United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 326_94_1907

Appeal No. EAT/326/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 July 1994

HIS HONOUR JUDGE J HULL QC

MRS M L BOYLE

MS R CHAPMAN

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WILLIAM BIRCH (ENGINEERS) LTD          APPELLANTS

MR F L RILEY          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR DAVID JOHNSON

(DIRECTOR)


 


JUDGE HULL QC: This case is in our list under our practice direction to see whether we can discover any point of law in the appeal. We are much more limited than other courts of appeal. The Court of Appeal itself, properly so called, can hear appeals on questions of fact or questions of law or questions of mixed fact and law. So can, for example, the Crown Court, when it hears appeals from the Magistrates Court. The Crown Court tries the whole matter again but the statute which creates our jurisdiction, the Employment Protection (Consolidation) Act 1978, takes a quite different course, and Parliament has said that we are to entertain as appeals only questions of law, and none of the other matters which can be raised on appeals to other Courts or Tribunals can be raised before us. Therefore, if we were to purport to decide any appeal on a question of fact, we should simply be acting outside our jurisdiction and our decision would be valueless and would be set aside at once by a superior Court, so we have to be very careful to make sure that before we entertain an appeal there is a point of law involved.

Now here, to explain our decision, I should say that Mr Riley, who is the employee concerned, who is now aged 47, was a skilled fitter employed by William Birch in their business of manufacturing textile machinery. A very specialized and small business, with 23 employees. He began work with them on 14 January 1991. They were not entirely satisfied with the way in which he worked. There were certain lapses in the actual work and they thought that he was slow and that he talked too much. There came a time in February 1993 when he was dismissed.

The employers are a small firm. They have been represented before us today by their managing director, Mr Johnson.

There was some confusion about the precise reason for dismissal and the Industrial Tribunal heard the complaint of unfair dismissal, which Mr Riley made on 5 May 1993, on 26 November 1993 and 21 January 1994, sitting at Manchester under Miss Woolley, their Chairman, with two Members. They found that the applicant, Mr Riley, had indeed been unfairly dismissed but they found that he had contributed to his dismissal by his own behaviour. They thought that the criticisms which were made of him were not without foundation and they, therefore, held that he had contributed to the extent of 75% and would, therefore, only get a quarter of any compensation to which they might find him entitled.

After that the matter was adjourned but they eventually had to decide the question of compensation and the decision on that is with our papers, starting at page 15. They gave a basic award and there is no dispute about that. They then turned to the compensatory award. They gave in respect of interim loss, as they called it, quite rightly, compensation based on 53 1/2 weeks of absence from work, saying that Mr Riley had been trying to get work but had failed. They thought that this loss would continue into the future and they gave a further 18 months which, as Mr Johnson said, is a long period. Altogether, they arrived at a very high figure but they reduced it by three-quarters, in accordance with their award, and they reached a total award of £4,799.02, including the basic award.

Mr Johnson, in his notice of appeal on behalf of the company, makes the point that if you multiply that by four to get the full amount, you get a high figure of getting on for £20,000, and he says that the limit on the compensatory award is £11,000 and one should take that limit and then divide that by four to get the 25% to which Mr Riley was entitled.

He says he is not sure about that point. It appears to us that he is quite clearly wrong about it. There are many decisions on this but the point is really decided by what is said in section 75 of the Employment Protection (Consolidation) Act 1978. There is a limit on compensation there, which is now £11,000. It is altered from time to time by a statutory instrument but it is now £11,000 and in section 75(3) Parliament says:

"It is hereby declared for the avoidance of doubt that the limit imposed by this section applies to the amount which the industrial tribunal would, apart from this section, otherwise award in respect of the subject matter of the complaint after taking into account any payment made by the respondent to the complainant in respect of that matter and any reduction in the amount of the award required by any enactment or rule of law."

That is rather a long-winded way of saying this: what the Tribunal has to do is to work out what they think is the just and proper compensation, then they have to make any deduction - in this case, 75% deduction - then they have to see whether that is above £11,000. In other words, Parliament has said that it should be done the other way round from the way which Mr Johnson suggested in his notice of appeal and so all we can say in the light of section 75 is that the contention made is wrong and what they had to do was to look and see whether their figure for the compensatory award, as reduced, was below the £11,000 and, of course, it was.

That, in our view, is the answer on that point and it is not, therefore, fairly arguable.

Then Mr Johnson makes a very different point or, indeed, a complex of points, because he says that this Tribunal took a quite wrong view of the evidence. In fact, he says that this employee should have found work reasonably quickly. The idea that he could be unemployed for 2 1/2 years is ridiculous, if he were making proper efforts. He was not making proper efforts. He could earn his living, amongst other things, as a photographer, apparently. He should have made further applications. In the belief of Mr Johnson and his colleagues, Mr Riley has not been making proper efforts. Amongst other things - and he was criticised by the Chairman of the Tribunal himself for this - he has been telling potential employers that he was dismissed from his last employment. Naturally, a person is expected to be frank and open at an interview for new employment and if he is asked what had happened about the last employment, he would be bound to say that he was dismissed. He could add, of course, perfectly truly, that the Tribunal had now found that he was unfairly dismissed.

The answer to that point is that it is not a point of law at all. It was for the Tribunal to assess these matters. It may very well be that this was a fairly strong decision in the sense that it would be unexpected to a great many observers. To say that to say that Mr Riley could reasonably expect to be allowed 2 1/2 years' period of unemployment might be very favourable to him. But that is the whole point about industrial tribunals, they hear the evidence, they decide the facts. As has been said by the most eminent judges, they are the sole judges of fact. They alone are entrusted with the facts and they are to sit as a sort of industrial jury. The two Members, one from each side of industry, are expected to know and do know the general employment scene in their district and the prospects of obtaining employment. Just as important, they and their Chairman, who is a lawyer, of course, can assess the evidence. Do they think that the witness is giving evidence genuinely and truthfully? Do they think he has made the efforts he describes in good faith or do they think he is trying to pull the wool over their eyes? Those were entirely matters for the Tribunal. They reached a decision very favourable to Mr Riley in that matter, although very unfavourable to him in the matter of the deduction. It was perfectly open to them to do so and it is not a question of law for us at all. Mr Johnson feels very strongly - we entirely accept that - that the decision is wrong. There is nothing we can do about that. This Tribunal conducted themselves regularly and it is quite idle for us to say that we might have reached a different result or that a different Tribunal might have reached a different result. They saw the witnesses, it was their duty to assess the witnesses and, in particular, Mr Riley himself and they did so and they have reached their result.

As I say, the appellants find the result unsatisfactory and, indeed, in their view, wrong. But the notice of appeal and what Mr Johnson has said to us today does not, in our view, disclose any arguable point of law and, therefore, for these reasons, which I am afraid I have set out at rather great length, we feel obliged to dismiss the appeal at this stage.