England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(Application of Armitage Rest Homes Ltd
for Permission to Appeal)

		Royal Courts of Justice Strand London WC2 Wednesday, 13th February 2002

Wednesday, 13th February 2002

1. LORD JUSTICE PILL: This is an application for permission to appeal against a decision of the Employment Appeal Tribunal given on 12th September 2001, whereby the applicant, Armitage Care Homes Limited, were refused permission to adduce fresh evidence on appeal against the level of compensation awarded to the proposeed respondent, Mrs Begum, following a finding by the Employment Tribunal that Mrs Begum had been unfairly dismissed.
2. The application is also put in a more general way, that there was an error of law by the Employment Tribunal in their approach to the evidence and that there was insufficient evidence before them to justify the award which they made. That is my wording, but I believe it summarises what, in that respect, the applicants are seeking. They appear this morning by Mr Armitage, who addressed the court with clarity and persuasively.
3. There has been no appeal against the finding of the Employment Tribunal delivered on 21st January 2001 that Mrs Begum had been unfairly dismissed. The Employment Tribunal dismissed complaints that she had been unlawfully discriminated against on the ground of her race, and also dismissed the complaint that she had been unlawfully discriminated against on the ground of her sex.
4. Mr Armitage, who has appeared in person throughout, told me that the question of remedy could not be dealt with at the same hearing because insufficient information was available to the Tribunal. A remedies hearing was fixed for 18th January, that is six days after Mr Armitage received the decision. On that day they made a basic award in favour of Mrs Begum in the sum of £194.40 and a compensatory award in the sum of £2,206.
5. Mrs Begum was a care assistant at the residential care home owned and operated by the applicants. She worked part-time and arranged to do her shifts at the weekend. The applicants had evidence to believe that she was working during the week at another residential home, and the dispute which led to her dismissal started with discovery of evidence to that effect. It is not necessary to go into it in detail, save that it did provide the Employment Tribunal with some background information which enabled them when they came to assess compensation as to what the figure should be. There was plainly evidence that Mrs Begum had been working during the week at another residential home. Mr Armitage tells me that Mrs Begum was told to produce documents to substantiate her claim for loss of earnings resulting from her dismissal. He points out that inadequate documentation was provided and no information was provided of any benefits which she received. I quote the notice of appeal:

"Despite being told by the Chairman of the Employment Tribunal when he made his finding that she had been unfairly dismissed that she should bring to the remedies hearing documentary evidence supporting her losses, Mrs Begum produced very little to substantiate her income throughout the 40 weeks from her dismissal to the award hearing. Significantly she produced no evidence of receipt of welfare benefits. Had she really been unemployed as she claimed to have been, I am sure she could easily have produced such evidence."

6. The reasons of the Employment Tribunal for making the award they did are brief. They do not make an express finding as to the credibility of Mrs Begum. They have approached the matter on the basis that:

"She did continue to work at Emm Lane Nursing Home but that work was not, in any form, in substitution for the work she carried out for the Respondent. Accordingly, there is no reason to deduct the earnings she received in that employment from her notional loss."

7. It would appear to follow from that finding that the Employment Tribunal disbelieved her evidence that she was unemployed, if Mr Armitage's understanding of her evidence is correct, which I have no reason to doubt. However, on the approach they have adopted, their disbelieving her was no barrier to their making the award which they did. They have clearly formed the view that she was working during the week but also that, but for her dismissal, she would have continued to work at the weekends at the Fairview Residential Home.
8. The Tribunal went on to consider the argument whether she had properly mitigated her loss. It was alleged by Mr Armitage that Mrs Begum had failed to take numerous similar jobs as a care assistant which were all available within the Bradford area. There was plainly dispute about that and evidence was given. The Tribunal noted that no documentary evidence of the job applications, which Mrs Begum said she made, had been produced at the hearing. They refer to her limited knowledge of English.
9. What they did was to award her the loss of the earnings she would have had at Fairview Residential Home for a period of 40 weeks, that is until the date of the hearing on 18th January. They went on to find that:

"...we do consider that, with reasonable dispatch, the Applicant [Mrs Begum] should have obtained employment by the date of this hearing. Accordingly, we limit the award for loss of earnings to the period to date. We are not prepared to make any order for loss of earnings in the future."

10. They did also deduct from the arithmetical 40 week calculation a sum of £486, which they held she earned at the Greystones Nursing Home. That was to be deducted because she was only able to do that work by reason of her not working at Fairview.
11. Employment Tribunals in this situation often have to work on very limited information. Even assuming, as for present purposes I do, that Mrs Begum was not cooperative in the information she provided, and even was not frank with the Tribunal, in my judgment they were entitled on the limited information before them, and having regard to the full arguments, which I have no doubt Mr Armitage addressed to them, to reach the conclusion they did. They might have found that by reason of her dismissal she had loss more earnings because she could not reasonably have found another job by the date of the hearing. They might have found less. It is a problem which factfinding tribunals, both employment tribunals and courts, have to make. I can find no error of law in the decision which they reached.
12. As to the fresh evidence, the Employment Appeal Tribunal have found that it could not affect the position. It is stated at paragraph 5 of the judgment that a letter from Mr Gary Sargent had been produced. Mr Gary Sergeant was a gentleman working at the Emm Lane Care Home, and in that letter he states:

"Mrs Begum was employed, to my knowledge, on a full time basis i.e. approximately 36 hours per week."

13. They point out that:

"During the time that he worked at that home he says that the Appellant was working and moreover was working on a full-time basis. Unfortunately, he does not say anything in that letter to assist us as to the appeal which Mr Armitage wishes to pursue."

14. The view was plainly taken that a 36 hours worked at Emm Lane would have enabled Mrs Begum still to work the weekend shift (which she had lost) at the applicants' home.
15. I have referred to the care with which Mr Armitage has presented his case and has prepared the bundle of documents. I understand his sense of grievance about the situation. His position was not an easy one in defeating the allegation by Mrs Begum that she had lost earnings as a result of the dismissal, which they had found to be unfair. I cannot, however, find any arguable ground upon which the Employment Tribunal have erred in law, or that, because of the fresh material available, this court should direct that there be a rehearing of the matter. It is not arguable that such a rehearing would be appropriate in the somewhat unfortunate circumstances of this case.
16. For the reasons I have given, this application is refused.
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