Appeal No. UKEAT/0051/09/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	28 May 2009

Before
HIS HONOUR JUDGE HAND QC
SIR ALISTAIR GRAHAM KBE
MR D WELCH

MR B E SAUNDERS	APPELLANT

OCS GROUP LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR R THACKER
(of Counsel)
Instructed by:
Messrs Thomas Dunton
217/219 High Street
Orpington
Kent BR9 ONZ	
For the Respondent	MS S THAROO
(of Counsel)
Instructed by: 
Messrs Weightmans 
India Buildings
Water Street
Liverpool  L2 0GA	

SUMMARY
UNFAIR DISMISSAL: Compensation; Polkey Deduction

Whether a nil award of compensation under section 123(1) of the ERA 1996 could have been made without misdirection as to the correct approach to the section?  The fact that a third party had withdrawn a licence for the employee to be on its premises under the erroneous impression that he had caused damage to its property was regarded by the Employment Tribunal as requiring a nil award without any consideration as to the “what if” scenario, which should have included consideration as to the reasonable employer asking for the licence to be reinstated.  Remitted to Employment Tribunal.

HIS HONOUR JUDGE HAND QC

1.	This is an appeal from the judgment of an Employment Tribunal comprising a judge and two lay members sitting at South London on 19 and 20 August 2008 and 26 September 2008, the reserved judgment being entered in the register and sent to the parties on 20 November 2008.  The Employment Tribunal decided that the Appellant, who was the Claimant at the Employment Tribunal, had been unfairly dismissed by the Respondent on 25 February 2008 but awarded him only a basic award and a sum in respect of loss of statutory rights.  This was because the Employment Tribunal concluded that the substantive cause, as they put it, of his loss was not his dismissal on 25 February 2008 but the withdrawal of his “air side pass” by British Airports Authority, hereinafter called BAA, on 20 February.  The Appellant challenges the correctness in law of that conclusion.

2.	It is necessary to set out in some detail the background and the findings of liability of the Employment Tribunal, even though this is an appeal that relates only to the question of compensation.

3.	The Respondent provides services to the operator of Gatwick Airport, BAA, pursuant to a contract for services made between them.  One of the services is assisting elderly, infirm and incapacitated passengers to get to and from aircraft.  Often this is done by driving them in electrically powered vehicles, referred to as carts.  In 2002, when he was about 54 years of age, after many years working with electrical equipment, the Appellant started to work for the Respondent assisting passengers to get to and from aircraft at Gatwick Airport.  In order to do such work, he needed and had been issued by BAA with an air side pass.  By February 2008 he had been doing this work for five years.  He had what was described as “an unblemished record”.

4.	Whilst transporting passengers it is often necessary to use the lifts at Gatwick airport.  On 19 February 2008, a lift at gate number 49 in the North Terminal, which lift was often used by the Respondent and other service companies, had broken down.  The Appellant had entered it, the doors had closed but thereafter the lift had not moved.  When that happens it should be reported to the duty controller.  A broken lift, however, can have an adverse effect on the transporting of passengers to planes.  There are obvious deadlines to be met.

5.	What the Appellant did was to attempt to open the doors and then attempt to get the lift operating again.  He did this by kicking and pushing the doors and also by operating a lever which was disclosed when the outer part of the door opened.  The process of him kicking the doors was caught on film by a CCTV camera located nearby.  He had been shown a technique known as “shunting” the lift doors in cases where the doors had come off the rails.  This process apparently may force the doors back onto the rails.  It was this process that the Appellant was engaged in on 19 February.  In the course of it he noticed that there was extensive damage to the fabric of the lift.  This appeared to him to have been caused by collision between the fabric of the lift and the metal vehicle.   

6.	Having failed to get the lift to operate, the Appellant reported the matter to his colleague, Mr Harrington.  Together they went to the lift and together they inspected the damage.  Mr Harrington then reported it to the duty controller.  After that there was a tannoy message broadcast about the nature of the damage to the lift and when another employee, a Ms Fazzino, went to the lift, her curiosity having been aroused by the tannoy message, she found the customer service manager on duty, a Mr Morley, measuring up the indentations on the lift interior and comparing them against the height of a nearby mechanical metal buggy.  She heard him pronounce that the damage could only have been caused by contact with such a buggy.  It was never suggested that the Appellant had been driving that buggy and the lift had ceased working before he arrived.

7.	Later, Mr Morley and another employee of the Respondent, Mr Connelly, looked at some CCTV footage, which had been recorded by the camera referred to above; it was owned by BAA.  The evidence of what they saw is unclear but Mr Morley was said to have been appalled by the Appellant’s physical efforts to get the lift operating.

8.	The account we have just given is a summary of paragraphs 5 to 17 of the judgment of the Employment Tribunal.  It is worthwhile, from now on, quoting some of the subsequent paragraphs of the judgment in full.  To those we now turn.

9.	At paragraph 18 of the judgment the following appears:
“It appeared to the Tribunal that having seen the Claimant kicking the doors all attempts to search for the driver of a metal buggy that had appeared to them to have caused the damage to the inside of the lift were abandoned. The undated incident reports of Mr Connelly and Mr Morley focused their attention entirely on the actions of the Claimant. The Tribunal was concerned that there was no evidence that the Claimant had sustained damage to the lift by his actions. It is clear from the footage that the lift had ceased working before he had arrived to use it.”

10.	There was never any technical report into the nature of the damage.  No attempt was made to discover when the lift had stopped working.  No attempt was made to inspect the damage done.  This is dealt with at paragraph 19 of the judgment which reads:
“There appears to have been no effort by the Respondent (or BAA) to discover with the aid of the available CCTV footage precisely when the lift had stopped working. No technical report was commissioned, by Mr Morley or Mr Connelly, that might confirm the cause of the stoppage and whether the Claimant’s conduct either did cause and damage or was likely to have contributed to any additional damage to the doors of lift 49. Moreover, the Tribunal did not have put before it an accident report by Ms Awan who had attended the investigation for that purpose. In the end there was nothing that correctly identified the damage that was sustained to the lift doors and the Tribunal consider it remarkable that the series of events that followed continued without the Respondent having first conducted a basic investigation.”

11.	A Mr Hubbard, service delivery leader of BAA, saw the CCTV footage.  Apparently it made him angry.  He regarded the Appellant as being responsible for criminal damage.  He suggested the police should be called.  He told the Respondent’s general manager, Ms Irene Maybank, in a telephone conversation that he wanted the Appellant removed from the airport and he withdrew the air side pass with immediate effect.

12.	Then he refused the Respondent any further access to the CCTV footage on the basis that its disclosure was prohibited by the Data Protection Act.  This was such a usual posture on the part of BAA, Ms Maybank did not query it further.

13.	The Appellant was suspended the following day at an investigation meeting.  At that meeting the Appellant clearly stated that he had not been driving a buggy and that what he had done to try and get the lift operating again had not caused any damage to the fabric of the lift.  That he was trying to get the lift to work, he said, would be obvious from the CCTV footage and he asked whether the CCTV footage showed who had hit the lift.  Taking notes at the investigation, was an employee of the Respondent, a Ms Awan, the person who had prepared an accident report and who had inspected the damage.  At the investigation meeting she said nothing as to what she knew.  Her accident report does not appear to have been discussed.

14.	The following day, 21 February, the Respondent wrote to the Appellant, summoning him to a disciplinary hearing to face a charge of causing criminal damage to the lift.  The day after that, Mr Hubbard of BAA was sent an email by Ms Maybank.  This is dealt with at paragraph 22 of the Employment Tribunal decision, which is worth quoting in full:
“In an e-mail dated 22 February, addressed to Mr Hubbard, Ms Maybank informed Mr Hubbard that the “person responsible for the damage to the lift” had been identified and had “admitted it” following an investigation. She asked Mr Hubbard to confirm in writing that BAA would not be prepared to issue the Claimant with an airside pass in future and confirmed that she would not be pressing to see the CCTV evidence, because she had identified the culprit and had his statement. Ms Maybank did not take the precaution of visiting the lift personally; she relied on the reports from Mr Morley and Mr Donnelly and the telephone conversation she had had with Mr Hubbard.”

15.	Four days later, on 25 February, the Appellant attended the disciplinary hearing which was conducted by Ms Maybank.  It is described in paragraph 23, which reads as follows:
“The disciplinary hearing was held before Ms Maybank a few days later, on 25 February. During the hearing the Claimant repeated his denial that he had damaged the lift. He explained to her that he had tried to put the lift back onto its channelling, he explained that he had seen serious damage to the inside of the lift that had been done by a buggy. Ms Maybank ignored this aspect of the Claimant’s evidence. Ms Maybank told the Claimant that BAA saw him violently kicking the lift which they regarded as criminal damage and as a consequence they wanted him off of the site.”

16.	The Appellant was summarily dismissed for causing criminal damage to the lift.  He appealed to Mr Wheeler, the Regional Director.  His grounds of appeal are summarised at paragraph 25 of the Employment Tribunal’s judgment, which reads as follows:
“The appeal was heard before Mr Steven Wheeler the Regional Director. In the Claimant’s letter of appeal he repeated that he was not responsible for the damage sustained to the inside of the lift door and maintained that the damage could only have been caused by a metal object striking the metal of the lift at force.  He repeated that he had made an attempt to put the lift doors back onto its channelling. The Claimant asked to be shown the CCTV footage in order to attempt to trace the driver of the buggy that was responsible for the damage.”

17.	The appeal was heard on 12 March.  This time Mr Harrington was there to confirm that a lot of the damage to the lift appeared to have been caused by a metal buggy.  He thought it was buggy number 23; the judgment does not record why he was able to be so specific, although a reasonable inference might be that it was the buggy which was nearby and which had been measured by Mr Morley.  Without any inspection of the lift or the damage to it or inspection of any buggy, Mr Wheeler confirmed the decision and dismissed the appeal.

18.	The Employment Tribunal concluded that the reason for dismissal was the belief that the Appellant had caused damage to the lift.  In so finding, it expressly rejected the Respondent’s contention that the reason for dismissal was BAA’s withdrawal of the air side pass.

19.	This is dealt with at paragraph 32 of the judgment, which reads:
“The Tribunal found, as fact, that the reason for the Claimant’s dismissal was the Respondent’s belief that he had caused criminal damage to its client’s property. The Tribunal did not accept that the reason for the dismissal was the removal of the Claimant’s pass by BAA as contended by the Respondent. Conduct is a potentially fair reason for dismissal.”

20.	In the following paragraphs, that is to say paragraphs 33 to 36, the Employment Tribunal went on to find that the dismissal was unfair.  In summary, the Tribunal found that the investigation was not a fair or reasonable one and the flaws in it led to a flawed disciplinary procedure.  The employer had failed to identify the cause of the damage and to ask whether the Appellant could have caused it.  Thus whether or to what extent the Appellant had caused damage was never addressed.  Moreover, the hearing was not fair.  Ms Maybank never identified the issues and had a closed mind.

21.	We have set out that much detail because, although it relates to liability and explains the findings on liability, it important to articulate that detail as it sets the scene for the issue in this appeal, which arises out of the decision on remedy.  That decision, which was arrived at after the hearing on 26 September, starts at paragraph 39.  At paragraph 40 the Employment Tribunal recite the provisions of section 123(1) and (2) of the Employment Rights Act 1996 (as amended), record at paragraph 41 that the entitlement to a basic award was not disputed and then go on to make findings of fact at paragraphs 43 to 46.

22.	Paragraph 43 is pivotal to the judgment of the Tribunal and so it needs to be quoted in full.  It reads:
“The Respondent requires authority to allow its employees to work for BAA airside at the airport which is provided through the issue of an air side pass. The contract between the Respondent and its client allows the client to withdraw consent for staff engaged by the Respondent to work for it. The Claimant had authority to work for BAA revoked and the air side pass issued to him withdrawn on behalf of BAA following the viewing of the CCTV footage of the Claimant kicking the lift door, in the circumstances referred to above, from 20 February 2008.”

23.	Having found at paragraph 46 that there was no failure on the part of the Appellant to mitigate his loss and that the loss incurred up to the date of the hearing had been caused by the dismissal, the Tribunal went on at paragraph 47 once more, in effect, to set out the terms of section 123 and in the second, third and fourth sentences of paragraph 47, to record the submissions that had been made on behalf of the Respondent by Ms Tharoo, who has also appeared before us on this appeal.

24.	The key submission is in the second sentence which reads:
“We have heard the submissions from the Respondent that the actions of BAA must be taken into consideration; the Respondent could no longer employ the Claimant at Gatwick and he could not have been transferred to the Heathrow contract.”

The Tribunal then goes on to deal with whether there was other alternative work within the Respondent’s organisation, which work would have been acceptable to the Appellant, and concludes that there was not.

25.	With that in mind, the Tribunal then go on in paragraphs 48 and 49 to reach the conclusions that are critical to this appeal by a reasoning process that is equally critical.  Paragraph 48 reads:
“The question for the Tribunal is whether the dismissal was the sole cause of the Claimant’s financial loss or whether the dismissal was one of two or more concurrent causes of the Claimant’s wage loss. We found that the dismissal was just one of the causes of the Claimant’s loss of wages. The second and substantive cause was the withdrawal of his airside pass. This had a substantial and material consequence which was that the Claimant could not be employed to work at any BAA site from 20 February.”

26.	Consequently, the Tribunal came to its conclusion, set out at paragraph 49, as follows:
“Having regard to those circumstances the Tribunal concludes that it would not be just and equitable to make an award of compensation for loss of wages incurred after the date of the Claimant’s dismissal. The Claimant was paid up to the date of termination of his employment and the Tribunal therefore makes nil award of compensation in respect of his loss of wages.”

27.	Finally, the Tribunal, at paragraph 50, went on to make an award in respect of loss of statutory rights of £300 and to make a basic award of £1,999.05.  Although it is not said expressly, it is clear that there was no deduction of any kind from the basic award.

28.	Before turning to the arguments, we should record that two issues not covered by the Notice of Appeal or the Respondent’s Answer, emerged during the course of the hearing before this Tribunal.

29.	The first was raised by Mr Thacker who appears on behalf of the Appellant.  It relates to section 38 of the Employment Act 2002.  This was a matter that Mr Thacker submits was clearly in play at the Employment Tribunal where the Appellant was represented, we understand, by his sister.  Nevertheless, he had submitted a schedule of loss which is at pages 51 and 52 of our bundle and at page 52 and at subparagraph (f), there is the heading “Non-compliance Section 1 ERA 1996” and under that heading appears the following, “Failure to provide written particulars of employment pursuant to section 1, Employment Rights Act 1996”.  The sum claimed is £330.

30.	Mr Thacker accepts that that is not entirely correctly directed.  It is, however, drawing attention, he argues, to section 38 of the Employment Act 2002.

31.	Under section 38(3), there is a mandatory duty imposed on a tribunal, subject to certain other statutory principles, to increase the award made in respect of proceedings to which section 38 applies, and these include unfair dismissal proceedings, where there has been a breach of section 1 of the Employment Rights Act; in other words, where the complaint being made is that there has been a failure to provide particulars of the terms and conditions of employment as required by the statute.  It is the duty of the Employment Tribunal to consider whether or not to make some form of award as calculated by reference to other provisions in section 38.

32.	The decision, submits Mr Thacker, quite correctly, is totally silent as to this matter.  It is a matter not raised in the Notice of Appeal.  Mr Thacker ultimately applied for permission to amend the Notice of Appeal to complain that the Employment Tribunal had failed to address this point which was, he submitted, in play in the remedies hearing before it.  We accept that submission.

33.	Can he take the point notwithstanding the failure to raise it in the Notice of Appeal?  The matter requires no further evidence.  It is a new point in the sense that it is not a part of the Notice of Appeal but it is not a point new to the Employment Tribunal and in all the circumstances we think it just to allow an amendment to the Notice of Appeal.  We have seen no draft but hereafter will give directions as to the lodging and service of an amendment.  However, we give permission in general terms to amend the Notice of Appeal to allow this point to be taken.

34.	The second matter relates to the Respondent’s Answer; there is no cross appeal.  The judgment of the Employment Tribunal is also silent, submits Ms Tharoo, on the question of section 123(6), namely whether the dismissal was caused or contributed to by the conduct of the Appellant.

35.	Initially, Mr Thacker submitted this was a point that could not be taken because it ought to have been the subject of a cross appeal.  As we understand it, his ultimate position was that he did not object to permission being given to raise this matter by way of cross appeal, although once raised, he would urge that the matter had been dealt with by the Tribunal and it would not be just to allow it, in effect, to be reopened on a second bite of the cherry on any remission.  We will return to that submission in due course. It was accepted, however, this was a point that clearly was raised before the Employment Tribunal.

36.	Ms Tharoo has a recollection, not particularly precise (in saying that we imply no criticism whatsoever of her), that the Tribunal might have indicated in announcing the decision orally, that given its judgment as to there being a nil award of compensation following the reasoning set out at paragraph 48 of the Employment Tribunal’s decision, which we have quoted above, the Tribunal thought that it need not address the question of what might be called, in shorthand terms, contributory fault.  Be that as it may, it seems to us that this is a point that was not expressly addressed by the Tribunal and it ought to have been.  It is not a point that requires any further evidence before it can be addressed by this Tribunal.  It is a point that plainly was, using the same expression as we used in relation to section 38, in play at the Employment Tribunal.  In our judgment it is only just that we give permission for there to be a cross appeal.  We will extend any time for submitting a cross appeal and give directions as to the lodging of a written cross appeal at the end of this judgment.

37.	The Appellant submits that the Employment Tribunal were in error at paragraphs 47, 48 and thus, consequentially, at paragraph 49.  What the Tribunal do not say explicitly in the judgment, submits Mr Thacker, is that they were rejecting the argument that there was a different reason for dismissal under section 98(2) of the Employment Rights Act of 1996, as amended, to that stated in the dismissal procedure.

38.	Section 98(2) reads:
“(2)	A reason falls within this subsection if it— 
	(a)	relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, 
	(b)	relates to the conduct of the employee, 
	(c)	is that the employee was redundant, or 
	(d)	is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.”

39.	Paragraph 32, which we have quoted above, is, submits Mr Thacker, to be understood as the Tribunal rejecting not only the reason for dismissal, which the Respondent advanced at the hearing but also any question of section 98A(2) of the Act having any application.  It is unfortunate that the Tribunal was not more explicit about procedural unfairness in the second sentence of paragraph 32 but we incline to Mr Thacker’s view that the Tribunal may have had this in mind.  

40.	That being so, continues the submission of Mr Thacker, the Tribunal was therefore only concerned with section 123(1) and with the law as developed in the decided cases as to how to approach section 123(1); in particular, he submitted, we were in the territory first clearly defined by the House of Lords in the case of Polkey v A E Dayton Services Ltd [1988] ICR 142.

41.	He pointed out this area had been explored recently in two cases in the Court of Appeal; firstly, in Gover and Others v Property Care Ltd [2006] ICR 1073 and secondly in Thornet v Scope [2007] ICR 236.  In Gover, in the judgment Buxton LJ at paragraphs 16 and 17 on page 1080 that learned judge suggested, possibly obiter dictum, that no distinction need be made between cases where one can be quite certain as to the future, so that what is called “an alternative world” need not be hypothesised and other cases which might be described as true Polkey cases, where the future is perhaps less certain.  This was subsequently accepted as a correct analysis in the later case of Thornet v Scope.

42.	Buxton LJ makes clear at paragraph 19 on page 1082 of Gover that all situations are to be judged by reference to the wording of section 123(1) and, submitted Mr Thacker, this was what the Employment Tribunal had to do in the instant case.  Thus, in a case such as the present, one should approach the task as suggested by the Court of Session in King v Eton Ltd No 2 [1998], IRLR 686.  At paragraph 19 of that judgment (which was cited with approval by the Court of Appeal of England and Wales in Lambe v 186K Ltd [2005] ICR 307 at paragraph 58), Lord Prosser said:
“… the matter will be one of impression and judgment, so that a tribunal will have to decide whether the unfair departure from what should have happened was of a kind which makes it possible to say, with more or less confidence, that the failure made no difference, or whether the failure was such that one simply cannot sensibly reconstruct the world as it might have been.”

43.	So, says Mr Thacker, what this Tribunal did not do but should have done was attempt to reconstruct the world as it might have been.  What it did do, in paragraph 48, was to have regarded the question under section 123 as simply a matter of causation.  It reintroduced by way of causation, a reason for dismissal that it had expressly rejected at paragraph 32 and by doing so it failed to engage properly with section 123.

44.	He reinforced that submission by reference to Thornet v Scope.  He commended to us paragraphs 34 to 39 and without any discourtesy to Lord Justice Pill’s careful judgment, having have considered them we do not feel it necessary to take up time by reciting them.

45.	Ms Tharoo submitted that the Tribunal had considered the “what if” scenario.  It was, she submitted, all there in her skeleton argument.  At paragraph 4 of her skeleton argument she set out in lettered subparagraphs what, she submitted, were the significant facts.  These were:
“	a.	Mr Hubbard was extremely angry;
	b.	BAA considered the Claimant’s actions in kicking the lift constituted criminal damage;
	c.	Mr Hubbard accused the Claimant of causing criminal damage;
	d.	Mr Hubbard threatened to have the Claimant prosecuted by the police;
	e.	Mr Hubbard wanted the Claimant removed from Gatwick Airport immediately;
	f.	The Claimant’s air side pass [which was required in order to work at any BAA controlled site] would be revoked immediately;
	g.	The Claimant was not allowed to work at Gatwick any longer.”

46.	These she had collected from paragraphs 20 to 23 of the Employment Tribunal’s Judgment.  They were, she said, a basis for the finding, which was implicit in the Employment Tribunal’s decision, that the Tribunal had, indeed, quite correctly, looked at section 123(1), had asked itself what the causation of the loss was in paragraph 48 and had come to an inevitable and impeccable conclusion in paragraph 49.

47.	It is worthwhile returning to section 123(1).  It reads:
“… the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.”

Firstly, the amount has to be such as the Tribunal considers just and equitable in all the circumstances.  Secondly, it should be arrived at by having regard to the loss sustained by the complainant.  Thirdly, that loss has to be in consequence of the dismissal.  Fourthly that loss has to be attributable to action taken by the employer.

48.	In its judgment at paragraph 48, although it had just reminded itself at paragraph 40 on the previous page and paragraph 47 on the same page, as to the steps to be taken in relation to section 123, the Employment Tribunal appears to have concentrated not so much on what was the loss in consequence of the dismissal, in so far as that was loss attributable to the action taken by the employer, but to have considered the matter in terms of competing and concurrent causation.  The Tribunal, indeed, seems to have conducted a balancing exercise.  It seems to us impossible otherwise to explain the third sentence at paragraph 48 which reads, “… the second and substantive cause, was the withdrawal of his air side pass” (we have added the emphasis). 

49.	The Tribunal, in effect, thought that the withdrawal of the air side pass was some kind of “trumping” of the reason for dismissal.  In our judgment that was not the right approach to section 123(1).  The Tribunal misdirected themselves by failing to ask what was loss was consequent upon the dismissal and was that loss attributable to the action taken by the employer?

50.	One simple omission, which we have concluded was made by this Tribunal, illustrates the error that they have fallen into.  Having found that the employer unfairly dismissed the Appellant and having judged that the reason for dismissal stated by the Respondent, namely causing criminal damage, or as it is put elsewhere, gross misconduct, could not have led a reasonable employer, properly looking at the matter in terms of section 98(4) of the Act, to conclude could fairly result in dismissal, the Tribunal concluded that the Appellant should not have been dismissed and should not have been dismissed on the grounds of gross misconduct.  What the Tribunal then omitted to consider in the light of that conclusion was that, therefore, what the Appellant had most obviously lost was the right to be dismissed in accordance with the terms of his contract.  If there was no gross misconduct and thus no grounds for summary dismissal then he was entitled either to be paid in lieu of notice or to work out his notice.  We think this shows that the Employment Tribunal lost sight of the questions it should have been considering in the context of section 123; most pertinently it lost sight of considering what loss had been caused by the dismissal and instead focussed on what the loss might have been had there been a dismissal on some other basis.
 
51.	Even if, as Ms Tharoo submits, the Tribunal were correct to regard the facts as justifying the conclusion that under section 123(1) the employer would have been obliged to dismiss the employee, that dismissal, looking at the matter properly in terms of section 123(1), must have been a dismissal on notice (and possibly at a later time) and in those circumstances the Tribunal could not have come to the conclusion it did at paragraph 49.  To our mind that is an indication of the nature of the error committed by the Tribunal in relation to section 123(1) at paragraph 48.  The Tribunal have simply failed to look at the consequences of that dismissal at that time, as they were required to do by section 123 of the Act. 

52.	In short, the Tribunal misdirected themselves by looking at section 123 of the Act entirely from the point of view of the relationship between the employer and BAA; it was not looked at from the point of view of the consequences of the dismissal, vis a vis the relationship between the employee and the employer.  

53.	However, in our judgment, the error does not end there.  Before the employer could get to the point advocated by Ms Tharoo, namely that it could never continue to employ the Appellant because there would be no reasonable prospect of BAA changing its mind (a point, which may or may not be reached and, certainly, not a matter for us to decide), in our judgment it is at least worthy of consideration under section 123(1) as to what process a reasonable employer would undertake in the circumstances.

54.	Ms Tharoo submits that it was enough for BAA to have expressed itself through the medium of Mr Hubbard in the terms that it did on 20 February.  In our judgment that cannot be the proper focus of section 123(1), although it is clear from the terms of paragraph 48 that the Tribunal thought it was.  The focus must be, given that the dismissal was unfair, is it possible or is it impossible to construct what is called in the authorities “an alternative world”?

55.	Ms Tharoo has pointed to all the features that indicate an implacable attitude on the part of BAA.  She points out that is not just the attitude on 20 February when there may be heightened emotion as a result of viewing the CCTV footage, but that the attitude continued.   What, then, of section 123(1) if the matter is to simply be left at the point that one says that the third party, BAA, is always implacable?  Does that mean that the reasonable employer, having come to the conclusion that the employee was not guilty of criminal damage, had not caused the damage to the lift and should not be dismissed, can satisfy the Tribunal that there should be no award under section 123(1) by simply saying that inevitably there would be a refusal by BAA to reinstate the air side pass?

56.	The Employment Appeal Tribunal, whose jurisdiction relates solely to points of law arising from decisions of Employment Tribunals, cannot answer these questions.  We cannot set forth on what has been described in some of the cases as “a sea of speculation” but what we can do, and in this case we have reached the conclusion we must do, is conclude that it is an error of law for the Tribunal, as they have done at paragraph 48, to draw a line by reference to the past history of BAA and by reference to events occurring at the airport on 19 and 20 February and say that is the end of the matter,.  In our judgment the Tribunal fell into error by misconstruing section 123(1) as entitling them to stop at the proposition that is set out in paragraph 48 and not to attempt any construction of an alternative world.  What the outcome of such a construction might be is not a matter for us but we do think that there has been an error of law, the appeal must be allowed and the matter remitted for the question of an award under section 123 to be reconsidered.

57.	For the reasons set out at paragraphs 31 to 33 above, we also have reached the conclusion that the Employment Tribunal has plainly not explained what its decision is in relation to section 38 of the Employment Act 2002.  In our judgment that was a matter clearly before the Employment Tribunal.  The Tribunal has made no findings whatsoever as to the issue of particulars of terms and conditions of employment, whether particulars were supplied to the Appellant or were not, and if not, what the consequences of that are in terms of section 38.

58.	Accordingly, having granted permission for an amendment to the notice of appeal, we will allow the appeal on that basis also and remit that question for consideration.

59.	We turn now to the cross appeal.  Ms Tharoo submits that the Tribunal have given no consideration to the question of contributory fault under section 123(6). Mr Thacker has submitted that the question was expressly argued before the Employment Tribunal; also it is clear that the Tribunal have chosen to make no deduction in relation to the basic award, and therefore, it can be inferred that the Tribunal have reached the conclusion that there was no contribution on the part of the employee under section 123(6).

60.	Section 122(2), which deals with reductions in the basic award, is in slightly different terms to section 123(6) but that is not, we think, a crucial distinction.  What has swayed us in relation to contributory fault is that the decision is completely silent on the point.  It ought to be dealt with.  We will allow the appeal and the question of contributory fault should also be remitted.

61.	Finally, what are the terms of a remission to be?  Mr Thacker submits it should go back to a different employment tribunal.  Ms Tharoo submits that it should go back to the same employment tribunal.

62.	We have been referred to the case of Sinclair Roche and Temperley and Others v Heard and Fellows [2004] UKEAT 0738_03_2207.  In that judgment of this Tribunal, given by the then President, Burton J, there are a number of factors that it is suggested should be taken into account when considering this issue of whether there should be a remission back to the same or a differently constituted tribunal and helpfully they are all set out in the printed version that Mr Thacker supplied to us at paragraph 46; less helpfully, in his version, they are all numbered as paragraph 46 but fortunately they are also numbered 1 to 6.

63.	Mr Thacker relies upon 4.  He submits that so far as remedy is concerned, this is a totally flawed decision.  This is a case in which there is also, so far as paragraph 5 is concerned, going to be a second bite of the cherry and the Tribunal here has really already made up its mind.

64.	Ms Tharoo submits that this is a matter upon which a professional tribunal can once again pick up the baton and conveniently dispose of the matter, having heard quite a lot of the evidence already.

65.	There has been, in effect, a line drawn across this decision; that is to say that the decision as to unfair dismissal stands but, leaving aside the question of basic award, which we also think ought to stand, and the issue as to loss of statutory rights, which we think also ought to stand, there is, in effect, to be a total revisiting of the question of compensation and of some allied topics such as section 38 of the Employment Act 2002.  Thus, the whole issue of compensation is opened up again.  There will have to be evidence.  Mr Thacker submitted it ought to be restricted to witnesses already called.  We think that is an unjust restriction; in particular, if the issue of contribution and the issue of reconstructing the “what if” scenario is open, then it is only fair that all evidence that might bear on the matter should be called.

66.	To that extent, there would be no advantage to the present Tribunal hearing the matter; a differently-constituted tribunal would be in just as good a position.  We have hesitated as to this but come to the conclusion that, on balance, this being a second bite of the cherry case, and the Tribunal having expressed themselves in very clear terms, it might be better, since the matter is essentially to be reopened, for it to be heard by a completely differently constituted Tribunal.

67.	That, then, is our judgment.  So far as the directions are concerned, this case will be remitted for a rehearing on the following issues: section 123(1) and (6) and section 38 of the Employment Act 2002, to a differently-constituted Employment Tribunal to hear those issues with whatever evidence the parties wish to call.

68.	The Appellant must lodge and serve an amended notice of appeal within 14 days of the date of the sealed order in this case and the Respondent must lodge and serve a cross-appeal within the same period.