Appeal No.UKEAT/0660/04/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 December 2004

Before
THE HONOURABLE MR JUSTICE RIMER
MR D BLEIMAN
MRS A GALLICO

RIPPLE DEVELOPMENTS LTD	APPELLANT

MR R J MITCHELL	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR PAUL GILROY
(of Counsel)
Instructed by:
Messrs Mills & Reeve Solicitors
Midland House
54 Hagley Road
Edgbaston
Birmingham
B16 8PE	
For the Respondent	MR R J MITCHELL
(the Respondent in Person)	

SUMMARY

Whether the employment tribunal misdirected itself as to the burden of proof and the assessment of written evidence in a remedy hearing as to compensation for unfair dismissal.

THE HONOURABLE MR JUSTICE RIMER

1.	This is an appeal against the decision of an employment tribunal at a remedy hearing held at Manchester over three days, in January, April and June 2004 and chaired by Mr J D Brain.  The tribunal’s extended reasons were sent to the parties on 23 June, when the decision was entered in the register.  The applicant was Mr Richard Mitchell, and the respondent his former employer, Ripple Developments Ltd (“Ripple”).  At a liability hearing on 17 July 2003, with extended reasons being sent to the parties on 5 August 2003, the same tribunal had found that Mr Mitchell had been unfairly dismissed by Ripple, but had contributed to his dismissal to the extent of 40%.  The remedy hearing was concerned with the fixing of compensation for his unfair dismissal.  The tribunal awarded total compensation of £24,562.65, a figure arrived at after giving credit for a sum in respect of Mr Mitchell’s earnings during the period for which the tribunal was compensating him and reducing the gross figure by 40%.

2.	The appeal against that decision is by Ripple.  Ripple claims that the tribunal arrived at a perverse decision in making the finding they did as to Mr Mitchell’s earnings during the relevant period; that they misdirected themselves with regard to the burden of proof on mitigation of loss; that they adopted a perversely selective approach with regard to the admission of the written evidence of the parties; and that they misdirected themselves with regard to the evidence of a jointly instructed medical expert.  Ripple asks for the decision to be set aside and asks us either to substitute a lower compensatory figure or to remit the matter for a fresh hearing by a newly-constituted tribunal.  Mr Paul Gilroy represented Ripple before us, as he had before the tribunal, although only on the third day of the hearing.  Mr Mitchell appeared before us in person, as he also did before the tribunal.  

3.	Mr Mitchell was employed by Ripple as a design manager.  He was originally employed by them from 6 February 1989, at that time on a part-time basis when he was still at college, but later on a full-time basis, until he was summarily dismissed on 26 March 2001.  His contract of employment, signed in 1996, including a term prohibiting him, save with Ripple’s consent, from engaging in any occupation that would conflict with Ripple’s activities.  The troubles leading to his dismissal started in January 2001, when Mr Mitchell complained that his G3 Apple Mac computer was beyond repair, following which, Ripple replaced it with a G4.  Mr Mitchell took this computer to his home on 11 March 2001 in order to down-load material from the internet.  He later returned a G4 computer to his workplace, but it turned out that that G4 was not the one that Ripple had purchased, but his own computer.  He retained the Ripple G4 at his home, together with six 
re-writable CDs belonging to Ripple that he had taken home from work.  Ripple retrieved its own G4 from Mr Mitchell, only to discover from it that he had been working on it for another firm called Bacchus, although there was some uncertainty in the evidence before the tribunal at the liability hearing as to whether or not Bacchus was a competitor of Ripple.

4.	On 21 March 2001, Mr Wolfenden of Ripple wrote a letter to Mr Mitchell, informing him of a disciplinary hearing on 26 March and complaining of six matters, including complaints that Mr Mitchell had advised Ripple incorrectly that his G3 had been beyond repair; that he had confused Ripple’s G4 with his own; that he had worked for Bacchus at times which tallied with times when he should have been at work for Ripple but had arrived late, or when he had asked for time off for personal issues; that he had taken the CDs without permission and had performed his work poorly, causing a loss of business.

5.	Mr Mitchell’s response was that he believed the G3 to be beyond repair; that he had mixed up the two computers by mistake; that his poor performance was caused by the problems with the G3; and that he had not stolen the disks but had paid Mr Wolfenden for them when he had been confronted with the matter on 19 March.  He admitted having worked for Bacchus, but said it was in his own time.  

6.	On 26 March, following the disciplinary hearing, Mr Wolfenden wrote to Mr Mitchell dismissing him summarily for gross misconduct.  (The tribunal elsewhere, including in the remedy decision, refers to the dismissal as having been on 29 March, but both Mr Gilroy and Mr Mitchell agreed before us that the dismissal was in fact on 26 March, and nothing material anyway turns on that minor discrepancy).  The tribunal appears to have found that the ground for dismissal was that Mr Mitchell’s work for Bacchus had affected the performance of his work for Ripple.  He was not dismissal because Ripple believed he had deliberately switched the two G4s or for the mere fact that he worked for Bacchus.  For the reasons explained by the tribunal, they held that Ripple could not reasonably have believed that Mr Mitchell’s competing activities for Bacchus (which had been going on since about August 2000) had affected his work for Ripple, and that Ripple ought to have realised that it was, in part, to blame for his work problems by abrogating its responsibility to help him solve the problems with his G3.  They also found that Ripple had not carried out a reasonable investigation into the matters leading to Mr Mitchell’s dismissal.  They therefore found the dismissal to be unfair.  But they also found Mr Mitchell to have made a 40% contribution to his dismissal by his negligent mixing up of the two G4s and by working for Bacchus, whether or not that organisation was a competitor.  The matter was then referred to a remedy hearing, and the tribunal concluded their reasons in relation to liability by saying in paragraph 42:

“The Tribunal respectfully reminds the parties, particularly [Mr Mitchell], that at the remedies hearing we will expect to hear evidence (supported by documentation) of the work that [Mr Mitchell] has undertaken and his earnings following his dismissal and his efforts to find alternative work.”

7.	The dismissal had been, as we say, on 26 March 2001, the liability decision was entered in the register on 5 August 2003, and the decision on the remedy hearing was entered in the register on 23 June 2004, over three years afte the dismissal.  The tribunal’s basic award was £2,880.00.  Their compensatory award compensated Mr Mitchell for 30 months’ loss of earnings between 29 March 2001 and 30 September 2003.  Their starting figure for that computation was £1,263.00, being Mr Mitchell’s admitted net monthly earnings at Ripple.  That computation totalled £37,890, to which the tribunal added £900 of lost employer pension contributions over 30 months and they also awarded him £250 for loss of his statutory right not to be unfairly dismissed from any future employment.  In arriving at the final figure, and before applying the 40% reduction, the tribunal gave Ripple credit for the only earnings they found Mr Mitchell to have made, being £982.25 earned between April and June 2003.

8.	The appeal against that decision is not a wholly straightforward one, involving, as it does, accusations of perversity at the tribunal’s decision.  Two key issues at the hearing were the true level of Mr Mitchell’s post-dismissal earnings and whether he had reasonably mitigated his loss.  Ripple alleges that the tribunal did not attach the consideration they should have done to the fact that Mr Mitchell lied to the tribunal, both about his post-dismissal earnings and about the details of his criminal conviction for benefit fraud.  The latter point can perhaps be regarded as strictly collateral to the particular issues with which the tribunal were concerned but Ripple’s complaint is that the tribunal were irrationally dismissive of these lies when assessing Mr Mitchell’s evidence as a whole.  We will first deal with the matter of the criminal conviction.  

Mr Mitchell’s statement to the tribunal about his criminal conviction

9.	On 3 October 2002, Mr Mitchell was sentenced by a Magistrate’s Court to a four-month term of imprisonment for benefit fraud.  He appealed against his sentence, which was overturned by the Crown Court.  On the first day of the hearing, which was 9 January 2004, Mr Mitchell told the tribunal, although he was not under oath when he did so, that he had altered a single Giro payment so as to correspond with a mortgage payment he had to meet, and that he had successfully appealed against both conviction and sentence.  

10.	At the conclusion of the first day’s hearing, on 9 January, the matter was adjourned to 30 April.  In the meantime, Ripple investigated the matter of Mr Mitchell’s conviction.  They found that he had been convicted not of altering just one Giro payment, but that he had committed several offences of a relatively sophisticated nature, involving the scanning of a Giro into a computer and creating five false instruments.  The offences covered the period 18 October 2001 to 6 June 2002.  In addition, contrary to what he had told the tribunal on 9 January, he had not appealed against his conviction, he had appealed only against his sentence.  Mr Lister put these matters to Mr Mitchell on the adjourned hearing on 30 April, who admitted that he had misled the tribunal on 9 January as to the nature of the conviction and as to the assertion that he had successfully appealed against that conviction.  The tribunal referred to these matters in paragraphs 9 to 11 of their reasons.  They had explained in paragraphs 7 and 8, that Mr Mitchell’s loss of income from Ripple following his dismissal resulted in his getting into difficulties with his bank, at which he had built up a large overdraft, and with paying his mortgage payments to his building society.  The tribunal said that matters became so bad that Mr Mitchell had to resort to the frauds of which he was convicted.  

11.	Mr Gilroy’s submission is that Mr Mitchell’s statement about his conviction and appeal on 9 January was untruthful, although it is recognised that that statement was not made under oath and did not, therefore, amount to perjury.  There is no suggestion in the tribunal’s extended reasons that this is not a fair summary of the position with regard to the statement by Mr Mitchell about his criminal conviction, although the tribunal nowhere describe it as a lie in their explanation of this and other lies that Mr Mitchell told them.  In particular, the tribunal do not suggest that Mr Mitchell’s explanation of the matter on 9 January had just been the product of an unfortunate lapse of memory or a mistake.  The tribunal’s initial reference to the suggested relevance of these particular lies was expressed as follows, in paragraph 11:

“[Ripple] seized upon these inconsistencies (and others to which we shall turn below) as evidence that should taint the [Mr Mitchell’s] credibility in the view of the Tribunal.”

We comment that for the tribunal to describe Mr Mitchell’s admittedly untruthful statement as involving mere “inconsistencies” was charitable.

Mr Mitchell’s evidence with regards to his earnings

12.	Mr Mitchell’s case from the outset was that he had been involved in no gainful work since his dismissal on 26 March 2001.  At the hearing on 30 April, as the tribunal found in paragraph 12, his evidence was that he had done some voluntary work for a Mr Barden, who traded as “Sign Logic”, and the tribunal referred to Mr Mitchell’s witness statement, in which he described this as work which “was purely done on a therapy basis in order to start rebuilding brick by brick what had been demolished from around me”.  The sense of that statement was that the work was voluntary and unpaid.

13.	Ripple investigated this and the tribunal recorded in paragraph 12 that Ripple’s suspicions about whether the work was in fact paid for were heightened by the fact that invoices for Mr Mitchell’s work were rendered to Mr Dixon of Rochdale Metal Units Limited.  The tribunal explained that Mr Mitchell had not volunteered the information about the invoices, but that Ripple had found out about them from Mr Dixon.  What Ripple in fact unearthed were invoices showing that Mr Mitchell had been working for reward, for a period from 6 April to 10 June 2003, under the title “Pro Logic”, under the aegis of Mr Barden’s Sign Logic business, and had invoiced various third parties.  The total of the earnings revealed by the invoices was £1,273.75.  In answer to a written question from the tribunal, Mr Mitchell had disclosed some of that income, but none from a firm called Provincial Enterprises.  The invoices in fact required payment to “J Mitchell”, who was Mr Mitchell’s mother.  She gave evidence to the tribunal.  She said that £982.25 of the invoiced amounts had been paid to her account with Natwest Bank.  The total amount invoiced was apparently larger but she said that not all the invoices were paid in full.  The tribunal accepted that Mr Mitchell’s earnings for this work did not exceed £982.25, and that was the figure for which they gave Ripple credit in the computation of his loss.  

14.	Mr Gilroy’s submission to us was that the evidence before the tribunal was such that the tribunal simply could not rely on Mr Mitchell’s belated case, extracted out of him, in effect, by Ripple, that £982.25 was the total of his earnings. He had lied to the tribunal about the nature of his criminal conviction and about his appeal against that conviction, and had only admitted he had done so when confronted with the truth.  He had lied in his witness statement that the work he did was voluntary and had only admitted that it was not when confronted with the invoices.  He had failed to give a full and honest answer as to his earnings in response to the tribunal’s written question.  As the tribunal found in paragraph 30 of their reasons, he also lied to Professor Wilkinson, a jointly appointed medical expert, to whose evidence we will come, that he had only done a small amount of voluntary work.  Against this background of lies and concealment by Mr Mitchell, Ripple’s case to the tribunal was that his evidence that he had earned no more than £982.25 could not be relied upon.  

15.	By way of background, we should say that the tribunal referred, in paragraphs 
17 and 18, to how Mrs Mitchell utilised her own account to enable Mr Mitchell to run a business, the explanation for this being that her son’s financial circumstances were so strained that he could not obtain any banking facilities for himself.  In this connection, the tribunal recorded, in paragraph 17, that:

“Secondly, Mrs Mitchell told us that Mr Mitchell had received no benefit from the sums paid into her account by Rochdale Metal Units and Partnership Design.  She told us that the money was utilised to pay for car finance, equipment for a car utilised by Mr Mitchell for the benefit of his business and his mobile phone and for other equipment such as a cartridge for his computer.  Of the £982.25 paid into her account about £59 is left.”

We do not understand what Mrs Mitchell is recorded in that first sentence as having said, since it appears from the second sentence that Mr Mitchell did benefit from the relevant payments, as the tribunal appear to have accepted.  

16.	Turning now to the manner in which the tribunal dealt with the submission about the general reliability of Mr Mitchell’s evidence as to his earnings, the tribunal said this:

“19.  [Ripple], clearly, was seeking to urge upon the Tribunal a sinister motive on the part of Mr Mitchell for what was, a rather curious arrangement.  That Mrs Mitchell’s account was used for a benign motive is corroborated by the absence of any banking facilities being available to Mr Mitchell and, further, by the fact that Mrs Mitchell sought professional advice before embarking upon that course of action. 
20.  In the Tribunal’s view, it does [Ripple] little credit to try to impart a sinister motive to [Mr Mitchell], in circumstances where his considerable financial difficulties were largely, if not wholly, attributable to their decision to dismiss him in circumstances which the Tribunal found to be unfair.  In the circumstances, the Tribunal considers the real issue to be whether, in reality, [Ripple] could persuade the Tribunal that [Mr Mitchell] had in fact received far more money through Sign Logic than he had admitted to the Tribunal.  In support of this assertion, [Ripple] pointed to [Mr Mitchell’s] lack of credibility arising not only out of [Mr Mitchell’s]decision to channel money through his mother’s account, but also, on account of his criminal conviction for dishonesty, inconsistencies concerning the criminal conviction and that he had been less than forthright, not having divulged in evidence voluntarily details of the work which he had been undertaking to [Ripple] nor the Tribunal.
21.  We shall comment upon the reports of Professor Wilkinson later in this decision.  However, the Tribunal notes that prior to October 2002 [Mr Mitchell] had had no convictions for offences of dishonesty.  He told us that he had had a drink driving conviction.  Professor Wilkinson said in his report on 21st April 2004, at paragraph 17.15, that [Mr Mitchell’s] depressive episode (caused by his dismissal) was a cause of his offending behaviour.  Again, the Tribunal is of the view that it does [Ripple] little credit to argue that [Mr Mitchell’s] credibility is tainted by his having given inconsistent accounts to the Tribunal about the circumstances leading to and around the criminal conviction.  It seems to the Tribunal plain on the evidence that [Mr Mitchell] would not have taken to dishonest behaviour had it not been for his dismissal, a dismissal found to be unfair by the Tribunal.  Further, the Tribunal entirely accepts [Mr Mitchell’s] account that this was a most unhappy time for him and not a time which he will care to remember.  The memories of his arrest, trial and imprisonment must be very painful for [Mr Mitchell] and in the circumstances it is little wonder that before the Tribunal he tried to play down the extent of his offending. 
22.  [Ripple] sought to urge upon the Tribunal that an inference should be drawn against [Mr Mitchell] that his earnings were in fact considerably more than the amount of £982.25, found, as a fact, to have been earned by [him] between April 2003 and June 2003.  The Tribunal must reject this submission.  While it is the case that [Mr Mitchell] has not produced each and every bank statement postdating 29th March 2001, the Tribunal is entirely satisfied that [Mr Mitchell] would have been unable to utilise the bank account from the Autumn of 2001 anyway given the nature of the letters sent to him by Lloyds TSB. 
23.  Perhaps most telling of all, however, is that [Mr Mitchell] produced a witness statement from Andrew [Barden] which said that [Mr Barden] had invited [Mr Mitchell] to work for him as a therapeutic aid to get him back onto the road to recovery.  At the request of [Ripple], the Tribunal did make a witness order that [Mr Barden] should attend the Tribunal at the hearing [on] 4th June 2004 to give evidence.  [Mr Barden] being [Mr Mitchell’s] witness, it was open to [Ripple], accordingly, to cross-examine him.  [Ripple’s] solicitors faxed the Tribunal shortly before the hearing to advise that as far as [Ripple] was concerned, there was no need for [Mr Barden] to attend to give evidence.  Mr Gilroy told the Tribunal that [Ripple] did not want [Mr Barden] to give evidence as he was “clearly in Mr Mitchell’s camp”.  From this, we discern that [Mr Barden] was going to tell the Tribunal that he had not in fact paid anything to Mr Mitchell for the work that Mr Mitchell was doing for him.  It is unfortunate that [Mr Barden] did not appear before the Tribunal.  Mr Mitchell told us that he preferred to attend a family function.  [Mr Barden] can consider himself somewhat fortunate that the Tribunal is not going to refer to the appropriate authorities the fact of his disobedience of a witness order, he not having been released by the Tribunal.
24. Taking into account all of the available evidence, the Tribunal is not satisfied that [Ripple] has made out its case that [Mr Mitchell] was earning any monies over and above that found as a fact to have been earned during the period following his dismissal.  His bank statements post October 2001 show no entries other than entries relating to the imposition of charges and the like by Lloyds TSB.  An inference is drawn that [Mr Barden] would give evidence unfavourable to [Ripple].  [Ripple] accepted that Mrs Mitchell’s statements were all present and “in apple pie order” and yet [Ripple] was unable to point to any other entries in Mrs Mitchell’s account other than those identified which gave rise to any suspicion on their part.  For the reasons identified earlier in this decision, [Ripple’s] attempts to taint [Mr Mitchell’s] credibility on account of what he told the Tribunal about the criminal conviction are unconvincing.  That [Mr Mitchell] may have been less than forthright about his disclosure obligations is, in the Tribunal’s view, outweighed by the evidence of [Mr Barden] and the documentary record of the bank statements.  In all the circumstances therefore the Tribunal is of the view that [Ripple] is unable to show that [Mr Mitchell] has earned any or any significant monies over and above the sum found by the Tribunal for which [Mr Mitchell] should give credit.”

17.	In our view, there are several features about those paragraphs, which we have felt it right to quote in full, which reflect an element of error on the part of the tribunal.  First, the tribunal’s statement of “real issue”, in paragraph 20, is, in our view, a misstatement of the real issue.  The tribunal appear to have been of the view that the burden was on Ripple to prove that Mr Mitchell had earned more than he had belatedly admitted to.  In our view, that involved a misdirection as to the burden of proof.  The matter before the inquiry was an inquiry as to loss in consequence of an unfair dismissal.  It was for Mr Mitchell to prove his loss and, as part of that exercise, he had to disclose, and give credit for, all earnings he had made since his dismissal.  It was not for Ripple to prove what those earnings were; it was for Mr Mitchell to make a full and honest disclosure of them.  Of course, in a case in which an applicant makes what is apparently a full and comprehensive disclosure of earnings, but in which the respondent does not accept that the full picture has in fact been disclosed, the evidential burden of proving otherwise may, in practice, swing to the respondent.  But that was not this case.  This was a case in which Mr Mitchell had lied about his criminal convictions and appeal and had lied both to Professor Wilkinson and the tribunal that he had earned nothing at all.  It was only as a result of Ripple’s own efforts that he was forced to admit that he had in fact made some earnings.  Ripple’s point to the tribunal was that Mr Mitchell had been shown to be so dishonest that the tribunal could not, and should not, safely accept his evidence that he had not earned more than the £982.25.

18.	Secondly, the tribunal did not, in our view, engage in any proper assessment of the extent to which they could safely rely on Mr Mitchell’s evidence, in its ultimate form, as proving the limit of his earnings.  In paragraph 21, they even criticised Ripple for questioning his credibility by reference to the statement he had originally made about his conviction.  Their reasoning for that was that: (i) Ripple’s unfair dismissal had led to his depression; 
(ii) his depression had led him into crime; (iii) the whole experience of his conviction was a very painful one; (iv) it was, therefore, “little wonder” that he should “play down the extent of his offending” before the tribunal; and (v) as Ripple was the cause of events (i) to (iv), they ought not to have referred to his original statement about his conviction in resisting Mr Mitchell’s claim as to what his loss was.
19.	In our view, that reasoning was flawed.  Even accepting that Mr Mitchell’s depression and criminal offending can be referable to Ripple’s unfair dismissal of him, the fact remains that he did not just “play down” the extent of his offending before the tribunal; he lied to the tribunal.  He painted a false picture of himself as having been convicted of merely altering one Giro payment and as having had the conviction overturned on appeal.  He therefore painted a picture of himself as an honest man, with no conviction for dishonesty.  He thereby showed himself as not to be a man of truth.  It did not, of course, follow from that that he was also lying about everything else, and it is an elementary error to assume that merely because a witness is shown to have lied about one matter, he must also have been lying about another one.  But in this case, Mr Mitchell lied not only about his conviction and appeal; he also lied about matters which were at the heart of his claim, namely whether he had earned anything since his dismissal.  He even lied about that to Professor Wilkinson, a lie for which, in paragraph 30, the tribunal said they could see no justification.  At least some truth was dragged out of him when he was confronted with the invoices.  But Ripple’s point was that a witness as dishonest as Mr Mitchell was not one whose evidence should be accepted as reliable.  That was a perfectly proper point to take.  It did no discredit to Ripple to take it: they were entitled to take it, and we regard it as surprising that the tribunal appear to have been so ready to excuse Mr Mitchell for the dishonest manner in which he presented his case to them.

20.	Thirdly, in paragraph 22, the tribunal record a submission to the effect that, because of his untruthful evidence, a presumption should be drawn against Mr Mitchell that he had not told the whole truth.  That, again, appears to us to have been a perfectly proper submission.  There is a well-known Latin maxim, that it would probably now be improper to use, but which translates into English as “everything is presumed against a wrongdoer”, and Ripple’s point was that that principle should have been applied against Mr Mitchell, as someone whose lying on matters at the heart of the inquiry, in relation to matters which were exclusively or primarily within his own knowledge, made him a wrongdoer.  Their point was that the tribunal could not simply take Mr Mitchell’s evidence at face value, but had to take a broad view of what he had probably earned during the relevant period in arriving at its ultimate computation of compensation.

21.	The tribunal rejected that on the basis that even though, despite being ordered to, Mr Mitchell had not produced all his bank statements, the tribunal were satisfied, on the basis of other evidence, that he could not have used his bank account.  But in paragraph 23, the tribunal described the most telling evidence against Ripple’s submission as being that of Mr Barden (whose name they misspelled).  We have seen Mr Barden’s witness statement, which says that he offered Mr Mitchell an office within Sign Logic “purely as a therapeutic aid to get him back onto the road to recovery”.  That piece of evidence amounts to little more than a repetition of Mr Mitchell’s own evidence in his witness statement, found to be untruthful, that the work he was doing was of an unrewarded, purely therapeutic, nature.  We can see nothing in Mr Barden’s statement to the effect that Mr Mitchell received no reward for his work, or, if he did receive any reward, what it was.  But because Ripple had indicated that Mr Barden need not be called, the tribunal drew an inference that, had he been called, he would have given evidence on these matters supportive of Mr Mitchell on the issue of what, if any, payments he had received.  

22.	In our view, that was another error by the tribunal.  An indication by one party that it does not wish to cross-examine the maker of a statement put in by the other party does not justify an inference that, had he done so, the witness would have given evidence adverse to that party on some point not covered by the witness statement.  In the absence of cross-examination, the evidence of the witness will not extend beyond what he says in his statement, to which the tribunal will attach such weight as they think fit.  In our view, the tribunal were wrong to rely on their guess that, had he been called, Mr Barden would have said more than he did in his witness statement, and that that more would have been supportive of Mr Mitchell’s case that his earnings did not exceed £982.25.

23.	In this context, the tribunal therefore preferred the evidence that Mr Barden did not give to the evidence that was given in witness statements by Mr Dixon and Mr Booth.  As with Mr Barden, they did not give oral evidence either.  Mr Dixon’s evidence was that he had a telephone call from Mr Mitchell towards the end of 2002, in which Mr Mitchell told him he was undertaking work on behalf of Sign Logic.  He met Mr Mitchell at his office at Sign Logic’s premises, where he said Mr Mitchell had a fully working designer’s office, with usual design equipment, and that Mr Mitchell’s design plans were his, he having a very distinctive style.  The tribunal recorded that Mr Mitchell disputed this last point, saying that the designs were computer generated and not hand-drawn.  Mr Booth’s evidence was that he had met Mr Mitchell in February 2003 to discuss some design requirements.  His evidence was that Mr Mitchell told him that he was hoping to procure a substantial job for a chain of video rental shops, which the tribunal said was presumably the Provincial Design project.  The tribunal attached no weight to the evidence from Messrs Booth and Dixon, saying this, in paragraph 43:

“Mr Booth’s evidence is of limited value.  Mr Dixon was not before the Tribunal and therefore could not be challenged by the applicant upon the salient points of his evidence.  The Tribunal accordingly affords Mr Dixon’s evidence little weight.  Although Andrew [Barden] was not before the Tribunal, the Tribunal is of the view that it is entitled to afford his evidence more weight upon the basis that the respondent had issued a witness order compelling [Mr Barden] to come to the Tribunal to give evidence and had then decided that [Mr Barden] need not come and give evidence after all.  Adverse inference can therefore be drawn against the respondent and, as a consequence, [Mr Barden]’s written witness statement has more force than such documents usually carry.”

24.	We are disposed to accept that, in principle, the tribunal were not obliged to give equal weight to opposing written statements before them which were untested by cross-examination.  They had to make a judgment as to what weight to attach to each.  What, however, we consider they were not entitled to do was to prefer Mr Barden’s evidence on the footing that, had he given oral evidence, they assessed that he would have confirmed Mr Mitchell’s evidence as to the limit of the earnings he had actually made.  In doing so, the tribunal were relying on evidence which was not before them and they went to the further length of regarding that non-existent evidence as outweighing contrary evidence which was before them, namely that of Mr Dixon, and, to a lesser extent, that of Mr Booth.  We consider that the manner in which the tribunal weighed up the witness statements on both sides involved a fundamental error.  

25.	Fourthly, in paragraph 24, the tribunal again repeated their erroneous understanding that there was a positive evidential burden on Ripple to prove that Mr Mitchell had earned more than the £982.25, whereas Ripple’s case was that Mr Mitchell’s evidence that this was all he had earned was evidence upon which the tribunal could not safely rely.  The tribunal nowhere gave proper consideration to this point, their stance apparently being that Ripple were out of order in taking the point at all.  In our view, that was an error.  The tribunal ought to have stood back and made an objective assessment of all the evidence and applied an objective consideration as to the question of whether or not they could safely accept Mr Mitchell’s ultimate case as to the limit of his earnings.  They did not do so in any clear and comprehensive way, or indeed at all, and to the extent that they did measure up the evidence, they also relied on evidence that Mr Barden did not give.

26.	We move then to the next matter which is the subject of the appeal: that is the way in which the tribunal dealt with the question of the mitigation of loss.  The other main head of criticism advanced by Ripple as to the tribunal’s decision is as to whether Mr Mitchell had taken reasonable steps to mitigate his loss.  Ripple accept that in this respect the burden of proof was on them.  To that end, Professor Greg Wilkinson, a consultant psychiatrist, was jointly instructed by Mr Mitchell and Ripple to provide a report in relation to Mr Mitchell.  His report was dated 
21 April 2004, and in it he gave what can be described as a bleak prognosis as to Mr Mitchell’s prospects of emerging from the depressive condition that had overtaken him following his dismissal.  The tribunal summarised his view as being that Mr Mitchell’s depression would resolve within a year following the successful resolution of the tribunal proceedings (see paragraph 28).

27.	The report squarely supported Mr Mitchell’s case that he had been unable to work.  That case was a lie, because Mr Mitchell had been able to work.  But he had lied to Professor Wilkinson about that, just as much as he had lied to the tribunal.  The tribunal found that he had told Professor Wilkinson that he had only been able to do a small amount of voluntary work, and they referred to paragraph 15.1 of Professor Wilkinson’s report as recording this, although it does not appear to us to do so in terms.  But the tribunal accepted, in paragraph 30, that even on Mr Mitchell’s case, this was not true, and they there said that:

“While the Tribunal can understand [Mr Mitchell’s] reticence when giving evidence about his criminal conviction, the Tribunal is unable to see any justification for [Mr Mitchell] having misled Professor Wilkinson in this way.”

There was, of course, no justification for it.  The inference is that Mr Mitchell lied to Professor Wilkinson in the hope that he would produce a report which would be helpful to his case, and that is precisely what he did.  

28.	Not surprisingly, once Ripple had discovered about Mr Mitchell’s lie about his earnings, they took the view that Professor Wilkinson should be given the opportunity to express his opinion about how that information might, if at all, cause him to change his view.  Ripple’s solicitors therefore wrote to Professor Wilkinson on 25 May, enclosing the witness statements of 
Messrs Booth, Dixon and Barden, various copy invoices made out by Mr Mitchell to a company called Trendsure, and Mr Mitchell’s business card.  They explained that Mr Mitchell had confirmed in evidence to the tribunal that he had undertaken work, apparently initially indicating that he had first worked only for Trendsure, and then admitting that he had also worked for two other companies, of which he had given no further details.  They said that he had also admitted that, since his release from prison in October 2002, he had attended at Sign Logic three days a week and that he had an office there.  They also referred to Mr Mitchell having brought to the last hearing before the tribunal a bundle of papers comprising complex technical drawings, technical data, instructions and pictures of products, in all comprising  some 200 pages.  They said, although we should record that Mr Mitchell disputes it, that these papers were compiled by Mr Mitchell in connection with Trendsure, but they did not enclose any of these documents with their letter to Professor Wilkinson.  In light of all that, they asked Professor Wilkinson to review his first opinion.

29.	On 26 May, the following day in fact, Professor Wilkinson produced a second opinion, which was also before the tribunal.  The picture it painted was very different from that in his first opinion.  So far as material, he said:

“2.1		My previous opinion was based on the assumption that the information provided to me by Mr Mitchell as to his ability to undertake work was correct.  In general, I believe that if Mr Mitchell has deliberately misled me that would undermine my opinion in his case.
 2.2		I have reviewed my handwritten notes at interview and note that I have recorded that – in relation to work – I began, as usual, by asking Mr Mitchell if he had undertaken work, voluntary work, or any courses following his dismissal, and I received a negative response.  Then, I recorded the statement at paragraph 15.1 of my first report.  I believe that on a balance of probability the further information provided on behalf of the Respondent contradicts the information given to me by Mr Mitchell at my interview.
…
 2.4		I believe that on a balance of probability the existence of the technical drawings referred to in the letter dated 25 May 2004 is not consistent with the account of Mr Mitchell’s abilities that he gave me at interview, and their existence would change my view on his abilities as set out in my report.  The technical drawings on a balance of probability would indicate that Mr Mitchell’s abilities are or were greater than as set out in my report.
 …
 2.6		I believe that on a balance of probability if Mr Mitchell had followed best therapeutic recommendations throughout the period of his depressive episode, he would have recovered within 6 months of starting recommended treatment, i.e., by the end of 2001.”

30.	
The tribunal recognised, in paragraph 30, that Ripple was quite right to raise with Professor Wilkinson their concern as to what Mr Mitchell had told them about his ability to work.  The tribunal, however, first indicated that they were going to pay no regard to what Professor Wilkinson had said about the technical drawings and that aspect of their decision has not formed part of the argument that Mr Gilroy has advanced to us.  The tribunal then said that Ripple may have been on firmer ground with regard to what the Professor had said in paragraph 2.6 of his report, which we have just quoted.  They recorded that Ripple put to Mr Mitchell that he had not fully co-operated with the treatment offered to him, to which Mr Mitchell replied that he had been referred for treatment to a community psychiatric nurse but had not been referred by his GP to a consultant psychiatrist.  The tribunal appear to have accepted that Mr Mitchell had not been referred to such a psychiatrist (although we comment that Professor Wilkinson does not suggest that this would or might have been appropriate) and they found that Mr Mitchell had found the experience of counselling with a CPN to be horrific and the anti-depressant medication disagreed with him.  They referred to a note in Mr Mitchell’s GP records that the GP had discussed “possibly using a CPN or a counsellor”, but that Mr Mitchell was not keen on this.  The tribunal’s assessment was that the tenor of the GP’s advice was somewhat short of a strong recommendation and they also recorded that the GP had himself recorded that Mr Mitchell was quite a vulnerable person, who found it difficult to cope with stresses within his life.

31.	The tribunal’s conclusion on all this was in paragraphs 36-39 of their reasons, where they said that:

“36. There was a further reason for treating with caution Professor Wilkinson's opinion in paragraph 2.6 in the second report.  He does not say when it is likely that Mr Mitchell will have received “best therapeutic therapy” within Mr Mitchell’s area much less whether such would have been available at all. There is no evidence whatsoever as to when Mr Mitchell would have been seen within the Oldham area utilising NHS facilities nor the length of time of which such therapeutic treatment would have taken place. In dealing with what is just and 

equitable between the parties, the Tribunal reminds itself that there is a report clearly evidencing that Mr Mitchell’s inability to work was caused by his dismissal. Efforts on the part of the respondent, to effectively, pick holes in what the applicant did when faced with a situation of the respondent’s making are somewhat unattractive. 
37. While it may be legal truism, [Ripple] must take their victim as they find him and it is quite clear that Mr Mitchell has a pre-existing vulnerability to psychiatric disorder. There is nothing to suggest that the applicant has unreasonably refused to co-operate with his medical attendance in treating his condition. [Mr Mitchell] is only obliged to take reasonable steps to mitigate his loss and in the Tribunal’s view there is no satisfactory evidence to suggest that [Mr Mitchell] has failed to do this. 
38. Perhaps most tellingly, the applicant gave unchallenged evidence that he had been in receipt of incapacity benefit since shortly after his dismissal. Accordingly he has satisfied the Department of Social Security of his continued entitlement to that benefit, evidence that his condition and symptoms are genuine and that the DSS were satisfied as to his inability to undertake work. 
39. It is unfortunate that Professor Wilkinson was not able to express an opinion as to the degree to which his view as to Mr Mitchell’s ability to work would have been undermined had he known the extent of Mr Mitchell’s work with Sign Logic. The Tribunal gave very careful consideration as to whether Professor Wilkinson should be invited to comment further. The Tribunal were satisfied that such a step was unnecessary as, ultimately, it is for the Tribunal, not Professor Wilkinson, to decide the case. Having considered all of the evidence the Tribunal is satisfied that the applicant was reasonably unable to work from the date of his dismissal until around September 2003. The Tribunal takes the view that in September 2003, [Mr Mitchell] had agreed to undertake what must have been quite a major undertaking on behalf of Provincial Enterprises. The Tribunal also notes that this project was with a view to enticing Provincial Enterprises to instruct Sign Logic (and presumably the applicant) on 30 similar projects. [Mr Mitchell] readily accepted that this transaction was a loss leader with a view to bringing in a considerable amount of work. The Tribunal is of the view that that project would not have been undertaken by the applicant had he felt unable to handle the volumes of work for which he hoped to attract. The Tribunal is of the view that it does not need to incur the further time, trouble and cost of instructing Professor Wilkinson to enable the Tribunal to come to a reasoned conclusion that by September 2003, the applicant was able to contemplate full time work.”

32.	Mr Gilroy said that the second sentence in paragraph 36 reflected a wrong interpretation of Professor Wilkinson’s opinion.  He said that the Professor was saying, in effect, that Mr Mitchell had received the best therapeutic advice, but that he had not taken it.  In his first report, Professor Wilkinson had referred to various of Mr Mitchell’s GP’s notes, which Mr Gilroy said supports this.  We should refer to certain of them.  The notes show, for example, that the GP had a meeting with Mr Mitchell on 23 July 2001, when he reviewed the position with him and arranged “a community psychiatric nurse appointment.  He did not attend the CPN appointment on 21 August 2001”.  That, therefore, records that as early as July, the GP was recommending counselling from the community psychiatric nurse but that Mr Mitchell did not take up that appointment, although we understood Mr Mitchell to assert the contrary in his submissions to us this afternoon.
33.	Rather later, in the same collection of notes, there is a reference to a further meeting between the GP and Mr Mitchell on 27 September 2002, when Mr Mitchell “re-presented with anxiety and depression.”  The note continues, a little further down:

“We discussed starting medication and he said his wife was not keen for him to take medication but he decided he would take them and not let her know.  We discussed possibly using a CPN or a counsellor and he was not keen on this.”

That is the reference which the tribunal had made in their reasons, although they do not appear to have noticed the earlier advice given in July 2001 that Mr Mitchell should see a community psychiatric nurse. The further note we have, in fact slightly back in time, is a note that on 
1 August 2001 the GP did in fact make a referral of Mr Mitchell to “Jane”, who was the community psychiatric nurse.  There are also further notes, admittedly rather later in time, which record several counselling appointments, first of all on 10 December 2002, and two appointments in January 2003, both of which, it appears, Mr Mitchell did not attend.  We comment that these various references do not perhaps lie all that easily with the tribunal’s conclusion that the GP’s recommendation to Mr Mitchell was somewhat short of a strong recommendation, because it appears that as early as July 2001 there was a strong recommendation that Mr Mitchell should attend a community psychiatric nurse for counselling.  

34.	Mr Gilroy’s further submission was that, if he was right as to the correct interpretation of Professor Wilkinson’s opinion, then the tribunal were not entitled to express a positive view in the absence of something solidly against it, which there was not.  On this basis, Mr Gilroy submitted that it would simply have been wrong for the tribunal to regard Mr Mitchell’s losses as continuing right down to September 2003.  If, on the other hand, Professor Wilkinson is not to be regarded as having expressed a positive opinion that the following by Mr Mitchell of the medical advice he was given would have led to his emergence from his depressive problems within six months, but was merely expressing a more theoretical view as to the likely outcome, had he been given, and had he followed, the best therapeutic advice, then Mr Gilroy submitted that it was anyway perverse for the tribunal to find that it was not unreasonable for Mr Mitchell to decline such treatment as he was offered and to conclude that it was not unreasonable for him to take none of the advice that he was given.  It was, Mr Gilroy submitted, perverse for the tribunal to conclude, as the tribunal put it in paragraph 39, that Mr Mitchell was “reasonably unable to work from the date of his dismissal until around September 2003”.

35.	We have felt some considerable concern as to the soundness of the tribunal’s approach with regard to the medical evidence but do not regard it as abundantly clear that Professor Wilkinson, in paragraph 2.6 of his second report, was unambiguously expressing a positive opinion that, had Mr Mitchell followed the advice the GP had apparently given him in July 2001, he would have emerged from his depressive disorder by the end of that year, although there is a cogent argument in support of that view.  Overall, however, bearing in mind the high hurdle that has to be overcome before factual findings of tribunals can be characterised as “perverse”, we are not prepared to go the extra distance of finding that the tribunal’s handling of the medical evidence before them was perverse, or that the conclusions they based on it were perverse.

36.	We have, however, come to the conclusion that the tribunal’s decision as a whole was fundamentally flawed by their failure to apply any objective consideration to the extent that they could rely upon Mr Mitchell’s case, as it ultimately became, that he had only earned £982.25 from such work as he had done.  We have earlier set out our criticisms of 
paragraphs 19-24 of the tribunal’s reasons, that those paragraphs betrayed an unjustified rejection of Ripple’s points about Mr Mitchell’s reliability as a witness, being a rejection we regard as indefensible.  The tribunal appear to have taken the view that Ripple should not even have been arguing the matter, which we regard as plainly wrong; they had a duty to assess the effect of Mr Mitchell’s proven lies, and the extent to which they could accept his evidence, a duty they do not appear to have discharged.  For reasons we have given, they attached weight to evidence that Mr Barden did not give, being something that they should not have done, and they treated that non-existent evidence as outweighing other evidence before them from Mr Dixon and Mr Booth.  In addition, we consider that in paragraphs 20 and 24, they reflected a misunderstanding as to where the burden of proof lay with regard to Mr Mitchell’s earnings.  In our view, these considerations mean that the tribunal’s decision as a whole is flawed by a mistaken approach to critical matters of evidence which we before them, and we conclude that the consequence is that we must allow Ripple’s appeal and set aside paragraph 1 of their decision.

37.	One of the alternative heads of relief that Ripple asks us to consider is to substitute our own decision as to what the right compensatory award should be.  Tempted though we might be to do that, with a view to bringing this very prolonged matter to early finality, we do not feel able to take that further step.  That is a matter that can only be assessed by a fact-finding tribunal, which we are not, after a proper consideration of all the evidence before it, relating not only to Mr Mitchell’s post-dismissal earnings, but also as to whether or not he did reasonably take steps to mitigate his loss, a matter which, in the particular circumstances of this case, will also entail the consideration of expert medical evidence.  We therefore decline to accept that invitation from the appellant, and we will accordingly simply remit the remedy hearing to a freshly-constituted tribunal for a rehearing.