in the context of the award that the Tribunal was to make, reconsidered.

(c) :

"As we have said, we found that, by virtue of a serious misuse of the respondent's computer system (by his own actions and then by his failure to report a subordinate for a very similar matter), the applicant had committed a blameworthy act for which he might but would not necessarily have been fairly dismissed in any event. We had to decide the extent of the prospect of such a dismissal. On the basis of the evidence of the applicant, Ms Gilbert contended that it was either nil or negligible. Ms Russell, who had originally maintained that there was a 50% chance that this would have happened, submitted after hearing Mr Allan's evidence that this was in fact a one-third possibility. The applicant's position was based primarily on his opinion that his own design skills were so essential for the company that it would have overlooked his offence, administering no more than a warning. There was no doubt that the applicant was and is a very skilled and much-respected designer. However, the evidence which he had amassed and placed before us at the previous hearing did not suggest that his position was as secure as he believed."

The Tribunal then considered the matter further in considerable detail as to the facts, and concluded as follows:

"It was not merely the applicant's misuse of the system which was at issue – in relation to that he had a reasonable mitigation – but there was also his failure to report his subordinate for taking the same action (in relation to which that subordinate had no mitigation at all) and furthermore his failure to admit the conduct when he had at least two opportunities to do so. It was plain from Mr Allan's evidence that a final written warning was the most likely outcome [Mr Allan had been found by the Tribunal to be a most impressive witness] but we accepted that there was a significant possibility that the applicant would have been dismissed and, in the circumstances, fairly so. We agreed with Ms Russell that the appropriate assessment of that outcome was one-third. That was not the end of the matter. In addition, Ms Russell submitted that even if the applicant had been given a final written warning there was a real possibility – indeed, she maintained that there was a strong likelihood – that he would have resigned in protest."

The Tribunal considered that matter, and then concluded:

"However, given the extremely stressful conditions under which he was already operating and the anxiety from which he was suffering (which did not form part of any breach of contract committed by the respondent), we considered that there was still a possibility that he would have seen a final written warning either as an injustice given all his efforts or as a way out of the difficulties which beset him and in either event that he would have responded by resigning. That was a real possibility albeit considerably less than a likelihood. We came to the conclusion that it increased to 50% the prospect that, as a result of this misconduct and its discovery, the applicant's employment would have ended in any event and in a manner which could not have led to a successful application to the Tribunal."

This finding is summarised, and the conclusion reached, at page 13, under 10:

"As we have said, we had left to one side the question of whether the basic and/or compensatory awards should be reduced to take into account the 50% prospect that the applicant would have left his employment in circumstances which would not have amounted to an unfair dismissal. We were very mindful of the fact that the conduct concerned had not contributed to the applicant's dismissal."

That is the finding that the Tribunal made earlier in its Decision at page 5, under (d). The Tribunal then sets out sections 122(2) and 123(1) of the 1996 Act , to which we will return. It continued:

"Ms Gilbert submitted that, whatever our finding as to the possibility of a termination of employment which would not have been unfair, we should disregard the same and not make any reduction because Mr Feline's search for the incriminating material had been unlawful and [and she here iterated the submission which the Applicant has reiterated before us] to do otherwise would undermine the disclosure provisions and reward the respondent for its detrimental actions. We were far from satisfied that we could go so far as to say that the search was unlawful. In any event, whilst we had due regard to the point made by Ms Gilbert, was came to the conclusion that to disregard our finding in this respect would wholly to ignore serious misconduct on the part of the applicant which would have had an even chance of leading to his unemployment and would effectively amount to his unjust enrichment. On that basis, we decided that justice and equity required us to take it into account and indeed to reduce both the basic and compensatory awards by 50%."

[50]Quite apart from the fact that section 122(2) of the Act expressly permits a Tribunal, where it is considered just and equitable to reduce, or further reduce, the amount of the basic award, by reference to any conduct of the complainant before the dismissal, there is the binding House of Lords Decision in Devis v Atkins

[1977] ICR 662

. Before we turn to that, we should set out the present provisions of section 123(1) of the 1996 Act , to which we have, inevitably, so often referred already in this judgment. It reads as follows:

"123 Compensatory award (1) Subject to the provisions of this 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."

There is a specific provision under section 123(6), allowing reduction of the amount of the compensatory award where there is a finding of contributory fault by an applicant; but, as we have earlier indicated, that does not apply in this case, in the light of the Tribunal's finding.

[51]At the time of the decision of the House of Lords in Devis v Atkins , to which we have referred, the statutory provision, in respect of compensatory award, was almost identical. It was contained in paragraph 19(1) of the schedule to the Trade Union and Labour Relations Act 1974 , and the relevant subsection reads as follows:

"Where in any proceedings on a complaint under paragraph 17 (above) an industrial tribunal makes an award of compensation to be paid by a party to the proceedings… to another party… the amount of the compensation shall... be such amount as the tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the aggrieved party in consequence of the matters to which the complaint relates insofar as that loss was attributable to action taken by or behalf of the party in default."

It can be seen that the wording is almost identical. Certainly there is no material difference that we can see or that has been identified for us by either side.

[52]In those circumstances, the decision in Devis v Atkins is a decision on the very section before us. The conclusion in Devis v Atkins was that, although subsequently discovered pre-termination conduct by an employee could not be relied on to justify an unfair dismissal, as it could be relied on to justify a wrongful dismissal at common law, it could, however, be relied upon by a respondent when compensation for unfair dismissal came to be considered; because a tribunal could, in assessing that compensation, take into account evidence of misconduct prior to termination which came to light after the dismissal, and reduce the compensation which would otherwise have been awarded to a nominal or nil amount.

[53]The Employment Tribunal does not refer expressly (either the Liability Decision, or the Remedies Decision) to Devis v Atkins , but it is, of course, a wholly well-known decision of the House of Lords, one binding on all employment tribunals since 1977, and it appears to us quite clear that, although it was not referred to, that is what the Tribunal had in mind, both at the Liability and the Remedies Hearing, in addressing the question of reduction of the compensatory award by reference to such conduct, albeit that it was not contributory, as part of the overall consideration of what was just and equitable. It appears that at the time of the 1977 decision in the House of Lords, there was, at that stage, no statutory provision to allow the reduction of the basic award – that did not, it seems, come into force until the 1980 legislation – but the compensatory award legislation has remained the same at all times since.

[54]In those circumstances, the primary argument of the Applicant in his Notice of Appeal, which was that it was improper or inappropriate of the Tribunal to make any deduction in respect of his alleged conduct, under section 123, was impermissible once it had been found that he was not guilty of contributory fault, falls away because he plainly did not take into account the binding decision of the House of Lords in Devis v Atkins , which permits just such a course. But he had, and pursued before us, his fallback argument, which effectively was that the Tribunal was perverse in either applying any deduction, or certainly a deduction of as much as 50%.

[55]We have already referred to the arguments that he put forward (which were also put forward by Ms Gilbert as we have recited) that, effectively, to allow a respondent to do what this Respondent did, namely to scrabble around after a protected disclosure to try to find some misconduct which it could then use as a justification or excuse for dismissal, or any rate by way of self-defence to a claim against it, should not be condoned. The problem for this Appeal Tribunal is that that is an argument which was addressed in terms to the industrial jury. There is no basis for any jurisdictional attack on what the Tribunal did for two reasons: first, because of Devis v Atkins , to which we have referred, and, secondly, because there is no doubt at all that section 123 is the relevant section for quantifying compensation, not only in respect of what can be call ordinary unfair dismissal, but also in respect of automatic unfair dismissal, under section 103A; and it cannot and does not fall to be differently construed, by reference to an automatic unfair dismissal, than an ordinary unfair dismissal. Therefore all that he can urge is that the facts ought to have impinged themselves upon the Tribunal more than they did. The Tribunal found that what the Respondent did, by way of discovering and bringing forward its complaints, could be said to have been done in bad faith. The Tribunal well appreciated the circumstances in which the misconduct it found to have occurred was discovered; indeed the Applicant submits that it might never have been discovered, but for that very scrabbling around which occurred.

[56]We are satisfied that we are unable to interfere with the conclusion by this Tribunal that it was just and equitable to reduce the compensation payable to the Applicant by virtue of the serious misconduct that the Tribunal found, and the findings it made that there was a 50% chance that that serious misconduct was sanctionable by fair dismissal and/or would or might have led to a fair (ie a non-constructive dismissal) resignation.

[57]First, and perhaps most significantly in this case, there was, as we have indicated, no appeal by the Applicant in respect of the clear finding by the Tribunal at the Liability Hearing. It can sometimes be said that some conclusions of a tribunal are only part of its thinking process, and that where, as here, the Applicant succeeded in establishing both unfair dismissal and subjection to a detriment, to expect an Applicant to appeal, where on the face of it he has been successful, is an illegitimate expectation. But the problem with that argument is that in this case this was not simply part of the thinking process. As we have recited at the outset of this judgment, the Tribunal made four decisions: the first two favourable to the Applicant as to the success of his two complaints, the third and fourth unfavourable to the Applicant, namely that:

"prior to and unconnected with his dismissal, the applicant had committed an act – namely, the serious misuse of the respondent's computer system – which was a blameworthy act for which he might but would not necessarily have been fairly dismissed in any event" and secondly, the fourth finding, that the case would be relisted for the Remedies Hearing "at which the Tribunal shall take account of the blameworthy act as it may consider appropriate."

That does not leave open, in our judgment, in respect of those unappealed conclusions, any argument that the Tribunal was not entitled to regard the conduct as substantial, as gross misconduct, or as a matter which fell to be taken into account in calculation of the compensation; what it left open is the extent to which it should be taken into account. As for that extent, that was a matter entirely for the discretion of the Tribunal. It might, of course, have been nil had the Tribunal been persuaded by the arguments put forward by Ms Gilbert. It was not. It is understandable that the Applicant submits first that the Tribunal does not overtly consider the possibility that, but for the scrabbling around by the Respondent, the serious misconduct, which they found, might not have been discovered. Secondly, that the Tribunal does not appear to consider that misconduct, blameworthy as it found it, of this kind – namely accessing confidential files – could not be seen to be in the same league, for example, as an act of dishonesty, uncovered by such scrabbling around, of course of which there was none. Thirdly, he points out that it would appear that the Tribunal accepted, in its entirety, the submission made by Ms Russell, who appears to have been arguing for 50%, and did not make any deduction from what was being sought by Ms Russell as, for example, it had done in more or less splitting the difference in relation to the pension benefit matter, to which we referred above. But, of course, decisions by a tribunal are not necessarily ones of horse-trading, and it is very often the case that a Tribunal is entitled to accept, in its entirety, a submission put forward if it is a proper submission, and not one put forward simply for the purposes (this plainly was not) of horse-trading in the face of the court.

[58]We are satisfied that this Tribunal did appreciate the significance of what was doing; did appreciate – after all having had the Applicant in front of it and his case considered not only in 10 days of hearings, but in respect of a period which stretched over a year – that it was depriving a whistle-blower of half the compensation which he would otherwise be entitled to. But the problem is that this Tribunal made a conclusion, unappealed, that this was blameworthy conduct, worthy of at least a final warning, and with a 50% chance of leading to a fair dismissal or an uncomplainable resignation.

[59]In those circumstances it has to be equated with a finding of any other kind of gross misconduct, and was so equated by this Tribunal, because if there had been a conclusion of dishonesty, then the 50% would have gone up to 100%. This Tribunal took into account all those matters and assessed it fully, including the submissions that were made by Ms Gilbert that it might inhibit whistle-blowers, and that there should not be a penalty suffered by a whistle-blower simply because of the discovery of blameworthy conduct by him. We can see no basis upon which we, as the Appeal Tribunal, could conclude that it was perverse of the Employment Tribunal to reach the conclusion it did. There was some consideration before us as to whether the Tribunal, when it first of all assessed the risk of fair dismissal at 30%, and then considered the question of a fair resignation, taking that 30% up to 50%, was perhaps applying wrong statistics; and that, for example, perhaps they should have been applying a 20% of 70% calculation, if they were applying 20% to the question of a fair resignation. But it is, in fact, quite apparent from paragraph 10 of the Decision that the Tribunal was not entering into those kind of mathematical calculations; the Tribunal concluded, having taken all these matters into account, as it was entitled to do, that there would have been "an even chance" of his "serious misconduct" leading to his unemployment.

[60]In those circumstances, sympathetic though we have been to the Applicant, and impressed though we have been by his arguments, we are entirely satisfied that we must dismiss his appeal on that ground.