England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Tuesday, 30th August 2002

1. LORD JUSTICE SEDLEY: This application for permission to appeal has been advanced with the court's permission by Mr O'Brien, who is an experienced lay representative in employment relations, on behalf of the applicant who is evidently extremely hard up and not, perhaps, in good health. The applicant does not appear today. What he wants, however, is to be allowed to appeal against the dismissal by the Employment Appeal Tribunal, on a preliminary hearing, of his appeal against an Employment Tribunal decision which was entered on 19th July 2001.
2. The upshot of that Employment Tribunal decision was, first, that the applicant had been dismissed in circumstances which made it not merely procedurally but - I quote the tribunal's word - "totally" unfair. Secondly, that on the face of it he was therefore entitled to a basic award of £660 and a compensatory award of a little over £16,700, the latter computed on a very substantial purchase of months until further employment was found. Thirdly, however, that because of his contributory conduct both awards should be reduced by 25 per cent - and then on top of that, by reason of the justice and equity of the case, that the compensatory award should be reduced to zero.
3. The background very briefly was that the applicant, a chartered surveyor, had been managing the respondents' Selsey office with apparently very little success. They were on the point of dismissing him on grounds which, although the Employment Tribunal does not spell them out, would plainly have related to capacity and, on their findings, have been justified. But on 30th April, on the cusp of such action, the respondents instead took the opportunity to dismiss the applicant summarily for misconduct. The misconduct was that the applicant - who was due to give evidence on the respondents' behalf on 30th April in Croydon County Court - had found a few days beforehand that he was without funds to make the journey. He had told his employers so, and with their agreement he had written to the court to ask for an adjournment. It was not disputed by the respondents that the applicant was indeed without the funds to make the journey on their behalf and that it was the respondents themselves who needed the adjournment. But what he had done without the respondents' agreement was to embellish the application for an adjournment by inventing a bereavement. This was a serious matter; it was a lie told to the court and it was also capable, if discovered, of rebounding on the respondents.
4. On the preliminary hearing, which was all there was before the Employment Appeal Tribunal, Mr O'Brien took several points on the applicant's behalf. All but one of them are, in my view, disposed of unanswerably by Mr Justice Burton in his judgment of 14th February 2002 and Mr O'Brien has realistically not sought to revive them today. The one point that arguably is not so readily disposed of is the wiping out of the entire compensatory award in the circumstances I have summarised. The Employment Tribunal began their decision with these words:

"We give extended reasons in this case because we consider that reasons given in summary form would not sufficiently explain the grounds of our decision."

5. When however one comes to the issue on which I am now focusing, paragraph 7, the penultimate paragraph of the extended reasons, contains little that explains the annulment of the compensatory award until one gets to the final 5 lines:

"As we have said, we consider that the applicant was treated unfairly and there is much in the actions of the respondents to be criticised. Although we have considerable sympathy for the applicant, we cannot see, in the light of our findings and conclusions, that we have any alternative but to say that it would be just and equitable to reduce the compensatory award to nil."

6. The reasoning therefore appears to be simply that upon the facts of the case the justice and equity of a reduction to nil of the compensatory award was self-evident.
7. Mr Justice Burton, speaking for the Employment Appeal Tribunal, said this of the Employment Tribunal conclusion at paragraph 18 of the Employment Appeal Tribunal judgment:

"18 ..... The tribunal has clearly set out its reasons, in our judgment, in paragraph 7: they took the view that this misconduct, consisting as it did of dishonesty, and dishonesty putting the employer in jeopardy, was such serious misconduct as to fall within Devis v Atkins to which they were referred, entitling them, indeed, as they conceived it, necessitating them on the facts, to reduce the award to nil.

19 Plainly there could have been other outcomes - they could have reduced the loss by 75% or 90%, or 95% - but plainly this was very serious and important misconduct by a professional man, and a lie to the court, and it does not appear to us that it would have been reasonable for the tribunal to have reduced it by anything less than that. Now,given for the band of reasonable responses of this tribunal would have started, in our view, at a reduction of 75% at the lowest, it was not a decision to which no reasonable tribunal could have come, having been directed to Devis v Atkins, to conclude that, on the facts of this case, the misconduct by the appellant was such as to justify a reduction to nil."

8. In the light of what I have quoted there is, in my view, life in the twin submissions which Mr English wishes to advance to this court. They are (a) that in the light of the Employment Tribunal's own findings of fact there is nothing inexorable or self-evident about this or a similar outcome, and (b) that once one takes away the underpinning view that there is something inexorable or self-evident about it, the decision contains no reasons at all for a conclusion which can fairly be said to be a dramatic one. If these submissions are held to be well-founded at a full inter partes hearing it would fall to this court either to re-allocate the award or to send it back for re-allocation. The same was true before the Employment Appeal Tribunal.
9. For my part I can understand the reluctance of the Employment Tribunal to make an award of any significance against an apparently small company not doing well and about to dismiss the applicant for incapacity in any event. More particularly, since this was the tribunal's second run at the case - the first award by an Employment Tribunal in a substantial amount had been set aside on appeal and the case remitted to this new tribunal - I do not know whether on their findings of fact the second tribunal would have been justified in limiting their award to the period of notice which the applicant was likely shortly to be getting anyway and which may have represented his true loss, rather than the much longer time he spent looking for another job. They did not take that or a similar course; they took a different course which it seems to me may be open to the critique which it is sought to advance in this court.
10. The costs of coming to this court and losing can be crippling. Whether or not the losing party has to pay their own lawyer's costs, they will have to pay the other side's costs if the other side is represented. For both sides therefore the prospects in this court are alarming, since it is not a cost-free jurisdiction and in that differs importantly from the jurisdictions below. There is every reason for both sides to see whether they can avoid having to come before this court on a full-dress hearing. Mr O'Brien has indicated to me today that Mr English would have no objection to alternative dispute resolution. It seems to me it would be every bit as much in the respondents' interests to seek a resolution of that kind. The court's good offices are available to parties for this purpose.
11. I will direct as part of my grant of leave that there is to be an attempt to resolve the case by alternative dispute resolution through the court and that the case is not to be listed, if it is to be listed, until an adequate account can be given as to why has not been resolved by alternative means.
Order: Application allowed