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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Cables Maintenance & Engineering Ltd v. Sudworth [2004] UKEAT 0078_03_3004 (30 April 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0078_03_3004.html Cite as: [2004] UKEAT 0078_03_3004, [2004] UKEAT 78_3_3004

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APPEARANCES

 

 

For the Appellants	Mr S Miller, Solicitor Of- Messrs Macroberts Solicitors 152 Bath Street GLASGOW G2 4TB
For the Respondent	Mr A Sudworth, In Person 16 Turleum Road CRIEFF PH2 3QF

SUMMARY UNFAIR DISMISSAL

Respondent withheld salary when not entitled to do so (Miles v Wakefield). Applicant resigned and held entitled to claim (unfair) constructive dismissal notwithstanding his being in (undiscovered) repudiatory breach. Tribunal reduced compensation by 75% (just and equitable) and further 50% contribution. No error of law. Respondent's appeal dismissed.


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT):

1.             This has been the hearing of an appeal by the Respondent company, Cables Maintenance and Engineering Ltd, against the unanimous Decision of the Employment Tribunal at Dundee, after a hearing on 2 and 3 September, 12 and 13 December 2002 and 30 June 2003, in lengthy Reasons handed down on 2 July 2003, which Reasons have been extremely helpfully paragraph-numbered by the Chairman.
2.             The Decision of the Employment Tribunal was that the Applicant, who resigned from his employment by the Respondent company on 14 June 2001, was constructively dismissed, and unfairly constructively dismissed, and the Respondent appeals against that finding. The part of the finding which was more favourable to the Respondent was that there be substantial deductions in relation to the compensation payable to the Applicant. The Tribunal reduced what would otherwise have been a compensatory award of £38,636.79 by 75%, pursuant to s123 of the 1996 Act, to £9,659.20 and that sum itself was, together with the basic award, further reduced as a result of its conclusion that there was contributory fault by the Applicant, at the rate of 50%, and so the eventual award was £780 for basic award and £4,829.60 in respect of the compensatory award, making a total of £5,609.60.
3.             The appeal by the Respondent, so far as liability and quantum is concerned, is put as follows:-

i.                That the Tribunal erred in law in its conclusion that there was an unfair constructive dismissal, on grounds to which we will refer.

(ii) So far as the 75% deduction is concerned, there being no appeal in respect of the quantum of the further 50% deduction to which we have referred, that the Tribunal either erred in law, or was perverse in arriving at that deduction of 75% as opposed to a higher reduction.

4.             This is an extremely unfortunate case which arises out of, effectively, a matrimonial dispute. Although the Applicant, Mr Sudworth, was not married to Mrs Targett, the two of them lived together as man and wife, and had children. The relationship broke down by about 1999, although they continued to live in the same house until 15 June 2000, when the Applicant moved out. Apart from living together, they also had a business together. That was a business, the Respondent company, which had been formed in 1984 by Mrs Targett, along with a Mr Baker, and Mrs Targett was the sole director of the Respondent, holding 99% of the shares.
5.             From about 1979 the Applicant and Mrs Targett lived together and jointly owned their home, but, from 1989, the Applicant had started to work for the Respondent company; by that time the original business partner of Mrs Targett, Mr Baker, had ceased to have any connection with the company.
6.             By 1991 Mrs Targett was spending almost all of her time bringing up their children, and the business of the Respondent was run almost exclusively by the Applicant, although Mrs Targett dealt with certain financial transactions. There were no other employees of the company, certain work of installation being carried out by contractors, and the Applicant, it is plain, from about 1991 onwards, carried out the entirety of the business and was the repository of the contacts and the goodwill from which the company benefited. The Applicant did not have a regular fixed salary, and between 1995 and 1999 it appears that he took, with the company's agreement, an annual salary varying between £15,000 and £25,000, and sums were paid into pension schemes on his behalf.
7.             As a result of the separation between the Applicant and Mrs Targett, it was necessary to discuss not only the financial consequences of the break-up of the relationships so far as the home in which they co-habited was concerned, but also the business. The company had been financially successful, and, indeed, had accumulated cash reserves by early 2000 in the region of £500,000, and had an annual turnover of around £5,000,000.
8.             Clearly, in a circumstance in which the Applicant was, effectively, the public face and the engine room of the company, he was dissatisfied with the position in which he was only a 1% shareholder. There was a man called Mr Gibb, who was a family connection of the parties, and he assisted them to reach an agreement. We have seen a document which was signed by the Applicant, by Mrs Targett and by Mr Gibb on 19 May 2000. That was an Agreement to which Mrs Targett and the Applicant, as well as the Respondent company, were parties, and the Agreement resolved the home as well as the business position. Clause 1 of the Agreement provided that Mr Sudworth would transfer his entire right, title and interest in the home, to Mrs Targett. That, it seems common ground, was worth about £300,000.
9.             In the meanwhile, the business of the Respondent company was to be transferred to a new company, to be called Cable Maintenance & Engineering (Scotland) Ltd, and in that new company, at least in the first instance, the shareholding would be 39% for the Applicant and 59% for Mrs Targett with a small interest for Mr Gibb, and, over a period of time, it was agreed that Mrs Targett would reduce her shareholding from 59% to 49% and the Applicant increase his from 39% to 49%.
10.         The Applicant would receive a salary of £40,000 plus properly incurred expenses from the new company, together with pension contributions etc., and, in relation to the period from 1 April 2000, he was to receive that £40,000 from the Respondent company, it being then intended that his employment with the new company would commence as of 26 May 2000. It was provided that a contract of employment would be entered into between the Applicant and the new company on similar terms to those provided previously in his contract with the Respondent company, save of course, in respect of the higher salary which was thereby agreed.
11.         Unfortunately, it appears that although the contract of employment with the new company was executed, the Agreement as a whole was not put into effect. The Applicant performed his part of it, so far as transferring the interest in the house was concerned, but the business was not transferred by the Respondent company to the new company, and the increase in his salary did not materialise, nor did the arrangements whereby he would now become a 39% shareholder in the new company which was to take over the business.
12.         The position appears to have occurred because, and we here refer to paragraph 25 of the extremely full and clear Decision of the Employment Tribunal, Mrs Targett was becoming, as it was put, less trustful of Mr Gibb. She felt that Mr Gibb was acting in concert with the Applicant, and felt pressure from him on occasions to agree to things about which she was reluctant. The Tribunal records:-

"Accordingly, she had become increasingly uncertain as to the wisdom of proceeding with the arrangements for the new company, notwithstanding that she had obliged herself to do so in the written agreement."

So far as the Applicant is concerned, the Tribunal records in paragraph 24 of the Decision:-

"by the beginning of 2001 the applicant had become increasingly concerned that, as he saw it, Mrs Targett was not fulfilling her side of the agreement. He had already been waiting since May of the previous year and had begun to suspect that Mrs Targett had no intention of carrying it through."

13.         One of the necessary prerequisites for a proper performance by the new company of the Agreement was Inland Revenue approval to those new pension arrangements. They were, it seems, in fact approved by the Inland Revenue in December 2000, and yet the Applicant had discovered by February 2001 that, although that approval had been obtained, Mrs Targett had not taken steps to implement the Agreement notwithstanding. And so, by letter of 13 February 2001, the Applicant wrote to Mrs Targett, because they were by now living separate and apart, he having moved into a new home towards the end of 2000, exhorting her to take certain particular steps to activate the new company, stating that, if she did not do so, he would feel obliged to consult his solicitor as to taking action.
14.         It appears that he also discussed the problem with Mr Gibb, and that Mr Gibb advised the Applicant, inadvisedly in our opinion, that if Mrs Targett was not to implement the Agreement, the Applicant should put in place a plan B, to form a new company of his own. The Applicant, it seems, took Mr Gibb's advice, and, so far as making preparations were concerned, he formed a new company, different from either the Respondent company or the proposed company to which, by virtue of the Agreement of May 2000, the business was supposed to be transferred, called Cables and Mainframe Equipment Ltd. The Tribunal concludes that that was a name chosen by the Applicant deliberately so as to have the acronym CME, the same as the Respondent company.
15.         Importantly, however, the Tribunal concluded at paragraph 27 of its Decision:-

"At the stage of forming that company, the applicant's primary wish was still for the agreement of May 2000 to be implemented. Accordingly he continued to work for the respondent company. …"

16.         It is recorded in the May 2000 Agreement that there were arrears of salary due to the Applicant at the time of that Agreement, in the sum of £11,000, which it had, it seems, being withheld. But those, at any rate, were paid to him at some stage after the May 2000 Agreement was implemented. But a similar occurrence appears to have eventuated in February 2001, namely, that Mrs Targett caused the Respondent company, in the first instance, not to pay expenses, and then in the month of March, April and May, not to pay salary to the Applicant. The Tribunal finds as follows in relation to what was happening during that period:-

"28. As noted above, prior to his separation from Mrs Targett the applicant had always used the jointly owned home as his work base, and all the files and business documents had been kept there. In mid-2000, simultaneously with his moving out of that house, the company opened a separate office in the High Street, Auchterarder, and all books, files, paperwork and equipment etc were moved there.

29. Thereafter the applicant worked both from that office and from his new home in Crieff, moving paperwork and files back and forth as required. He would work from his new home particularly when he had care of the two children of the relationship, which occurred every alternate week. Gradually, for reasons of convenience he began to work primarily from home and indeed from mid-February 2001, when he moved to another new house in Crieff, he worked exclusively from there.

30. At this point the applicant then took the step of moving all of the company's files, documents and records and equipment etc from the office in Auchterarder to his own home in Crieff. These files contained all the information concerning the company's customers and products, and their respective transport arrangements, journals and details of contracts etc – in short, all the essential information and documentation necessary to operate the business. He had a new telephone line installed at his home for business use. He did not advise Mrs Targett that he had done this.

31. However, shortly thereafter when she visited the office, Mrs Targett found it empty of all the company's files and books, and realised that as a result the control of the company had been removed from her. In retaliation, she stopped payment of the applicant's salary. She now felt that her apprehensions concerning proceeding with the new company had been justified."

The Tribunal records this in paragraph 32:-

"In due course the applicant found that his salary and expenses for March and April 2001 were not paid. However he continued at that stage to work for the respondent company as normal but consulted solicitors as to his position."

17.         On a proper analysis at that stage, it would appear to us that the Respondent company was in breach of contract in not having paid, and continuing not to pay, the salary, at a time when the Applicant was, on the findings of the Tribunal, performing his contract to the letter, albeit that he had moved the files from the office to a place where he was, in any event, carrying on such business, namely, his new home. There was no counter-instruction by Mrs Targett, on behalf of the Respondent company, once she had discovered the removal of the files to the Applicant, in that regard. The Tribunal found that her withholding a salary and expenses was in retaliation for his having moved such files, but there does not appear to us to be any justification found by the Tribunal in that regard.
18.         A letter was written by Mrs Targett on 9 May 2001, making complaints and raising queries about certain matters, but, in particular, she did not make complaint about the removal of the files or demand their return. The request only related to certain Inland Revenue documentation.
19.         The first instruction given by the Respondent company, in relation to the files, its first and only instruction, was set out in a letter of 6 June 2001, by which time it must be noted that the following had occurred:-

19. 1 there had still been no performance of the Agreement of 19 May 2000 in the sense of any transfer of the business from the Respondent company to the new company, nor any increase of the Applicant's salary in accordance with it, notwithstanding his having transferred the interest in the matrimonial home.

19.2 his salary had not been paid for the period of some 3 months.

19.3 he had been making preparations for what Mr Gibbs or he or both called plan B, but always subject to his primary wish for the Agreement of May 2000 to be implemented.

20.         The letter said as follows:-

"For the sake of the business I am keen to regularise our working relationship. When you took all our files and documents etc from our office to your home I suspended your pay.

I would like you to return to the office all the files and documents …. etc and everything else you have removed, and begin working from there again. I will restore your pay (including back pay). You will also be paid for any expenses properly incurred on production of receipts."

Paragraph 36 of the Tribunal's Decision records:-

"In that letter she also sought compliance by 5 pm on 7 June, and further asked the applicant not to delete any computerised data and to stop giving customers his own e-mail address. The applicant did not comply."

21.         The Tribunal summarises the position accurately, in our view, in paragraph 37 of its Decision as follows:-

"37. Accordingly, by this stage, his position was that he was refusing to part with the company files and documentation until his salary was paid; and simultaneously Mrs Targett was refusing to pay these arrears until the files and documentation were returned. Impasse.

A significant further paragraph is then recited by the Tribunal as follows:-

"38. Correspondence (unseen by the tribunal) had been passing between respective firms of solicitors in which the applicant had still been expressing his desire to see the previous agreement implemented, and he had continued to carry out his normal function and duties. The respondent company had continued to receive its income from the various contracts supervised by the applicant."

22.         The receipt of the letter of 6 June, coupled with the non-payment of the arrears and the non-execution of the agreement of May 2000, appears to have triggered the Applicant's decision, referred to in paragraph 39 of the Tribunal's Decision,

"to implement his "plan B", i.e. to trade under his own company (the new "CME") which hitherto had lain dormant since its formation in March. He made further preparations. He had business cards and letterheads printed for his own prospective trading – and that at a time when he was still in the employment of the respondents. Further, on 11 June 2001 three days prior to his resignation) he ordered further office products for the operation of his new company."

Although he consulted his solicitors on 12 June they did not send a letter of resignation until 14 June, which letter is quoted by the Employment Tribunal in paragraph 40 of its Decision.

23.         The Applicant, quite plainly, after that date entered into conduct which was unlawful; and it is summarised by the Tribunal, both in those following paragraphs in which they summarise their findings of fact in relation to the termination of the contract, and in those paragraphs, later in the Decision, in which the Tribunal refers to its findings on the basis of which it substantially reduces the compensation otherwise payable. In paragraph 42 the Tribunal refers to the fact that on 12 June 2001 (the day on which he had consulted the solicitors prior to terminating his employment) the Applicant had been in the company of a Mr Waterson of a firm called "Simclar", one of the Respondent's suppliers, and had mentioned that he was about to resign, and Mrs Targett thus heard on 13 June, from Mr Waterson, of the resignation. That is a marginal position, as the Tribunal recognises.
24.         However, what occurred thereafter is of a different character. The Applicant's new company, albeit that it is not shown as having been trading until 21 June, performed an order which was placed by a company called "El Camino Resources", previously a customer of the Respondent, and the Tribunal finds, in paragraph 44 of its Decision, that the Applicant had been aware of the probability of such an order from that customer prior to his resignation from the Respondent company. In any event, it is plain, that the name, as we have earlier indicated, was expressly chosen with a view to passing off, from which it appears that the Applicant was subsequently restrained by the Sheriff's Court, in separate proceedings, by enjoining him from using the logo or short name "CME", which was clearly an unlawful attempt by him and his new company to divert business from the Respondent company. The Tribunal made a finding in paragraph 46 of the Decision as follows:-

"Whilst the respondents' computers had been in his possession, [although Mr Sudworth tells us today, there being no date in this regard found by the Tribunal, that this did not occur until after the 14 June] the applicant deleted from them substantial quantities of files and information, before ultimately being compelled (apparently by court order) to return the equipment. In doing so, he was motivated by malice towards Mrs Targett."

25.         The Tribunal further found in relation to the conduct of the Applicant, other matters relating to his contact with suppliers and customers prior to his departure. Paragraph 101 reads as follows:-

"As noted above, some three months before he left the respondents, the applicant had formed his own company and endowed it with a name as deliberately close to that of the respondent company as he could achieve. Mrs Targett was not made aware of this. Upon being asked during the hearing as to his reason for doing so, he admitted to us that it was because he was "feeling bloody minded at the time" and that he was being "cussed". He admitted that by doing so he had compromised his loyalty "to a certain extent". He was conscious that it was he, rather than Mrs Targett, who had all the business connections and, again according to his own evidence, he "knew that if I left CME it probably would not be able to continue".

The Tribunal found, in paragraph 102, that the Applicant had had business cards printed for his new company prior to his leaving the Respondent. That in itself, of course, would only be part of preparatory acts, but the Tribunal noted that, initially, in his evidence he had attempted to disguise this fact, and that the invoices from the printers had had the name of the company and the dates removed by Tippex, by the Applicant. The Tribunal referred to evasiveness of the Applicant's evidence in relation to supplies and customers of the Respondent and the new company, and the Tribunal says as follows:-

"We were far from convinced by his claim of being contacted by El Camino Resources during those few days."

They referred in paragraph 104 to:-

"The obvious tampering with evidence by the applicant and his reluctance to admit the obvious in that regard pervaded our assessment of his credibility in the whole area of his activities and intentions prior to the formal announcement of his resignation. We noted also his deliberate deletion of business records from the computer, the purchase of other office supplies and the use of his own, as distinct from the business's telephone, fax and e-mail system."

And at paragraph 105 the Tribunal records:-

"By setting up his own company with a trading name deliberately chosen to be as similar to that of his employers, and thus inevitably to be confused with them, and with the intention latterly to trade in direct competition, we felt able to conclude that he was plotting a course which was calculated to inflict significant damage to the business of the respondents. We consider further that he was being untruthful in disclaiming any contact with suppliers and customers prior to his departure."

26.         The Tribunal concludes at paragraph 108 that, if Mrs Targett had been aware of his conduct:-

"there would have been sufficient in that pre-termination conduct for the reasonable employer to justify termination of his employment."

27.         Against the background of those facts, we have looked again, as we must do, although this appeal is one based on alleged errors of law, at the ample conclusions reached by the Tribunal, and we deal first with the submissions of Mr Miller, who has argued the matter ably before us, as he no doubt did below before the Tribunal. In relation to the issue of constructive dismissal, Mr Miller submits that the Tribunal erred in concluding that the Applicant was entitled in law to treat himself as dismissed. In order that he should do so, the Respondent employer needed to be in fundamental or repudiatory breach of contract, and Mr Miller submits that the Respondent was not. Mr Miller points to the conclusion by the Tribunal that the withholding of the Applicant's salary was expressly because of his removal of the files from the office, and, as the Tribunal put it, "in retaliation for it". Mr Miller consequently submits that in those circumstances, if what the employer was doing was justifiably withholding the salary, then there was no breach of contract by the Respondent.
28.         The other matter upon which the Tribunal may have relied for justifying the dismissal was the non-compliance by the Respondent company and Mrs Targett with the terms of the May 2000 Agreement, which quite plainly considerably affected the conduct of the Applicant. In that regard, clearly, if there was a refusal by the Respondent and Mrs Targett to comply with the terms of that Agreement, that might amount to a breach of itself, alternatively a refusal, or a lack of inclination, to pursue the Agreement might amount to a breach of the implied term of trust and confidence between the Respondent and the Applicant, particularly given the obvious financial implication for the Applicant, working as he was in the interests of the Respondent, and complying as he had with his side of the May 2000 Agreement.
29.         Mr Miller points out, however, that the Tribunal does not appear to have concluded that the failure, if failure there was, of the Respondent to comply with its obligations of trust and confidence towards the Applicant, was the reason for the resignation and he refers to paragraph 78 onwards of the Tribunal's Decision:-

"Mrs Targett still took no steps to bring forward the new arrangement and indeed was candid in her evidence to us that her reason for deciding not to do so was that firstly she had lost faith in Mr Gibb.

79. However, by mid-February she realised that the applicant had removed all the company's files, papers and equipment etc from the business premises. She thus equally lost confidence and trust in the applicant and thereafter, and because of that, became additionally disinclined to take forward the proposed new arrangement. It seemed to us however that the applicant had become entitled to conclude that Mrs Targett was not going to proceed and by her actions in that regard we consider that she was in breach of the implied term.

80. Having reached that stage, it is also necessary for the applicant to demonstrate that his termination of the employment was carried out in response to the material breach. In this regard the facts demonstrate quite clearly that his reason related specifically to the failure on the part of the respondents to pay his salary. We were less certain that the reason for his departure as at 14 June 2001 related specifically to the failure to implement the agreement. In any event, looking at the matter as a constructive dismissal, we have accepted that the non-payment of his salary afforded sufficient reason in any event for him to terminate his employment. …"

30.         It appears therefore, that the Tribunal did not reach the actual conclusion that the breach of the implied term, which it had found, was the cause of the resignation, and thus could be relied upon by the Applicant for the purpose of establishing repudiation by the employer, accepted by him.
31.         We conclude that, had the Tribunal not reached the conclusion that the non-payment of the salary was sufficient reason for termination, it may be that the Tribunal would have gone on to conclude, in addition, that the breach of the implied term was also repudiatory. It is indeed difficult to disentangle the failure to complete the Agreement from the failure to pay the salary because it appears to us an implicit motive behind non-payment of the salary was the change of mind by Mrs Targett, and/or the Respondent company, about compliance with the Agreement, and, indeed, part of the problem was that the Applicant was not only seeking payment of a salary but was actually seeking payment, in accordance with the terms of the May 2000 Agreement, of the enhanced salary which would have been received by him had the new Agreement been implemented.
32.         But we do not need to reach that conclusion for the purpose of being satisfied that the basis on which the Tribunal did decide that this was a constructive dismissal and an acceptance of repudiation by the Applicant cannot be challenged in law. Mr Miller has pointed to the case of Miles v Wakefield Metropolitan District Council [1987] AC 539 which makes it quite plain that there are circumstances in which an employer can withhold salary or remuneration owed to an employee, notwithstanding the fundamental nature of such a refusal or withholding, and that the employer can do that, effectively, as an alternative to accepting repudiatory breach by the employee, or dismissing the employee, if the employee himself or herself is in fundamental breach. Equally, as is clear from the speech of Lord Brightman in Miles at 552H, there are and can be circumstances in which an employee is only offering partial performance, and the employer can still not make payment. Lord Brightman said as follows:-

"If an employee offers partial performance, as he does in some types of industrial conflict falling short of a strike, the employer has a choice. He may decline to accept the partial performance that is offered, in which case the employee is entitled to no remuneration for his unwanted services, even if they are performed. That is the instant case. Or the employer may accept the partial performance. If he accepts the partial performance as if it were performance which satisfied the terms of the contract, the employer must pay the full wage for the period of the partial performance because he will have precluded or estopped himself from asserting that the performance was not that which the contract required."

33.         We are entirely satisfied, on the basis of the analysis of the facts by the Employment Tribunal, that in this case the Applicant was working normally. He may have been, unknown to the Respondent company, making preparations by way of plan B, and preparations which, in the event, were preparations for unlawful acts such as passing off, but at that stage they were unknown to the Respondent company, and, in any event, were not, as the Tribunal found, his primary wish or purpose. What he was doing during the period of February, March, April and May was, on the findings of the Tribunal, working normally on behalf of the Respondent company, albeit from home, in the circumstance in which it was known by the Respondent company that the files and equipment had been moved from the office, and yet no instruction had been given for their return.
34.         In those circumstances, in our judgment, he was not in repudiatory breach of contract and, therefore, the Respondent company was not, on that basis, entitled to withhold his salary, nor, if he was in partial breach, in the sense that there was some as yet uncriticised act by the Applicant in removing the equipment not yet met by an instruction to return them, did that partial breach lead to a situation in which the Respondent company refused to accept partial performance. The Respondent allowed the Applicant to continue to work normally, took the benefit of his services, and only on June 7 gave an instruction to put right the earlier default, if default it was.
35.         And thus, in our judgment, as at June 7, the Respondent was in repudiatory breach of contract in not having paid the salary, and had no justification for withholding it, and, albeit that it now gave an instruction with which the Applicant did not immediately comply, the Applicant was entitled to accept as a repudiatory breach, as the Tribunal found, the non-payment of his wages, albeit that non-payment had been "in retaliation" for what the Applicant had done.
36.         In those circumstances there was no error in law on the findings in fact by the Tribunal in that regard. There was, therefore, a constructive dismissal. There is no suggestion that the Tribunal in any way erred in concluding that that constructive dismissal was unfair, and the only further issue by way of appeal has been in relation to the conclusion by the Tribunal in paragraph 108 of its Decision with regard to the 75% deduction. We repeat paragraph 108 for this purpose:-

"Quite apart from the removal of all the company's files, papers and equipment beyond the reach of its owner and director (which we shall deal with under contributory conduct) we viewed the applicant's conduct as set out above as being unco-operative, disruptive and ultimately disloyal. Some of the signs of what became his ultimate plan had begun to be observed by Mrs Targett and to cause her concern. We refer to those parts of her letter of 6 June 2001 where she requested him not to delete computerised data, to stop giving customers his own e-mail address and to stop using his own contact or pager numbers. However the full extent of his activities did not become known to her until after he had gone. If she had been so aware there would have been sufficient in that pre-termination conduct for the reasonable employer to justify termination of his employment. In these circumstances we did not consider that any great injustice was done to the applicant by the termination of his employment and we consider that a deduction of 75% to our calculations is just and equitable."

37.         Mr Miller has referred to s123 of the 1996 Act which reads as follows:-

"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."

38.         He complains of the fact that, in the sentence which we have just read from paragraph 108, there is reference to no great injustice being done to the Applicant, and he submits that the Tribunal did not approach the question in the appropriate way, because it did not have regard to injustice to the Respondent, alternatively it did not have regard to all the circumstances, alternatively he submits that the reduction of 75% was perverse.
39.         We have no doubt whatever that this Tribunal, in the most careful possible way, did have regard to all the circumstances. It is plain that the Tribunal had much to criticise in relation to the conduct of all parties. It is quite plainly critical of what Mr Sudworth did after the 13 June, but also in relation to what he did before. It is plainly critical of the failure of the Respondent company and Mrs Targett to complete the Agreement and make the payments under the Applicant's original contract of employment, never mind his new one. And it is implicitly critical, in our judgment, both of Mr Gibb and of the solicitors involved in advising the Applicant. It has taken account of all these matters, in our judgment, and done so in a painstakingly analytical way. There is no doubt at all that the Tribunal did not simply look at the injustice caused to the Applicant; it has recited in the very paragraphs leading up to paragraph 108 the injustice which was suffered by the Respondent, and, indeed, the prejudice to the Respondent, by virtue of the competitive, and unlawful, activities of the Applicant.
40.         Nevertheless the Tribunal concluded that this was an unfair dismissal, and that the salary, which was not paid to him and formed part of his compensation claim, ought to have been paid to him and should not have been withheld. In our judgment, the reference to "we do not consider that any great injustice was done to the applicant by the termination of his employment", in fact is another way of saying that the Applicant did not lose very much by the termination of this employment in the context of the conclusion as to what might have occurred in any event, had, for example, the Respondent known about the preparatory steps being taken by the Applicant, during his period of formulation of plan B.
41.         But what we conclude is that the Tribunal was acting exactly as one would expect the industrial jury to act, in a situation when it appears to have taken the view that both parties were heavily to blame, and that what occurred resulted from the impasse referred to in paragraph 37; but mainly that they looked at the matter in the round, and concluded that what would be just would be that the Applicant should receive a small proportion of his actual loss.
42.         If the figure needs to be separately justified it may be that what the Tribunal was saying to itself was that if in fact, instead of their being a constructive dismissal, the Respondent had dismissed the Applicant for the activities which, put on that analysis, have become known to it, then, in all the circumstances, although the dismissal would have been justified by all the matters which would by then have come out, nevertheless, there would have been some compensation for the Applicant, albeit one very considerably reduced by virtue of all the circumstances. It appears to us that this is an exercise which was carried out very fully and very rationally by the Tribunal, whether this was a constructive dismissal or a dismissal, as it would or might have been, had Mrs Targett come to discover about the preparatory acts of the Applicant.
43.         We conclude that this is a decision, namely, to deduct 75%, for example, rather than 100%, to which the Tribunal was entitled to come. It did not misdirect itself. It did indeed look at all the circumstances and it cannot be said to have been a perverse Decision. Consequently, we dismiss the appeal so far as liability is concerned and by reference to the 75% reduction. But one specific point on quantum survives the abandonment by Mr Miller, very properly, of some of the other grounds, which he originally was wishing to put forward, and it is based upon his submission that the Tribunal erred in relation to the contents of paragraph 96 of the Decision, with regard to an award in respect of pension loss. The Tribunal assessed that pension loss at £28,000 in respect of one year, which is all it awarded, because of what it described as otherwise being undue speculation, albeit in respect of an extremely successful company at that stage.
44.         By virtue of the reduction of 75% and then 50%, if the amount of £28,000 was somewhat too large, any error, if error there was, in terms of quantum, would not have great impact. We speculated, for example, what the effect would be if it should be £20,000 rather than £28,000, and, of course, the result would be an error of only £1,000 in the eventual amount.
45.         Nevertheless, whatever the quantum is, as Mr Miller is before us in any event on the appeal on liability, he would be entitled to correct that error, even if it be a small one in terms of its consequence. However, we do not believe that there is a basis for challenging the conclusion on the basis which he puts forward.
46.         The Tribunal makes it quite plain that the reason why it comes to the conclusion of loss of £28,000 is with regard to (i) what had been paid annually by way of contribution since 1997/1998, (ii) the reference to such contributions as being annual or regular, (iii) correspondence with the Inland Revenue and with the insurance companies, and, (iv) evidence from Mrs Targett herself. The Tribunal concluded that annual contributions totalling £28,000 had become part of the Applicant's contract of employment, and were thus eligible for inclusion in his claimed losses. Mr Miller submits that it is erroneous simply by virtue of the fact that an approximate amount of £28,000 had in practice been contributed by the Respondent company over the years, and, indeed, was likely to continue to be contributed, if such be the case, to conclude that that had become part of his contractual entitlement.
47.         We can see the force of that argument. But that, of course, was not the only basis, or indeed, a necessary basis by which the Tribunal could, or in this case did, arrive at that sum by way of loss, because of course an employment tribunal does not need to restrict itself to express contractual entitlement, but is entitled to arrive, by reference to s123 of the Act, to which Mr Miller himself referred, at the likely loss, on the balance of probabilities suffered by the Applicant, as a result of the unfair dismissal; and, in our judgment, the Tribunal was more than justified on the evidence that it considered to conclude that, in relation to the year to come, particularly given the contributions in the past and the turnover of the company at that material time, the likely lost pension contribution was £28,000, contractual entitlement or not.
48.         In those circumstances there is no basis for a challenge in law to this sum and we dismiss the appeal. Consequently, the appeals on both liability and quantum are dismissed.