Appeal No.UKEAT/0164/05/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 August 2005

Before
HIS HONOUR JUDGE ANSELL
MR M CLANCY
MR T STANWORTH

WILLIAM HICKS & PARTNERS (A Firm)	APPELLANT

MISS G NADAL	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR COLIN BOURNE
(Of Counsel)
Instructed by:
Messrs William Hicks & Partners Solicitors
Empire House
8-10 Piccadilly
Bradford BD1 3LW	
For the Respondent	MR PHILIP ENGELMAN
(Of Counsel)
Instructed by:
Messrs Walker Morris Solicitors
12 King Street
Leeds LS1 2HL

SUMMARY

Unfair Dismissal
Tribunal did not apply our views on unfair dismissal.  But applied range of reasonable responses.  Denial of opportunity to employee to attend disciplinary hearing rendered procedure unfair.

Polkey decision incorrect – Tribunal should have considered if employee intended to attend any disciplinary hearing and also strength of employer’s case.

.

HIS HONOUR JUDGE ANSELL

1.	 This is an appeal from a decision of Leeds Tribunal who sat in September of last year and January of this year and gave written reasons on 9 February of this year, dismissing a claim for automatic unfair dismissal under the public interest provisions but upheld claims for normal unfair dismissal and breach of contract.  This hearing takes place pursuant to a leave at a preliminary hearing on 26 May presided over by HHJ Birtles.

2.	The basis of the appeal relates to the tribunal’s finding that there was procedural unfairness in relation to the disciplinary procedure that the employers, the Appellants before us, had adopted in deciding that for a number of factors the employee, Miss Nadal, was fit to attend a disciplinary hearing and going ahead with that hearing in her absence and dismissing her.  There are also subsidiary grounds relating to their decision on Polkey and also a freestanding breach of contract claim in relation to the failure to comply with what is said was a disciplinary procedure that two partners would conduct the disciplinary investigation.

3.	The background facts are that Miss Nadal is an experienced personal injury solicitor and had been the head of the department for William Hicks & Partners since May 2000.  There were two equity partners, Mr Hicks and Mr Hudson.  There was a consultant Mr Couch who was a former partner of Mr Hicks and the other personalities were: Mrs Singleton, not a partner but who is an employment specialist; and three other members of staff, Mr Husband, an unqualified  but very experienced litigation specialist who did some occasional personal injury work for Miss Nadal’s department but who was principally engaged in other contentious work; Mr Devanney, a litigation clerk who was employed partly to do personal injury work and partly to do probate work; and Mr Maudsley, a solicitor who was wholly engaged in personal injury work, under the direction of Miss Nadal.

4.	There came a stage in February 2003 when it was necessary to make effectively one of these three fee-earners redundant.  This had arisen because of the departure of a former partner, Mr Goldsborough, in what was described as somewhat shadowy circumstances and the resulting loss of work.  Mr Husband had been principally engaged in Mr Goldsborough’s department and was therefore identified initially as the candidate for redundancy but in fact it was decided after representations from him that there would be a proper selection process carried out by Mrs Singleton and involving Miss Nadal who was involved in the scoring process.

5.	We need not go into the facts of that aspect of the case suffice it to say that Mr Husband was eventually identified and made redundant and he commenced tribunal proceedings as a result.  In the course of those tribunal proceedings, Miss Nadal was requested by the partnership to provide a witness statement confirming her involvement in the selection process and following advice from Counsel she was asked to file a supplementary statement.  She then began to show a reluctance to give that further statement.  Mr Hicks’ belief was that it related to the history of animosity between her and Mrs Singleton.  While this was going on, and the matter of her further witness statement in fact was described as unresolved, Miss Nadal was in fact suspended from work on 22 October following a letter from Julia Cooper, a secretary in her department making a number of allegations against her behaviour.  She was eventually dismissed on 6 November in circumstances that we will come to.  In intervening period there were in fact attempts to negotiate a settlement with her conducted by Mr Couch, the consultant, who effectively was brought in by Miss Nadal to negotiate a settlement with Mr Hicks and Mr Hudson.  At some stage Miss Nadal had instructed Mr Green, a solicitor.  

6.	There were a number of issues raised in the case and it is right to say that the tribunal found none of the key witnesses, Mr Hicks, Mrs Singleton and indeed Miss Nadal entirely credible, and in paragraph 9.3.2 found that they had all been “less than frank with us” at various points in their evidence.

7.	The first issue related to Miss Nadal alleging that she had not involved herself in the scoring process of Mr Husband and that her willingness or otherwise to sign a witness statement related to her desire or otherwise not to perjure herself.  On this issue Mr Hicks’ and Mrs Singleton’s evidence were preferred by the tribunal that in fact she had very much involved herself in the scoring process.  

8.	The next issue also was resolved against Miss Nadal namely her contention that it was a condition of the compromise agreement that was being negotiated through the good offices of Mr Couch that Miss Nadal would not give evidence on behalf of Mr Husband.  Again, that was rejected by the tribunal and they described Miss Nadal’s version of events as incredible.  

9.	Finally, there was an issue in relation to an investigation by the supervisory office for solicitors following the departure of Mr Goldsborough and in particular who had authorized a money transfer from client to office account of some client monies.  On this occasion the tribunal preferred the Claimant’s version that it was Mr Hicks who had authorized that transfer.  

10.	These subsidiary matters as will be seen ended up in a sense with a two-one victory in favour of Mr Hicks and his team but indeed cast no great light or favours on any of the participants in this case.  The core of this case related to the dismissal arising from the letter of complaint from Julia Cooper and we turn to that now.   The letter had been received in early September 2003 alleging bullying and intimidation of staff, disrespectful comments about Mr Hicks and Mrs Singleton in front of other staff, interference with post and fax to the extent of destroying certain items, and also passing of information about the firm to outside persons.  Mrs Singleton was deputed to carry out the investigation and we will return to that matter later in dealing with the breach of contract allegation.  There was delay in carrying it out because Mrs Singleton was out of the office for quite a period but eventually she returned, spoke to a number of members of staff, and as we  have indicated, a decision was taken to suspend Miss Nadal.

11.	The history thereafter was summarized by the tribunal.  Firstly, on 24 October and her doctor wrote to the Respondents saying that he had “seen Miss Nadal today, she was suffering from stress and not fit to attend any hearing in the foreseeable future.”  On 27 October Miss Nadal was notified by letter by Mr Hicks that Mr Hudson, the other partner, would conduct a disciplinary hearing on 31 October.  Mr Hicks, in his postscript, referred to the letter that had been received from Dr Al-Timman, found it surprising that he had had no notification that she had been visiting her doctor for stress.  (Just interposing there, the medical report suggests that she had not in fact seen her doctor for stress since the beginning of that year, save for a visit which occurred in October).  Mr Hicks said that in order not to exacerbate the stress he intended to proceed with the hearing and invited her to make written representations.  He did enclose a copy of the investigation report and Miss Cooper’s letter.

12.	Miss Nadal replied by 28 October referring generally to work stress which had deteriorated since her suspension, repeating that she was unfit to attend the hearing on Friday, but did say that she anticipated that she would be fit to do that within a period of two weeks.  On the face of it there was therefore some conflict between the medical evidence and what Miss Nadal was saying, as to when or not, she would be fit, and the doctor was again contacted and following a receipt of an authority from Miss Nadal, he was asked to comment upon the symptoms and what effect they would have on her ability to understand and respond to questions, and if she was not medically fit to attend the hearing, whether she would be able to respond in writing.

13.	As a result of that inquiry the disciplinary hearing was re-fixed for 5 November.  Just to interpose again there, there were two other matters that the tribunal found were taking place around this time.  There was first of all evidence being received by the employers via a Mr Jacobson that Miss Nadal was seeking a position, certainly a locum position with another firm of solicitors, and certainly by the beginning of November had been offered such a position.  There is a dispute on the facts as to whether or not she had actually accepted that position.  The evidence the tribunal accepted was that she had not.  It was certainly in the mind of both Mr Hudson and Mr Hicks that she had been offered that position, and indeed there was evidence from Mrs Singleton that Miss Nadal had accepted it, and had been seen in the office of the new employers.

14.	Concurrent with that episode was also the continuing negotiations regarding an overall compromise agreement where the sticking point was a clause that the employers were seeking that Miss Nadal had not sought or obtained other employment.

15.	Passing then back to the medical history.  On 31 October they received a sick note from Dr Al-Timman saying she was unfit for work for one week from 31 October.  There was a further letter received from him on 4 November in which he suggested that the main symptoms of anxiety, depression, weepiness, stem from the action against her.  He was confident that once this stress was over she would be able to perform her normal duties up to the high standard expected.  She was not fit to attend the disciplinary hearing of 5 November and had arranged to see her again on 7 November.  

16.	The disciplinary hearing was re-fixed initially for 3.00 pm on 6 November.  Mr Hicks wrote to the Claimant on that morning to say that as a result of  his understanding that she had been discussing and negotiating new employment which was due to commence on Monday of next week, and also attending the offices of the new firm, he had decided to proceed with the disciplinary hearing.  

17.	There was a further postponement granted although in Mr Hicks’ letter he had indicated that he was not prepared to do that.  The postponement seems to have arisen principally as a result of Mr Couch’s continuing negotiations on the compromise agreement, and indeed, all the correspondence that we have seen about that time led us to the view that it was perhaps anticipated that by 5.00 pm that afternoon the compromise agreement would indeed have been sorted out.  

18.	Mr Green in turn wrote to the Claimants asking for a postponement pointing out again that she was due to see her General Practitioner on the following morning when a prognosis would be available.  Mr Hudson who took over the matter then wrote back declining to grant a further adjournment.  The letter said that they did not accept that she was not medically fit to attend a meeting, alternatively putting her case in writing, and this view was taken having regard to the information provided over the past 48 hours.  In particular Mr Hudson mentioned that it was important for the staff who had made these complaints that this matter should be sorted out very quickly.  She did not attend for the hearing and was dismissed in a letter dated 11 November.  She started work with a new firm the following week.

19.	The Tribunal’s decision is primarily contained in paragraph 13.2.3 of their decision.  

13.2.3	The failure by the Respondents to give the Claimant an opportunity to defend herself in the face of detailed and serious allegations is about as serious a deprivation of natural justice as can be imagined. Doubtless there are situations in which employers are entitled to proceed in a disciplinary hearing in the absence of the claimant, but this Tribunal finds that this is not such a case. The Respondents were in possession of a letter from the Claimant's doctor. It was a letter that they themselves commissioned. It set out, in some detail, the lengthy involvement the Claimant had had with her general practitioner over matters of stress. It went on to say that the allegations had caused the Claimant an acute stress reaction. It went on to add that the Claimant was, for medical reasons, incapable of attending a disciplinary hearing to respond to the allegations against her and incapable of dealing with those matters in writing. That letter supported a request for an adjournment of the disciplinary hearing of 6 November.  In that application, Mr Green for the Claimant pointed out that the Claimant was to see her doctor the following day and would be able to give a more detailed prognosis after that. By that stage, the Claimant had already given her opinion, albeit an opinion which was not a medically-based one, that she might be fit in a fortnight's time. Mr Hudson, advised by Mrs Singleton, decided, however, that he ought to proceed. In proceeding he told us, and we accepted, he bore a number of factors in his mind. Our first serious criticism of Mr Hudson is that he does not appear to have considered that adjournment on the basis of seeing the relevant documentation himself.  For his decision, Mr Hudson appears to have relied entirely on what he was told by Mr Hicks and Mrs Singleton about the contents of various documents. The first matter of import was that Mr Hudson was told by Mr Hicks that the Claimant had been able to attend a conference with Mr Couch and counsel. We now know that that conference was on 22 October and, although it was after her suspension, it was before the Claimant had received the letter setting out the allegations against her and before she saw her doctor on 24 October 2003. Mr Hudson also bore in mind the fact that the Claimant had been involved in job nego1tiations and had been able to give Mr Green instructions about the compromise agreement. These were matters which Mr Hicks had already been aware of and it is evident that Mr Hicks had adopted an entirely sceptical view about the Claimant's claimed unfitness for work, even before he had commissioned Mrs Singleton to obtain further details from the Claimant's doctor about that. Given Mr Hick's very limited state of knowledge, that scepticism was itself unreasonable. Mr Hudson also relied on the fact that there were staff members who were very concerned about the outcome of the disciplinary hearing, having made allegations against the Claimant. The Tribunal takes the view that this was a matter that Mr Hudson was entitled to consider but could not on its own outweigh the Claimant's entitlement to a fair hearing on allegations which were almost bound to lead to her dismissal if found true. The Tribunal finds that Mr Hudson shared Mr Hicks' scepticism about the Claimant's assertion that she was unfit, and he took the view that her involvement with the compromise agreement negotiations and her job negotiations showed that she was not unfit. The Tribunal takes the view that this was a conclusion to which Mr Hudson, who is not medically qualified, who had not seen the Claimant and who had not put these matters of doubt to the Claimant's doctor or to any other doctor, was entirely unentitled to. Mrs Singleton had gone to the trouble to get Dr AI- Timman to explain at greater length his views of the Claimant's unfitness. Having commissioned such a letter, if the Respondents were to be reasonable in ignoring it, they would either, in our view, have to have  ad compelling evidence that the Claimant was pulling the wool over her own doctor's eyes, and they did not, or had to have authoritative contrary medical evidence about the Claimant's fitness. Moreover, the Tribunal is unable to see what the particular urgency in the situation was. The Respondents had no need to rush to a decision; they could have postponed the matter further and sought a prognosis from the Claimant's doctor. Had such a prognosis pointed to an unacceptable delay in proceeding with the disciplinary hearing, then no doubt further consideration could have been given, bearing the undesirability of lengthy delay. That did not happen. Finally, there is the fact that Mr Hudson purported to make the decision to proceed on the basis that it was actually in the Claimant's best interests so to do. In doing so, he relied on Dr AI- Timman's letter where it said that he was confident that once the stress of the immediate accusations was over, she would be able to perform her normal duties up to her high standard. This, Mr Hudson told us, justified his decision to proceed and he said as much in his letter to the Claimant's solicitor. The Tribunal takes the view that this was entirely disingenuous on Mr Hudson's part. He was not entitled to divorce that sentence from the sentence that follows it, which was that in Dr AI- Timman's view the Claimant was not fit for the time being to attend a disciplinary hearing. Mr Hudson, in effect, was not entitled to pick and choose which bits of Dr AI- Timman's letter he accepted and which bits he rejected. Either Dr AI- Timman's letter, including its conclusion as to the Claimant’s fitness to attend the Hearing, was an authoritative statement of the medical position or it was not.  Finally, we find that, given the detailed and damaging nature of the allegations against her the claimant was entitled to defend them in person.  The offer to permit written submissions, even had the claimant been able to take it up, would not, in our view, have been an adequate substitute.”

20.	The essence of the helpful submissions by Mr Bourne relate to the contention that firstly the tribunal imposed their own view of the Appellant’s actions rather than considering them in the context of what was reasonable for the Appellants to do at that time.   In other words the band of reasonable responses test required the Tribunal to assess the situation that the Appellants found themselves in on 6 November against particularly a background where they had received information that at the very least Miss Nadal was negotiating for a new job, and moreover was able, around that time, to continue to negotiate with Mr Couch concerning the compromise agreement.  Further, he argued that the tribunal had been deflected by making other criticisms of both Mr Hudson and Mr Hicks, and had not concentrated on what was the essential test that they should have asked themselves, namely what was in their minds when they came to the decision not to grant a further adjournment of the disciplinary hearing.  Further Mr Bourne submitted that although in most circumstances anybody accused of  this form of misconduct should be able to have a hearing and to make representations before an employer before a final decision is taken, in the context of this case the employers were entitled, and were reasonable, in coming to a decision that this employee was fit to attend the hearing by reason of her actions in finding another job and by negotiating the agreement, and thereby effectively was deliberately avoiding an attendance at the disciplinary hearing.  

21.	The law on this  area is well-known.  The essential test that employers have to consider when dealing with misconduct is the well-known test set out in Burchell that there must be established by the employer the fact of belief, that the employer believed it, secondly the employer had it in mind reasonable grounds upon which to sustain that belief, and thirdly that at the stage at which he formed that belief on those grounds, he had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  It was established in the more recent authority of Sainsbury Supermarkets Ltd v Hitt [2003] IRLR 23 that the so-called range of reasonable responses test applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances, as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason.  

22.	It has always been established that the opportunity for an employee to put his side of matters is an essential part of that reasonable investigation.  The ACAS code that was current at the time of this matter speaks of “disciplinary procedures should provide workers with an opportunity to state their case before decisions are reached”  And the code itself has been given the seal of approval in numerous cases before this Court and the Court of Appeal.  In 1972 Earl and Slater v Wheeler [1972] IRLR 115 where the head note sets out that every employer should apply paragraph 132 of the Code (that was the Code that was then in operation) and give the employee the opportunity to state his case.  The only exception of this rule is the case where there can be no explanation which could cause the employers to refrain from dismissing an employee.  

23.	In Khanum v Mid Glamorgan Area Health  Authority [1978] IRLR 215 the EAT held that there are only three basic requirements of natural justice which have to be complied with during proceedings of a domestic disciplinary enquiry, firstly that the person should know of the nature of the accusation against him, secondly that he should be given an opportunity to state his case and thirdly that the tribunal should act in good faith.

24.	In McLaren v National Coal Board [1988] IRLR 215 the Court of Appeal held that standards of fairness are immutable; acceptable reasons for dismissing may change or vary in an industrial situation but the standards of fairness never change.  

25.	Are there any exceptions to the rule that an employee should always be given the opportunity to state their case?  Mr Bourne has found two particular examples.  In Parker v Clifford Dunn Ltd [1979] IRLR 56, the employee was dismissed following his admission to the police that he had stolen goods from his employer.  In that case the court held that there was no absolute prescription that an employee must be given an opportunity to offer an explanation for his conduct before dismissal where such an opportunity would have been of no avail because it could not have made any difference to the decision of the employer.  In that particular case there were three circumstances that justified the conclusion of lack of opportunity to explain did not make the dismissal unfair, namely information from the police that the employee had been guilty of theft, failure by the employee to make protestations of innocence at a convenient time, and failure on the part of the employee to implement the grievance procedure.
26.	In Harris & Shepherd v Courage [1982] IRLR 509 the exception there was because the employee had been advised to say nothing until the trial in the criminal proceedings.  The Court held that if the employee chose not to give a statement at that stage, a reasonable employer has entitled to consider whether the material he had was sufficient indicative of guilt to justify dismissal without rating.  

27.	Mr Bourne, argued that the facts of this case could constitute a further exception where the employer has satisfied that by reason of the employee’s recent activities, information from a doctor that the employee might be unfit to attend a disciplinary hearing, could be overridden by the events which had recently occurred.  We do not see that as sufficient to grant an exception.  It may well be that if an employer could be satisfied that having made proper enquiries, including sufficient medical enquiries to establish that the employee was fit and able to attend a disciplinary hearing, and nevertheless the employee unreasonably declined to do so without just cause, that could constitute an exception to the general rule that disciplinary hearings should always involve the presence of an employee.  But it must be very much the exception rather than the rule that the hearing could proceed without the employee attending.

28.	We turn then to the criticism of the decision itself   Has the tribunal imposed their own view rather than adopting the range of reasonable responses test?  We do not agree that they have.  There are a number of references within their decision to their approach in terms of the range of reasonable responses.  When they set out the law in paragraph 11 of the Decision they refer to the cases of Iceland Frozen Foods and Sainsbury’s and indicate that there is reasonable range of responses open to every employer in judging the conduct of the employee, and that the range of reasonable responses applies as much to procedure as it does to the substantive issues.  Then they refer to the Burchell test and also the decisions in McClaren  and Khanum to emphasize essential importance to a fair procedure of allowing an employee to state their case.

29.	They then go on to deal with the submissions from both parties and refer particularly to Mr Engelman’s submissions that the decision not to grant her request for an adjournment was manifestly unreasonable.  Later in the decision they conclude that the reason for dismissal were those matters set out in Julia Cooper’s letter.  There was an issue about the reason but they conclude that fact “despite the fact that we find the failure to allow an adjournment was unreasonable”.  

30.	In their conclusions it is right to point out that the tribunal voice background criticism in relation to Mr Hudson, firstly in relation to the fact that he had not seen the relevant documentation himself and that he may have been affected by information given to him by Mr Hicks, for instance that the Claimant was able to attend a conference with Counsel on 22 October.  Further they conclude that he appeared to have been affected by Mr Hicks’ scepticism which as to the illness, or otherwise of Miss Nadal which as far as Mr Hicks was concerned, he had in mind even before he had commissioned Mrs Singleton to carry out the further medical enquiries.  Nevertheless, the Tribunal continue that the key decision in the case was whether Mr Hudson was entitled to take into account the so-called pressures on the staff members, coupled with the view that she was involved in the compromise agreement negotiations, and her job negotiations, to come to a conclusion that she was not unfit.

31.	The Tribunal key conclusion was as follows.  
“The tribunal takes the view that this was a conclusion to which Mr Hudson, who is not medically qualified, who had not seen the Claimant, and who had not put these matters of doubt to the Claimant’s doctor, or to any other doctor was entirely unentitled to.  Mrs Singleton had gone to the trouble to get Dr Al-Timman to explain at greater length his views of the Claimant’s unfitness having commissioned such a letter if the Respondents were to be reasonable in ignoring it, they would either in our view have to have compelling evidence that the Complainant was pulling the wool over her doctor’s eyes, and they did not, or had to have authoritative contrary medical evidence about the Claimant’s fitness.”  

32.	As we read that paragraph this is not the tribunal imposing their own views as to the employer’s action but setting out quite clearly that Mr Hudson’s actions in taking the view himself that she was fit to attend a hearing was acting outside the range of reasonable responses particularly bearing in mind that these employers had chosen to commission medical evidence, and in particular had received advice from a doctor who had indicated that he was going to reassess his patient the following day on 7 November.  Effectively, they were saying that no reasonable employer should have refused an adjournment in those circumstances.

33.	We are quite satisfied that the tribunal’s approach was correct on this matter.  They had set out the law clearly, set out the tests that they had to consider and in particular were mindful of the general principle that save in very exceptional circumstances employees should be given the opportunity of having the opportunity to make representations before their employer and before a decision was taken in relation to unfair dismissal.  We cannot find any fault in the tribunal’s approach.  

34.	We pass then to the two other matters.  The tribunal adjourned the question of contributory conduct to a remedies hearing but somewhat strangely decided to come to  a decision on the Polkey issue, defining it as a “straightforward matter for the tribunal.”  They said this:
“The failure by the Claimant ever to give her version of events means that the tribunal are not able to say how the dismissal would have been affected by a fair procedure.  It is possible for us to know how such a hearing would have turned out, whether the Claimant’s explanation would have been acceptable and whether she was likely in the event to have retained her employment, or to have been dismissed in any case.  The breach of procedure is so fundamental and so central to the fairness of the decision that it would not be appropriate to consider making any deduction contemplated by Polkey.
35.	We are told at the hearing that the tribunal in the main declined to go into the evidence in relation to the allegations and counter-allegations that were being made by the staff and Miss Nadal’s response although there was some cross-examination by Mr Bourne.  It seems to us that in dealing with the Polkey issue the tribunal had two questions to ask themselves.  Neither of  which they appear to have satisfactorily dealt with.  

36.	Firstly, whether or not Miss Nadal would in fact have ever attended a disciplinary hearing.  This became more relevant as evidence emerged from Mr Couch that Miss Nadal had told him that she did not want to attend a disciplinary hearing.  It seems to us that the tribunal should have assessed the possibility that Miss Nadal would not have attended any disciplinary hearing irrespective of her state of health and particularly bearing in mind that she was due to start a new job the following week.

37.	Secondly, it seems to us that for the purposes of conducting a proper Polkey enquiry the tribunal should have carried out some assessment as to the strength of the allegations that she was facing.  If on the face of it there was an overwhelming case against her of misconduct they should have considered making a Polkey deduction and accordingly, we find their approach in paragraph 14.2 to be in error.  What we intend to do is set aside that particular finding and simply invite the tribunal to deal with Polkey afresh when they come to the remedies hearing.

38.	The final issue relates to the breach of contract claim.  The procedure that operated as far as this employee was concerned provided that “no disciplinary action will be taken against until your case has been investigated by at least two partners”.  That entitlement arose when there were apparently more equity partners within the firm but as we have indicated by the time of this matter there were only two, Mr Hudson and Mr Hicks, and therefore since Mr Hicks obviously had to be kept away from the disciplinary hearing so that he was able to deal with any appeal, Mr Hudson officially was the partner who dealt with the disciplinary procedure.  The tribunal therefore found that there was a technical breach of contract because there were not two partners involved in that procedure although at the end of their decision raised considerable doubt as to whether or not any damages would flow from what they described as this technical breach.

39.	Mr Bourne argues that in fact on the tribunal’s findings two partners were involved in the investigation since they made a series of findings that Mr Hicks was very much involved in the process that took place certainly up to the afternoon of 6 November.  In response Mr Engelman points out that the factual situation as found by the tribunal made the breach even clearer because the bulk of the investigation was in fact carried out by Mrs Singleton who was not a partner.  Further the final part of the disciplinary hearing, the final part effectively of the investigation, was carried out by Mr Hudson alone because Mr Hicks had gone on holiday.  

40.	We see no grounds therefore to interfere with the tribunal’s decision.  There was clear evidence before them that two partners had not been involved at all times in the investigation, indeed for most of the investigation no partners had actually been involved.  Whether or not damages will follow from this breach will be a matter for the tribunal to consider in due course.  So the net result of this appeal is that it is allowed in part to the extent of the decision in Polkey and the decision on Polkey is set aside and remitted back to the tribunal to deal with at the remedies hearing.

41.	Even before we started hearing this case this morning we were all concerned about the vast amount of documentation that has been produced for this appeal on what were it turned out were really quite narrow specific issues.  We do feel that it is appropriate to mark our displeasure because we are of the view that the main responsibility for this documentation rests with the Respondent’s side both in relation to the supplementary bundle and to the prevarication over the issue of notes of evidence in relation to both Mr Hudson’s evidence and the insistence that in fact other witnesses notes were to be included.  We are quite satisfied that this conduct was unreasonable.  

42.	We do not accept that the issue of perversity opened up all these issues.  To our mind the issue of perversity was limited to the tribunal failing to give weight to the findings that they had already made in relation to dishonesty.  We therefore think it appropriate to mark out this unreasonable conduct with an award of costs.  We have to take a view on what time we think would have wasted in dealing with this documentation.  We therefore propose to order a sum of £750 to be paid but not to be enforced until the conclusion of the remedy proceedings.  There will be an order that the Respondent pay £750 to the Appellant in respect of costs but not to be enforced until the outcome of the remedy proceedings.  We hope we will never see this size of documentation again in a case of this sort which as we have already indicated had really very, very narrow confines.