SWALLOW SECURITY SERVICES LIMITED v MRS ROSEMARY MILLICENT [2009] UKEAT 0297_08_1903

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0297_08_1903Case No Appeal No. UKEAT/0297/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
SWALLOW SECURITY SERVICES LIMITEDAPPELLANTMRS ROSEMARY MILLICENTRESPONDENT
Before
His Honour Judge BurkeDate 19 March 2009
The employers dismissed the employee after a bogus redundancy exercise, after she had knowingly taken paid holiday in excess of her holiday allowance and failed to apologise. The Tribunal found that she had been unfairly dismissed, of its own volition raised Polkey but did not raise or consider contributory fault which the employers, who were unrepresented, did not raise themselves.

Held on appeal

) The Employment Tribunal, having found that there was conduct on the part of the employee that was or could be regarded as blameworthy, were bound by s123 of the Employment Rights Act 1996 (ERA) to consider contributory fault.) Were that not so, the employers would not be permitted, following the principles in Rance , to raise the issue for the first time on appeal.Appeal allowed; remitted to same Tribunal for consideration of contributory fault.

HIS HONOUR JUDGE BURKE QC

The facts

This appeal raises two principal points of law. As to the first there is no direct authority; as to the second there is a wealth of authority. It is brought by the Respondent before the Employment Tribunal, Swallow Security Services Ltd, whom we will call "Swallow", against the award to the Claimant, Mrs Millicent, of £51,146.86 as, save for £620 thereof, compensation for unfair dismissal. The Employment Tribunal, chaired by Employment Judge Tyler, sat at Ashford over three days in October and November 2007. Their judgment was sent to the parties on 12 December 2007; and their reasons were sent to the parties on 8 April 2008.The facts can, at least at this stage of this judgment, be set out briefly. We take them from the findings of the Tribunal. Swallow are a security company, providing static and mobile guards and based in East Sussex. Their principal shareholder and Managing Director is Mr Edwards. Mrs Millicent was employed as Swallow's General Manager. Prior to December 2005, she and Mr Edwards had a good and extremely friendly working relationship.In December 2005 Mrs Millicent went on a Caribbean cruise. She took additional paid holiday (5 days) without permission to do so. She knew that that was so; for she told the Tribunal in evidence that she believed Mr Edwards would not mind because of the extra hours she had been working.However, when he realised that she had taken additional paid holiday, Mr Edwards regarded her actions as dishonest and as especially serious because part of her role was to check that employees did not exceed their holiday entitlement. The Tribunal found, at paragraph 14, that Mr Edwards had legitimate grounds to complain "in that respect" i.e. that she had knowingly taken additional paid holiday without his permission. Those words cannot logically mean anything less - for if Mrs Millicent had had permission there would have been no grounds to complain at all. The Tribunal made further important findings about the taking of the holiday in paragraph 34, to which we will refer later.When Mrs Millicent returned, Mr Edwards confronted her in what the Tribunal found to be a forthright and, probably, aggressive manner. He expected an apology; but he did not get one. He said in evidence that, had Mrs Millicent apologised at that stage, the parties might not be at the Tribunal at all. On the same day Mr Edwards informed her that she would receive a formal written warning; and he subsequently deducted from her pay the money she had received in respect of the holiday period.Mrs Millicent then went off sick with "stress and anxiety". Mr Edwards saw this as an unjustified act against him; and the Tribunal found at paragraph 19 that Mrs Millicent's failure to apologise and her going off sick immediately afterwards caused the relationship between her and Mr Edwards to break down.As soon as the New Year came in, Mr Edwards informed Mrs Millicent that he was implementing a redundancy programme and that one of his office-based employees would have to go. He then went through a redundancy process which ended with Mrs Millicent, two weeks later, being given five weeks notice of termination of her employment. She was paid statutory redundancy pay and any outstanding emoluments.For factual reasons, into which it is not necessary to go in this judgment, the Tribunal found that Swallow had failed to establish that there was a redundancy situation and, at paragraph 33, that:
"The true reason for the Claimant's dismissal by the Respondent was the fact of the breakdown of the relationship between the Claimant and Mr Edwards. It was the Tribunal's conclusion that Mr Edwards had viewed the Claimant's failure to apologise, followed by her going off sick for two weeks at Christmas as being "the final straw". At or around Christmas 2006, therefore, he had contrived to create a redundancy situation and redundancy exercise with the intent of securing the Claimant's dismissal."
The Tribunal found, therefore, that Mrs Millicent had been unfairly dismissed.Mrs Millicent was represented before the Tribunal by Mr Massarella, as she has been before us. Swallow were not represented. Mr Edwards did not raise what is, in employment law jargon, familiarly known as "the Polkey principle". The Tribunal, however, did raise it and addressed it, at paragraphs 34 and 35 of their judgment, in these terms:

"Polkey

34. The Tribunal viewed the taking by the Claimant of additional paid holiday without permission as a serious matter. In the unanimous Judgment of the Tribunal, had Mr Edwards and the Respondent approached the matter differently it might have been possible for the Respondent to justify a fair dismissal of the Claimant on grounds of her conduct in that respect. However, the Respondent chose not to adopt that approach and it was not for the Tribunal to speculate on what might have happened.In the event, the Respondent had elected to deal with the conduct issue by applying the disciplinary sanction of a "formal written warning". That sanction having been applied together with the deduction of the monies overpaid, that was the end of the matter.35. It followed that where a sanction short of dismissal had already been applied to an issue of conduct that sanction could not be revisited, save where new behaviour gave rise to further disciplinary action. That was not the case here.There was no room in those circumstances for the operation of the rule in Polkey."Having so found, the Tribunal then found at paragraph 36 that Mrs Millicent did not have a compliant contract of employment and that they were therefore required to consider an award under section 38 of the Employment Act 2002 . They proceeded to assess compensation for unfair dismissal under section 38 of the 2002 Act and reached, in a manner which is not challenged, save in the one respect to which we will shortly come, the figures which we have set out earlier.

The Issues

Swallow do not seek to challenge any of the Tribunal's findings of fact. Their appeal is based wholly on what they submit is an erroneous omission from the Tribunal's judgment, namely, any consideration of the issue of contributory fault on the part of Mrs Millicent. Neither Mr Edwards nor Mr Massarella raised that issue. Although the Tribunal themselves raised the Polkey issue, they did not raise the issue of contributory fault. In these circumstances there arise the two points of law to which we referred earlier. They are:(1) Were the Tribunal bound to consider, in assessing compensation, whether Mrs Millicent was guilty of contributory fault, albeit the point was not expressly raised before them by either of the parties?(2) If not, should Swallow be allowed to raise that issue now for the first time on appeal?If either of these points is resolved in Swallow's favour, Mr Massarella submits that there could not, in any event, be a finding of contributory fault because there was no blameworthy conduct which caused the dismissal and because it would not be just and equitable to make such a reduction.Swallow have been represented before us by Mr Lewis of Counsel and, as we have said, Mrs Millicent by Mr Massarella. We are grateful to both for their helpful submissions.Should the Tribunal have considered contributory fault?Mr Lewis submits that, subject to the statutory limit embodied in section 124 of the Employment Rights Act 1996 , a compensatory award for unfair dismissal must be calculated by a Tribunal in accordance with section 123 of that Act. Section 123 provides as follows:

"123. Compensatory award

(1) Subject to the provisions of this section and sections 124 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.

(2) The loss referred to in subsection (1) shall be taken to include -

(a) any expenses reasonably incurred by the complainant in consequence of the dismissal, and(b) subject to subsection (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal.(3) The loss referred to in subsection (1) shall be taken to include in respect of any loss of -(a) any entitlement or potential entitlement to a payment on account of dismissal by reason of redundancy (whether in pursuance of Part XI or otherwise), or(b) any expectation of such a payment,only the loss referable to the amount (if any) by which the amount of that would have exceeded the amount of a basic award (apart from any reduction under section 122) in respect of the same dismissal.(4) In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.(5) In determining, for the purposes of subsection (1), how far any loss sustained by the complainant was attributable to action taken by the employer, no account shall be taken of any pressure which by -(a) calling, organising, procuring or financing a strike or other industrial action, or(b) threatening to do so,was exercised on the employer to dismiss the employee; and that question shall be determined as if no such pressure had been exercised.(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."Section 123(6), he submits, must be considered and taken into account in the calculation of a compensatory award in any case in which the Tribunal find that dismissal was caused or contributed to by any action of the Claimant or may have been so caused. The Tribunal, the argument goes, do not have to consider subsection (6) in a case in which the facts could not justify its consideration; but where the facts are such that there may have been or was blameworthy action on the part of the Claimant which to any extent caused or contributed to the dismissal, the Tribunal must consider subsection (6) whether raised by the parties or not. In the context of this case, Mr Lewis submits that that obligation arises where the Tribunal reject the employer's reason for dismissal and find the reason to have been a different or unpleaded reason; and he was prepared to limit his argument to such a case without resiling from the broader principle to which we have referred.In the present case, Mr Lewis submits, the Tribunal can be seen to have expressly decided that Mrs Millicent's conduct in taking paid holiday without permission and in failing to apologise was blameworthy. He points to the Tribunal's findings as to the pre-existing good relationship between Mrs Millicent and Mr Edwards (paragraph 12), that Mr Edwards had legitimate grounds to complain about her going on holiday as she did (paragraph 14), to Mr Edwards' evidence, described in paragraph 16 by the Tribunal as a concession, that had Mrs Millicent apologised "we might not be here" [at the Tribunal] "now", to the Tribunal's conclusion at paragraph 33 that the true reason for the dismissal was the breakdown of the relationship between Mrs Millicent and Mr Edwards arising from her failure to apologise and going off sick for two weeks at Christmas and to the Tribunal's conclusion at paragraph 34, which we have set out above, as clearly demonstrating that, in the Tribunal's view, Mrs Millicent had been guilty of blameworthy conduct which contributed to the dismissal. In the light of those findings, Mr Lewis submits, the Tribunal were obliged when assessing compensation to consider a reduction in compensation for contributory fault and to make such a deduction; for those findings amounted to a conclusion that the dismissal was caused or contributed to, to some extent at least, by Mrs Millicent's blameworthy conduct.The position before the Tribunal, it was submitted, was analogous to that in Langston v Cranfield University [1998] IRLR 172 in which the Employment Appeal Tribunal (HHJ Clark presiding) held that, in a redundancy unfair dismissal claim, the Employment Tribunal are obliged to consider the issue whether there has been adequate consultation even though that issue has not been raised, and to that in Red Bank Manufacturing Co Ltd v Meadows [1992] IRLR 209 in which the EAT (Tucker J presiding) held that the Polkey principle must be considered by the Tribunal in assessing compensation for unfair dismissal even though it was not raised by the parties before them.Mr Lewis further relied on the decision of the EAT in Robert Whiting Designs Ltd v Lamb [1978] ICR 89 (Kilnour-Brown J presiding) as support for the proposition that contributory conduct on the part of an employee may be considered by a Tribunal even if the employer had put up a bogus reason for the dismissal.Mr Massarella submits, firstly, that the Tribunal did not find any culpable causative conduct on the part of Mrs Millicent which could have triggered any duty to embark on consideration of contributory fault under section 123(6); and, secondly, that there was no duty on the Tribunal to raise section 123(6) themselves if not raised by Swallow.As to the first part of his submissions, Mr Massarella's argument is that:(1) The Tribunal did not find that taking additional holiday amounted to blameworthy conduct as opposed to finding that Mr Edwards so regarded it.(2) The Tribunal found that the breakdown of the relationship between Mr Edwards and Mrs Millicent was caused by her failure to apologise and her then going off sick but neither of those matters was found to be blameworthy.(3) Mrs Millicent going on holiday as she did could not have contributed to the dismissal because Mr Edwards, for that, only gave her a final written warning.(4) It would not be just and equitable to make a reduction where the employer had already disciplined the employee for taking additional holiday and then contrived a wholly bogus redundancy situation with the intention of securing the employee's dismissal.As to the second point Mr Massarella drew a distinction between cases such as Langston , where the omitted issue went to the fairness or unfairness of the dismissal, and cases in which the Tribunal had failed to consider whether the dismissal was automatically unfair pursuant to section 98(a)(1) of the 1996 Act (see Venniri v Autodex (EAT 0436/07), judgment 13 November 2007) and cases in which the point not raised went to compensation.

Our conclusions on this issue

In Mensah v East Herts Trust [1998] IRLR 531 (to which our attention was properly drawn by Mr Lewis, although it might appear to be against him), the Court of Appeal allowed the employer's appeal against the decision of the EAT that the Tribunal ought to have adjudicated upon a complaint made in the Claimant's claim form which had not been raised at the hearing before the Tribunal and which, in contrast to the issues which the Tribunal did address, had not been referred to by the Claimant at an interlocutory hearing when the issues for the full hearing were discussed and appropriate interlocutory orders made; nor was the complaint in the claim form which was not considered by the Tribunal addressed in the Claimant's evidence. Peter Gibson LJ said at paragraph 14 of his judgment, with which Henry LJ and Sir Christopher Slade agreed:
"The error of law identified by the Employment Appeal Tribunal is that the Industrial Tribunal failed to ensure that all matters contained within the IT1 were dealt with or expressly abandoned by Mrs Mensah when it came to her giving evidence. Another way in which the Employment Appeal Tribunal put the same point was to say that the Industrial Tribunal failed to hear part of the originating application. It necessarily follows therefore that the error of law found by the Employment Appeal Tribunal is dependent upon the existence of a duty on the Industrial Tribunal so to ensure, or a duty to hear every allegation in the originating application unless so abandoned, the Industrial Tribunal being bound to act of its own motion even if the applicant does not put forward evidence to make good the allegation nor argues in support of it. In this context it should be borne in mind that the details given by an applicant of his complaint in his IT1 in some cases are lengthy and diffuse."
And went on at paragraph 28 to hold that:
"But for the reasons which I have given, I have reached the clear conclusion that the Employment Appeal Tribunal was not entitled to find an error of law by the Industrial Tribunal in this case. I would strongly encourage Industrial Tribunals to be as helpful as possible to litigants in formulating and presenting their cases. It is always good practice for Industrial Tribunals to clarify with the applicant (particularly if appearing in person or without professional representation) the precise matters raised in the IT1 which are to be pursued and to seek confirmation that any others so raised are no longer pursued. But it must be for the judgment of the particular Industrial Tribunal in the particular circumstances of the case before it whether of its own motion it should investigate any pleaded complaint which it is for the litigant to prove but which he is not setting out to prove."
The situation in Mensah was very different from that at present under consideration. The Claimant had not set out to prove a particular complaint at the hearing, which complaint she had not raised at the interlocutory hearings. She had not chosen to adduce the evidence which she could have adduced if she was pursuing that complaint.In contrast, in Langston the EAT said, at paragraphs 21 and 22:
"The generally accepted principle that a party will not be permitted to raise new points on appeal which could have been ventilated below must be seen in the context of cases where a principle is so well established that an industrial tribunal may be expected to consider it as a matter of course. For example, in Tidman v Aveling Marshall Ltd [1977] IRLR 218 (Kilner-Brown J presiding), the Employment Appeal Tribunal held that when assessing compensation for unfair dismissal an industrial tribunal ought to consider the four heads of claim identified in Norton Tool Co Ltd v Tewson [1972] IRLR 86 , namely (1) the immediate loss of wages; (2) the manner of dismissal; (3) future loss of wages; and (4) loss of protection in respect of unfair dismissal or dismissal by reason of redundancy, to which was added loss of pension rights as a fifth head of claim. This appeal tribunal held that, although not raised below, it was the duty of the industrial tribunal to raise itself all five categories of compensatory award.
Further, in Red Bank Manufacturing Ltd v Meadows [1992] IRLR 209 (Tucker J presiding) the Employment Appeal Tribunal held that an industrial tribunal was obliged, following an unfair redundancy dismissal finding, to consider the application of the twofold Polkey principle when assessing compensation, namely if a proper procedure had been followed would it have resulted in an offer of alternative employment? If so, at what salary level? The case was remitted to the industrial tribunal for further consideration."And, at paragraphs 30 to 34, said:
"30. Where an applicant complains of unfair dismissal by reason of redundancy we think that it is implicit in that claim, absent agreement to the contrary between the parties, that the unfairness incorporates unfair selection, lack of consultation and failure to seek alternative employment on the part of the employer.
31. Because there is now no onus on either party to establish the reasonableness or unreasonableness of the dismissal under s.98(4) it is for the industrial tribunal to determine that question 'neutrally'.32. In these circumstances we think it is incumbent on the industrial tribunal to consider each of the three questions mentioned in (4) above, in the same way that an industrial tribunal will consider the threefold Burchell test in an appropriate conduct case. It is desirable that at the outset of the hearing the live issues are identified by the industrial tribunal.33. Normally, an employer can be expected to lead some evidence as to the steps which he took to select the employee for redundancy, to consult him and/or his trade union and to seek alternative employment for him.34. We would normally expect the industrial tribunal to refer to these three issues on the facts of the particular case in explaining its reasons for concluding that the employer acted reasonably or unreasonably in dismissing the employee by reason of redundancy."In Red Bank Manufacturing the EAT said:
"However, it seems to us that since the decision in Polkey it is necessary for a Tribunal when calculating the amount to be awarded for compensation to ask itself this two-stage question: if the proper procedure had taken place, would it have resulted in an offer of employment? This was the question to which the Tribunal did address themselves in the earlier hearing, and to which they gave the answer that it might have done so. What the Tribunal failed to do, and what in our view they should have done, was to go on to consider first what that employment would have been, and second what wage would have been paid in respect of it."
It is, of course, well established that consideration of the Polkey principle goes to the calculation of compensation for unfair dismissal and not to the question whether the dismissal was fair or unfair.Langston and Red Bank Manufacturing , in contrast to Mensah , concern the application by the Tribunal to their consideration in an unfair dismissal claim of well known principles of law, and the decision in the latter case is in respect of subject matter, the Polkey principle, which is close to that with which we are concerned in this appeal, contributory fault. Both affect, or may affect, the calculation of compensation after the Tribunal have found that the employee has been unfairly dismissed.Whether the juridical basis for the Polkey principle is to be found in section 123(1) of the 1996 Act is debatable, and has not been argued before us; but there is, in section 123(6), an express obligation upon the Tribunal, if it finds that the dismissal was to any extent caused or contributed to by any action of the Claimant (which conduct must be blameworthy; see below), to make a reduction in compensation to the extent that it considers it just and equitable to do so. In our judgment it follows that, if in the course of their deliberations, a Tribunal concluded that there had been such causative and blameworthy conduct, the Tribunal would be bound to apply section 123(6), whether the issue of contributory fault had been raised by the employer or not. The Tribunal are statutorily required so to do. Further, in our judgment, in any case before the Tribunal in which the facts are such that a finding of contributory fault may appropriately be made, the Tribunal are bound to consider the issue, raise it with the parties, and decide whether there has or has not been contributory fault and whether a deduction from contribution should be made. We do not accept Mr Massarella's argument that the trigger for the Tribunal's duty to consider the issue has to be a finding that there has been contributory fault; for if the Tribunal do not raise the issue, such a finding, however appropriate it might have been, may never be made. The trigger must arise at an earlier point, such as that which we have described.Although Mr Lewis was prepared to limit his submissions for the purposes of this appeal to a case in which the Tribunal have rejected the employer's pleaded reason for dismissal and found that a different reason existed, we can see no logical or juridical basis for treating such a case as exceptional or requiring the application of a different principle. The principle which we have set out must, if it is to apply at all, be of general application.Had the Tribunal in this case reached the point of which the obligation we have described arose? In our judgment it had. It is common ground that conduct does not fall within section 123(6) unless it is culpable or blameworthy (which words for these purposes have identical meanings) (see Nelson v BBC (No. 2) [1980] ICR 110), and the blameworthy conduct must have, to some extent, caused or contributed to the dismissal. The Tribunal have to consider the extent of blameworthiness and the extent of causation, just as in a personal injury claim (e.g. Davis v Swan Motor Co [1949] 2 KB 291).We agree with Mr Massarella that the employer's belief in the blameworthiness of the employee's conduct is not in point. The assessment must be that of the Tribunal, not that of the employers. However, we do not accept his submission that the Tribunal did not clearly find that Mrs Millicent had behaved in a blameworthy manner in taking additional paid holiday, albeit that, of course, because they did not have section 123(6) in mind, the Tribunal did not use that language. We are tempted to say that any Tribunal which did not regard such conduct as blameworthy would be at risk of a finding of perversity; but we need not go that far. While Mr Massarella correctly points out that the Tribunal's description of Mr Edwards' view of Mrs Millicent's conduct, at paragraph 13, is insufficient and indeed irrelevant, the finding at paragraph 14 that Mr Edwards had legitimate grounds to complain about Mrs Millicent's taking the holiday, together with their conclusion at paragraph 34 that, had Mr Edwards approached the matter differently, Mrs Millicent could have been found to have been fairly dismissed on the grounds of her misconduct are findings which demonstrate amply that the Tribunal did consider Mrs Millicent's conduct in that respect to be blameworthy or at least had sufficiently identified the possibility that it might be blameworthy as to attract the obligation to consider whether there had been contributory fault.It is also clear from the Tribunal's judgment that they attributed the breakdown of the relationship between Mrs Millicent and Mr Edwards to the absence of an apology on her part, followed by her going off sick. We agree with Mr Massarella that the Tribunal did not find that the sickness was not genuine (or that it was). Accordingly, Swallow cannot rely on any finding that Mrs Millicent's going off sick was blameworthy; but if the taking of the holiday was blameworthy; it must at the very least have been open to the Tribunal to find (i.e. there was factual material on which they could find) that the failure to apologise was also blameworthy, and the Tribunal were, in our judgment, obliged to consider whether it was.In reality, unless Mrs Millicent was given no opportunity to apologise (which does not appear to have been the case), it might be thought to be difficult to see how any reasonable Tribunal could regard the failure to apologise as an omission which could not have been blameworthy; but we need not go into that further.Mr Massarella's third point is that the potentially blameworthy conduct we have been considering caused Mr Edwards to administer a sanction short of dismissal. That was Mr Edwards' chosen sanction; the sole or real cause of the dismissal was Mr Edwards' decision to create a bogus redundancy. That argument, in our judgment, cannot be accepted. There is no principle of law that an employer who administers a sanction for misconduct cannot subsequently administer a more severe sanction for the same misconduct, whether or not he clothes his action in a spurious disguise. Of course an employer who does so is likely to be found, if the more severe sanction is dismissal, to have unfairly dismissed. In Robert Whiting Designs Ltd v Lamb the employers dismissed for dishonesty in a situation in which the conduct of the employee never justified the use of that word. The dismissal was, therefore, unfair. It was argued that, where dismissal was for a bogus reason or a pretext, no question of contribution could arise. The EAT did not accept that argument.

(f) :

"In our view the proper approach is to decide first what was the real reason for dismissal and then to see whether the employee's conduct played any part at all in the history of events leading to dismissal. In some cases, set against the real reason, it may be apparent that the employee's conduct, even if reprehensible, was of no relevance whatsoever and made no impact on the situation. In the present case the employers made great use of the employee's conduct in the process of dismissal. They had every justification for so doing, for the conduct was extremely reprehensible. The employee's conduct certainly contributed to his dismissal in the sense that it was a factor in the minds of the employers. Put another way, the real reason for dismissal was not exclusive of all other matters and a bogus reason does not necessarily shut out the employer completely if there was material to support the reason relied upon. We conclude, therefore, that the employee's conduct ought to be considered not only with reference to incompetence but also with reference to misconduct. In our view the weight to be given to the employee's conduct ought to be decided in a broad common sense manner."
In our judgment the principle there set out applies in this case too. Having found the reason for the dismissal, it was for the Tribunal to decide whether there had been blameworthy conduct and whether that conduct played any part at all in the history of events leading to dismissal. Whether the giving of the final written warning, followed by the creation of a bogus reason for dismissal, broke the chain of causation so that any preceding blameworthy conduct could not be said to have caused or contributed to the dismissal was a question of fact to be decided by the Tribunal.For these reasons we conclude that the Tribunal erred in law in failing to consider the issue of contributory fault and that the first ground of Swallow's appeal must succeed.

New point on appeal

We said, at the beginning of this judgment, that on this issue there is a wealth of authority; but that wealth has been helpful synthesised and set out in a series of principles by the EAT (HHJ McMullen QC) in Secretary of State for Health v Rance [2007] IRLR 665); and it is not necessary, for the purposes of this appeal, to look beyond the application of those principles. They are set out in paragraph 50 of the EAT's judgment. We do not need or propose to repeat them here; we adopt that paragraph in full.How should those principles be applied in this case? Mr Lewis submitted that there were exceptional circumstances here in that Swallow were unrepresented and were in the position of a litigant in person, that a litigant in person could not be expected to know or identify contributory fault as a discrete legal issue, that contributory fault was clearly relevant to the assessment of compensation and that the material required for a decision as to contributory fault had all been considered by the Tribunal, who would require no further evidence if the issue were remitted to them. He further submitted that, on the Tribunal's findings of fact, a reduction for contributory fault was inevitable.As to there being circumstances in which the discretion which undoubtedly exists, although rarely to be exercised, could be exercised in this case Mr Lewis relied on subparagraphs (6)(b), (d), (e) and (f) of paragraph 50 in the judgment in Rance . Mr Massarella submitted that this was not a case in which a finding of contributory fault was inevitable, i.e. in which on this issue Swallow had a "knockout point"; for Mr Lewis had not invited us to substitute our view, based on the findings of the Tribunal, of contributory conduct but sought only a remission, that pursuant to the decision of the Court of Appeal in Leicestershire County Council v Unison [2006] IRLR 810 , encapsulated in sub-paragraph (7)(d) of paragraph 50 in Rance , the Tribunal on remission would have at least to make a new evaluation and assessment of the factual material before them in order to decide the contributory fault issue, that therefore the Tribunal was not in possession of all the necessary material and that there would be no glaring injustice in refusing now to allow Swallow to rely on a point which they could have raised but failed to raise before the Tribunal.In our judgment this is not a case of an obvious knockout point. While in some respects it may be difficult for Mrs Millicent successfully to contest a finding of blameworthy conduct - as we have earlier indicated - there are issues of causation which the Tribunal must resolve, and in any event the extent of any contribution must be resolved by the Tribunal. It would not suffice if Swallow were to be able to show that some finding of contributory and causative blameworthy conduct was inevitable. While we do not doubt that all the necessary evidence was before the Tribunal, the Tribunal, when they come to consider the issue of contributory fault, must inevitably embark on the task of the evaluation and assessment of that material; and if we are wrong on the first point in this appeal so, that the issue of contributory fault not having been raised by the parties, it was not incumbent upon the Tribunal to raise it, we can see no glaring injustice in the result.In short, in our judgment this is not a case in which the circumstances are exceptional or in which any of the sub-paragraphs relied upon by Mr Lewis can prevail over the clear principle set out by the Court of Appeal in Leicestershire and summarised in sub-paragraph (7)(d) of paragraph 50 in Rance .For those reasons, had we come to a different decision on the first point in this appeal, we would have dismissed the appeal.

Conclusion

However, for the reasons we have set out earlier, the issue of contributory fault must be remitted to the same Tribunal for their consideration and decision. Neither party has suggested that any new evidence is needed; each party must be entitled to make submissions to the Tribunal on the remitted issue. The parties may care to agree or the Tribunal may wish to order that, in order to save time and costs, such submissions should be made in writing but, absent agreement, that is a matter for the Tribunal to consider.