GNT HOLDINGS (UK) LTD v (1) MR N BARTER (2) MR A POPHAM [2004] UKEAT 0877_03_2701

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0877_03_2701Case No Appeal No. UKEAT/0877/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
GNT HOLDINGS (UK) LTDAPPELLANT(1) MR N BARTER (2) MR A POPHAMRESPONDENT
Before
Mr Justice Rimer Miss G MillsDate 27 January 2004
[1]APPEARANCES For the Appellant MISS J MULCAHY (of Counsel) Instructed by: Messrs Maclay Murray Spens Solicitors 10 Foster Lane London EC2V 6HR For the Respondent MISS D SEN GUPTA (of Counsel) Instructed by: Messrs Lai Burke & Co Solicitors 55 Conduit Street London W1S 2YE THE HONOURABLE MR JUSTICE RIMER This is an appeal by G N T Holdings (UK) Ltd ("GNT") against the decision of an employment tribunal sitting at London (Central) on 4 September 2003 and chaired by Ms S Leslie. The tribunal's decision was promulgated with extended reasons on 24 September. One matter before the tribunal was a claim by Mr Nicholas Barter, a former employee of GNT. He claimed compensation for unfair dismissal and damages for wrongful dismissal. The tribunal upheld both claims and ordered GNT to pay him compensation of £52,850 in satisfaction of them. GNT, which appears by Miss Jane Mulcahy, appeals against all elements of that decision. Mr Barter, who appears by Miss Diya Sen Gupta, resists the appeal. We should mention that the tribunal heard Mr Barter's applications together with a claim by MrMr Po pham for damages for wrongful dismissal against an associated company of GNT called Global Network Telephone (UK) Ltd ("Global"). There is no appeal before us in relation to that claim, in respect of which damages were agreed in the sum of £13,825, but Mr Popham was involved in the circumstances leading to Mr Barter's dismissal and claim and our references to "the applicants" are to both Mr Barter and to Mr Popham.[2]The material facts as found by the tribunal are relatively short. GNT is part of a group that has companies in several countries, including the UK, Germany and the United States of America. Mr Barter was employed by GNT as its managing director from 1 January 2001 until 17 October 2002 when he was summarily dismissed. GNT claimed that the dismissal was on the grounds of his gross misconduct. The matters said to have justified his dismissal were certain events which allegedly occurred at a meeting in Spain on 23 August 2002. Present at the meeting were Mr Barter, Mr Popham (the two applicants) and two business associates, Mr Khaled Akid and Mr Klaus Velten. Mr Akid and Mr Velten alleged that the applicants made remarks at the meeting which were detrimental to the business of GNT and Global and in a manner calculated to damage it. The tribunal summarised the applicant's' alleged remarks in paragraph 13 (ii) of its reasons, namely that the applicants: "Stated that GNT GmbH was near bankruptcy and that Mr Malkus (the chief executive officer of [GNT], Managing Director of GNT GmbH and Director, and Director of [Global]) had led the GNT group to disaster. Stated that Malkus had used company Company funds for his private purposes. Proposed diverting Mr Akid's business away from the GNT group to a venture that the Applicants were proposing to set up together. Asked Mr Akid to persuade a potential investor not to invest in GNT GmbH but rather to invest in [GNT] and GNT USA. Asked Mr Akid to poach [GNT's and Global's] customers for the Applicants' proposed new venture".[3]On 26 August 2002, Mr Akid and Mr Velten provided statements to GNT and Global relating these allegations. On 27 August, Mr Malkus notified the applicants of their suspension. Mr Barter was also removed as managing director of GNT and Mr Thorston Weber was appointed in his place. On 3 September 2002, Mr Weber had a conversation with Mr Warren, GNT's Operations Manager, about the circumstances of the applicants' suspension. One aspect of their conversation was in dispute before the tribunal. This related to whether Mr Weber told Mr Warren that both applicants had been suspended for mismanagement and would not be returning to work for GNT and Global again. Mr Warren's evidence was that Mr Weber had said this whereas Mr Weber admitted merely that he had said that the applicants had been suspended for mismanagement. He denied saying that they would not be returning to work for GNT and Global. The tribunal found "on balance" that Mr Weber "had said something that indicated that the Applicants would not be returning to work again".[4]On 5 September 2002, the applicants were notified of the allegations against them and informed that they were required to attend a disciplinary hearing on 19 September 2002. They were warned that, if the allegations were upheld, they could amount to gross misconduct and lead to summary dismissal. On 17 September 2002, the applicants' solicitors asked for a postponement of the hearing and for further particulars of the allegations. The postponement was granted and the hearing re-fixed before Mr Colombo on 10 October 2002.

(x) of the tribunal's reasons:

"(vii) In the event, the Applicants did not attend the disciplinary hearing. They claimed [GNT and Global] had informed members of staff and certain clients that they would both be dismissed from their employment and declined to attend on the basis that the decision to dismiss had already been taken. Instead they submitted detailed statements refuting the allegations. In addition, they submitted a witness statement from Mr Peter Finch, who had been present during part of the meeting in Spain and who supported the Applicants' version of events. (viii) (viii) In a letter dated 11 October 2002, [GNT and Global] denied that the decision to dismiss had already been taken and informed the Applicants that further investigations were to take place. (viii) (viii) (ix) It appears [GNT and Global] then sought Mr Akid's comments on the Applicants' and Mr Finch's witness statements. Mr Akid supplied a supplementary statement in which he stood by his original allegations. Mr Akid's supplementary statement was not supplied to the Applicants as it should have been. (ix) (ix) By letters of 17 October 2002, Mr Colombo notified the Applicants that the allegations of gross misconduct had been upheld and that they were to be dismissed with immediate effect. The letters stated: "
I have been presented with completely conflicted accounts with the meeting (in Spain ). I have decided not to accept your account and think concluded that you have committed acts of gross misconduct".Nomisconduct". No reason was given for rejecting the Applicants' evidence in either letter or in Mr Colombo's witness statement to the Tribunal. (x) The Applicants were not afforded the opportunity of an appeal"[5]The tribunal proceeded to summarise the submissions which were advanced to it and then set out its conclusions on the applicants' claims that they had been unfairly and wrongfully dismissed. They were as follows:16. "In a dismissal case based on conduct, it is necessary for the employer to have a genuine belief that the employee has behaved in the manner alleged and to have reasonable grounds for that belief. The Ttribunal was not satisfied that Mr Colombo held a genuine belief in the Applicant's' misconduct or that his belief was based on reasonable grounds. This was because he gave no reasons in either the letters of dismissal or in his witness statement for preferring Mr Akid's and Mr Velten's evidence. In the absence of a reason(s) there was no evidence on which it could be said that Mr Colombo's belief was held on reasonable grounds.17. Furthermore, the conversation between Mr Weber and Mr Warren on 3 September 2002 led the Tribunal to conclude that [GNT and Global] had formed a particular view of the Applicants' conduct before the disciplinary hearing took place with the result that Mr Colombo made no serious attempt to consider the allegations with an open mind. The fact that the Applicants were not provided with a copy of Mr Akid's supplementary witness statement merely served to reinforce this view.18. Thus having regard to the matter overall, the Tribunal concluded that the decision to dismiss [Mr Barter] was unfair and outside the range of reasonable responses. For the same reasons the Tribunal was not satisfied that the Applicants had committed repudiatory breaches of contract that entitled [GNT and Global] to dismiss them summarily".

(a) Mr Barter's claim for unfair dismissal

[6]On the footing that Mr Barter's alleged misconduct was a potentially fair reason for dismissal, the tribunal had to be satisfied that GNT acted reasonably in dismissing him: see section 98(4) of the Employments Right Act 1996. In paragraph 8 of their reasons they directed themselves by reference to the tripartite approach set out in British Home Stores Ltd –v- Burchell [1978] IRLR 379 , namely:
"(i) Did [GNT] hold a genuine belief in Mr Barter's misconduct? (ii) Was the belief held on reasonable grounds? (iii) Did [GNT] hold a reasonable investigation?"
[7]Miss Mulcahy does not criticise the tribunal's self direction as to that being the general approach in considering the reasonableness of the dismissal for the purposes of section 98 (4). But she does criticise the manner in which the tribunal applied it. She points out, first, that paragraph 17 of the tribunal's reasons shows that it was influenced in its decision by its finding that GNT had formed a particular view of Mr Barter's conduct even before the disciplinary hearing, with the consequence that Mr Colombo (the dismissing officer) made no serious attempts to consider the allegations with an open mind. This finding was based on the tribunal's finding as to what Mr Weber had earlier said to Mr Warren, namely that the applicants had been suspended and would not be returning to work for GNT and Global, or at any rate words to the latter effect. However, Miss Mulcahy points out that the tribunal identified no evidence that Mr Colombo was aware of what Mr Weber had told Mr Warren. The tribunal appears simply to have made an assumption that Mr Colombo was aware of it, an assumption for which there was simply no evidential foundation. Miss Mulcahy submitted that the tribunal was therefore in error in taking account of the Weber/Warren conversation in forming its critical view of Mr Colombo's approach to his decision to dismiss. She says that it was not entitled to find that he had, in effect, pre-judged the matter.[8]In our view, that criticism is well founded. We agree that there was no warrant for the tribunal's conclusion in paragraph 17 as to Mr Colombo's knowledge of the Weber/Warren conversation. The tribunal identified no evidence which justified the finding and although, if there was any such evidence, it would have been open to Mr Barter to put it before this appeal tribunal, he did not attempt to do so. It was, we consider, a conclusion which was relevant to the tribunal's findings as to whether Mr Colombo had made a reasonable investigation into the allegations against Mr Barter and as to whether he had reasonable grounds for holding any belief that Mr Barter had been guilty of misconduct.[9]Miss Mulcahy also criticised the tribunal's reasoning in paragraph 16 to the effect that Mr Colombo's failure to give reasons for preferring the evidence against Mr Barter to that in favour of him justified a conclusion that Mr Colombo had no genuine belief in Mr Barter's misconduct or that any belief he had was not based on reasonable grounds. Her submission is that this factor about was not sufficient to entitle the tribunal to form that conclusion. The tribunal had to decide the genuineness and reasonableness of Mr Colombo's belief by reference to all the evidence before it and not just by reference to this aspect of the evidence.[10]We agree that the tribunal had to decide this matter by reference to all the evidence but do not understand(a) why the particular matter to which the tribunal here referred was not of high relevance to this element of its inquiry, and(b) what other evidence there was before the tribunal which can be said to have cast doubt on the soundness of the conclusion that the tribunal in fact based on it. Faced,asFaced, as Mr Colombo admitted he was, with "completely conflicting accounts" it appears to be tolerably obvious to us, and one might perhaps hope that it would have been tolerably obvious to Mr Colombo, that he owed it to Mr Barter to give at least a brief explanation as to why he was preferring one account of the disputed facts over the opposing account. Instead, all he said to Mr Barter was that he had "decided not to accept your account". But, perhaps rather importantly for the present purposes, it is also tolerably obvious to us that Mr Colombo should have taken the opportunity to explain, if he could, in his written evidence to the tribunal on what basis he had concluded that he felt unable to accept Mr Barter's evidence, and why he believed that Mr Barter had committed the misconduct alleged against him. It appears he offered no such explanation, although we have not in fact seen his witness statement, and nor did he give oral evidence before the tribunal because he was abroad in Italy at the time of the hearing and the tribunal refused a request for an adjournment until such time as he could be present. We comment that the tribunal's refusal so to adjourn the hearing does not appear to us to have been a surprising one, Mr Weber having apparently agreed to the date of the hearing at an earlier directions hearing without going to the trouble of first consulting Mr Colombo as to his availability.[11]The result is that, whilst we consider that the tribunal's finding in paragraph 17 of its reasons was one arrived at in error, we consider that its conclusion that Mr Colombo's belief in Mr Barter's misconduct was not genuine, or else was not based on reasonable grounds, was a finding of fact to which it was entitled to arrive on the basis of the matters to which it referred in paragraph 16. We consider that was enough to justify the tribunal's overall conclusion that the dismissal was unfair. We do not regard the erroneous conclusion in paragraph 17 as undermining the safety of that conclusion. The paragraph 17 conclusion was simply an additional reason as to why the tribunal regard GNT as having acted unreasonably.[12]We accordingly dismiss the appeal against the decision by the tribunal in paragraph (i) of its decision that Mr Barter succeeded in his unfair dismissal claim.

(b) The appeal against the finding of wrongful dismissal

[13]Before coming to the tribunal's decision on this, we should refer to what it had said in paragraph 12 of its reasons, where it directed itself as to the requirements of a repudiatory breach of employment contract by an employee. It there said:
" The question of whether an employee's conduct amounts to a repudiatory breach of contract is a question of fact for the Tribunal to decide. In order to amount to a repudiatory breach, the employee's behaviour must disclose a deliberate intention to disregard the essential requirements of the contract. Many factors may be relevant, including the nature of the employment and the employee's past conduct."
[14]Miss Mulcahy criticises that direction as involving a misdirection. She submitted, we consider correctly, that there is no requirement that the employee should intend his conduct to breach his employment contract. The test is simply whether his conduct amounted to a sufficiently serious breach to justify his summary dismissal. We agree that, in identifying the test in the way it did, the tribunal misdirected itself.[15]We turn then to the tribunal's reasons in paragraph 18 for rejecting the wrongful dismissal claim. We have already quoted that paragraph in full and will not repeat it. We comment first that we have a difficulty in understanding to what the tribunal was referring in saying, as it did, "For the same reasons..." This could, on one view, be a reference back merely to the immediately preceding sentence or could, alternatively, be a reference back to the whole of the reasoning in paragraphs 16 and 17. Either way, the tribunal's reasoning was erroneous on its face. In short, it appears to have regarded its conclusions on the unfair dismissal claim as necessarily also providing the answer to the wrongful dismissal claim.[16]We consider that this was a mistake. First, an inquiry by a tribunal into whether an employee has been unfairly dismissed on the grounds of alleged misconduct does not ordinarily require the tribunal to inquire into, or make any finding on, whether the employee did in fact commit the misconduct of which he is accused. It will, or may, in many cases be sufficient for the inquiry - at any rate when considering the reasonableness of the dismissal - to be confined to the tripartite questions outlined in the Burchell case. But these questions are all directed to what the employer believed about the alleged misconduct and whether his belief was founded on reasonable grounds, and whether he made a reasonable investigation into the misconduct. It is, however, obvious that an employer who has made a thorough investigation and formed a genuine belief as to the employee's guilt on reasonable grounds may simply be wrong as to such guilt and the employee may in fact be innocent of the charge against him. The fact that the employee may subsequently prove that he was so innocent will not mean that the dismissal was, or ought to have been held to be, unfair. But it will mean that there would have been no basis for a summary dismissal. In order to justify a summary dismissal and to defend the claim that it was wrongful, the employer must be able to prove on the balance of probability that the employee did in fact commit the misconduct which he claims justifies the dismissal. It is no defence to a claim for a wrongful dismissal that the employer believed, however reasonably, that the employee committed the misconduct if in fact the employee can prove he did not.[17]Secondly, and equally, the fact that a tribunal concludes that a particular dismissing officer did not himself have reasonable grounds for a belief that the employee had committed the misconduct alleged against him does not of itself mean that the employee did not in fact commit that misconduct. The tribunal's finding on the one issue may be relevant to its finding on the other, but the questions raised by the two issues are strictly different. On GNT's defence to the wrongful dismissal claim, the question for the tribunal was simply whether or not it had proved, on the balance of probability, that Mr Barter had committed the misconduct alleged against him.[18]In this case all that we need to say is that the tribunal made no finding on this question. It appears to have made the unsafe assumption that because the dismissal was (so it held) unfair, it followed that it was an unlawful dismissal which was not justified by the misconduct which GNT alleged against Mr Barter. In our view, for two reasons, this conclusion is an unsafe one. First, in arriving at it the tribunal was directing itself, if at all, to the question of whether Mr Barter had deliberately intended to disregard the essential requirements of his contract, which was the wrong test by reference to which the tribunal had directed itself in paragraph 12 of its reasons. Secondly, the tribunal simply did not address itself to the question of whether, on the balance of probability, GNT had proved that Mr Barter had committed the misconduct alleged against him. Miss Sen Gupta submitted that it is implicit in the tribunal's reasons that it was finding that GNT had not discharged this burden. However, we are not satisfied that it is so implicit. The tribunal's erroneous reasoning in paragraph 18 does not satisfy us that we can regard it as having arrived as a safe conclusion on the wrongful dismissal claim. It has simply nowhere addressed, let alone answered, the right questions.[19]We therefore consider that the tribunal's decision in this respect was wrong. We propose to allow the appeal against decision (ii) of the tribunal and we set aside its decision that Mr Barter's claim for breach of contract was successful. Miss Mulcahy and Miss Sen Gupta were both agreed that, were we to allow the appeal against this part of the decision, we should remit the claim for wrongful dismissal for a rehearing.

(c) The appeal on quantum

[20]In dealing with the remedy claimed by Mr Barter the tribunal described how, on 1 January 2003, Mr Barter became a director of Telesense (UK) Ltd. This is a new business in which the tribunal said that he had invested. It found that, to date, the only money he had taken out of it was by way of repayment of a loan. It found that he had not, at the date of the hearing, yet received any salary but that he expected to do so shortly. It made no finding as to what that salary was or would be or in respect of what period the first tranche would be payable.[21]The tribunal related how GNT argued that any compensation award should be reduced on the grounds that certain serious financial irregularities had been discovered after Mr Barter had been dismissed. It listed nine such matters and set out Mr Barter's explanation of them. In respect of four of them, the tribunal noted that Mr Weber, who was GNT's representative at hearing, did not pursue them in cross examination.[22]The tribunal then set out a tenth matter which related to a slightly different point that GNT had raised. It reads: (x) "Finally, Mr Weber alleged that [Mr Barter's] compensatory award should also be reduced because [Mr Barter ]had told him at a social occasion in March 2003 that he was doing very well in his new venture and had never earned so much before. [Mr Barter] denied making any such statement".[23]The tribunal explained as follows its conclusions as to the impact of the ten points on Mr Barter's claim for a compensatory award: 21. "To reduce [Mr Barter's] compensatory award on this basis, the Tribunal had to be satisfied that GNT held a genuine and reasonable belief in Mr Barter's misconduct after a reasonable investigation. Whilst [GNT] may have held a a genuinegenuine belief in [Mr Barter's] misconduct, the Tribunal was far from satisfied that this belief was held on reasonable grounds. All but one of the allegations of fraud and improper conduct arose for the first time in Mr Weber's witness statement with the result that [Mr Barter] had very little time to respond. On the face of it, [Mr Barter] had plausible explanations for what had occurred. Thus, in the absence of further evidence, the Tribunal could not conclude that there were reasonable grounds for [GNT's] belief in [Mr Barter's] misconduct. Furthermore, the Tribunal was not satisfied that the remarks attributed to [Mr Barter] at the social function in March 2003 established that he was lying about his current earnings position. The remarks did no more than raise a suspicion that the position was not as he presented it to be. The proper course for [GNT] in these circumstances would have been to seek disclosure of [Mr Barter's] bank accounts to establish his earnings position. No such application had been made. In the absence of such evidence, the Tribunal could not conclude on the balance of probabilities that the allegation was made out".[24]Miss Mulcahy criticised this paragraph of the tribunal's reasoning as well. She referred to section 123 (1) of the Employments Rights Act 1996 which shows that the compensation to which Mr Barter was entitled in consequence of his unfair dismissal was:
"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"
. She submitted that, in carrying out this inquiry, the beliefs - whether or not reasonably held - of GNT as to any matters of misconduct it alleged against Mr Barter were irrelevant. She said that the tribunal was here erroneously importing into its considerations of the assessment of the quantum of the claim certain of the considerations relevant to the different question whether the dismissal was reasonable.[25]We agree with this criticism and nor does Miss Sen Gupta seek to defend the tribunal's approach. We consider that the tribunal did misdirect itself in its approach to this element of its task; and Miss Mulcahy submitted that, having misdirected itself at the outset, the tribunal's dismissal of the various points Mr Weber had raised was one which must necessarily be regarded as having been infected by the initial misdirection.[26]But Miss Mulcahy also submitted that, if the wrongful dismissal claim is to be reheard, that necessarily casts a doubt on the soundness of the conclusions on quantum. Her reasoning is simple. Were GNT to succeed in justifying Mr Barter's dismissal and so defeat his wrongful dismissal claim, then even though Mr Barter would still be entitled to compensation for his unfair dismissal, the tribunal would have to take account, in assessing that compensation, of the fact that he had been lawfully dismissed for serious misconduct; and GNT would have an arguable case for saying that in the circumstances it would be just and equitable under section 123 of the 1996 Act that he should not recover a penny of compensation, or at any rate that he should recover very much less than the tribunal in fact awarded him.[27]We find that argument compelling. In the circumstances, it appears to us that the tribunal's erroneous disposal of the wrongful dismissal claim, which we have already said we consider has to be the subject of a rehearing, may well have resulted in an approach to the assessment of compensation for the unfair dismissal on a wholly wrong basis. We are not, however, on that ground disposed simply to allow the appeal against quantum and to direct a rehearing of it at this stage. Our reason for that is that when the wrongful dismissal claim has been reheard the outcome may be that it will again succeed. Were it to succeed, it does not appear to us that there would be any grounds for a rehearing of the quantum assessment exercise, unless only we are satisfied that the tribunal's decision on quantum was flawed and should be set aside. We therefore propose to consider at this stage whether, quite apart from the point Miss Mulcahy bases on the fact that the wrongful dismissal claim has to be reheard, we would have been satisfied that the assessment of compensation disclosed a material error of law.[28]Miss Mulcahy of course relies on the point - which Miss Sen Gupta does not seek to dispute - that the tribunal embarked upon the exercise at the beginning of paragraph 21 of its reasons with yet another misdirection to itself. We are, however, unconvinced that its particular error in this respect necessarily resulted in the award to Mr Barter of a sum which should not have been awarded. As we follow it, Mr Weber was advancing his first nine points referred to in paragraph 20 of the tribunal's reasons in support of GNT's case that(1) Mr Barter had engaged in financial irregularities which caused loss and damage to GNT, and(2) That fairness demanded that Mr Barter's compensatory award should be reduced accordingly. The argument was presumably that it was not just and equitable for GNT to have to make a compensatory payment of any size to a man who had caused such substantial and as yet unrecouped damage.[29]The argument may well in principle have been a potentially attractive one if it could have succeeded on the facts. But the difficulty that GNT faces on this appeal is that we infer from paragraph 21 that its various points were sprung on Mr Barter at a later hour so that he was in difficulty in answering them, or at any rate was disadvantaged in answering in them. Despite these difficulties the tribunal nevertheless found that:
"On the face of it [Mr Barter] had plausible explanations of what had occurred. Thus, in the absence of further evidence, the Tribunal could not conclude that there were reasonable grounds for [GNT's] belief in [Mr Barter's] misconduct "
[30]Whilst we agree that the tribunal there expressed itself again by reference to the wrong criterion, we interpret the second sentence, in the context of paragraph 21, as meaning in substance that GNT did not adduce evidence sufficient to satisfy the tribunal that on the balance of probabilities Mr Barter had committed the various heads of misconduct alleged against him. In addition, the tribunal also found that he had advanced plausible explanations for the matters levelled at him. In the light of those conclusions we consider that the right way to assess the tribunal's findings and conclusions on this aspect of GNT's case is that GNT had not proved its case on the nine points. Having failed to do so, we do not consider that the tribunal can be criticised for concluding that the points made did not justify a reduction of Mr Barter's compensatory award.[31]The other way in which Miss Mulcahy criticises the tribunal is decision on the compensatory award is she says that the tribunal was in error in saying as it did in paragraph 20, that GNT "did not take any point on the question of mitigation" whereas Mr Weber's tenth point, which we have already quoted, was expressly directed to the reduction of the compensation to take account of the increased earnings to which Mr Barter had allegedly admitted on the social occasion in March 2003. We do not, however, agree with Mr Weber's tenth point strictly had anything to do with mitigation. Points raised by a respondent about mitigation are ordinarily directed to the proposition that the claimant has failed to take steps that he reasonably ought to have taken so as to lessen the loss caused to him by the respondent's wrong. But Mr Weber was raising no such point. His point was rather to the effect that the assessment of Mr Barter's loss required Mr Barter to bring into account the earnings he had admitted at the social occasion whereas he had not done so but had, so we understand, asserted at the tribunal hearing that there had been no such earnings. Insofar as the tribunal had to make a finding on this point, as it did, it could only do so on the basis of the evidence before it. We interpret its conclusion to be that it was not satisfied that Mr Barter had been untruthful to it in denying any such earnings. In other words, it was accepting his evidence. It pointed out that GNT could have sought his bank statements with a view to investigating the position but had not done so. The result was that the tribunal had little more to go on than the competing oral accounts of Mr Barter and Mr Weber. We cannot see how in these circumstances the tribunal can be said to have been in error in accepting Mr Barter's evidence. There was no duty on it to adjourn the case so that bank statements could be produced and we anyway do not understand that Mr Weber suggested an adjournment for that purpose.[32]In all the circumstances we have come to the conclusion that the tribunal cannot be said to have been error in declining to bring any of Weber's ten points into account when calculating the compensation payable to Mr Barter for his unfair dismissal. Accordingly, but for the fact that we are directing a rehearing on the claim for wrongful dismissal, we would have been disposed to dismiss the appeal against quantum unconditionally.[33]In the result, what we propose to do is this. We will dismiss the appeal against the tribunal's decision in paragraph (i) of its decision. We will allow the appeal against its decision against in paragraph (ii) and direct a rehearing of Mr Barter's wrongful dismissal claim. If that claim succeeds, the appeal against the tribunal's decision in paragraph (iv) will also be dismissed. But if the wrongful dismissal claim fails, the appeal against the decision in paragraph (iv) will be allowed and we will direct a rehearing on the claim for compensation for unfair dismissal.[34]We think the only other matter we need to discuss is whether the rehearing should be before the same or a differently constituted tribunal and we think we have your submissions on it unless either of you wants to add anything more. We will direct that the rehearing of the wrongful dismissal claim and (if necessary) any rehearing of the quantum claim should take place before a differently constituted tribunal. We direct that not because we are suggesting that the tribunal which has already dealt with this matter could not deal with it again perfectly fairly and objectively but because we consider better justice will be seen to be done if a freshly constituted tribunal deals with the matter.