CAROLE THORNETT v SCOPE [2006] UKEAT 0477_05_0702

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0477_05_0702Case No Appeal No. UKEAT/0477/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
CAROLE THORNETTAPPELLANTSCOPERESPONDENT
Before
His Honour Judge McMullenDate 7 February 2006
[1]APPEARANCES For the Appellant MR ANDREW BLAKE (of Counsel) Instructed by: Messrs Gill Akaster Solicitors Gill Akaster House 25 Lockyer Street Plymouth Devon PL1 2QW For the Respondent MR DIJEN BASU (of Counsel) Instructed by: Eversheds LLP Solicitors Kett House Station Road Cambridge CB1 2JY SUMMARY Unfair Dismissal: Compensation Compensation for unfair dismissal was capped at 6 months' forward losses on the ground that the Claimant would have been dismissed at that stage. Since the parties could make attempts to work together, applying Gover v Propertycare and cases cited in it, the Employment Tribunal could not sensibly recreate the world as it might have been and should not have reduced the losses. Equally, the judgment that the Claimant would have been made redundant at that time was perverse, since the evidence of the Respondent, on whom the burden of proving that loss should be capped lies was that the service of which the Claimant was the lynchpin would have continued. HIS HONOUR JUDGE McMULLEN QC This case is about the calculation of compensation for forward losses following a finding of unfair dismissal. The judgment represents the views of all three members. We will refer to the parties as Claimant and Respondent. Introduction[2]It is an appeal by the Claimant in those proceedings against a judgment of an Employment Tribunal sitting over three days at Exeter (Chairman: Mr J G Hollow) registered with reasons on 18 July 2005 at the request of the EAT. The Claimant was represented by a solicitor who, today, instructs Mr Andrew Blake of Counsel. The Respondent was represented there and here by Mr Dijen Basu of Counsel.[3]The Claimant claimed unfair dismissal. The Respondent ultimately conceded that it dismissed her, but said it did so for a reason within s98 of the Employment Rights Act 1996 and was fair. The Employment Tribunal upheld this. "15. …. We have to decide whether the respondents have established the reason and we find that they have. It was a reason of some other substantial kind. It was that the respondents perceived that Dr Thornett's employment could no longer continue in the way that it had. She could no longer continue to work in Exeter and she was not prepared to relocate to Cardiff." But it held that the dismissal was unfair and the Claimant contributed 25% to it by her own blameworthy conduct.[4]The issue before us is as to the correctness of assessment of damage fixed by the Employment Tribunal at £4,995 by way of basic award, (which was not reduced and is not the subject of appeal) and £6,606.25 which was reduced. The issues[5]The essential issues for the Employment Tribunal, as are now relevant on appeal, were to assess how far into the future the Claimant's losses should continue to be the liability of the Respondent and to award compensation. It is common ground that she quickly would have exceeded the statutory cap at the time. There is no issue as to the arithmetic of the salary, the loss, the pension loss, the basic award or as to the deduction of 25%. The finding that she mitigated her loss during the period of assessment is not under dispute, that is six months post-dismissal. The appeal[6]The Claimant appeals against the decision to limit her forward loss and argues that the two grounds upon which this was done by the Employment Tribunal represent errors of law. Directions sending this appeal to a full hearing were given at a preliminary hearing by Langstaff J and members. Directions were given also for agreement of points of relevant evidence and we are grateful for the agreed note of the parties. The legislation[7]The sole relevant provision of the legislation is s123(1) of the Employment Rights Act 1996 . "123 Compensatory award (1) Subject to the provisions of this section and sections 124, 124A and 126, 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". That section is subject to the duty to mitigate and to reductions on account of contributory fault. The Tribunal did not expressly direct itself by reference to that section or to any authority on the assessment of compensation. The facts[8]The Respondent is a national charity in the field of disability. We have been told that it employs 3,700 people in the UK together with many volunteers in retail, education and other services. The Claimant was employed as an engineer from 1 October 1990 to 21 April 2004 when she was unfairly dismissed at the age of 52 when her salary was roughly £34,000 a year plus entitlement to a final salary scheme pension. The Tribunal found as follows:
"4. The facts of this matter are that the claimant was moved from Cambridge to Vranch House in Exeter sometime in early 2000. The respondents have several establishments throughout the United Kingdom, one being at Vranch House where the micro-technology service was situated. Those premises are owned by the Devon and Exeter Spastics Society. That Society made premises available to Scope under an informal arrangement. By the time the claimant's employment terminated she was the Manager of the service based at Vranch House. The staff there consisted of herself, an administrator and 2 engineers, Tom Warren and John Jones. The claimant is, as we have indicated, a highly qualified engineer. The micro-technology service provides aids to disabled persons, principally those suffering from cerebral palsy. The claimant's function was to carry out assessments of clients' needs. For this purpose she travelled throughout the United Kingdom. Her Personal Assistant made appointments for her to visit clients in various parts of the country. She would then assess what aids the individuals might need according to their circumstances and the nature of their disability. Dr Thornett's function would then be either to manufacture whatever equipment was needed or adapt existing equipment to meet the needs of the individual. In this she was assisted by Mr Warren and Mr Jones who were based exclusively at Vranch House. They did not travel. There was quite clearly a requirement for considerable liaison between Dr Thornett and those two individuals in order that she should, make clear precisely what was needed for particular clients. One feature of this case is that there has been no word of criticism whatsoever of Dr Thornett's professional skills, professionalism or dedication to the work, rather the reverse; there appears to have been some criticism of her due to the fact that she did not take as much holiday as she was entitled to and worked very long hours indeed in order to provide a service to the clients which the respondents, we are sure, regarded as first class. 5. The claimant lived at Crediton some 9 or 10 miles away from Exeter. The pattern of her working week was that she would usually go to the micro technology unit on Mondays before spending 3 or 4 days a week out in the field carrying out assessments. On her return, she would participate in the manufacture and adaptation of equipment and also bring back the work to be done by the 2 engineers. Another important feature of her duties was that she would make sure she kept up to date with the latest technological advances in this very specialist and important field. She was also the Manager of the Unit having budgetary responsibilities as well"
. As can be seen, in that happy environment a difficulty arose, for the Tribunal said this: "6. During the summer of 2003 Mr Jones raised a complaint against Dr Thornett that she had been bullying him and harassing him. That was taken up under the respondent's disciplinary procedure. Dr Thornett was suspended on 1 August 2003. Effectively the service went into suspension since there was no one to carry out the necessary assessments. Under the terms of her suspension Dr Thornett was not able to visit Vranch House" .[9]There was an investigation and there was discussion involving Colonel Graham Wheeler, the Chief Executive of the Devon & Exeter Spastic Society which is not connected to SCOPE although, at one stage, SCOPE had a similar name in part. The relationship during this period was not good but by the autumn, the Tribunal was able to say this "7. Suffice it say that by the autumn however that matter had blown over, although at one stage in September Col Wheeler indicated that the respondents were to leave Vranch House completely. However the relationship between the Respondent and the Spastics Society continues to be a difficult one and notice to vacate the premises has been given". The disciplinary investigation which had been set en train resulted in the Claimant being disciplined and given a final written warning and her appeal against that was dismissed on 29 December 2003. The Tribunal said this "She continues to feel aggrieved at the outcome of that matter and it seems that there is some sense of resentment nurtured by her colleagues, Mr Warren and Kerry Vanstone, the Administration Assistant who seem to have sided with Dr Thornett in the matter. Nevertheless, the respondent's took the view that in view of the difficulties that had arisen Dr Thornett should no longer be involved as the manager of the Micro-technology Unit. They proposed that she should be relocated to work at the respondent's school at Craig-y-Parc just outside Cardiff".[10]During the time that she worked at Cardiff, the headmaster at the premises was Mr Harvey; and evidence was given by the Tribunal by Ms Murphy who is an assistant director of the charity. Her evidence will be examined in more detail. There was a suggestion, in the mind at least of Ms Murphy (but it was not put to the Claimant) that while working at Cardiff, she could work one day a week at Vranch House. This was because the Claimant, it was accepted, needed access to the workshop at some stage. There was no clear finding that the proposal had been made, but it is important in the proceedings, as we will show.[11]The way in which the set up was organised for the Claimant at Cardiff was that she could operate effectively using computer-assisted technology, but that it was always her objection that there was no workshop at the school and it was really impossible for her to carry out her duties without workshop facilities. She had herself recorded the difficulty that she may have in liaising with Mr Jones in view of, as she put it, "what he has done". Nevertheless in due course the Claimant was dismissed, which was the ultimate concession of the Respondent.[12]The discussions leading up to the dismissal included a contribution from Mr Harvey as follows. "14 During the course of the discussions that took place the headmaster of the school at Craig-y-Parc, Mr Neil Harvey, spoke to the remaining staff at the micro-technology unit and reported to the Chief Executive, Mr Tony Mannering, that all those individuals, including Mr Jones, were happy to work with Dr Thornett again. The discussions bore no fruit and the claimant's employment came to an end on the 21 April 2004 in circumstances which the respondents now concede amounted to a dismissal". That is attested to in a letter which he wrote and which we have been taken to in detail. The Tribunal set itself the task of deciding whether the Respondent had produced a reason. It held that the reason for dismissal was some other substantial reason under s98(1) and (2) and it was this: "It was that the respondents perceived that Dr Thornett's employment could no longer continue in the way that it had. She could no longer continue to work in Exeter and she was not prepared to relocate to Cardiff".[13]The next task was to determine whether the dismissal was fair. It came to this conclusion and we spend a good deal of time, as did the Tribunal, looking at the background to this case before descending on what we have said at the outset was the centre of the case, compensation. That is because what is said in the narrative reflects upon the forward looking of the Tribunal when it assesses loss and also because, as has been forcefully put to us by Mr Basu, it is necessary to take the Tribunal judgment as a whole and not to comb through it to find fault. The Tribunal then said this"16. ……. The Respondent's case is that there was no other option available and that in the light of Dr Thornett's resistance to the proposed move they had no alternative but to terminate her employment. There was another alternative and, in view of the fact that the respondents were driving the situation, we think it is one which should have been pursued. It was an alternative which was not without risks. It had the potential to fail but nevertheless in our judgment a reasonable employer would have followed it as far as possible. The alternative was that the parties should continue to work as before with the claimant returning to Vranch House. She had been given a warning. It is clear that Dr Thornett was unhappy about that but nevertheless we think a reasonable employer would have taken active steps to encourage the parties to work together. It is a situation which would have required careful management and it is impossible for us to reach any conclusion as to whether in the long term it might have worked. The respondents had indicated to the claimant that they valued her services and in those circumstances we think a reasonable employer would have taken steps to explore that option. That was not done. In particular Dr Thornett made it clear that she was not aware of any proposal that she should return to Vranch House one day a week. We think that a reasonable employer at that stage would have appreciated that there might have been a misunderstanding and would set out the proposals with some clarity so that they could have been considered. The respondent's failure to do that in our judgment renders this dismissal unfair.17. Having said that we have considered the question of contributory fault. We are not revisiting the disciplinary issue which was concluded with the final warning. Nevertheless the respondents were faced with a very difficult managerial situation. The claimant made it clear that she had considerable reservations about working with Mr Jones in view of what she described as what he had done. We think that this was an unreasonable attitude for Dr Thornett to take. We think that a reasonable attitude for her to have taken would be to express the view, as had her colleagues, that they were at least prepared to try and make the situation work. We are not oblivious to the potential difficulties of that. In that she failed to do that, we think Dr Thornett's conduct was a contributory factor in the termination of her employment and one which we think would be just and equitable to reflect in our finding and in any award of compensation should we be invited to make one. We assess that contribution at 25%".[14]Those, then, are the findings in relation to what may be described as liability and contributory liability. In turning its attention to the question of loss, the Tribunal said this in an important passage which, we hold, is at the heart of this case. 18. We have been asked to try and reach some assessment as to how long the situation would have lasted if the respondents had encouraged the parties to try and make the arrangement work. We have not seen Mr Jones. We have not had any opportunity of hearing any evidence from him and of course it is a highly speculative matter, but nevertheless one which is of importance to the parties In our view, we think the arrangement would have lasted about 6 months. We say that for these reasons. First of all, the respondents had expressed a desire to retain Dr Thornett's evident skills and we think that they could and should have made substantial efforts to try and make the arrangement work. Dr Thornett was probably only going to be there one or perhaps two days a week and so not in Vranch House on a daily basis and Mr Jones had expressed a willingness to try and make it work. For those reasons that is the best assessment we can make".[15]The Tribunal returned to this subject when it considered an alternative proposition which would cap the Claimant's losses based upon a redundancy situation. "20. Our assessment as we have already indicated is that by reason of the changes in the operation of the micro-technology unit and the attitude of landlords, we think that Dr Thornett would have been made redundant in any, event at about the end of 2004 or early 2005. Having regard to the difficulties which beset the working relationship we think there is a likelihood that her employment might even have come to an end before that but 6 months is the best assessment we can make. That is the basis on which we approach the compensation in this case". In those circumstances, therefore, two reasons were put forward by the Employment Tribunal for limiting the loss of the Claimant into the future to a period of six months post dismissal. The Claimant's case[16]The Claimant submitted that the Tribunal was wrong in respect of both aspects of its loss-capping exercise. First, as to the finding that she would have been dismissed after six months because of the breakdown in the relationship, it is contended that this was a case in which the world could not have been reconstructed to the satisfaction of the Tribunal so that it could not make such a finding. Speculation was what the Tribunal was engaged in and that is what created the error of law. If the Tribunal had considered correctly how the relationship would have worked out, it was inconsistent for it to find two positive reasons in paragraph 18 for it to continue. The question for the Tribunal was: how would the relationship have come to an end if it had been done properly? The Claimant has sought reinstatement. Although she disputed the final warning given to her, two out of the three colleagues she worked with supported her. She was the lynchpin of the organisation. Without her, as occurred during her suspension, the operation was suspended; but when she came back, the relationship could and should have continued and there was no basis upon which the Tribunal could find that the relationship would come to an end by her dismissal.[17]Secondly, in respect of the redundancy situation, the Tribunal's judgment was perverse in the light of the evidence given to it by Ms Murphy and to the effect that it was the Respondent's position that if Dr Thornett had stayed, the service in the micro-technology service would have continued. Thus the finding that it would have stopped is perverse.[18]Mr Blake also drew our attention to the link which existed between the difficulty experienced with Colonel Wheeler and the treatment of the Claimant by the Respondent. As he put it, "once the Claimant got back to work, then maybe some of the difficulties with Colonel Wheeler would have been resolved", particularly as the admissions by Mr Harvey, which relate to criticism of SCOPE in its relationship with, as it put it, "an ally or friend" come into play.[19]The question for the Employment Tribunal is whether or not the employment would have terminated fairly in any event. Could she have been relocated? Could someone else have been relocated? Could the workshop have been resurrected? Would it have closed? The Respondent's case[20]On behalf of the Respondent, it is contended that the Tribunal judgment should be looked at as a whole. The Tribunal correctly looked forward, in an assessment of loss, and although it used the word "speculate", it plainly was involved in an exercise in evaluation and judgment such as goes on every day in Employment Tribunals and Courts, assessing loss into the future. The evidence of Ms Murphy was only one piece of evidence available to the Tribunal and the Tribunal should not be criticised for forming a judgment based upon all of the evidence, particularly in the light of the Claimant's assertion that she was informed that the micro-technology service was to close at the end of 2004 and which has now taken place. As to the redundancy situation, it is contended that the finding by the Tribunal was one which was open to it and the arguments presented against it did not cross the threshold placed high by the judgment of the Court of Appeal in Yeboah v Crofton [2002] IRLR 634 against appeals based upon perversity. The legal principles[21]The legal principles to be applied in this case appear to us to be as follow. As to the assessment of loss, I set out on behalf of the EAT in Gover v Propertycare Ltd [EAT/0458/2005] the relevant principles at paragraphs 16-22. Most particularly relevant to the discussion in this case are paragraphs 19-21. "19. The most recent exposition of this approach is found in the judgment of the Court of Appeal in Lambe v 186K [2004] EWCA 1045 where there is a full analysis of Polkey and other judgments including, importantly, the judgment of the Court of Appeal in O'Dea v ISC Chemicals Ltd [1995] IRLR 599. Giving the judgment of the Court, Wall LJ in Lambe , having cited the passage from Lord Prosser's conclusion, emphasised the words which appear as follows:
'… It seems to us that the matter will be one of impression and judgment, so that a tribunal will have to decide whether the unfair departure from what should have happened was of a kind which makes it possible to say, with more or less confidence, that the failure made no difference, or whether the failure was such that one cannot sensibly reconstruct the world as it might have been… 59. We respectfully agree with the formulation contained in the highlighted passage from that citation. However, we share Peter Gibson LJ's view, expressed in the extract from his judgment in O'
Dea which we have cited, that it is unhelpful for the purposes of assessing compensation to characterise the defect in the employer's behaviour as either substantial or procedural. The highlighted passage from King v Eaton (No 2) seems to us both practical and to coincide with the approach of this court in O'Dea. It provides Tribunals with a straightforward and sensible yardstick with which to approach such cases, and avoids unnecessary and unproductive debate about whether a particular piece of conduct fits into the "substantive" as opposed to the "procedural" category. 60 The application of the O'Dea / modified King v Eaton (No 2) approach to the facts of the instant case leads us to the conclusion that on the evidence available to it, the Tribunal was entitled to conclude that in the Appellant's case, whilst both the process of selection for redundancy and the absence of consultation was unfair, it was unlikely that the Appellant would have found alternative employment with the Respondent or any of its associated companies at the conclusion of an extended period of consultation. The Tribunal was entitled to find that what the Appellant wanted was his job back, and that he was not willing to consider the alternative offered by the Respondent, which the Tribunal found was both a promotion and commanded a higher income. In short, this was not a case in which it was impossible for the Tribunal sensibly to reconstruct the world as it never was: the Tribunal was entitled to come to the conclusion that an extended period of consultation should have taken place, but that at the end of it, the Appellant would still have left the Respondent's employment.' 20. From this it appears there is a modification of the King approach in line with the Court of Appeal's judgment in O'Dea. The correct approach is not for a Tribunal to adopt a taxonomy which separates procedural from substantive issues but to ask itself the question: was there an unfair departure from what would or should have happened? That is apt, in our judgment, to include not only what are popularly, and as Lord Bridge put it, conveniently known as procedural issues, but also substantive issues. In a simple case, a failure on a redundancy selection exercise to calculate accurately a person's performance points, or sickness record, might be regarded as substantive. It might in some circumstances be regarded as unfair procedurally but in either case it represents an unfair departure from what would or should have happened. What is necessary is that the Tribunal should have confidence in deciding whether or not it could sensibly reconstruct what would have happened had there been no such failing. 20. In O'Donoghue v Redcar v Cleveland Borough Council [2001] IRLR 615 the Court of Appeal again considered a situation where there had been a reduction in compensation. In this case the reduction was based upon a view taken by the Tribunal that the Claimant's attitude and subsequent behaviour would have caused a rupture in the relationship at some stage later than the actual termination of the employment".[22]In so far as this case deals with the redundancy situation, it falls within the categorisation of cases where the Claimant would have been dismissed on another ground at some stage in the future identified in paragraph 22(3) of the Gover judgment. "(3) Cases where a reduction has been effected because the Claimant was likely to have been dismissed on another ground, for example, O'Donoghue above and James W Cook & Co (Wivenhoe) Ltd v Tipper [1990] ICR 716 (factory closure)".[23]Mr Basu accepts that the burden of proving by evidence that there should be some cap on compensation falls on the employer which seeks to limit its exposure.[24]In considering a judgment of a Tribunal, it is important to look at the whole of it and to have in mind the conclusion of the Court of Appeal in English v Emery Rheinbold v Strick Ltd [2003] IRLR 710 at paragraph 118 which indicates the lessons to be drawn from cases where an argument is raised that inadequate reasons have been given. Conclusions[25]Applying the above principles, we prefer and uphold the submissions of the Claimant and will allow the appeal. Dealing first with the argument based on the six month limitation set out in paragraph 18, we note that the Tribunal recognises that it is engaged in speculation in terms. Yet that is precisely what a Tribunal is enjoined to avoid. It must not launch itself upon a sea of speculation (see the authorities cited above in Gover ). The proper approach when it recognises that speculation is involved is to accept that it cannot sensibly reconstruct the situation. In a case where the burden falls on the Respondent which seeks to limit compensation, it will have no difficulty in finding that it cannot do so; and it will do so on the basis of submissions and evidence or at least of failure of evidence.[26]In our judgment, the passage at paragraph 18 is very difficult to understand. The reader is taken along the path which would indicate that there is to be a subsisting relationship between the parties uncapped by any six month deadline and yet the Tribunal finds that it would only last six months. The reasons which are expressly bracketed between the expression "for these reasons" in paragraph 18 are all matters positively pointing not to the termination of the relationship but, on the other hand, to its continuation.[27]Given the condemnation of this employer by the Tribunal's judgment that it unfairly dismissed the Claimant and that it considers itself to be a reasonable employer which would endeavour to reconstruct the relationship if it could, these findings are unsustainable. The proper approach, given the nature of the relationships including the evidence before the Tribunal about how the parties could work together, all combine to indicate that it would be wrong to place a limitation in time as to the duration of the relationship. In our judgment, the Tribunal erred when it set out upon the speculative venture. Truly, the evidence was not before it upon which it could make that judgment. This ground of appeal is allowed.[28]We have borne in mind the passages in the judgment, which we have cited above, relating to the Claimant's approach to the relationship. But we accept from Mr Blake the submission made in the second part of the case that a person's approach to a relationship will differ according to whether it is under threat or not, most conspicuously in respect of a redundancy. To that we will now turn.[29]The first thing to say about the redundancy found here is that the Tribunal was, in March 2005, dealing with a situation when it could look back and see whether there had been a redundancy. The evidence before the Tribunal was that notice to vacate the premises had been given. The Claimant's evidence was when she wrote her witness statement, that the service had closed. It is difficult to understand why the Tribunal would be vague as it is in paragraph 20 about assessing this event when it says that the Claimant would have been made redundant at the end of 2004 or early 2005. If, indeed, the workshop premises had become unavailable or notice had been given at the time of the hearing, it would have been able to cite that date.[30]However, a more important facet about this aspect of the judgment is that the evidence before it came entirely from the senior officer of the Respondent. The whole point of a forward looking exercise, evidence-based, for the assessment of compensation, is that the Tribunal must make judgments upon the evidence which it has seen. It must attempt to reconstruct what would have happened had things not been subject to a failure; either a failure in procedure or some other failure such as is described in Gover . The premise upon which this part of the judgment is based must be that the relationship existed beyond the six-month cut off which the Tribunal imposed so that the Claimant was still in work by the time of the Tribunal hearing. At that stage, the Tribunal would have been able to assess whether the service provided by SCOPE for which the Claimant was the lynchpin, was still in operation.[31]In our judgment, Mr Blake is correct on the findings of this Tribunal; when she was suspended so was the service. When she came back, albeit remotely at Cardiff, the service was put back on and the evidence of Ms Murphy was that if Dr Thornett had stayed, the service would have continued. So, operating, as we do, on the premise that the relationship would not have broken down six months after the unfair dismissal, she would still have been employed and while employed, the service would continue. Who knows what would have happened to the relationship with Colonel Wheeler's organisation once he became aware, on this footing, that she was back running the service in the old way or on some attenuated basis? In any event, it was not open to the Tribunal to make a finding that Dr Thornett would have been made redundant when that clashed with the evidence of Ms Murphy. This is, indeed, a judgment which attracts the epithet "perverse".[32]We are not ourselves able to fill in any of the gaps; but again, we take the point that this is a case which ought to have been put forward by the Respondent as a redundancy exercise and evidence produced for it. Otherwise, it would not be right to cap the losses of the Claimant. In our judgment, the evidence was before the Tribunal that had the Claimant continued to be at work, the service which she ran would not have been closed and thus she would not have been made redundant. There may well have been a difficulty with the landlord, through Colonel Wheeler, but at the time when the Tribunal was assessing this matter, the Respondent would have had available to it its team of four engaged in the service and the hardware which was placed in the workshop, albeit the premises may not been available.[33]So, we accept the submissions made on behalf of the Claimant that this aspect of the judgment is perverse. It is submitted that we should refer the matter back to the Employment Tribunal for it to hear evidence, alternatively submissions, or both, about the arithmetic.[34]Having canvassed with Counsel the disposal of this appeal, we accept Mr Blake's argument that the matter will go back to the Employment Tribunal for it to decide on compensation without there being the limits imposed in paragraphs 18 and 20 of the judgment. It was submitted by Mr Basu that it ought to be open to the Respondent to argue that it would have closed the service in any event. We are not prepared to allow that argument to be raised ourselves. It may well be that it will form the basis of an application before the Employment Tribunal, but we consider the opportunity to raise economic arguments, such as are now being raised, was available at the Tribunal and was not taken so far as we can tell. If we are wrong about that, then the opportunity does exist. This will be remitted to the same Employment Tribunal, neither party contending that it should go elsewhere. The parties here have had a mixture of failure and success before the Tribunal but neither of them has lost confidence in it and nor have we.[35]We very much hope that once up-to-date schedules are produced, this may be the subject of discussion between the parties. It will, of course, be open to the Respondent to search the issue of mitigation since the attention of the Tribunal was drawn only to the six months immediately post-dismissal and a longer view would need to be taken. Those are matters which will form the subject of exchange of witness statements and schedules and the Claimant will then apply for a one day hearing before the Employment Tribunal to determine the final issues.[36]We would very much like to thank both Mr Blake and Mr Basu for the very succinct way in which they have put their cases today, which have been much assisted by the very comprehensive Skeleton Arguments. We fully understand how important this matter is to SCOPE which, obviously, is a charity with limited funds and wishes to see its liability limited where that can lawfully and correctly be done[37]Permission to appeal to the Court of Appeal refused [reasons not transcribed].