At the Tribunal
HIS HONOUR JUDGE K BASSINGTHWAIGHTE
MRS P TURNER OBE
MRS R A VICKERS
JUDGMENT
Revised 17th December 1996
APPEARANCES
For the Appellant MR G SAMPSON
(of Counsel)
Craigen Wilders & Sorrell
Solicitors
81/83 High Road
Wood Green
London N22 6BE
THE RESPONDENTS NEITHER BEING PRESENT NOR REPRESENTED
JUDGE BASSINGTHWAIGHTE: The appellant's complaint of unfair dismissal and in respect of a variety of other claims under the Wages Act 1986 and otherwise, was heard by a London (North) Industrial Tribunal on 30th August and 13th and 14th December 1994.
The Industrial Tribunal recorded, and on 30th December 1994 promulgated, its unanimous decisions as follows:
"1) This is not an illegal contract and the Tribunal has jurisdiction to hear the application that the Applicant was unfairly dismissed.
2) The Applicant was unfairly dismissed.
3) The Tribunal awarded £1,845 in compensation.
4) The Applicant is entitled to an additional sum of £200 in respect of wages not paid to him at the termination of his employment.
5) The total award is £2,045."
Perusal of the Industrial Tribunal's decision reveals that other decisions were made, but not recorded on the first page of its decision, namely:
that the appellant did not contribute to his dismissal;
that the appellant's claim in respect of allegedly unpaid holiday pay failed;
that the appellant's claim that his remuneration was enhanced by overtime was not a matter of which they would take account, because the appellant's evidence had been to the effect that "There never was a contractual agreement that overtime would be paid."
that they could make no award in respect of the appellant's personal belongings allegedly left on the premises of the respondent company, and finally
that they considered and rejected the appellant's claim that he was entitled to a share of the respondent company's profits, because they accepted that "There was never any profit to share."
The decisions considering the legality of the appellant's contract of employment, the finding of unfair dismissal and that the appellant did not contribute thereto, the tribunal's basic award for unfair dismissal, the award in respect of the unlawful deduction from wages in the sum of £200, and the decision concerning overtime as part of remuneration and concerning the appellant's personal belongings are not matters which are appealed before us.
In his Notice of Appeal filed on 7th February 1995, the appellant appeals primarily against the Industrial Tribunal's decision to make no compensatory award, but in accompanying notes to his Notice of Appeal, he also raises the issues of his ill-health, allegedly caused by "the respondent's action in acting in an autocratic manner", his original claims for holiday pay, for a share of the respondent company's profits, and in respect of the company pension scheme; the appellant also made an application for costs.
Before us today, the appellant has withdrawn his appeal insofar as it relates to holiday pay.
In his Notice of Appeal the appellant has indicated a wish to rely upon documentation which was not before the Industrial Tribunal, namely the accounts for the respondent company for the year 31 July 1993, which are dated 14th December 1993. The appellant may not now rely upon documentation which was in existence when the Industrial Tribunal heard his complaints and which by reasonable diligence he could have obtained and put before the Industrial Tribunal. That documentation has not therefore been considered by us, since it is clear that it is documentation which could have been put before the Industrial Tribunal and which the appellant must have realised had relevance to his financial claims.
The respondent company filed EAT form 3 (dated 27th October 1995) on 1st November 1995; that document indicated an intention to resist the appellant's appeal but gave no detail of the grounds upon which reliance would be placed. There was no indication of a wish to cross-appeal.
The respondent has not attended today. In a telephone message before today's hearing, his secretary indicated an inability to attend because of a domestic matter, but also indicated Mr Wenham's agreement to the tribunal proceeding in his absence to hear the appellant's appeal or to adjourn as the tribunal saw fit. We consider that we should hear the appeal today.
The only indication in the Industrial Tribunal's decision of their reason for not making or considering a compensatory award appears in paragraph 30. It is there recorded "the applicant has been unable to work since the termination of his employment. He is still receiving sickness benefit. Accordingly the tribunal does not make a compensatory award."
It is our unanimous conclusion for the reasons which follow, that the Industrial Tribunal erred in law in declining to make an examination of the circumstances which would lead to a compensatory award: the appellant's claim for a compensatory award must therefore be referred back for re-hearing and adjudication by the Industrial Tribunal since the fact that an appellant is in receipt of sickness benefit and has been so since dismissal, does not preclude or prevent the Industrial Tribunal from considering and making a compensatory award.
The Industrial Tribunal's duty once it has made a finding of unfair dismissal is to consider whether an award is: "just and equitable ... having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to the action taken by the employer". [Section 74[1] Employment Protection [Consolidation] Act 1978] The receipt of sickness benefit is but one factor in that equation. It does not of itself prevent the calculation of an award.
In accordance with the provisions of Section 74[2][b] of the 1978 Act, a compensatory award may properly include compensation in respect of "loss of any benefit which the complainant might reasonably be expected to have had but for the dismissal."
The Industrial Tribunal should, therefore, as part of its consideration of a compensatory award, particularly [but not exclusively] consider the following issues, deciding whether any of them come within the scope of that statutory provision:-
The Industrial Tribunal should, therefore, consider, having misdirected itself in law, a compensatory award in accordance with the guidance given in this direction.
Finally, the appellant originally made an application for costs, but since we understand from Counsel that he is now legally aided, no such award is appropriate.