IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE PROPHET,
MS V BRANNEY and MR I EZEKIEL)
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE NEUBERGER
SIR MARTIN NOURSE
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(1) AON TRAINING LIMITED (FORMERLY TOTALAMBER PLC) | ||
(2) ALAN O'NEILL | Applicant/Respondent | |
-v- | ||
IAN DORE | Appellants`/Appellants |
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MISS IJEOMA OMAMBALA (instructed by Messrs Zatman & Co, Manchester M3 7BE) appeared on behalf of the Appellants
MR JAMES STUART (instructed by Messrs Woodcock & Sons, Rossendale BB4 6NW) appeared on behalf of the Respondent
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"20. Where there is, in my judgment, force in Miss Omambala's submissions, is in relation to the assessment of compensatory loss and the lack of reasoning upon it. The claim on behalf of the applicant was made under this head as a loss of salary. That is, with respect, the way in which I would have expected it to be made. Mr Dore attempted to set up a business of his own and, before he did so, he was out of currently remunerative work and not making money, and it is no surprise that what was claimed was a salary of 113 weeks amounting to a total of £41,287. That, of course, is substantially higher than the award actually made.
21. It does not appear from the extended reasons of the Employment Tribunal, dated 16th December 2003, why they adopted the course that they did. They do state that Mr Dore's evidence was 'unsatisfactory as it lacked detail.' They added that the decision was made on compensation on documentary evidence before it and no doubt that included the interest which was payable upon the loan which he had obtained in order to set up his proposed business. Having confirmed that Mr Dore had been dismissed 'at a moment's notice and ridiculed for his disability', the Tribunal goes straight on in paragraph 4 to refer to the borrowing and to the interest.
22. It is not clear to me how that can be the proper way to assess a compensatory loss, and the Tribunal did not attempt to justify it. Miss Omambala says that the conventional way of assessing it was placed before the Tribunal, and they do not state why they do not deal with it in that way, save in their reference to 'lacking detail', to which I have referred.
23. Miss Omambala does make the point that there is no specific finding by the Tribunal that a loss of earnings over the prolonged period for which they awarded loss of interest was justified, and no specific finding that Mr Dore was justified in attempting to set up his own business over a prolonged period of time rather than seeking salaried or waged employment. However, her main point is that, even if they did find expressly or implicitly that his conduct was reasonable, they have not explained, and there could be no basis for explaining, she submits, how loss of interest on a loan is an appropriate head for a compensatory award."
"That, in my judgment, is arguable."
ORDER: Appeal allowed; if the appellants reduce the amount which is to be payable to Mr Dore below the order which has been set aside today, then there should be no order as to costs in this court; if Mr Dore recovers as much or more than in the present order which has been set aside today, he will have his costs of this appeal; counsel to lodge a draft minute of order.