MR B ARYEETEY v TUNTUM HOUSING ASSOCIATION [2009] UKEAT 0324_08_0804

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0324_08_0804Case No Appeal No. UKEAT/0324/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR B ARYEETEYAPPELLANTTUNTUM HOUSING ASSOCIATIONRESPONDENT
Before
Mr Justice SilberLord Morris of Handsworth Oj Mr T StanworthDate 8 April 2009
[1]APPEARANCES For the Appellant MR BENJAMIN ARYEETEY (The Appellant in Person) For the Respondent Mr Daniel Tatton-Brown (of Counsel) Instructed by: Croner Consulting Litigation Department Croner House Wheatfield Way Hinckley Leics. LE10 1YG SUMMARY UNFAIR DISMISSAL: Compensation VICTIMISATION DISCRIMINATION: Whistleblowing The Claimant was dismissed from his post as the Respondent's Finance Director by its Chief Executive. The Claimant brought a number of claims including one for unfair dismissal which was based on the allegation that the principle reason for his dismissal was the fact that he had made protected disclosures. The Employment Tribunal held in the liability decision that the Claimant's dismissal was unfair pursuant to the whistle-blowing provisions. The Employment Tribunal held that the Polkey principle did not apply but it reduced the Claimant's compensatory award by 25% on account of the Claimant's contributory fault. At the time of the subsequent remedies hearing, the Claimant had engaged in a sustained campaign to show that the Respondent's Chief Executive was dishonest. The Housing Corporation had found that there was no evidence of dishonesty. On 16 April 2007, the Claimant wrote to Nottingham Police with copies to other bodies alleging that the Chief Executive was guilty of not only fraudulent accounting but also possibly theft. The police subsequently carried out investigations and found that there was no case for the Chief Executive to answer as his innocence had been proved. The Employment Tribunal held that the Claimant's motive was a vendetta and that the Claimant could not have had a reasonable belief in the truth of the accusation that the Chief Executive was dishonest. Therefore they considered that if the Claimant had remained in the employ of the Respondent then certainly by the time of his letter to the Police of 16 April 2007, the respondents would not have been acting unfairly in dismissing him for persisting in making the disclosures. So the cut-off point for the claim for compensation was 16 April 2007. The Claimant appealed and the Appeal Tribunal unanimously held that:-(i) the Employment Tribunal was not precluded from the findings at the liability hearing (and in particular that the Polkey doctrine did not apply) from deciding in the light of developments after the liability hearing that the Claimant could have been fairly dismissed when he sent the letter of 16 April 2007 to Nottingham Police;(ii) There was nothing unfair in the procedure adopted by the Employment Tribunal in reaching that decision especially as the complainant did not complain at the time of the remedies hearing;(iii) The findings of the Employment Tribunal that (a) the Claimant's complaint to the police was motivated by vendetta and an obsession to destroy the Chief Executive and (b) that by the time the complainant complained to the police he could not have a reasonable belief in the truth of the accusation that the Chief Executive was dishonest meant that the Claimant could not rely on Darnton v The University of Surrey [2003] IRLR 133 and Street v Derbyshire Unemployed Workers Centre [2005] ICR 97 ;(iv) There was no error of law in the decision of the Employment Tribunal in not finding the Chief Executive guilty of dishonesty; and(v) Many of the challenges by the Claimant were to factual conclusions which the Employment Tribunal as the designated fact-finder was entitled to reach. THE HONOURABLE MR JUSTICE SILBER I Introduction The main issue raised on this appeal is whether the Employment Tribunal in its decision of 23 April 2008 was entitled to conclude that the Mr. Benjamin Aryeetey ("the Claimant") should not receive any compensation in respect of his unfair dismissal claim in respect of the period after 16 April 2007 which is when the Employment Tribunal considered that the employee could have been dismissed as he had written to the police showing " his obsession to destroy [the chief executive of his employers] … [he] had become unreasonably obsessed and gone over the borderline from good faith into bad faith in persisting with his allegations".[2]The case for the Claimant is that the Employment Tribunal made errors of law in reaching that conclusion because of previous findings by the Employment Tribunal relating to the application of Polkey and other matters when considering whether the Claimant had been unfairly dismissed. The Claimant's former employers Tuntum Housing Association ("the Respondent") disagree as they contend that the Employment Tribunal was entitled to reach the conclusion which it did. We will describe the parties by the role they had in front of the Employment Tribunal. The Claimant has appeared in person and he has conducted his case with commendable skill and courtesy. II The Liability Hearing[3]The Claimant was dismissed on 26 July 2005 from his post as the Respondent's Finance Director by its Chief Executive, who was, and indeed still is, Mr Richard Renwick. The Claimant brought a number of claims against the Respondent in the Employment Tribunal including one for unfair dismissal, which was based on the allegation that the principal reason for his dismissal was the fact that he had made protected disclosures. He also alleged that he had suffered detriments, short of dismissal, as a result of his having made protected disclosures. These various claims were upheld in the Employment Tribunal's decision on liability, which was promulgated on 12 December 2006 ("the liability decision") and which also held that the Claimant's dismissal was unfair pursuant to the whistle-blowing provisions. The Respondent appealed unsuccessfully against the liability decision to this Appeal Tribunal.[4]To understand the submissions on this appeal, it is only necessary to record that in the liability decision, the Employment Tribunal found that:(a) There were relevant protected disclosures made by the Claimant. In consequence he suffered detriments, which were first that the Claimant was asked to apologise to Mr Renwick (paragraph 15.3 of the liability decision), second that he was suspended on 20 April 2005 (paragraph 22.4 of the liability decision) [page 10] and third that he was dismissed.(b) The Claimant's compensatory award should be reduced on the ground of the Claimant's contributory fault by 25 per cent (paragraph 27.9 of the liability decision). This finding was not challenged by the Claimant on appeal; and(c) " The Polkey principle does not apply as being too remote " at paragraph 28.4 of the liability decision. It reached this conclusion having recognised that " the Board would have needed to address the claimant on his general manner " (paragraph 28.3); there were personality issues that needed to be urgently addressed (paragraph 28.2); and that " if the claimant had not improved his communication skills and had not got on top of dealing with matters in a more efficient way, then ultimately it might have to be him that [sic] would have been dismissed " (paragraph 28.4). The Tribunal reached its conclusion on the Polkey point before the decision of the Employment Appeal Tribunal of Software 2000 v Andrews [2007] ICR 825 had been reported. III The Remedies Decision[5]A remedies hearing took place on 7 April 2008 with one day having been allocated for this hearing. There was insufficient time on that occasion for the Employment Tribunal to hear evidence on all issues concerning the assessment of the compensation to which the Claimant was entitled. Instead, the Employment Tribunal made findings on some key issues; the hope being that in the light of those findings, the parties would then be able to agree the Claimant's compensatory award.[6]No objection was taken by either party at the time or by the Claimant in this appeal to the approach adopted by the Employment Tribunal. That approach explains why the judgment is described as an interim judgment but it is important to appreciate that the judgment is " interim " in the sense that, in the absence of agreement, subsequent findings would be necessary (for example as to mitigation) before a final determination as to compensation could be made. It is not " interim " in the sense of being " provisional ". The findings that have been made are final and determinate of the Employment Tribunal.[7]The Employment Tribunal decided ("the remedies decision") at the remedies hearing that:-(a) it was not appropriate to order reinstatement or re-engagement of the Claimant;(b) the Claimant was entitled to £6,000 for injury to feelings for a detriment, short of dismissal; and that(c) it would not be just and equitable to award compensation beyond 16 April 2007.[8]There is no appeal by the Claimant against findings (a) and (b) .The only aspect of the remedies decision, which is being appealed is order (c), which was that:
"3.7…it would be unjust and inequitable in those circumstances to allow the Claimant future losses all the way through until the age of 65. We have concluded that the cut off point should be when he decided to pursue matters with the Police Force on 16 April 2007."
IV The Issues on the Appeal[9]To understand the basis of this appeal, it is necessary to appreciate that the Employment Tribunal had already determined the application of Polkey in its decision of 12 December 2006. At paragraph 28.4 of the liability hearing, it held that: "As to how this would plan out, would depend on the responses of Mr Renwick and Miss Cox on one hand, and conversely the Claimant. As to what would have been the likely outcome had all the above taken place is of course speculative. Given the imponderables in all this and the uncertain time frame, it follows that Polkey principles does not apply as being too remote."(p114)[10]The grounds of appeal are that:(a) The Employment Tribunal misdirected itself as its decision on the remedies hearing that the cut-off point for the Claimant's compensation was 16 April 2007 because of the Claimant's post–dismissal conduct was inconsistent with its decision at the liability hearing first that the Polkey principle would not apply and second that the Claimant had acted in good faith ("the Polkey point");(b) There were procedural irregularities as the Claimant was not prepared to deal with the suggestion that there should be a cut-off point at the remedies hearing ("the remedies procedural point");(c) There were misdirections as to the scope and application of the principles in Darnton v University of Sussex and in Street v Derbyshire Unemployed Workers Centre [2004] IRLR 687 CA ("the Darnton/Street point");(d) The Employment Tribunal failed to apply properly the Software principle ("the Software issue"); and (f) The Employment Tribunal made an error of law in (i) rejecting the claimant's claim that Mr. Renwick's use of the credit card could have been for personal purposes and criminal; and (ii) regarding the date of the claimant's complaint of this to the police of 16 April 2007 as the cut-off point ("the complaint to the police issue"). V The Polkey Issue[11]The first ground of appeal is that the Employment Tribunal misdirected itself in the remedy decision when it fixed 17 April 2007 as the cut-off point for the Claimant's right to recover compensation because this finding was not consistent with the earlier decision at the liability hearing. It is contended that at that liability hearing the Claimant was judged to have acted in good faith and that the Polkey principles would not apply. In support, it is said by the Claimant that the matter was res judicata first, because the determination by the Employment Tribunal at the liability hearing meant that the Polkey issue was res judicata , second, that that decision was not expressed to be provisional and third, that in consequence the Employment Tribunal could not consider it afresh.[12]We are unable to accept this submission because first at the liability hearing the Tribunal was not dealing with remedies and second it only made its original observations regarding a Polkey reduction based on the evidence which it had then heard. It is important to stress that this finding at the liability hearing did not mean that the Employment Tribunal was obliged to ignore any new evidence, which had become available to it by the time when it came to assess compensation. Indeed, on the contrary, the Employment Tribunal was entitled and obliged to do so because "the tribunal assessing the extent of the victim's loss and damage should do so on the basis of the evidence available at the time of assessment" ( per Pill LJ in Richmond Adult Community College v McDougall [2008] IRLR 227 , 231 [25]).[13]In support of this conclusion, we stress that an Employment Tribunal has to consider a number of questions at different stages. There are two which are relevant to this appeal. The first is to determine if a dismissal is unfair on procedural grounds and it is then necessary to ascertain what would have happened to the unfairly dismissed employee if he had not been dismissed at that time. Section 98A (2) of the Employment Rights Act 1996 ("ERA") provides in so far as is material to this appeal that:
"[A]. failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of subsection 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure."
[14]The significance of this provision was explained by Elias P in the Software case (supra) in the following manner:- "14. This means that if the employer satisfies the tribunal on the balance of probabilities the employee would have been dismissed even had fair procedures been adopted then the dismissal must be held to be fair. If the tribunal finds that there would have been a chance of such a dismissal but falling short of 50%, then the tribunal must find that the dismissal was unfair but reduce the compensation accordingly in line with the Polkey decision itself". (Pages 831 – 832)[15]The second and totally separate duty of the Employment Tribunal arises at the remedies hearing when it comes to assess the compensation payable to the Claimant. At that stage, the Employment Tribunal had to apply section 123 of the ERA which sets out how the compensatory award should be calculated and it provides that: "..the amount of the compensatory award shall be such an 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".[16]In our view the Employment Tribunal was quite entitled to take account of developments that occurred after the liability hearing in fixing compensation notwithstanding its conclusions on the Polkey point and the Claimant's good faith at the liabilities hearing for five overlapping reasons which are that:-(a) Section 123 of the ERA contains no such limitation either expressly or impliedly;(b) On the contrary, section 123 of the ERA requires the Employment Tribunal to consider all relevant matters in assessing the loss flowing from the dismissal;(c) If the Claimant's submission was correct, it would mean that section 123 of the ERA would have to be rewritten so as to state that matters occurring after the liability hearing and/or any conclusions on a Polkey issue at a liability hearing could not be taken into account in determining compensation;(d) No authority has been cited to support the Claimant's case that the Employment Tribunal was precluded by its decision on the Polkey point from considering matters which arose after the liabilities hearing when it had to assess compensation. Indeed this submission runs contrary to the Richmond case referred to in paragraph 12 above; and(e) Very strange and unacceptable consequences would follow if the submissions of the Claimant were correct, in cases which an employer had been found to have unfairly dismissed an employee in circumstances in which there was no Polkey deduction. The Employment Tribunal would not in such a case have been entitled to take account of the fact that after the liability hearing, the employee had been arrested and had been incarcerated for a substantial period with the result that his employment would have ceased on the day after the liability decision.[17]These factors show that the doctrine of res judicata is not applicable if as in this case, the evidence at the remedies hearing was different from that at the liability hearing. We consider that the Employment Tribunal was quite entitled when assessing compensation to take account of all matters which arose before the remedies hearing if they related to its duty under section 123 of the ERA especially as in the words of Elias P in Software (supra) "in the normal case that requires it to assess for how long the employee would have been employed but for the dismissal " ([54] (1) at page 836).[18]As we have explained, the Employment Tribunal selected the date of 16 April 2007 as the cut-of point for the Claimant's compensation claim. The Employment Tribunal explained in the remedies decision that at the liability hearing, it had concluded that: "it was too speculative for us to say the claimant would have been dismissed at some juncture... We worked on the assumption that doubtless the claimant would accept our findings and that there would have been on the Polkey principle the drawing of a line in the sand so to speak" ([2.5]).[19]The Employment Tribunal then explained that this assumption has not turned out to be accurate because crucially the Claimant had made attempts to revisit: "our conclusion that we believed the evidence of Mr. Allcock [who was the respondent's accountant] and that, therefore, although there were accounting regularities, there was not dishonesty. Suffice to say that none of the documentation that he produced, insofar as it related to matters post our adjudication, supports a finding of dishonesty." ([2.6])[20]The Employment Tribunal noted that although the Housing Corporation decided that it would carry out a further audit on the Respondent not because it disbelieved Mr Allcock but because the Claimant was pressurising for an inquiry. So Messrs Atkinson were appointed by the Housing Corporation and " again they found no evidence of dishonesty " ([2.7]). The Housing Corporation subsequently reported back that it found no evidence of dishonesty. The Claimant then made a complaint to the Ombudsman, who appointed an Independent Complaints Reviewer, whose report was not before the Employment Tribunal and who did not give evidence to the Employment Tribunal.[21]The Claimant then raised the matter of Mr. Renwick's behaviour with the Nottingham Police and the Metropolitan Police with a letter of 16 April 2007. The Employment Tribunal said of this letter that "he [that is the claimant] was absolutely clear in alleging that Mr Renwick was guilty of not only 'fraudulent accounting' but 'and possibly theft'" ([2.10] ). As we will explain, the police found as they explained in a letter to Mr. Renwick of 15 February 2008 that their investigation "... is proving your innocence in that there is no case to answer for any of the [claimant's] allegations ".[22]The Employment Tribunal then considered the position and explained that:
"2.14 We can then factor in that the claimant has reported both Mr Allcock and his firm of accountants to their professional body, and essentially over their investigation, and despite the finding of no dishonesty by Mr Renwick by at least three other investigations. He has complained about the Housing Corporation's handling of matters to an independent complaints reviewer and who has not upheld his complaint. He has sought to use the Press, as we saw from the bundles before us to conduct what has become a witch hunt against Mr Renwick. In that respect, having repeatedly failed to directly answer the question as posed to him by Counsel, when this Employment Judge summarised it, perhaps not in judicial language, and asked the claimant during today's hearing if he was saying that to this day he believes that Mr Renwick is "bent"
. He was adamant in confirming that he did".[23]The approach of the Employment Tribunal was then:
"2.15 Against that background, the Tribunal has no doubt, and moving back to paragraph 27.5 of our first reasons, that whereas at that stage we could find that the claimant was acting in good faith, and for the reasons that we set out, manifestly this was not the case by the time he complained to the Police Force. By then his motive had become one of a vendetta. His obsession is to destroy Mr Renwick and have him removed from the Respondent Housing Association. There is no doubt that he would see himself as then having the right to take over running Tuntum. We see that as the underlying reason for his first application requiring reinstatement. We go back to the authority we referred to in paragraph 8.6 of those reasons, namely Darnton v The University of Surrey [2003] IRLR 133 EAT. At latest by the time he complained to the police force he would not have had a reasonable belief in the truth of his accusation that Mr Renwick was dishonest. And, by then it is self-evident that his ulterior motive, namely to destroy the reputation of Mr Renwick with his false accusation, was the "dominant or predominant purpose of making any disclosures"
. That engages the authority of Street V Derbyshire Unemployed Workers Centre [2004] IRLR 687 CA. 2.16 Thus if the claimant had remained in the employ of the Respondent, then certainly by the time of his unreasonable disclosure to the police, it would not have been acting unfairly in dismissing him for persisting in making the disclosures. We agree with counsel that the Claimant's unreasonable and vexatious obsession would so undermine any trust and confidence as to render a continued employment relationship untenable."[24]The Employment Tribunal then considered the question of the compensation payable to the Claimant for his unfair dismissal and adopting the guidance from the Andrews case (supra), it found that:- "it would be manifestly unjust and inequitable if we did not have regard in assessing future loss to the evidence now available at the time of the last hearing. It directly impacts upon the causative issue and the claimant's contention that he should receive losses all the way until he reaches the age of 65 as if he had remained in the employment [of the respondent]." [3.5][25]The conclusion of the Employment Tribunal was that:
"3.6 We conclude given the new evidence and indeed the testimony before us of the Claimant today, that the employment relationship, even if the attempts as set out in our reasons at 28.2 had been pursued and the financial controls, for example, tightened up, was doomed to end eventually and because the claimant had become unreasonably obsessed and gone over the borderline from good faith into bad faith in persisting with his allegations. 3.7 It follows that we are wholly persuaded by counsel that it would be unjust and inequitable in those circumstances to allow the claimant future losses all the way through until the age of 65. We have concluded that the cut off point should be when he decided to pursue matters with the Police Force on 16 April 2007"
[26]We have no doubt that the Employment Tribunal was quite entitled to reach this conclusion and it is noteworthy that both the non-lawyer members of the Employment Appeal Tribunal hearing this appeal, who have very substantial experience of human resources matters, both consider first that the conclusion of the Employment Tribunal was clearly correct and cannot be criticised in any way and second that any other conclusion would have shown a serious failure to understand industrial relations.[27]If, which is not the case, we had been in any doubt about this issue we would have been fortified in coming to the same conclusion by the comment of Elias P in the Software case that " an appellate court must be wary about interfering with the tribunal's decision 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" ([54(5)]). This decision does not call for any such interference and we reject the Claimant's complaint on this issue as the Employment Tribunal was obliged when assessing compensation to consider all relevant matters including those which had occurred after. VI The Remedies Procedural Point[28]The Claimant also contends that there were procedural irregularities because he was not expecting to deal with any Polkey point at the remedy hearing and although he brought certain documents with him to the Employment Tribunal he had not brought comprehensive documentation. It is also said that the Claimant was cross-examined but no evidence was called from the makers of any of the documents relied on by the Respondent in support of their claims that the Claimant had been acting vexatiously and unreasonably. Further it is said that the Claimant was not given the opportunity to call evidence in support of his claim that he was acting in good faith.[29]We are unable to accept that those criticisms of unfairness to the Claimant for five overlapping reasons which individually and cumulatively show that the Claimant has not been prejudiced by the procedure adopted by the Employment Tribunal.[30]First the main issue that had to be determined at the remedies hearing was the Claimant's application for reinstatement and that decision necessarily involved considering the ability of the Claimant to be reinstated and to work with the Chief Executive Mr. Renwick. This in turn meant that the Employment Tribunal had to consider the Claimant's conduct towards Mr Renwick. Indeed, it was this evidence which was the basis of the Employment Tribunal's decision not to award the Claimant compensation beyond 16 April 2007. Indeed, we agree with the case for the Respondent that the Claimant cannot have been taken by surprise by the fact that the Employment Tribunal would consider the issue of the length of future losses that it was just and equitable at a hearing listed to determine the remedy of the Claimant following a finding that he had been unfairly dismissed.[31]Second, it is noteworthy that the Claimant did not complain at the time of the remedies hearing that he was unable to deal with the issue which he now says that he was unprepared for. It is correct that the Claimant did make complaints of a different procedural irregularity in his Notice of Appeal but that ground of appeal was not permitted to be proceeded with by Wilkie J at the Rule 3(10) hearing on 22 October 2008. The present alleged irregularity is not in the Notice of Appeal and so we cannot deal with it but, as we will explain, even if we had considered it, we would have rejected it.[32]Third it is difficult to see how the Claimant had been prejudiced because the evidence (which was adduced in relation to the cut-off point for the Claimant's compensation claim) came from the Claimant. This included his letter of complaint to the police and his view that Mr. Renwick was " bent ". Thus we reject the contention that the Claimant has been prejudiced.[33]A fourth reason why we reject the complaint of the Claimant is that he has not shown what he would have done if this evidence had been disclosed well before the remedies hearing. The Claimant has not proved that he would have presented his case differently in front of the Employment Tribunal or that the result would have been different if at the remedies hearing he had been aware of the matters which he now says that was not prepared for.[34]A fifth reason is that it is noteworthy that the Claimant did not ask for an adjournment when the evidence about which he is now complaining was adduced. This is very surprising as it is quite clear to us that the Claimant is an intelligent man well able to look after his own interests. These are very significant matters as the Claimant is very articulate and forceful as we noted when he made his courteous but forceful submissions in front of us. It is true that the Claimant subsequently asked the Employment Judge to review his decision and that that was refused by a letter dated 28 April 2008.[35]For all those reasons we refuse the procedural complaint. VII The Darnton/ Street Issues[36]The basis of this ground is that the Claimant contends that the Employment Tribunal misdirected itself on the scope and application of the principle in Darnton v The University of Surrey [2003] IRLR 133 and in Street v Derbyshire Unemployed Workers Centre [2005] ICR 97 . The Claimant stated in his notice of appeal that these cases are relevant to the findings of the Employment Tribunal in paragraph 2.15 of its decision in which it states first that the Claimant's complaint to the police was motivated by vendetta and an obsession to destroy Mr Renwick and second that by the time the Claimant complained to the police, he could not have had a reasonable belief in the truth of his accusation that Mr. Renwick was dishonest.[37]The insuperable difficulty for the Claimant is that these findings of which the Claimant complains are findings of fact against which the Claimant cannot appeal as appeals to this Appeal Tribunal are limited to questions of law. It is rightly not suggested by the Claimant that these finding are perverse as he cannot show that they reach the high threshold for such conclusions which are set out in Yeboah v Crofton [2002] IRLR 634 .[38]In any event, neither Darnton nor Street assists the Claimant on this issue. In Darnton , this Appeal Tribunal held first that for the purposes of a protected disclosure, all the circumstances including the worker's reasonable belief have to be considered and second that the reasonable belief had to be based on facts as understood by the worker not as actually found to be the case. The question of whether there were protected disclosures had already been determined at the liability hearing and they were no longer in issue at the remedies hearing as the Employment Tribunal was then concerned with a separate issue of when the Claimant would have been dismissed and the findings of the Employment Tribunal of absence of good faith on the part of the Claimant when he wrote to the police means that the Employment Tribunal cannot rely on Darnton .[39]Similar reasoning explains why the Claimant cannot obtain any assistance from the decision in Street , which deals with the issue of proof of good faith in relation to protected disclosures when considering liability in an unfair dismissal case as the Employment Tribunal as the designated fact-finder had decided that the Claimant was not acting in good faith.[40]Therefore we are unable to accept the Claimant's criticisms of the Employment Tribunal's decision on this point. VIII The Software issue[41]It is said by the Claimant that the Employment Tribunal wrongly applied the decision of Software without having considered issues justly and equitably in all the circumstances and that it did not consider the losses sustained by the Claimant flowing from the dismissal.[42]This allegation is unparticularised and is not supported by the reasoning of the Employment Tribunal who in our view considered with care what would have happened to the Claimant if he had remained in employment. As we have explained they reached a decision clearly open to them on the facts and acted in accordance with the approach advocated in Software as we explained in paragraphs 14 and 17 above. IX The Dishonesty Issue[43]The Claimant contends the Employment Tribunal erred as it ought to have found Mr Renwick guilty of dishonesty. He contends that the Employment Tribunal should not have attached any importance to a letter from Sergeant Parkin of Nottingham Police Force who had investigated a complaint made by the Claimant in his detailed letter of 16 April 2007. That letter alleged that Mr Renwick was guilty of not only " fraudulent accounting " but " and possibly theft ". The letter was copied to the Chief Superintendent of Wandsworth police and the Claimant's Member of Parliament. Similar allegations were made to Alan Simpson MP and among others the Leader of Nottingham City Council and indeed in a further letter to the Housing Corporation on 25 April 2007.[44]After the Claimant wrote his letter to the police force on 16 April 2007 and because the Claimant had published his accusations to a number of people, the solicitors for Mr Renwick and the Respondent then wrote to the Claimant on 22 May 2007 asking for an unqualified withdrawal of the allegations that were made in the latest letter to the Police Force and an undertaking not to continue repeating such allegations.[45]They did so because: "you have made serious criminal allegations which have been widely published, clearly with the intent to procure burdensome investigations by a number of bodies into the affairs of our client. This is despite the fact you are aware, as your letter makes clear, that investigations into your allegations have been undertaken by the Housing Corporation which did not support your allegations".[46]By a letter dated 19 June 2007 the Claimant responded explaining:- "I have no intention whatsoever of withdrawing any of the complaints that I have made to the police and would repeat them at any time I feel appropriate until the police have carried out proper and complete investigations into the financial irregularities and the reasons for my actions are as follows".[47]The Claimant in his letter then set them out and in the words of the Employment Tribunal " it is absolutely clear that he is relishing the opportunity of confronting Mr Renwick on all of the matters in that if it goes to court 'he will fall on his own sword of truth '".[48]The end of the police investigation was set out in a letter dated 15 February 2008 to Mr Renwick in which it stated:- "there is no evidence whatsoever of any criminality or possible criminal practices having been committed by you of any of the reported allegations by Mr Aryeetey… I would reiterate that such an investigation has the power to prove innocence as well as guilt. In this case it is proving your innocence in that there is no case to answer for any of the allegations. We can only apologise for the stress this investigation has caused you and I hope you feel reassured that my investigation as a public servant as a police officer has proved your innocence… please find enclosed a copy of a letter I have sent to Mr Aryeetey. As I explained during our meeting he will not be able to expand any further on the allegations he has already made. However if he does make fresh allegations I will have a responsibility to investigate them and if they are also found to be misleading and unsubstantiated, these allegations can be used as evidence to support police action against him for harassment if you decide to pursue such course of action."[49]The Employment Tribunal noted that the Claimant had not accepted the conclusions of that investigation and that he had persisted in them in front of the Employment Tribunal even though he had no further evidence and the police investigation marries that of the preceding investigation.[50]The case for the Claimant is that the Employment Tribunal was wrong to criticise him for continuing to contend that Mr Renwick did have a personal gain in the misuse of the Respondent's funds. We consider that the Employment Tribunal was entitled to reach that decision especially in the light of the result of the police investigation. Again it must not be forgotten that appeal from the Employment Tribunal cannot be brought on factual issues and that is what the Claimant is seeking to do on this issue even though there was evidence which entitled them to reach the conclusions which they did.[51]Furthermore the task of the Employment Tribunal was to ascertain when the Respondent would have been entitled to dismiss the Claimant. Their view, as we have explained, is that by the nature of the allegations made by him against the Chief Executive he could not have expected to have continued to have been employed after sending the letter of 16 April 2007 to Nottingham Police. They took the view that the Claimant had " gone over the borderline from good faith into bad faith in persisting in his allegations " We consider that conclusion totally justified and there certainly is no error of law in it because the Employment Tribunal was quite entitled to consider this. Thus we reject that ground.[52]The Claimant seeks to challenge the decision of Nottinghamshire Police that there was no criminality involved. It is said that it was based on the report of Roger Spencer but that is not correct because the letter from Nottinghamshire police explains that " various individuals and outside organisations have been contacted during my enquiries and independent reports consulted ".[53]Those enquiries led to the conclusion that Mr Renwick was totally innocent and therefore the accusations made by the Claimant were erroneous.[54]It was not the task of the Employment Tribunal to ascertain if Nottinghamshire Police were correct at the remedies hearing. Their task was to ascertain what would have happened if the Claimant had not been unfairly dismissed and their view was that the Respondent would have dismissed him and be entitled to dismiss him on account of his letter to Nottinghamshire Police. It must not be forgotten that the Employment Tribunal was the fact-finding body and they were entitled to reach the conclusion to which they did. Conclusion[55]Notwithstanding the detailed and sustained submissions of the Claimant, we have come to the conclusion that this appeal must be dismissed. As we have explained, many of the Claimant's submissions are based on disputes with the factual conclusions to which the Employment Tribunal as the designated fact-finder was entitled to come and which cannot be challenged in this Appeal Tribunal.