United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 196_94_0107

Appeal No. EAT/196/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1 July 1994

Before

HIS HONOUR JUDGE J HULL QC

MR D O GLADWIN CBE JP

MR T C THOMAS CBE

---

MR C A GRIFFITHS          APPELLANT

STAVROS PROPERTIES (BOLTON) LTD          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellant MR M GLAZIER

(REPRESENTATIVE)

Personnel Advisory Services

17 Hartley Avenue

Manchester

M25 OAT


 


JUDGE HULL QC: In this case Mr Griffiths was employed as head chef and kitchen manager by the Respondents. He was first employed in June 1987 and his employment ended on the 6 January 1993 when, as the Industrial Tribunal found, he was unfairly dismissed. It then fell to them to assess compensation.

After his dismissal, he obtained fresh employment - about a week later. That new employment was at a much diminished salary compared with the one which he had enjoyed. But he stayed in that job for a time as head chef. He stayed there for about four and a half weeks. In the middle of February he reached the decision to leave that job and become self- employed. It quickly became apparent to him that that was a mistake and that he would not earn his living as a self-employed person. So he returned to other employment at a lesser salary than he had enjoyed in his first employment with the Respondents, but it was some improvement.

That was the short history of the matter. The Industrial Tribunal had to decide how to deal with the question of compensation. Now the question of compensation and all the questions associated with it are on the face of them decisions of fact. The employee of course is expected to do what is reasonable to mitigate his loss. It is for him to say, in the first instance, what he does about that, that is entirely a matter for him.

But of course, if he claims compensation for loss which in the view of the Industrial Tribunal is caused not by the employer's unfairness, but by his own failure to do what is reasonable in his own interests, then although it is entirely his prerogative to say what employment he will take, whether he will be self-employed or whatever it is, the Industrial Tribunal will disallow it. They have to consider all sorts of questions. They have to consider the state of his health, his age, what employment it was reasonable for him to take. Is it reasonable for him to accept a reduction in salary?

They, the members, know what the local job market is, or they certainly should know roughly what it is. Is it reasonable for a man to embark on a career of self-employment? Of course, many people think it right in their own interests to embark on a career as self employed people. They often take an enormous risk in doing so and the question whether it is reasonable for them to ask a previous employer to compensate them for loss which they suffer as a result will again be one of fact for the Tribunal.

As Mr Glazier, who appears here today, reminds us, it is a question which has to be considered by the Tribunal under Section 74 of the Act:

"... 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..."

So there they have to consider what is just and equitable. Those words, of course, import a discretion and a need to look at the evidence on its own merits. It goes on:

"... in so far as that loss is attributable to action taken by the employer."

That of course requires them to consider the question of causation. It is said in the Notice of Appeal that causation is a question of law. It is, with respect, in our view nothing of the sort. Causation is a question of fact. It is true that there may arise certain considerations of law in deciding that. Indeed the section itself raises certain questions of law, but basically causation is a question of fact. Lawyers sometimes talk about the causa causans, so to say, the cause which is the effective cause. Or the causa sine qua non: I am dismissed from my employment and I have some leisure as a result, and the next day I am injured on my way to the golf course. Is my injury the result of the unfair dismissal? Very few Tribunals would think that that was the position. But of course, I would not have suffered the injury if I had not been dismissed. That is an example of a causa sine qua non, a cause without which it would not have happened, but it is not an effective cause.

That fact, as I say, that lawyers find it necessary to dress that up in Latin, shows what an imprecise exercise it is and how necessary it is to bring commonsense, as the Tribunal must, to that. In sub-Section 4 of Section 74 it is provided as follows:

"In ascertaining the said loss the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or of Scotland, as the case may be."

There are whole chapters in legal textbooks devoted to the question of what is the proper way to mitigate your loss. Again, they show how necessary it is to say, this is first and foremost a question of fact. It may or may not be reasonable to mitigate one's loss in a particular way. It is necessary always to look at all the circumstances in order to say whether a person has failed to mitigate. He is certainly not required to do more than is reasonable and what is reasonable is a question of fact.

Those are preliminary remarks. This is a question of fact. Of course, if the Tribunal make an error of law and show by their award that there is an error of law we can interfere. Our jurisdiction is confined to correcting errors of law. The mere fact that there are reported cases in which particular Tribunals, particular Employment Appeal Tribunals, particular Judges in the Court of Appeal have dealt with the facts of particular cases in a certain way, and enunciated certain principles, does not mean that the questions which the Tribunal has to consider are questions of law.

Now how did the Tribunal deal with this? They said:

"The applicant's evidence relating to compensation was that he started a new job following his dismissal after about one week. That was as a Head Chef. His net wage was £93.00 per week less than with the respondents. He kept that job for four to five weeks. He then left to try to set up a business on his own. He realised he would not succeed and started a new job two weeks after leaving the previous one. The wages were the same as in the previous one. He was there for seven weeks and then, without a break, he started a third job with his present employer. His net weekly wage is £45 less than with the respondents."

Then they talk about additional benefits which he received. Then they said:

"On the foregoing evidence we find that the applicant mitigated his loss up to the end of his new job following his dismissal."

and they find that he did not contribute towards his dismissal.

They then proceeded to award compensation on the basis of loss up to the end of that first job. They could of course have taken a very different view. If we had been trying the case, and had the advantage of hearing the witnesses, we might have taken a very different view. It might be said that Mr Griffiths was unfortunate in his Tribunal. He might have been much more fortunate. But we are not in a position to consider what they had to consider. They had to consider, for example, whether this new job was one in which he could reasonably expect to increase his earnings in the very near future. Was the market such that it was absolutely reckless of him to leave that job? If he had stayed in that job were circumstances such that a reasonable man would say to himself "well I ought to stay here and very shortly I shall be able to get other employment, better employment, or I shall be able to get part-time employment to supplement my earnings"? Or, "the conditions here are so very favourable that I shall get an opportunity to increase my skills, and perhaps even a professional qualification of some sort"?

Those are all imponderables. We know nothing of these matters. We do not know what evidence was adduced about all these. It was for the Tribunal to say whether it was reasonable for him to leave that first job or whether in fact it was not; whether he was breaking the chain of causation, as it is sometimes called in legal circles breaking the chain of causation in going self-employed, so that events showed it was an unwise decision and the former employer ought not be required to pay for the consequences of that.

Those were all questions of fact for the Tribunal. In the event they took a view adverse to Mr Griffiths. We are all of the opinion that the Tribunal was entitled to take the view they did. It matters not to say "on paper, it looks like a decision very adverse to Mr Griffiths". We see a great many decisions here which on paper appear to us to be rather favourable or indeed very favourable to one side or the other. We always have to remind ourselves that this was a Tribunal which had the responsibility of finding the facts, which we have not. We are not allowed by Parliament to interfere in questions of fact.

In those circumstances, we have to say that since no question of law is disclosed by the appeal, we cannot allow the appeal to proceed and under our practice direction we have to dismiss it.