United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1329_95_1807

Appeal No. EAT/1329/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18th July 1996

THE HONOURABLE MR JUSTICE BUCKLEY

MRS R CHAPMAN

MR D J JENKINS MBE

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LEEDS DRUG PROJECT          APPELLANTS

MR B C SANDERS          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants NO APPEARANCE BY OR

ON BEHALF OF THE

APPELLANTS

For the Respondent MR D TATTON-BROWN

(of Counsel)

Messrs Nabarro Nathanson

Solicitors

1 South Quays

Victoria Quays

Wharf Street

Sheffield

S2 5SY


 


MR JUSTICE BUCKLEY: Mr Sanders complained of unfair dismissal before the Industrial Tribunal held at Leeds back in June and July 1995. It appears initially to have been a two day hearing. The unanimous decision of the tribunal was that he had been unfairly dismissed and the matter was adjourned to a later date for consideration of remedy. That later hearing took place on 27th September 1995 and the tribunal reached their decision. The only point of relevance now is that they considered but rejected a submission by the appellants, the respondent before them, Leeds Drug Project, which we understand to be a charity, that Mr Sanders had failed to mitigate his loss in the time-honoured way by looking for other reasonable or suitable employment. They rejected that and they did not therefore reduce the award on that ground or indeed or any other.

The appellants through their solicitors bring the matter before us. The appellants have not appeared nor have their solicitors, but that is understandable since they are a charity and quite clearly conscious of unnecessary expenditure. The point in essence is a short one which they seek to raise, and they have contented themselves by instructing the solicitors to put in written submissions. In addition to the grounds of appeal and a short skeleton which was originally entered, we have several pages of written submissions from Godloves, solicitors. We are very grateful for those. We also have an affidavit from a Mr Malcolm Richard-Jones the solicitor in question and exhibits. All of those we have considered carefully since the solicitor does not attend in person for the reason we have given and which we fully understand.

In essence the point is this, the tribunal dealt with the mitigation point essentially in paragraph 6, but we will refer to one or two other passages in a minute. Paragraph 6 is as follows:

"6 On the issue of mitigation, pursuant to s.74(40 of the Act, we are required to apply the common law principles. These principles require that the dismissed employee should take all reasonable steps to reduce his or her loss. However, the principles place the burden of proof of failure to mitigate upon the respondent. The respondent must adduce evidence of such failure. Whether a particular applicant has done enough to fulfil the duty to mitigate depends upon the circumstances of the individual case. In this case we are not satisfied that the evidence produced by the respondent regarding the availability of work suited to the applicant's particular talents is sufficient to satisfy us that the applicant has failed to mitigate his loss. Accordingly we do not propose to reduce the compensatory award on this account."

What appears to have happened is that the appellants adduced some general evidence concerning the availability of jobs and they cross-examined the respondent on the evidence that he had given about his actions. Mr Jones, the appellants' solicitor seeks to rely in particular on an answer he extracted in cross-examination. He seeks to pursue the appeal on two grounds.

Firstly that paragraph 6 evidences a wrong approach to this question of mitigation by the tribunal. What Mr Jones seizes on is the really the sentence "the respondent must adduce evidence of such failure" and the point he is seeking to make is that the tribunal appear to have felt that they could only look at the evidence of the respondent, the onus being on the respondent, if they felt that that was not strong enough to make out a case of failure to mitigate they could not bolster that in any way by considering the evidence of the applicant. That is a fairly startling submission because the idea that any Industrial Tribunal would regard themselves as precluded from considering the applicant's evidence in this respect is surprising to this tribunal. We certainly would not reach that conclusion based on such slender grounds as the one sentence which we have read out from the paragraph. It does seem to us that when that paragraph is read as a whole, including as it does reference to the circumstances of the individual case and the second reference to "this case", we do not think the submission really can stand up.

Further to that we note that in paragraph 1 of the reasons we find this sentence:

"In addition we heard evidence on behalf of the respondent regarding job opportunities which might be available to the applicant."

That is of course accurate and introduced the topic. But then in paragraph 3 they set out in some detail the respondent's evidence. It is unnecessary for us to go through it, but the point is that it clearly illustrates that the tribunal did have in mind the respondent's evidence to the effect, as they recorded, that he had not been able to obtain fresh employment, but he had made certain efforts and there were clearly questions of his age and limited qualifications, work experience outside working for the respondents and so forth. All of that would have been irrelevant if they felt that the only evidence they could look at on this question of failure to mitigate was the appellants.

The second point that Mr Jones takes turns upon the evidence that the respondent gave in answer to a question from Mr Jones. He suggests or seeks to suggest that the Chairman either mis-recorded or misunderstood evidence from the respondent, and that one answer in particular to the effect that he had not applied for or looked for work in counselling, was mis-recorded and that the Chairman of the tribunal had proceeded on the basis that he had not looked for work.

We think that we have all the material here, but in the end like the Chairman, we are unable to see any significant difference between the version put forward by Mr Jones and that recorded by the tribunal. Mr Jones exhibits to his affidavit his own notes which include in particular the cross-examination, they include a reference to the respondent saying he had applied for non-counselling jobs because the behaviour of the appellants was psychologically stunning. More importantly, he had not applied for any counselling jobs.

The Chairman's notes are also exhibited to the affidavit. They again record the respondent's evidence in chief about looking for work and his reasons for the course of action he took in that respect, and in cross-examination records this:

"I have applied for jobs not in counselling"

Again there is a reference to the impact of the dismissal being psychologically stunning and so forth. That really seems to us to be almost exactly what Mr Jones has recorded, the gist being that the respondent was accepting that he had not applied for work in counselling, but had made other efforts for jobs and he gave an explanation as to why he had adopted that course.

The appellants quite properly sent all this material as we understand it to the Chairman for his comments. The letter we have received is dated 17th July 1996, indeed it was sent to the solicitors with a copy to us, in which the Chairman says he cannot understand the appellants' solicitors problem and he repeats what he has recorded which we have already mentioned. He observes that his notes are not intended to be a verbatim record and he cannot see that what he has recorded varies significantly from that recorded by the solicitor. We have to say nor can we. The overall effect of the evidence seems to us to be plain. If recorded by both parties at all accurately, and it is that the respondent was saying that he had applied for work, he gave his explanation for the steps that he had taken and he accepted in cross-examination that he had not looked for work in counselling and he explained why not. Now it is not for us to judge whether his explanations would have satisfied us. We are not hinting that they would not at all. We can fully understand what he said. We simply observe that it is not what we are here for to rejudge the evidence. He gave evidence of looking for work. He gave an explanation for why he had not looked in counselling and from the Industrial Tribunal's decisions to which we have already referred, it seems plain enough to us that that evidence was considered.

That being so, we really cannot see any point of law arising, let alone a point on which the tribunal has gone wrong. The tribunal's reference to the appellant adducing evidence we imagine is based on the Gardiner-Hill case which is not referred to in the decisions. Gardiner-Hill v Roland Berger Technics Ltd [1982] IRLR 498 . The effect of that is that in these cases what one is usually looking for is to see whether, since the burden is on the respondent, they have identified a step which the applicant should have taken viewing the matter reasonably, and that here she did not take, and what the result of that was. In other words that if they had taken that step they would have obtained some work. Now that is of course a very clear guide as to the sort of evidence that would satisfy a tribunal of a failure to mitigate, but no one has ever suggested that that is the absolute be all and end all and of course if an applicant himself in cross-examination makes certain or sufficient admissions that may itself satisfy a tribunal of a failure to mitigate. So to that extent we agree with what might have been behind Mr Jones's submissions, but where we differ is in being prepared to assume that the tribunal did not consider the respondent's evidence in reaching their conclusion. It seems to us they plainly did.

So having considered all the material that Mr Jones has put in for which we are very grateful and having heard Mr Tatton-Brown briefly, this appeal must be dismissed.