The Claimant was dismissed after it was found that he had fraudulently claimed business mileage when he had in fact not made the journeys in question. The Claimant explained the claims, saying that an agreement in 2002 was that he would submit claims to recompense him at an agreed sum of £480 per calendar month or £5,760 per annum for agreed loss of benefit of a company car and fuel card. This was rejected by the ET and they found that the dismissal was fair. The Claimant appealed.

The EAT dismissed the appeal. The Employment Tribunal was not perverse in rejecting the Claimant's evidence on the question of variation. Moreover it committed no error of law in concluding that if the agreement had been in the terms for which the Claimant contended it would have been tainted by illegality.

______________

Appeal No. UKEAT/0078/16/DM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 18 July 2016

Before

HIS HONOUR JUDGE DAVID RICHARDSON

(SITTING ALONE)

HUGHES (APPELLANT)

**

**

THE COUPERS PARTNERSHIP LIMITED (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR HUGHES (the Appellant in Person)

For the Respondent
MS E ROWLEY (Representative)
Citation
Kings Court
Water Lane
Wilmslow
Cheshire East
SK9 5AR

JURISDICTIONAL PONTS - Fraud and Illegality

PRACTICE AND PROCEDURE - Perversity

The key issue before the Employment Tribunal related to an oral agreement varying of the Claimant's contract of employment concerning the provision of a car. The Employment Tribunal rejected the Claimant's evidence on that question and said, further, that if the agreement had been in the terms for which the Claimant contended it would have been tainted by illegality and unenforceable.

Held: The Employment Tribunal was not perverse in rejecting the Claimant's evidence on the question of variation. Moreover it committed no error of law in concluding that if the agreement had been in the terms for which the Claimant contended it would have been tainted by illegality. Hall v Woolston Hall Leisure Ltd [2001] ICR 99 applied. On these and on subsidiary grounds the appeal was dismissed.

1. By a Judgment dated 27 August 2015 the Employment Tribunal sitting in Manchester – (Employment Judge Batten, Mr Ostrowski and Ms Beards) dismissed claims that Mr Hughes ("the Claimant") brought against the Coupers Partnership Ltd ("the Respondent"). The Claimant appeals in respect of most aspects of that Judgment.

1. The Respondent is a limited company employing commercial surveyors and valuers who specialise in the rating of commercial property and in appeals to the Valuation Tribunal. Mr Nigel Stevens was at all material times its sole shareholder and managing director. The Claimant was employed by the Respondent as its commercial director with effect from 22 February 1999. For most of his employment he was also a member of the board of directors appointed under the provisions of the Companies Act. He had a written contract of employment comprising a personal record sheet with attached contractual terms.

1. Under that contract he was entitled to the use of a "fully expensed private car (including private motoring)". Further terms relating to the car were set out in clause 12 of the contractual terms. The car was to be leased at a cost of approximately £450 to £500 per month. He would, of course, not acquire any ownership of it. He was given a Mercedes estate car. In addition, he was, as one would expect, entitled to be reimbursed all reasonable expenses (see clause 11).

1. It was also originally a term of his employment that he would be awarded a performance related payment calculated on the basis of 1 percent of the audited gross cash turnover net of VAT for the previous financial year. It is plain, and the Claimant accepts, that there was a variation to this provision. As he explained to me, he became entitled to a lump sum twice annually, in one year of £11,000 for each sum, thereafter £10,000 for each sum.

1. In 2002 as a result of Government announcements concerning changes to car taxation, the Respondent decided to withdraw the benefit of a company car. A meeting central to this case took place between the Claimant and Mr Stevens on 1 March 2002. They were subsequently to give very different accounts of it. Mr Stevens' account is that agreement was reached that the Claimant would receive an additional £7,000 gross salary, taking his salary to £52,000 per year, in addition to which he would be entitled to claim a mileage rate of 40p per mile when he used his car for genuine business miles. Mr Stevens produced his version of a spreadsheet that the Claimant brought to the meeting. The Claimant was asking for a pay rise of £8,600 gross, £5,160 net; that is, about £430 per month. Mr Stevens said he agreed £7,000 gross; that is, about £350 per month net. He wrote "£7,000 basic increase" on his copy of that document. The Claimant's account of this meeting is very different. I shall return to it in a moment and then again later in this Judgment.

1. As one would expect, the Claimant submitted expenses claims for business mileage for the succeeding years. These claims were processed by the Respondent and paid. For many years, forms were completed for the Inland Revenue ("HMRC"). A form P11D would be completed. The Claimant himself generally submitted tax returns, which he signed. There came a time when a dispensation from reporting certain payments was allowed by HMRC to the Respondent. I shall return to this point later.

1. By the year 2011 the Respondent was experiencing financial difficulties. By 2013 it was even having difficulty meeting its payroll at the end of the month. By the summer the relationship between Mr Stevens and the Claimant was strained. The Respondent, while continuing to employ the Claimant, removed him as a statutory director and took away some of his line management responsibilities. The Claimant said that he was owed £50,000 under the varied agreement that I have described, together with other entitlements. He sued the Respondent in the small claims court for some outstanding expenses.

1. It was Mr Stevens' case that correspondence written to him by the Claimant concerned him so that he began to look closely into the Claimant's work and activities. He discovered that the Claimant had made claims for business mileage at dates when he had been at his desk all day or when he had not been at a Valuation Tribunal. In due course the Claimant was suspended. The letter of suspension said that there would be an investigation into allegations that he had been claiming motor expenses for journeys that he had not made.

1. The Claimant's case was that Mr Stevens had always authorised him to make these claims. He said that the agreement in 2002 was that he would submit claims to recompense him at an agreed sum of £480 per calendar month or £5,760 per annum for agreed loss of benefit of a company car and fuel card. He submitted claims in that way until 2006. Then he was asked to submit them in a revised format to identify individual journeys. He said other members of staff did the same. He produced his copy of the spreadsheet, on which he had written the figure "480" against "mileage charge" as well as recording a pay rise.

1. The Claimant made his case to Ms Krajnc, who had been arranged to do the investigation. Ms Krajnc has been variously described as an administrator, an office manager and company secretary. He said to Ms Krajnc that she had authorised his claims. She replied that she had merely been responsible for inputting figures into a database. After the meeting she spoke to Mr Stevens. He said that he had never agreed with any member of staff that they could submit claims that were not for genuine business expenses. She checked the expenses of the one employee named by the Claimant who still worked for the Respondent. The sample she checked was of genuine claims for journeys actually taken.

1. On 17 October 2013 a disciplinary hearing took place before Mr Stevens. The Claimant accepted that he had not undertaken the journeys claimed and said that the claims were to substitute for the loss of a company vehicle. He contended that the increase of £7,000 was not related to the loss of his car. Following that meeting Mr Stevens wrote to him dismissing him summarily for gross misconduct.

1. On 21 October 2013 the Claimant submitted an appeal against dismissal, maintaining that his expenses claim had been authorised and approved by Mr Stevens over 14 years. There was substantial correspondence thereafter. I have been shown some of it today. (Not all of it was in the bundle before me, and at least one letter appears not to have been before the Employment Tribunal either). The Respondent arranged an appeal to be heard by Mr Brereton, the person whom the Claimant desired. The Claimant, however, wished Mr Brereton to deal with a grievance hearing. He had not attended an original date at which an appeal had been organised. It is plain from the correspondence that he was standing on his position that there should be a grievance procedure followed in front of Mr Brereton first. An impasse was reached in the correspondence. The Claimant did not attend on a date that he had suggested, 18 December, for a hearing of any kind to take place, whether grievance or appeal.

1. The Employment Tribunal hearing took place over some 11 days in February and May 2015. The Claimant represented himself. The Respondent was represented by an employment consultant, Ms Rowley. There was an agreed list of issues, which the Employment Tribunal recorded in its Reasons (see paragraphs 26 31). At an early stage the Employment Tribunal considered that the Claimant's own case potentially raised the question whether the agreement on which he relied was illegal. It alerted the parties to this question so they could address it during the hearing. Evidence was given by five witnesses, including, most importantly, the Claimant, Mr Stevens and Ms Krajnc. The Claimant and Ms Rowley made submissions both in writing and orally.

1. In its Reasons the Employment Tribunal, having explained various interim decisions it had made, set out the issues and moved on to a section entitled "findings of fact". In this section it did not resolve the crucial conflict of evidence between the Claimant and Mr Stevens about the meeting on 1 March 2002 – it recorded only bare details about that meeting – but then, after continuing with a section entitled "The Law" and after summarising the submissions of the parties, the Employment Tribunal moved to its conclusions.

1. After dealing with some issues concerning public interest disclosure, it turned to the question of unfair dismissal. At this point it addressed its findings about the meeting on 1 March 2002, noting that there was a "complete conflict of evidence" between the Claimant and Mr Stevens. In paragraphs 73 88 it set out in considerable detail why it preferred the evidence of Mr Stevens, which it described as consistent, to that of the Claimant, which it described as inconsistent and changing. It stated its conclusions as follows:

"89. In light of all the above, the tribunal rejected the claimant's case as to what was agreed between the parties in March 2002, preferring the evidence of Mr Stevens, supported by the document at page 164. The tribunal concluded on a balance of probabilities that the only agreement made in 2002 was for a salary increase of £7,000 which was awarded to compensate the claimant for removal of his company car and not for his performance, as the claimant had also suggested – he had a separate bonus arrangement to reward performance. Other than the salary increase, the claimant was to be compensated for the use of his car for business journeys by claiming expenses in accordance with the respondent's expenses policy; that is to say by claiming only those expenses actually incurred wholly in respect of business purposes as any other employee did.

90. Having found that there was no agreement that the claimant should use the expenses system to claim for the loss of his company car in 2002, the tribunal considered that the claimant had no authority to make claims for fictitious journeys which had been itemised on his expenses claim forms, or at all. The respondent has shown that the reason for dismissal was the claimant's conduct in making expenses claims for false journeys – in fact, the claimant did not deny that he had done so when challenged."

1. Having found that the reason for dismissal was conduct, the Employment Tribunal proceeded to consider whether the dismissal was fair. It reviewed the procedure that had been adopted (see paragraphs 92 98). It found that both the investigation and the disciplinary hearing were fair. As to the disciplinary hearing, it said the following:

"96. Likewise, the disciplinary hearing, although conducted by Mr. Stevens, who had initially looked into the claimant's expenses, was a reasonable procedure in the circumstances. Mr. Stevens was the most senior person at the respondent and the only individual who was more senior than the claimant. Nigel Cooper gain acted as a witness for the respondent while the claimant was accompanied by Mrs. Fleet."

1. As to appeal, it said this:

"98. The claimant was critical of the respondent's procedures and the involvement of Mr. Stevens as what he termed "judge jury and executioner". When the claimant appealed his dismissal, he asked for Mr. Brereton to conduct the appeal. Although initially resisted, the respondent did agree to this suggestion and made arrangements in line with the claimant's request. Ultimately, despite attempts to conduct the appeal on a number of dates, the claimant simply did not attend to exercise his right to an appeal hearing and the process was overtaken by these proceedings. In those circumstances, the tribunal considered that the respondent should not be criticised for such, given its efforts to meet the claimant's demands for an appeal hearing with Mr. Brereton."

1. Overall, it concluded as follows:

"99. Conduct is a fair reason for dismissal and the tribunal considered that the respondent had reasonable grounds to sustain its belief in the claimant's misconduct. The claimant had submitted expenses claims for journeys he had not made. He admitted this. The Tribunal considered that the respondent conducted a fair investigation and a reasonable disciplinary procedure, and that dismissal fell squarely within the range of reasonable responses open to this respondent in the circumstances of the case. The tribunal therefore decided that the claimant was fairly dismissed for gross misconduct and his claim of unfair dismissal is not well-founded."

1. After dealing with various claims for breach of contract and deduction from wages, the Employment Tribunal returned to the question of illegality in paragraphs 105 108 of its Reasons. Strictly, this question did not arise, because the Employment Tribunal had rejected the Claimant's evidence about the agreement in March 2002, but the Employment Tribunal said that if it had accepted his evidence it would have found the agreement to be tainted with illegality. It referred to Hall v Woolston Hall Leisure Ltd [2001] ICR 99 and Salvesen v Simons [1993] ICR 409. It said:

"108. The tribunal therefore considered whether the claimant participated or colluded in a fraud on HMRC. If there had been an agreement between the parties for the claimant to claim further money from the respondent through expenses, which was the claimant's case, that itself is an agreement tainted by illegality and unenforceable. Absent such an agreement, another explanation is that when the claimant did not get the deal he wanted in 2002, he took it upon himself to make up the difference through the expenses system. Either way, the tribunal considered that the claimant should have realised that what he was doing was wrong and he must have know or realised that the respondent was not accounting for the payments, which did not appear on his P11Ds. At the very least, the claimant actively participated in claiming his loss of car benefit in the manner which, on his case, he had proposed and discussed and agreed to, and also in failing to declare all the monies he had received from the respondent on his tax returns. In all the circumstances, the tribunal considered that the claimant's case about the 2002 agreement could not have succeeded in reliance on an agreement tainted with illegality and therefore unenforceable as to breaches of contract or statutory rights."

1. There is an appeal to the Employment Appeal Tribunal only on a question of law (see section 21(1) of the Employment Tribunals Act 1996). The Claimant does argue that the Employment Tribunal made errors of law, but he also argues in that the Employment Tribunal reached perverse conclusions on questions of fact, centrally its conclusions about the meeting on 1 March 2002. I should therefore say a word about the law concerning perversity.

1. A perversity appeal is essentially a complaint about the Tribunal's findings of fact. Because Parliament has expressly provided that there is to be an appeal to the Employment Appeal Tribunal only on a question of law, there is only the most limited scope for such an appeal. Thus in the leading case, Yeboah v Crofton [2002] IRLR 634, at paragraphs 93 95 Mummery LJ said the following:

"93. Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has 'grave doubts' about the decision of the Employment Tribunal, it must proceed with 'great care', British Telecommunications PLC v Sheridan [1990] IRLR 27 at para. 34.

94. Over the years there have been frequent attempts, consistently resisted by the Employment Appeal Tribunal, to present appeals on fact as questions of law. The technique sometimes employed is to trawl through the Extended Reasons of an Employment Tribunal, selecting adverse findings of fact on specific issues on which there was a conflict of oral evidence, and alleging, without adequate particulars, supporting material or even proper grounds, that these particular findings of fact are perverse and that therefore the overall decision is perverse. An application is often made to obtain the notes of evidence made by the chairman in the hope of demonstrating that the notes are silent or incomplete on factual points, that the findings of fact were not therefore supported by the evidence and that a question of law accordingly arises for the determination of the Employment Appeal Tribunal.

95. Inevitably, there will from time to time be cases in which an Employment Tribunal has unfortunately erred by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence. In such cases the appeal will usually succeed. But no appeal on a question of law should be allowed to be turned into a rehearing of parts of the evidence by the Employment Appeal Tribunal. I am, of course, well aware that this is easier said than done, especially when, as here, neither side was legally represented on the first level of appeal. As the Employment Appeal Tribunal was well aware, unrepresented litigants have understandable problems in separating questions of law from proof of facts and in distinguishing the making of legal submissions from submissions of fact, even giving evidence in the course of submissions."

1. I bear in mind also that the Employment Appeal Tribunal should avoid a technical, over critical or pernickety approach to the Reasons of an Employment Tribunal. On the one hand, the Employment Tribunal must give sufficient reasons for the Employment Appeal Tribunal and the parties to know how it reached its conclusions. On the other hand, it is not required to deal with every factual dispute or factual or legal argument put before it. It is easy for an Appellant to concentrate on factual points that were not so significant at the Employment Tribunal hearing, and the Employment Appeal Tribunal must be careful not to find that an Employment Tribunal was perverse or its Reasons open to criticism on points that have assumed at an appeal hearing a significance they did not have before.

1. The Claimant has put forward his grounds of appeal under six main headings. These concern (1) the legality of the contract, (2) the position concerning taxable benefits, (3) the application of the test in British Home Stores Ltd v Burchell [1978] IRLR 379, (4) the application of the ACAS Code relating to disciplinary and grievance procedures, (5) a discrete point concerning the Employment Tribunal's refusal to recognise a claim for annual leave and (6) perversity. He has supported all of these grounds in his Skeleton Argument and in lengthy submissions. I allowed him to make submissions before me for most of the morning and then, when he said that there were two grounds that he wished to develop further, for well over half an hour of the afternoon. I shall address to the best of my ability all of the grounds that he has put before me, but I think it is convenient to reorder them more logically and to relate them to the claims that the Claimant put before the Employment Tribunal.

1. Logically, the first question to address is whether there is any error of law or perversity in the Employment Tribunal's findings concerning the agreement between the Claimant and Mr Stevens. If these findings are upheld, there is no question of any illegality. If they are not upheld, the Employment Tribunal's findings as to the true reason for dismissal could not stand, and the question of illegality would become central.

1. This was on the face of it a pure question of fact for the Employment Tribunal, and the Claimant's arguments about it centre upon submissions that the Employment Tribunal was perverse in its findings. Some of the points he has made in support of what he calls his Burchell ground are really additional perversity points. As part of his submission he also argues that the Employment Tribunal must have misunderstood or at least underestimated the position as regards taxable benefits for cars.

1. I think his principal points included the following:

(1) If the Employment Tribunal was correct, he took, he would suggest, a reduction in his own remuneration package. Why would he do this, when implementing pay increases for those for whom he was responsible?

(2) As part of a restructuring in 2002 he became office-based. He said that between 2003 and 2011 he was to a great extent – at one point I think he said "exclusively", though he rowed back somewhat from this – office based. He would therefore have less opportunity to claim expenses and recoup the cost of his car, and Mr Stevens and Ms Krajnc would have the ability to see that he was not using the car.

(3) If the Employment Tribunal was correct, then he consistently made inaccurate claims and the Respondent including Mr Stevens, Ms Krajnc and its accountant allowed incorrect claims for a period of more than 11 years. That is inherently improbable. Payment was even authorised for September 2013, when he was under investigation.

(4) Her Majesty's Revenue & Customs (HMRC) granted a dispensation for expense payments and benefits on 10 March 2011, indicating that it accepted assurances by the Respondent that its claims met the requirements of the law.

(5) Mr Stevens wrote to him a letter dated 6 August 2013 in which he said, in relation to the company car, that the Claimant's "salary and expenses were renegotiated to compensate for this".

1. In the course of his submissions, as the Claimant explained the case more, I think there are two points where it is important to record what he said.

1. First, he said to me that the figure of £8,600 that he put forward in the spreadsheet was simply to compensate him for private mileage. He said the figure of £480 per month was to compensate him for the loss of the company car otherwise. The figure of £8,600, even allowing for tax, would suggest a quite remarkable private mileage. I pointed that out to him. His first answer was that he was commuting each day from his parents' home in Colwyn Bay. I asked him about a bank document written to him contained in the supplementary bundle, from which it would appear that he was living at the relevant time at an address in Congleton, to which the bank had written to him. He then said that he had been living in Leeds, he had been commuting from Leeds and he had agreed to purchase a property in Congleton by this time. He said the actual purchase was completed in April. The document, I note, sent to him at the Congleton address was signed by him on 28 February 2002. It is therefore difficult to see any basis upon which going forward the private mileage of the car would be anywhere remotely close to £8,600 per annum gross or the appropriate net sum.

1. Secondly, he explained to me how he had written his expenses claims to the Respondent. He did not put the same amount in expenses each month. Some months, for example months where he was on holiday, he would put in lower amounts, in other months higher amounts. The figure would not be the same. This is borne out by the limited number of expense claims that the Claimant has put in my papers. One claim is for just £308; others are for more than £600. He said to me that he always made sure that at the end of each financial year they added up to the requisite amount, although, again, he rowed back and said that it would be approximately that amount. It is, however, difficult to see any purpose in submitting claims in this way unless they were intended to deceive someone - either the Claimant's employers or the tax authorities.

1. Having carefully considered the Claimant's submissions relating to the agreement in March 2002, I reject them. I consider that the Employment Tribunal was entitled to accept the evidence of Mr Stevens and reject that of the Claimant. I do not think that the Employment Tribunal was perverse or committed any error of law in doing so. I shall say something about his individual points.

1. First, his point about the remuneration package. It is plain from the spreadsheet he produced that he went into the meeting on 1 March seeking to justify a gross increase of £8,600 in his pay by reason of the loss of his fully funded company car. What he actually received was a gross increase of £7,000, together, of course, with 40p per mile for each business mile he did if Mr Stevens' account was correct. I do not think the Employment Tribunal was bound to regard this as a reduction in his remuneration package such that it had to reject Mr Stevens' evidence and accept the Claimant's. Indeed, the Claimant's evidence that there was a reduction in his remuneration package was bound up with his contention that the increase of £8,600 was to compensate him for private fuel. This, as I have pointed out, is not easy to justify when he was already living and intending to live in Congleton.

1. Secondly, the Claimant's point that he was office based from 2002 onwards was a qualified point. It does not necessarily follow that Mr Stevens was aware of it or that Mr Stevens must have known that any expenses claim was unjustified. He was in his own right a director. It is not plain that Mr Stevens was required to query his expenses.

1. I turn then, thirdly, to the Claimant's point that the expenses claimed were paid over a substantial length of time. Although the Claimant was unwilling to admit it before me, the simple fact is that the details of the expenses claim that he wrote down were dishonest. As I have said, the amounts varied from month to month. They were not in any regular amount. They were signed only by him, and he was a director. Although they were processed by Ms Krajnc, they were not authorised by her. As office administrator, administrator or company secretary, there is no reason why she should have authorised the expenses of a director. The Employment Tribunal was not bound to find that Mr Stevens or Ms Krajnc knew that the claims were false.

1. Fourthly, I turn to the HMRC dispensation point. This was one that troubled the President when she sent this case to a Full Hearing (see the Reasons that she completed at a hearing under Rule 3(10)). I have had the HMRC dispensation point more fully explained, and I have seen the documents. There is some doubt whether the dispensation applied to a mileage claim in any event (see page 3 of the dispensation letter), but, in any case, the Employment Tribunal was certainly not required to regard it as determinative or even helpful on the question of the terms of the variation in 2002, many years earlier. The dispensation appears to have been granted on the assurance of the Respondent that no additional tax would be payable by employees concerned including directors. If those assurances were wrong, it might equally be because the Claimant was making fraudulent claims that were not detected or because the Respondent colluded in those claims. The mere fact of a dispensation by HMRC takes the matter no further.

1. Fifthly, the letter written by Mr Stevens was correct. The Claimant received a pay increase together with an agreed expense rate of 40p per business mile. The Employment Tribunal was not bound to regard it as an admission of nefarious conduct. I repeat that it is not for the Employment Appeal Tribunal to reach its own findings of fact. It must overturn an Employment Tribunal's findings of fact only if there is an overwhelming case for saying that those findings were perverse. I am satisfied that there is no such case here.

1. Strictly speaking, this question does not arise. I shall, however, deal with the main points the Claimant made. There were, I think, two.

1. First, he submitted in truth that there was no dishonesty or illegality because there was no benefit, hence no tax was payable on what was on his case the agreed amount of £480 per month. He argued that he was bound to provide a car for use with his work, that the cost of doing so was, "wholly, exclusively and necessarily in the performance of the duties of the employment" (see section 336 of the Income Tax (Earnings and Pension) Act 2003).

1. In my judgement the Claimant plainly on his own account acquired a benefit. The sum he received each month was not related to business mileage and exceeded any business mileage he may have had. Expenses incurred in respect of a car that is partly for private use and partly for use in the course of employment are not expenses incurred "wholly, exclusively and necessarily" in the performance of the duties of employment. That is the short answer to this point. It is, I think, very well known that this is the position. I would add, though, I have some difficulty in reconciling this argument by the Claimant with the argument that his work was office based and that he made little or no use of the car from 2002 onwards.

1. Secondly, the Claimant submitted that in any event he was not implicated in the illegality to the extent that he should be disallowed from making the claim. He took me to the cases quoted by the Employment Tribunal, in particular Hall. He also took me to Colen v Cebrian (UK) Ltd [2003] EWCA Civ 1676. The central question of law is, I think, addressed by Peter Gibson LJ in Hall at paragraph 38:

"38. With all respect to the Judge, his view of the unfair dismissal cases is an over-simplified one. In cases where the contract of employment is neither entered into for an illegal purpose nor prohibited by statute, the illegal performance of the contract will not render the contract unenforceable unless in addition to knowledge of the facts which make the performance illegal the employee actively participates in the illegal performance. It is a question of fact in each case whether there has been a sufficient degree of participation by the employee. And as the Coral Leisure Group case [1981] I.C.R. 503 shows, even if the employee has in the course of his employment done illegal acts he may nevertheless be able subsequently to rely on his contract of employment to enforce his statutory rights. The Salvesen case [1994]ICR 409 on its facts was not a case of mere knowledge of the facts constituting illegality: the employee's involvement was much greater. The Hewcastle Catering case [1992] I.C.R. 626 shows some of the factors which may be relevant to determining whether the statutory employment rights conferred on an employee are not to be defeated by illegality in the performance of the contract of employment."**

1. Again, I reject the Claimant's submission. The Employment Tribunal directed itself correctly in law and reached an entirely tenable conclusion. Indeed, I have had some difficulty understanding how the Claimant, an apparently intelligent professional man, could have thought that he was, on his own case, providing the kind of dishonest detail that he put in his expenses claim for any reason other than to defraud the Inland Revenue.

1. The Claimant argues that the Employment Tribunal did not apply the principles in Burchell. It is, however, entirely plain that the Employment Tribunal applied these principles. Paragraph 52 of its Reasons sets out the principles by reference to Burchell. Paragraphs 72 99 of its Reasons are structured around and consider the Burchell questions. I see no error of law in this respect, and the Claimant's argument was in reality an argument about how the Employment Tribunal applied the established law in Burchell to the facts, but the Employment Tribunal's evaluation of the Burchell principles in any given case is a question of fact giving rise to no question of law for the Employment Appeal Tribunal.

1. The Claimant also argued that the Employment Tribunal did not give due consideration to the provisions of the ACAS Code of Practice. The Employment Tribunal referred to the Code (see paragraph 55 of its Reasons). Again, the Claimant's assertions are largely factual. There was no reason to suppose that the Employment Tribunal forgot the Code. The main points that the Claimant raised were the following: First, he raised the point that Ms Krajnc, who was involved in processing the claims, was the person who investigated them. The Employment Tribunal considered this question. It found that it was not unreasonable for this to take place. Secondly, he argued that it was unreasonable for Mr Stevens himself to take the hearing. It would of course have resulted in the dismissal being found unfair if Mr Stevens had, on the Employment Tribunal's findings, been implicated in the fraud. The Employment Tribunal found, however, that he was not. It specifically considered in paragraph 96 of its Reasons whether it was reasonable for the disciplinary hearing to be conducted by Mr Stevens. It found that he was the most senior person at the Respondent and the only individual more senior than the Claimant. It was for the Employment Tribunal to evaluate this matter. It was entitled to do so. The Claimant was at one point arguing that paragraph 6 of the ACAS Code in some way prohibited Mr Stevens from acting. It does not do so. It is concerned with the different question of whether the person who investigates and the person who hears the disciplinary hearing should be different people.

1. The Claimant also argued that he was denied an appeal hearing. The position is far more complex. The truth is that the Respondent was willing to give him an appeal hearing. After initially not being prepared to do so, it was prepared for the hearing to be by the person of the Claimant's choice, Mr Brereton. The Claimant, however, as the correspondence shows, stood on the position that there should first be a grievance before Mr Brereton. The Employment Tribunal considered this matter in paragraph 98 of its reasons. I see no error of law in it doing so. The appeal on this ground is dismissed.

1. Under this heading the Claimant seeks to reargue a point that the Employment Tribunal found that he raised on the last day of the hearing, 20 May 2015. It related to leave. The Employment Tribunal found that he had not properly raised that question, for reasons that it set out in paragraph 15. The Employment Judge reconfirmed the position in the course of dealing with an application for reconsideration (see paragraph 8 of the Judgment on reconsideration). The Claimant submits that the matter was properly raised.

1. Firstly, he says that it was raised in Further and Better Particulars that he gave to the Employment Tribunal. I have read those Further and Better Particulars. They make no specific reference at all to a claim relating to leave. The Claimant relies on paragraph 31.1, which mentions complaints in correspondence on 27 November 2013 and 2 December 2013. These, however, are mentioned in the context of an expense claim. They are not mentioned in the context of a claim for holiday pay. They do not properly raise a claim for holiday pay. The only other place where the holiday pay was mentioned at all was in Schedules for what were intended to be compensation for loss. The Employment Tribunal was fully entitled to conclude that the claim in question, which is for a little over £1,000, was not before it.

1. As I have said, the original payment relating to performance related pay was on any possible view varied by agreement. The Claimant argues that he remained entitled to those sums in the last few years of his employment. The Employment Tribunal found otherwise. It said that the sums:

"33.8… were payable as a bonus, on condition that the respondent was in profit, and any payments due were usually made in around June and August in each year."

1. The Claimant argues by reference to the original agreement that this finding is unjustified. Since the original agreement was for an entitlement based upon performance, it was not replaced by a payment that was subject to profitability. To my mind, the Employment Tribunal, again, had an issue to determine, it depended on the evidence it heard, it was entitled to accept the evidence of Mr Stevens and reached the finding that was set out at paragraph 33.8 of its Reasons. I see no error of law in its reasons.

1. It follows that this appeal will be dismissed.