United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 572_93_2311

Appeal No. EAT/572/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23rd November 1993

Before

THE HONOURABLE MR JUSTICE MUMMERY

MR D G DAVIES

MR T C THOMAS CBE

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DAIRY CREST LTD t/a DAIRY PRODUCTS TRANSPORT          APPELLANTS

MR T CONVOY          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR P OLDHAM

(Of Counsel)

Philip Conn & Co

Lincoln House

1 Brazennose Street

Manchester

M2 5FJ

For the Respondent MR T CONVOY

(In Person)


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from a decision of the Industrial Tribunal held at Manchester on 26th January 1993.

The Tribunal found in favour of the Applicant, Mr Convoy, and ordered his former employers, Dairy Crest Limited, to pay him compensation in the sum of £10,000.

In the reasons given by the Tribunal for their decision, dated 15th June 1993, the Tribunal set out fully the facts which they found. They heard evidence only from Mr Convoy. No evidence was given on behalf of Dairy Crest. On that evidence, (we have also been supplied with the Chairman's Note of Mr Convoy's evidence), the Tribunal came to the conclusion challenged in this Appeal. It was conceded before the Tribunal that Mr Convoy's dismissal from the post of Depot Manager at Dairy Crest Macclesfield depot, on the 27th April 1992, was unfair. There had been a failure to consult him. The appeal concerns the amount of compensation.

Evidence was given by Mr Convoy which the Tribunal accepted. It is not surprising they accepted it. It was not challenged by any evidence from Dairy Crest. On the basis of that evidence the Tribunal found that Mr Convoy, who was 57 years old at the date of his dismissal in April 1992, had been employed by the Company since 1967. He hoped to continue his employment until retirement, preferably at the age of 63 in October 1997. He had not been offered any alternative form of employment by Dairy Crest. If he had been offered a position, as a new style depot manager, he would have accepted that, even though it involved a reduction of about £1,200 a year in salary, his annual gross salary being £20,400, and the loss of use of a Company car.

After he was dismissed Mr Convoy applied for a number of jobs of broadly comparable status with his position with Dairy Crest. He was unsuccessful, not surprisingly having regard to his age for a person seeking a senior management position. He continued his search for well paid employment. On the 6th July 1992 he began employment as an ambulance driver with the Cheshire County Council Social Services Department. He hopes to continue in that new job, which he enjoys, until the retirement age of 65, if he is unable to find any better position.

On those facts the Tribunal concluded that Mr Convoy was dismissed by Dairy Crest without consultation, or any proper consideration of the possibility of alternative employment within Dairy Crest, including the possibility of employment as a new style depot manager. The Tribunal also concluded that, if proper consultation had been undertaken and proper consideration given to the possibility of offering him continued employment, there was a likelihood that he would have been offered such a position and that he would have accepted it, despite the reduction in salary and the loss of the benefit of the car. They accepted his evidence about unsuccessful attempts to find alternative employment at management level. In those circumstances the Tribunal considered that he was likely to suffer continuing loss of earnings, at least until his preferred date for retirement from employment in 1997. They therefore considered it right to compensate him for future loss of earnings for a period of five years.

When they came to assessing compensation the Tribunal took into account a whole number of factors set out in paragraph 17 of their decision, including his wages before dismissal; the period from the date of dismissal to the date of hearing; the period from the date of commencement of his new employment down to the date of hearing. They then came to a crucial passage in relation to this Appeal which concerns the award for future loss of earnings. They said this in paragraph 17(vi) of their decision:

"For the purpose of assessing future loss of earnings, the Tribunal has compared the applicant's net earnings with the respondent at £276 per week with his net earnings in new employment which do not exceed £140 per week. Bearing in mind that the applicant may obtain promotion within the Cheshire County Council or may obtain alternative better paid employment at some time before his retirement, the Tribunal considered that a fair approach for compensation for future loss of earnings would be to allow a full period of 5 years from the date of the hearing to a notional retirement date, but to restrict the net loss of earnings to the sum of £100 per week over that period."

In paragraph 18 the details of the arithmetic are set out. We need not go into the details. The award of estimated future loss of earnings was based on a period of 5 years. Taking into account all the other sums, the total amount was £15,345, which was then reduced to the statutory maximum of £10,000. Dairy Crest request appeal against that decision.

By their Notice of Appeal, as expanded in a skeleton argument, Dairy Crest take two points. The first point is that the Tribunal's decision is perverse in so far as it consisted of a finding that Mr Convoy would have been offered a position as a new style depot manager. It is said that there is a lack of evidence relating to that point. In particular there was a lack of evidence and a lack of reasons given for the statement in paragraph 12(ii) of the decision to this effect:

"that if proper consultation had been undertaken and proper consideration had been given to the possibility of offering the applicant continued employment as a new-style depot manager, there is a clear likelihood that he would have been offered such a position . . ."

Mr Oldham, who has argued the case extremely well with the rather thankless task of making bricks out of straw, referred to the fact that the Chairman's Notes of Evidence make no mention of the likelihood of Mr Convoy being offered a position with Dairy Crest as a new-style depot manager.

In our judgement, this submission is hopeless. The fact that no express mention of this point is contained in the Notes of the Chairman is, in our view, a result of the decision taken on behalf of Dairy Crest not to call any evidence. The position, as we have mentioned, is that the only oral evidence given to the Tribunal was by Mr Convoy. The Tribunal expressly stated in their decision that they accepted it. Having accepted that uncontradicted evidence the Tribunal were entitled to make inferences from that evidence on the balance of probabilities. In our view, there is nothing perverse in inferring, as a matter of probability from the uncontradicted evidence of Mr Convoy, that it was likely that he would be offered a position as a new-style depot manager. There was, for example, no evidence whatsoever from Mr Convoy or from anybody else that he was not performing his duties in that position properly or that he was in any way unsuitable to be considered for the position of a new-style depot manager. On the evidence that was before them, the Tribunal came to a decision which, far from being perverse, was one which they were entitled to reach in the absence of any contradictory evidence.

The second ground of appeal is that the decision that Mr Convoy should be compensated for future loss for a period of five years was perverse. The submission is made:

"In assessing losses in the future over the period of five years the tribunal attempted to assess losses so remote as to be incapable of proper calculation and in so doing fell into an error of law"

It was also submitted that in finding

"`that Mr Convoy [the Respondent] would have been likely to retain that employment for a period of 5¹/₂ years until October 1997, and if need be to the normal retirement age of 65' the tribunal was making findings of fact for which it failed to provide reasons alternatively adequate reasons."

In support of that argument Mr Oldham referred us to two cases. The first was Holroyd v. Gravure Cylinder Ltd [1984] IRLR 259. He sought to extract from the facts and the reasoning in that case the proposition that a period of five years was too remote. It was decided on the facts of that case that the Industrial Tribunal had acted properly in confining its award of future loss of earnings for only a short period between the date of the Applicant's dismissal and his starting on a 12 month post-graduate university course. The Tribunal was held to have acted properly in declining to make any attempt to assess future loss of earnings by that Applicant for the period after the completion of the 12 month course. That was, no doubt, a correct decision on the facts of that case. It was upheld by the Employment Appeal Tribunal. It is not authority for a general proposition that as a matter of law any assessment of future loss of earnings for a period of five years is bound to be too remote. Everything depends on the facts of each case. It was also said in support of the general proposition that the Tribunal had not given adequate reasons for making the assessment over a five year period and that the court should have in mind the comments of Bingham LJ in Meek v. City of Birmingham District Council [1987] IRLR 250, paragraph 8, in which it was said that a decision of an Industrial Tribunal:

"should contain a sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court [that is the Court of Appeal] to see whether any question of law arises"

He comments,

"The parties are entitled to be told why they have won or lost."

Our view is that that passage does not afford any basis for criticising the Tribunal in this case.

The Tribunal set out at length the facts which they found and the reasoning which led them to assess future loss of earnings over a period of five years. They had evidence before them to justify that. The evidence was uncontradicted evidence of Mr Convoy, that, at the date of dismissal, he was 57 years old; and that he expected to, but for that dismissal, to have continued working until his preferred retirement age, 5 years on from that. There was evidence from him that, following his dismissal he had made reasonable attempts in the market to find alternative employment level, and had been unsuccessful.

There was no evidence from Dairy Crest about the possibilities or probabilities of Mr Convoy obtaining other employment at management level. In our view, looking at the probabilities of the situation, on the evidence that they had, the Tribunal were entitled to make a calculation of a compensatory award in the sum they did.

Finally, Mr Oldham made a point on the wording of Section 74(1) of the 1978 Act, which provides:

"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."

He raised the question, in connection with the five year period, how it could be said that the loss over that whole period was attributable to the action of Dairy Crest. He emphasised a number of times the submission that the Tribunal had failed to take into account all the contingencies and uncertainties involved in selecting a five year period.

In our view this argument is based on a faulty reading of Section 74(1). It does not require the Tribunal, in calculating compensation, to say, as a matter of certainty, that loss is attributable to the action of the employer. In this world nothing is certain. In a case the greatest certainty that any Tribunal can be expected to achieve is an assessment of the situation on the balance of probabilities. The question for the Tribunal was whether that future loss of earnings over that length of time was probably attributable to the action taken by the employer.

There was ample evidence before the Tribunal to entitle them to select and assess future loss of earnings over a five year period.

For all those reasons this appeal is dismissed.