United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 972_93_2811

Appeal No. EAT/972/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 28 November 1994

Before

HIS HONOUR JUDGE J HULL QC

MR A C BLYGHTON

MR J A SCOULLER

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JOHN L DICKS          APPELLANT

MR S BUCKLAND          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant IN PERSON

For the Respondent IN PERSON


 


JUDGE HULL QC: Mr Buckland began his employment with Mr Dicks on 21 August 1990 and he was dismissed on 7 December 1992. He applied to the Industrial Tribunal, complaining of unfair dismissal, and asking for compensation. The Industrial Tribunal in due course sat at Bedford under the chairmanship of Mr Drysdale, on 28 September 1993. They held that Mr Buckland had been unfairly dismissed but that he had contributed to the extent of 80%. His compensation should be diminished by 80% for his contribution to his misfortune in being dismissed.

That was on 28 September. There was then a Remedies Hearing which was, of course, dealing with the question of compensation. They sat on 18 October. It appears, from what we have been told, not merely that Mr Dicks was not there for most of the hearing and therefore had no opportunity to be heard, but neither did Mr Buckland; and therefore the absence of any record of the hearing on 18 October, which had puzzled me at any rate, is perhaps not surprising.

The Tribunal simply went on to multiply the number of weeks since the unemployment began, Mr Buckland still being out of work, by his net weekly pay, and to subtract some relatively minor earnings which he received and thus to arrive at a fairly large sum of which, of course, they took 20% and awarded that to Mr Buckland.

Mr Dicks appealed. Most of his appeal he was not allowed to proceed with since it appeared to this Tribunal that no point of law was involved, but when he had made it clear that he was not given notice of the hearing and that he wished to contend that Mr Buckland had refused offers of jobs for which he had applied, which he should have accepted, this Tribunal gave him leave to appeal on the amount of compensation.

Both parties have kindly attended before us today, this being the substantive appeal. Mr Dicks has produced to us a letter which is at page 14 of our bundle in which one employer, in the same line of business as Mr Dicks apparently, says that he offered work on January 1993, and at the interview he says that Mr Buckland accepted the position and said he would commence his employment. But then he said he would be financially worse off by taking it.

Mr Buckland told us that that is a mistake and they are confusing him with some other person. Mr Dicks tells us that he has evidence that there were other offers, although he has been unable to persuade other employers to put the details in writing; he has some admissible evidence of that.

In those circumstances, it is clear that there are issues of fact between the parties and that through some mishap they were not served with notice of the remedies hearing.

That is a ground on which the Tribunal could themselves have held a review; in view of those matters, the question of compensation should be remitted to the same Tribunal, constituted in the same way if possible, so that they may reconsider it and (in particular) may hear the parties on the question whether Mr Buckland took proper steps to mitigate his loss, and made proper efforts to obtain employment, and any other issues with regard to compensation which the Tribunal thinks it right to entertain, accepting of course the findings on unfairness which they have already made which we are not interfering with in any way.

So there will be a new compensation hearing of which notice, of course, will be given to the parties. The parties may call any evidence that they wish which is material and receivable by the Tribunal, and take part in that enquiry in the usual way.

We regret that, as we have already explained to the parties, we here are confined to questions of law and we cannot try, even if we had the ability to do so, these issues of fact between the parties. So that is all we are going to do at the moment. We are going to remit it to the Industrial Tribunal.