United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1046_95_1601

Appeal No. EAT/1046/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16 January 1996

THE HONOURABLE MR JUSTICE TUCKER

MR J H GALBRAITH CB

MR N D WILLIS

---

MR P SCHOFIELD          APPELLANT

GEOTECHNICAL ENGINEERING (NORTHERN) LTD          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellant MR P J MOONEY

(Consultant)

Legal Response Group

Miller House

19 Market Street

Altrincham

Cheshire

WA14 1QS

For the Respondents NO APPEARANCE/ REPRESENTATION BY OR ON BEHALF OF RESPONDENTS


 


MR JUSTICE TUCKER: This is an employee's appeal against the decision of the Industrial Tribunal sitting at Leeds on 22 June 1995. Having decided that the Appellant was unfairly dismissed by the Respondents, Geotechnical Engineering Ltd., the Tribunal found that he was not entitled to any award of compensation, save for an award in respect of loss of statutory rights in the sum of £200. The ground given for that decision was that the Tribunal found that the Appellant had, for no justifiable reason, terminated his new employment, which commenced on 9 November 1994, approximately one month after the termination of his employment with the Respondents. The Appellant's occupation is that of a driller. He was employed by the Respondents for fifteen years, ending on 7 October 1994.

The grounds upon which the Tribunal found that the Appellant had been unfairly dismissed are set out in paragraph 7 of their decision. We need spend no further time on that aspect of the case. The Tribunal's findings on compensation are set out in paragraph 8. They say this:

"The Tribunal then went on to consider the question of compensation.

The applicant had found himself a new job in a similar capacity on 9 November 1994. He worked at this job for approximately six weeks and then terminated his employment. His reasons for so doing were on the basis of his remuneration and because he had experienced "safety" problems with the machinery.

In relation to safety, the applicant referred to one incident and to his complaints to his new employers about the standard of equipment he was expected to work with. There was no evidence before the tribunal, however, to substantiate there being any serious problems sufficient to justify the applicant terminating his employment.

In terms of income, the applicant was in fact earning more than he had with the respondent company but the tribunal accept he was probably working longer hours and, noted that in fact he was not paid in respect of any travelling time.

In the circumstances, the tribunal took the view that the applicant had no justifiable reason for terminating his employment when he did and his entitlement to compensation, therefore, ceased on 9 November 1994 when he started work. The whole of the period of his unemployment, previous to that, was covered by the payment in lieu of notice made to him by the respondents.

The applicant was not therefore entitled to any award vis a vis the compensatory award.

The respondents had already made a payment to the applicant in respect of his basic award.

The Tribunal considered the question of loss of statutory rights and made an award to the applicant in the sum of £200 in respect of that right."

The grounds of appeal are that the Tribunal erred in law in a number of respects set out in the Notice of Appeal. In effect, it is said that the Appellant had no opportunity of addressing the Tribunal on the question of compensation, and that the Tribunal should have considered that question separately, following their decision on the fairness or otherwise of the dismissal. There is a Respondents' notice (in one place wrongly described as a cross-appeal) raising a number of factual contentions. There are two important points to be made at the outset. First, the Appellant did not appear in person before the Tribunal, he was represented there and before us by Mr Mooney, who is a qualified solicitor and is an employment consultant. He tells us that he regularly appears before Industrial Tribunals. Second, possibly because the point was not sufficiently clearly defined in the Notice of Appeal, no notification of it has been sent to the Chairman of the Industrial Tribunal, and she has not had any opportunity of commenting upon it. Accordingly we make it plain that we do not criticise the Chairman or the Members of the Tribunal for what took place.

Nevertheless, we do take the view that a misunderstanding occurred which has resulted in the Appellant's case on the question of compensation not being fully or properly presented to the Tribunal. In our opinion this was due to Mr Mooney's failure to appreciate the course which the Tribunal were intending to take, to make his position his clear to them and to raise his objection at the time. Had he done so, the matter could have been resolved at the hearing, and this appeal and any subsequent reconsideration of the matter, could have been avoided. Mr Mooney has told us that he expected the Tribunal to deal separately with the questions of liability and compensation, as is his experience is the general practice in England & Wales. So he did not in opening the Appellant's case, or in examining the Appellant in chief when the Appellant gave evidence, deal with the matter of compensation. Nor was the Appellant cross-examined about it by the Respondents.

However, at the conclusion of that cross-examination, the Chairman did ask the Appellant a number of questions upon this document. It must or should have been apparent to Mr Mooney at that stage at least, that the Tribunal intended to deal with both matters together and not to conduct a split hearing. It is most unfortunate that Mr Mooney did not then clarify the position with the Tribunal. He did not appreciate what was in the Tribunal's mind. In his final submissions he did not deal with compensation at all, still believing that he would have an opportunity of doing so at a later stage, if the Tribunal found in the Appellant's favour as they did, on the question of the fairness of the dismissal. It therefore came as a surprise to Mr Mooney to hear the Chairman announce the Tribunal's decision not only on the question of liability but also on compensation. Still he did nothing. He did not complain at the time, neither did he subsequently apply to the Tribunal to review its decision, under paragraph 11 of its Rules of Procedure on the grounds that the interests of justice required such a review.

What are we now to do? Our researches show that similar situations have been considered by this Appeal Tribunal before. Notably in the cases of Slaughter v C.Brewer & Sons [1990] ICR 730 and Ferguson & Gateway Training Centre Ltd. [1991] ICR 658. For his part Mr Mooney has referred us to a decision of the Appeal Tribunal in Tidman v Aveling Marshall Ltd. [1977] ICR 506, where it was held that it is the duty of an Industrial Tribunal to raise for itself the various categories of compensatory award. The consequence in the particular facts of this case is that the Appellant has not had his claim for compensation properly and fully argued before the Tribunal, as was his entitlement. An injustice may have occurred which we cannot allow to go uncorrected.

In our opinion the decision of the Tribunal as to compensation is flawed and it cannot be allowed to stand. We do not have sufficient material before us upon which we can reach a conclusion and in any event the Respondents are not represented before us, having indicated that they did not intend to appear. It follows that the question of compensation alone will have to be remitted for a re-hearing. We accordingly remit the matter to the same Tribunal if possible. If not, we request the Regional Chairman to look at the matter and to appoint a differently constituted Tribunal to hear it. We emphasise that it is important for all those who take part in hearings before Industrial Tribunals, to ensure that the issues to be decided by the Tribunal are properly and clearly defined.

Finally, in view of the comments which we have made and the views which we have expressed, we hope that the Appellant's representative will not call upon the Appellant to pay the costs of these further proceedings.