United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 917_93_2804

Appeal No. EAT/917/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 28th April 1994

Before

HIS HONOUR JUDGE J HULL QC

MR D O GLADWIN CBE JP

MRS M E SUNDERLAND JP

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ALPHA BUSINESS COMPUTERS LTD          APPELLANTS

MISS J A BRASSINGTON          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants NO REPRESENTATION BY

OR ON BEHALF OF THE APPELLANTS

For the Respondent MR BRASSINGTON

(Father)


 


JUDGE J HULL QC: This is an appeal to us from a decision of the Industrial Tribunal sitting at Manchester under the Chairmanship of Mr Beckett on the 23rd August 1993. They found that Miss Brassington had been unfairly dismissed and they went on to assess compensation. They first of all gave the basic award and there appears to be no criticism of that, they multiplied £205 maximum x 3. Then they went on to consider the compensatory award, which of course is intended to compensate Miss Brassington, so far as the limits allow, for any loss which she suffered by reason of the unfairness of her dismissal. There are various matters which the Tribunal has to take into consideration. They started from 22nd October, not the actual effective date of termination, which was the 31st December 1992, but of course it may be convenient to take a starting point there and they took her salary up to the 23rd August 1993, which as I say was the date of the hearing. It is not quite clear to us why they stopped at the 23rd August and did not consider whether there might be some future loss, but at any rate they did not. They took the salary from the 22nd October 1992 to the 23rd August 1993, which they said was 43 weeks, and they took that as the net salary which Miss Brassington would have earned during that period. They appear to have paid no regard to the fact that she had the use of a car, which would certainly be of some private benefit to her and it appears to be acknowledged that they should have done that. They then considered monies received by Miss Brassington. There, apparently, they omitted one week's pay, Mr Brassington says in letters to us that she was owed holiday pay, but it does not appear that that was considered by the Tribunal and that is another matter which they should no doubt consider.

Then they come to say "well of course we must deduct from the compensation what Miss Brassington received from her other employers", and at this point the calculation seems simply to have gone completely "haywire". Instead of deducting what she in fact received, they deducted from this grand total (of what she would have earned if she had stayed with her former employers) the loss of net wages, in other words the difference between what she was earning in her new employment and that which she earned in the old employment. That resulted in a grossly inflated total. What they should have done of course was to deduct her net earnings and rewards in her new employment.

They might of course have then gone on to say, "well we consider there will be some continuing loss"; but they did not consider that matter.

Mr Brassington has mentioned the possibility that this Tribunal intended to make an additional award. On the face of it that appears quite impossible, whether from the calculations contained in the decision or from the Chairman's Notes of Evidence regarding compensation, which are at page 31 of our bundle. On that page it is made quite clear that what is being deducted from the grand total of what this lady would have received is, not what she received in her later jobs, but the net loss, as it is put, in those jobs which is clearly, "subtracting apples from pears": it is simply irrational.

It is a great pity that this appeal is brought to us. We are not entitled to find facts, except in the most obvious and uncontested case, and we cannot carry out the necessary calculations. There are various matters raised, on one side and the other, which require to be looked into, such as the net value of the car to Miss Brassington and the exact nature of the arithmetic. It appears, looking at the latest letter of 13th April 1994 from Alpha, who have not appeared today, that the difference between the parties, according to our arithmetic, is only of the order of about £400 and that depends on a different view concerning tax and national insurance and holiday pay. Those are not matters which we can go into today and therefore we remit it to the same Tribunal with a request to them to be good enough to reconsider the assessment of compensation and to hear any further submissions and any arguments and calculations which the parties wish to lay before them and to review their decision in the matter of compensation; we say no more about it than that.