United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 612_95_0611

Appeal No. EAT/612/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 November 1995

Before

HIS HONOUR JUDGE J HULL QC

MR R H PHIPPS

MR R TODD

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MUDIE BOND LTD          APPELLANTS

MR G W SANDIFER          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR C BAYLIS

(of Counsel)

Messrs Wallace Jones

Solicitors

108 Beaufort Street

London SW3 6BU


 


JUDGE HULL QC: This is an appeal to us by the employers, Mudie Bond Ltd. They employed Mr Sandifer as a van driver. He began in April 1992 and his employment ended on 10 October 1994 when, as it was found, he was constructively dismissed. We are not concerned with that finding. The place of employment was the New Town Industrial Estate at Tewkesbury.

The Industrial Tribunal sat on two days. They sat on 3 March 1995 when they had the advantage of being attended by the parties and by Counsel for the employers and they decided after that hearing that, indeed, Mr Sandifer, had been dismissed constructively and that it was unfair.

They then adjourned the question of remedies to a separate hearing and they sat again on 28 April 1995.

Their reasons are short but they are not to be criticised on that ground. They set out that the Respondents had not attended the second hearing but had given them written representations, which we have seen and as Mr Baylis, who has been before us today, confirms, those written reasons do not add very much to the case.

They said that they were satisfied that the Applicant had taken all reasonable steps to seek to find other employment. They went into the question whether he had contributed to his dismissal and the ground for suggesting that he had contributed was that he had failed to make a written complaint. His grounds for leaving, apparently, resigning and being constructively dismissed, putting it shortly, were that he felt the other two drivers who were employed were paid more than he was. That might or might not have been a good ground but the Industrial Tribunal found that it was.

It seems to us that, as the Industrial Tribunal say, this did not amount to any significant contributory conduct on the evidence and they say again that the Respondents were in fundamental breach of contract.

We cannot judge the merits of that. It seems to us that it must be a question of fact for the Tribunal to say whether they think that there was something which the employee could have done, which might have changed matters and which he ought to have done and whether, in that way, he contributed to his dismissal.

We have not heard anything to make us think that there was no evidence to support their conclusion. They had heard all the evidence at the earlier hearing, concerning which there is no appeal. That is the first ground of appeal - that they should have held him to be in contribution. We cannot find that there is anything in that.

They went on to say that he had taken all reasonable steps to find other employment. They had regard to his age of 59 and thought that he might very well not find any employment at all. They thought it right to give him the high award of two years' loss of future earnings. That was an award which was substantially cut down by the statutory maximum, but what is said is that there was really no evidence to support that. The notice of appeal says:

"The Tribunal awarded the maximum compensatory award to the Applicant without any evidence that the Applicant would not obtain alternative work in the near future."

It is said that the award was based upon a speculative view of the Applicant's work prospects and was, therefore, neither just nor equitable. One asks, "What are the Tribunal to do?" They are there as the industrial jury. They either know, or most certainly should know, what the state of the labour market is in their area. That was the view which they formed. They were not assisted in any way by the Respondents or, apparently, by the Applicant. Neither party called any evidence about the jobs market and it may well be that they were quite justified in saying to themselves, "The Tribunal will have to be trusted to find their own way round this one and make the best estimate they can". It said that it is a speculative estimate. There is an element of speculation about all damages relating to the future. Had the parties been ready with evidence or had the matter been raised before them, the Tribunal perhaps should have said, "We are going to have to rely on our own knowledge to a considerable extent and our experience of the labour market locally is that it is very difficult for men of this age. He may well not find employment for many years, if at all". That would then have been dealt with by the parties and any witnesses they had called would have had to deal with that view and say, "No, it is mistaken. We have experience which shows that it is an incomplete view". That would have had to have been dealt with by the witnesses. Nothing like that happened.

In the circumstances, they did all they could do, it seems to us. On the face of it, there is nothing wrong with them relying on their own information and it was quite clear that that was what the parties intended them to do. To describe it as speculative is to get no further because of the element of speculation inevitably involved. It was no more unreliable a view, one supposes, than they might have formed if they had had evidence from employment consultants or experienced employers or experienced trade union officers in the district saying to them what the actual up-to-date employment picture was.

In those circumstances, it appears to us that neither of the grounds of appeal which are put before us raises a point of law. There is certainly nothing, so to speak, outrageous or perverse or unreasonable in the legal sense in this decision and, although one can understand the employers' feeling that it is a decision which is somewhat hard on them, we cannot find anything in the grounds of appeal to show us that there is a fairly arguable point of law here. The case is in our list under our practice direction, to see if we can find such a point of law. Since we cannot, even with Mr Baylis's assistance, for which we are very grateful, we have to say that the appeal must be dismissed now.