CORPORA SOFTWARE LIMITED v MS K H PERRY [2008] UKEAT 0039_08_0105

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0039_08_0105Case No Appeal No. UKEAT/0039/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
CORPORA SOFTWARE LIMITEDAPPELLANTMS K H PERRYRESPONDENT
Before
His Honour Judge ReidDate 1 May 2008
[1]APPEARANCES For the Appellant MS B SUNDERLAND (Solicitor) Crossland Employment Solicitors 178 Curie Avenue Harwell Oxford OX11 0QG For the Respondent MR S SOOR (of Counsel) Instructed by: Messrs Davies Arnold Cooper Solicitors 6-8 Bouverie Street London EC4Y 8DD SUMMARY Victimisation Discrimination Unfair dismissal – Polkey deduction The Appellants employed the Respondent as Sales Operation Director. She was dismissed on spurious grounds after she failed to agree a salary reduction and a change in her role. She complained of unfair dismissal, sex discrimination and victimisation in the grievance procedure which she launched together with the appeal against her dismissal. The ET held the appeal procedure and the grievance process were shams intended protect the employer's position in anticipated ET proceedings. The dismissal was (as was conceded) unfair, but the sex discrimination allegations failed. However the ET found victimisation in respect of the way the grievance procedure was run. The ET held there was no basis for a Polkey reduction. The Appellants asserted the ET decision that the grievance procedure was a sham was perverse, that the ET erred in law in its criticism of the procedure, that the ET was wrong to hold there was victimisation and that it was wrong not to allow a Polkey reduction. Held: the ET's finding that the grievance procedure was a sham was not perverse, that since the procedure was a sham the ET was not wrong in its criticism of the process, that it was entitled to find victimisation and entitled to hold there should be no Polkey reduction, but that when it came to the assessment of compensation it would have to have regard to all the evidence which had a bearing on the loss caused including evidence suggesting the Respondent would not have remained indefinitely with the Appellants. HIS HONOUR JUDGE REID QC This is an appeal from a decision of an Employment Tribunal held at London South on the 1, 2, 5, 6 and 8 February and on 19, 20 and 21 June 2007. The Tribunal considered the matter in chambers on 25 and 26 June 2007 and produced a decision, which was sent to the parties on the 13 September 2007.[2]By its decision of the Tribunal dismissed Ms Perry's complaints of sex discrimination and harassment against her former employer, Corpora, but upheld her complaint of victimisation contrary to section 4 (1) (d) of the Sex Discrimination Act 1975 . Corpora did not dispute that her dismissal was automatically unfair pursuant to section 98A of the Employment Rights Act 1996 , and the Tribunal held that her dismissal was unfair within the meaning of section 98 of the Act. It also held that she had not contributed to her dismissal and that the award of compensation ought not to be reduced having regard to the Polkey principle. In reaching its decision the Tribunal held that the disciplinary appeal and grievance procedure carried out by Corpora was a sham.[3]Corpora appeals against that decision. The grounds of appeal are(1) that the Tribunal's decision that the grievance procedure which was followed by Corpora was "a sham" was perverse,(2) that the Tribunal imposed its own view of the grievance procedure rather than considering what Corpora actually did and considering the correct test, namely whether the grievance process fell within the band of reasonable responses,(3) that the Tribunal could not have found victimisation, because the course of action alleged to amount to victimisation had been determined by Corpora (on the Tribunal's finding) before the protected act relied upon (namely a complaint of sex discrimination) had been done,(4) that the Tribunal had made no findings in relation to less favourable treatment and there was no evidence upon which the Tribunal could draw any inference or less favourable treatment and(5) that the Tribunal was in error in determining that it was not appropriate to make a Polkey reduction on the facts that it found. The facts[4]Ms Perry began her employment with Corpora on the 11 April 2005. Her basic salary was £80,000, with target earnings of £150,000, and a car allowance of £500 per month. Corpora is a company which develops software. Ms Perry was employed to run its sales team of five people. During the summer of 2005 she was given new sales targets for the financial year of 2006. The annual target of £4.5 million was divided into quarters and the Quarter 3 and Quarter 4 targets were £1.45 million and £1.8 million respectively. She failed to meet the targets set for Quarter 1 and Quarter 2. Those targets were £350,000 and £900,000 respectively. These sales achieved were £170,000 and £144,000.[5]As a result, the board took a decision to appoint a chief marketing officer, Mr Hayden-Rowe. Soon after his appointment he was required to deal with the acquisition of a company called Tokairo. There was a complaint about Ms Perry's conduct at a meeting with people from Tokairo. Following this it was said that the CEO, Mr Thompson, and the Chairman, Mr Lowe, as well as Mr Hayden-Rowe had to become involved to save the deal. This resulted in a meeting between Ms Perry, Mr Lowe, and Mr Thompson at which she was reprimanded. This was not a formal disciplinary process and no formal verbal warning was given within the employer's disciplinary procedure.[6]By January 2006 Corpora had also acquired a company called Lora but no new quarterly sales targets were fixed, although the annual sales target was increased to £6.5 million. There was a dispute as to what her new quarterly targets should be. But (whatever of the correct position) it was reported at board level that Ms Perry had not made the level of sales expected.[7]On 16 March there was what was described as a "sales kick-off" meeting, which was the first meeting of all Corpora's sales personnel following the acquisitions of Tokairo and Lora. The Chairman, the CEO and the Chief Marketing Executive were all present at the meeting. At the meeting of Ms Perry made a presentation, which became the subject of dispute later. Corpora asserts that in the course of the presentation she told the sales personnel to lie in order to achieve deals. She denies making any such statements, but explained that she gave examples of how a theoretical case might be used to illustrate a product being sold. This she described as 'a use case'. Whatever was said, nobody (including Mr Lowe, the Chairman, who was present) took any issue with her at the time. The matter only became an issue when she was dismissed.[8]At the end of March it was reported to the Board by Ms Perry that sales had reached the £1 million mark for the first time. There is a dispute as to whether the reported figure was accurate, but in any event Corpora says that even the £1 million figure fell short of her target.[9]On 20 April 2006, Ms Perry had an assessment conducted by Mr Hayden-Rowe. His assessment contained both positive and negative comments and was the only feedback that she received in respect of her performance. It marked performance at 8/10.[10]On 25 April David Hornsby joined Corpora and replaced Mr Hayden-Rowe who was moved sideways. Ms Perry was now to report to Mr Hornsby. She was to continue as Head of Group Sales UK. Mr Hornsby was brought in at a higher position and was not brought in to replace her.[11]On 8 May Ms Perry had a discussion with Mr Hornsby, in which she was told that she was failing in her role. She was given three options: she could try to hit the targets set for her, she could take a reduced role or she could leave the company. On 9 May there was a meeting between Ms Perry, Mr Thompson and Mr Hornsby, at which her performance was again discussed. It was suggested she could leave with a compromise agreement. When she responded that she wanted time to consider her position and take legal advice, Mr Thompson's response was to say that if she chose to go along that route "things could get nasty, and there were ways of not paying anything and cheques could get lost in the post." Throughout the month there were further meetings. At a meeting on 11 May Ms Perry indicated she wanted to file a grievance. The grievance was about "process" and was not identified as being about sex discrimination.[12]There were further discussions culminating in a meeting on 31 May. By this time Corpora had evidently investigated the CV Ms Perry had provided before joining and believed there were discrepancies in it. The two supposed discrepancies(i) a reference to a "£5 million contract", when the contract was in fact a $5 million contract and(ii) a reference to "£7 million development sales" which referred to the sale of an initial software package for an engineering project which would (all being well) lead to future sales, the purchaser being effectively locked into the initial software, to build on the package up to a £7 million figure. At the meeting she was offered a new role selling to the construction industry at a reduced salary of £65,000. When she asked to retain her existing salary Mr Hornsby changed tack and accused her of lying on her CV. There was no mention of her conduct at the "sales kick off" meeting or misconduct with clients (ie the Tokairo incident).[13]On the morning of 1 June there was a telephone conference between Mr Thompson, Mr Hornsby and Chris Tuson of Citation PLC, a company which apparently gives employment law advice. An incomplete transcript of the conversation was before the Tribunal.[14]Mr Thompson described the situation as "It is a boot them out the door job and then fight about it later." A little later, he said, "We're going to say on your bike". He accepted "We haven't been through due process" and a little later he said. "My view is quite harsh. If she wants to go to tribunal she will have to stump up cash. If she goes quietly, we will give her some form of reference if she wants to fight we will drag it out if it goes against us we will drag the payment out and cheques will bounce." The grounds on which he wanted to dismiss appeared to be(1) Ms Perry was not meeting targets;(2) her relations with senior management and(3) "her CV is a pack of lies". Chris Tuson advised that "I would tell her that once she's gone, she had the right of appeal to the Chairman. In all honesty, the process has been thrown out of the window anyway. You can either give her the right of appeal or not." A little later, he went on:
"Then if she raises any grievance, she has the process. You're already …[some words are missing from the transcript] with the Chairman…. And it gives you the chance the three of you the chance to regroup whether to stick to guns or what. At least you will know the strength of her case"
. Then came the following exchange: Mr Thompson:
"No, I think we just dismiss her summarily with right of appeal to the Chairman."
Mr Tuson:
"And what I wouldn't do, Mark, is to confirm it to her in writing until she asks."
Mr Thompson:
"Right. I'll scrap that then. I'll throw that away. How does this sound 'Bugger off you spawny eyed git'?"
Mr Hornsby contributed:
"I think we'll tell her to bring everything into the office tomorrow. We should tell her that she's dismissed. I'll be there tomorrow morning, all day actually. She'll think we're going to cut a deal with her tomorrow."
Mr Tuson later on advised, "Don't confirm anything in writing but do make sure she knows she has the right of appeal to your Chairman." He summarised his advice:
"At the end of the day following my conversation with Mark you want to get rid of her, if she goes to the tribunal and you lose you'll stagger the payments. So what the hell?"
[15]The following day Ms Perry was called to a meeting with Mr Thompson and Mr Hornsby and was dismissed. She was told that the reason was that there had been a "fundamental breakdown in trust and communication." She was told she could appeal, but in accordance with the advice from Citation nothing was put in writing time.[16]The procedure was in breach of Corpora's disciplinary procedures which required that Ms Perry be "given as much information as possible regarding the allegations of misconduct, or any documentation detailing the shortfall in performance or capability that will form the basis of the disciplinary hearing," and that she be "given fair and reasonable notice of the date and time of the hearing."[17]Ms Perry consulted solicitors, who wrote a detailed letter dated 7 June 2006 setting out the grievance and an appeal against her dismissal. The grievance alleged that she had, among other things, suffered sex discrimination. On 28 June she was invited to a meeting with Mr Lowe. On 26 June her solicitors received a letter from Corpora in which it was said that there were three reasons for her dismissal. They were(i) poor performance in failing to achieve the targets set for her;(ii) poor performance and misconduct in her dealing internally and externally with colleagues and clients and(iii) submitting a false CV. No further particulars were provided.[18]The first meeting with Mr Lowe lasted three hours. Corpora was still in breach of its obligation to give as much information as possible regarding the allegations of misconduct, or any documentation detailing the shortfall in performance or capability that formed the basis of the disciplinary hearing. The purpose of the meeting was said to be to review the facts of both the dismissal and the grievance. She was provided with no details relating to the reasons for her dismissal beyond what was in the letter of 26 June. One of the matters dealt with at the meeting was the "£5 million contract" point on which Ms Perry said that Mr Elek of Lora could support her. At the end of the meeting Mr Lowe said he needed to go away and investigate. His "investigations" did not include approaching Mr Elek. On 17 July Corpora's solicitors sent a letter to Ms Perry with 15 enclosures. At a second meeting on 20 or 21 July the reasons for Ms Perry's dismissal were considered. That meeting lasted an hour or thereabouts. By letter dated 25 July Mr Lowe rejected Ms Perry's appeal and her grievance. In his evidence he said she was dismissed "for lying in her CV … principally." It appears that the supposed lies were the reference to a "£5 million contract" and the reference to a "£7 million development sales" She responded by letter dated 8 August to which Mr Lowe replied on 16 August. His letter rejecting her appeal and her grievance made reference to those two matters, to her having lied when she (correctly) denied that she had received a verbal warning over the Tokairo incident, and that she had told her sales team to lie at the "sales kickoff" meeting (the incident he had himself witnessed but not thought worthy of any comment at the time.)[19]The appeal to Mr Lowe had exhausted Ms Perry's right of appeal in relation to her dismissal. But she appealed the decision on the grievance. Mr Wajzner, who was senior Vice President Global Services at Corpora heard the grievance. He reports to Mr Thompson and was being asked to consider a grievance appeal against a decision made by the Chairman of Corpora concerning events involving among others Mr Thompson.[20]Before the hearing of the grievance appeal on 1 September 2006 Ms Perry started her proceedings in the Employment Tribunal alleging unfair dismissal, breach of contract, unlawful deduction of wages (relating to non-payment of bonuses and deductions by failing to make regular pension contributions), sex discrimination and victimisation.[21]The grievance appeal was heard on 27 September 2006 and was dismissed. The reasons for its dismissal were given in a letter dated 9 October 2006. The Tribunal's decision[22]The Tribunal did not accept Ms Perry's claim of sex discrimination which was based in part on general "laddish" behaviour and more specifically on a failure to invite her on a corporate entertainment skiing weekend and to a day's shooting. There was evidence as to those who were invited and why they were invited. On the evidence Ms Perry did not ski, did not speak French (which was why the only non-Board member who was invited was asked) and did not shoot. In that respect her claim failed. There has been no appeal in relation to those findings.[23]The Tribunal did however find that she had been victimised because she had raised a grievance alleging sex discrimination. The letter from her solicitors of 7 June 2006 which raised the grievance was a protected act. At para 77 the Tribunal said it had "come to the conclusion that the disciplinary process and grievance was a sham…." The Tribunal then set out in paras 78 to 91 its relevant findings of fact and at paras 92 and 93 stated its conclusion and a short summary of the reasons in these terms:
"92. The Tribunal's conclusion is that the appeal hearing was a sham. Its true purpose was to find out what the Claimant's case was and to sort out the Respondents case in order to meet any points the Claimant raised. 93. We came to the conclusion of fact because; (a) the total disregard of the statutory procedures and the Respondents own procedures (b) the content of the advice from Citation PLC which included; 1. put nothing in writing 2. offer her an appeal 3. re-group with the Chairmen etc 4. The Claimant not only provided a detailed letter of appeal but was also subject to a 3 hour meeting on 28 June before she was provided with any details of the allegations against her 5. Rob Lowe appears to have made no effort to check any facts put to him by the Claimant at the meeting on 28 June 2006 and only collated evidence against the Claimant which was subsequently provided to her before the meeting on 21 July."
[24]At para 94 it said "For the same reasons set out above, we do not consider that Rob Lowe had any real interest in the Claimant's grievance. He was concerned to protect the Respondent's position in respect of what were anticipated as possible Tribunal proceedings brought by the Claimant." At para 95 it rejected the suggestion that she had lied about the £5 million contract, describing the $5 million contract as being "innocently represented as £5 million" and noting that if Corpora had been "fair minded" it "would have come to such a conclusion". As to the "£7 million development sales", it held that this was not a lie and noted that Mr Lowe had said in evidence "If I saw £7 million development sale I would ask what it meant at the interview."[25]The Tribunal then held at paras 114 and 117 of its judgment:
"114 The Claimants Solicitors letter of 7 June 2006 was a protected act. We are of the view that the Respondent's actions from 2 June onwards were concerned to protect its position. 115 Rob Lowe's disciplinary appeal and grievance hearing was in our view a sham. Its purpose was to protect the interests of the Respondent against any possible Employment Tribunal claim. 116. The Claimant was treated less favourably in respect of the appeal and the grievance conducted by Rob Lowe. We do not consider that the appeal was conducted in the manner which was designed to determine whether or not the Claimant ought to have been dismissed or whether the Claimant's grievances were properly made out or not. It was simply to protect the Respondent's position in line with the strategy discussed with Citation PLC. We consider that the Claimant was treated this way because she had done a protected act. While the strategy was agreed upon before the Claimant's protected act (the letter of the 7 June 2006) it was not acted upon until the Claimant put in her appeal and grievance. 117. The Tribunal is satisfied that had the Claimant not made a complaint alleging sex discrimination, the Claimant's grievance would have been treated very differently. The comments and the general tenor of the discussion with Citation PLC indicate that the Respondent was preparing itself to meet any claim that the Claimant may make against the Respondent in Employment Tribunal."
[26]The Tribunal's findings in respect of the dismissal were, in summary, that the true reason for Ms Perry's dismissal was her refusal to agree a reduced salary with Mr Hornsby, and that the appeal hearing was a sham, the true purpose of which was to find out Ms Perry's case and to sort out Corpora's case in order to meet any points she raised.[27]The Tribunal concluded by holding that the case was not one for a Polkey reduction "as it appears to us that but for the Claimant not agreeing terms with David Hornsby her employment would have continued." Corpora's case[28]Corpora made five submissions:(i) The finding that the grievance procedure was a sham was perverse and was not supported by any evidence or findings of fact. It did not challenge the finding that the appeal procedure carried out at the same time and in the same hearings was a sham. It pointed out that paras 71 to 94 were almost entirely concerned with the dismissal appeal, that the statutory grievance procedure was followed, and that the Tribunal made no specific findings as to what additional inquiries should have been made. It submitted that the finding that Mr Lowe had "made no effort to check any facts put to him by the Claimant" was clearly perverse, given the additional documentation produced before the second disciplinary and grievance meeting. There was said to be no finding as to how the grievance was lacking and that the Tribunal allowed its findings as to the disciplinary appeal to tarnish the grievance procedure. Corpora further pointed out that Ms Perry had been thoroughly unhelpful to the procedure by failing to produce documents she said supported her case (at least one of which may well never have existed).(ii) The Tribunal had imposed their own view of what the grievance procedure ought to have been rather than looking at whether the manner in which the grievance procedure was conducted fell within the band of reasonable response. Reference was made to Abbey National v Fairbrother [2007] IRLR 320 .(iii) Corpora had (on the Tribunal's own findings) determined its course of action on 2 June before the doing of the protected act (the sending of the letter of 7 June) and its conduct therefore could not be "by reason that" Ms Perry had done a protected act.(iv) There was no evidence that those who had not done a protected act were treated any differently and no evidence from which the Tribunal could draw an inference any such person would have been treated differently. The onus of proof would only be reversed if Ms Perry proved facts from which (in the absence of explanation) the Tribunal could infer an act of discrimination and she did not do so.(v) The Tribunal were wrong not to make a Polkey reduction. Ms Perry had been failing to achieve her targets, her CV showed she spent only short periods in each job and the evidence showed she was not prepared to accept the reduced level of job offered to her. Ms Perry's submissions[29]On Ms Perry's behalf it was submitted that:(i) There was plenty of evidence to support the finding that the grievance and disciplinary procedure was a sham. The failure to approach Mr Elek, the reliance on the "£7 million development sale" based on a failure to understand what a development sale was, the reliance on the entirely truthful statement that she had not received a verbal warning as being a lie, and the reliance on "telling her sales team to lie" when she had not done so and Mr Lowe had been present and taken no objection at the time. The cobbling together of a bundle of documents between the two meetings did not evidence that the grievance investigation was taken seriously. If there was a sham, it did not matter how elaborate the window dressing was.(ii) As to the Tribunal's failure to apply the Abbey National case, the case was of no relevance if the procedure adopted was a sham.(iii) The Tribunal were entitled to conclude that the reason for the treatment of Ms Perry during the grievance and dismissal procedure related to her complaint of sex discrimination. The sham procedure, aimed at protecting Corpora's position, and the continuance of the strategy, related directly to the perceived threat of sex discrimination proceedings and the protected act once it had been done.(iv) No actual comparator was necessary. The Tribunal found that Ms Perry had been less favourably treated because she had done a protected act and since Corpora continued to deny that the procedure was a sham no case was put forward to explain her less favourable treatment. Insofar as there was an attempt to explain Corpora's conduct by reference to her alleged misconduct and performance, the Tribunal rejected the explanation.(v) The Tribunal was entitled to find on the evidence before it that Ms Perry's employment would have continued and not to apply any Polkey reduction. Discussion[30]Corpora started with the obvious difficulty that at the meeting of 31 May it began by trying to negotiate a salary reduction for Ms Perry. It was only when it failed to reach agreement with her as to terms on which she was to continue that it for the first time purported to decide that matters of which it had been fully cognisant for some time were such as to have destroyed the bond of trust and confidence. The conversation with Citation the following day made it perfectly clear that there was no question of any fair disciplinary process. There was simply to be window dressing on a pre-determined dismissal and any appeal procedure was to be orchestrated in order to enable the company the better to prepare its defence.[31]It was quite impossible for Corpora to argue with any conviction that the dismissal and the ensuing appeal procedure was anything other than a charade. This placed it in the impossible position of arguing that when the appeal process and the grievance procedure were progressed at the same time and in the same meetings Mr Lowe was(a) performing in a charade so far as the dismissal appeal was concerned and(b) conducting a perfectly proper grievance hearing. In our view it is quite impossible to say that the Tribunal's conclusion that the grievance procedure was a sham was perverse. The fact that the sham was an elaborately dressed one does not prevent it being a sham.[32]It follows that Corpora's second point necessarily also fails. However wide the band of reasonable response in relation to a grievance procedure may be it cannot encompass a procedure which is a sham.[33]As to the third and fourth points of appeal, whilst the scheme may have been plotted before the doing of any protected act it was carried into effect after the writing of the letter of 7 June. Even if the relevant conduct was the laying of the plot rather than its carrying into effect, section 4(1) provides that a discriminator discriminates against another person if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons "by reason that the discriminator knows the person victimised intends to do [a protected act] or suspects the person victimised has done, or intends to do, any of them."[34]The Tribunal was satisfied that "had the Claimant not made a complaint alleging sex discrimination, the Claimant's grievance would have been treated very differently". It made this finding in the light of the comments and general tenor of the discussion with Citation, which had included references about grievances (albeit in relation to the process) and comments such as "If you are going round [to Ms Perry's house] take another woman with you … cos she will accuse you of being bully boys". In our judgment the whole tenor of the discussion with Citation was such that it entitled the Tribunal, in the light of the stance taken by Corpora, to form the view that she was treated less favourably than another person who had not done a protected act would have been treated.[35]So far as the Polkey point is concerned, it seems to us that there has been something of a false start by Corpora. The finding of the Tribunal was that "but for the Claimant not agreeing terms with David Hornsby her employment would have continued" and therefore it could not see "any justification for concluding that the Claimant's employment could have been brought to an end fairly on the information before [it]." This was in response to a submission that even if the Tribunal did not accept that Ms Perry would have been able lawfully to terminate her contract of employment because of her CV, she would have been dismissed within 4 to 6 weeks for poor performance.[36]In Software 2000 Ltd v Andrews and others [2007] IRLR 568 Elias J summarised the principles in relation to the assessment of compensation at para 54 in these terms:
"The following principles emerge from these cases: (1) In assessing compensation the task of the tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal. (2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future). (3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made. (4) Whether that is the position is a matter of impression and judgment for the tribunal. But in reaching that decision the tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence. (5) An appellate court must be wary about interfering with the tribunal's assessment that the exercise is too speculative. However, it must interfere if the tribunal has not directed itself properly and has taken too narrow a view of its role. (6) The s.98A(2) and Polkey exercises run in parallel and will often involve consideration of the same evidence, but they must not be conflated. It follows that even if a tribunal considers some of the evidence or potential evidence to be too speculative to form any sensible view as to whether dismissal would have occurred on the balance of probabilities, it must nevertheless take into account any evidence on which it considers it can properly rely and from which it could in principle conclude that the employment may have come to an end when it did, or alternatively would not have continued indefinitely. (7) Having considered the evidence, the tribunal may determine: (a) That if fair procedures had been complied with, the employer has satisfied it - the onus being firmly on the employer - that on the balance of probabilities the dismissal would have occurred when it did in any event. The dismissal is then fair by virtue of s.98A(2). (b) That there was a chance of dismissal but less than 50%, in which case compensation should be reduced accordingly. (c) That employment would have continued but only for a limited fixed period. The evidence demonstrating that may be wholly unrelated to the circumstances relating to the dismissal itself, as in the O'Donoghue case. (d) Employment would have continued indefinitely. However, this last finding should be reached only where the evidence that it might have been terminated earlier is so scant that it can effectively be ignored."
[37]The Tribunal in this case was rejecting the submission that the Claimant's compensation should be calculated on the basis that she would in any event have been dismissed for performance related issues within 4 to 6 weeks of her actual dismissal. The Tribunal could not find any justification for that conclusion on the evidence before it. That did not mean that it was holding that her employment would, but for her dismissal, have gone on forever. When the Tribunal comes to assess compensation it will have, in accordance with section 123(1) of the Employment Rights Act 1996 have to determine the amount it "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."[38]In carrying out that task the Tribunal will no doubt look at (and give such weight as is appropriate to) the various factors which Corpora says would indicate that even apart from the dismissal she would not have remained with Corpora for any great length of time. Those factors include the short length of time she had stayed in previous jobs, the fact there were negotiations in train to alter and reduce her role and salary and the fact that (even though she was not subject to sex discrimination) she evidently found what she perceived as the laddish atmosphere in the work place uncongenial. None of this is inconsistent with the holding at para 119 of the decision. Conclusion[39]The appeal will be dismissed.