United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 329_95_0909

Appeal No. EAT/329/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9th September 1996

Before

HIS HONOUR JUDGE H HICKS Q.C.

MR S M SPRINGER MBE

MR T C THOMAS CBE

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MRS D KWAKYE-MANU          APPELLANT

CITY AND HACKNEY HEALTH AUTHORITY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR S M AKWAGYIRAM

(of Counsel)

Mr R Shah

Messrs Yoga Rajah & Co

Solicitors

19 Undine Street

London SW17 8PP

For the Respondents MR JASON COPPEL

(of Counsel)

Mr A Shaik

Messrs Beachcroft Stanleys

Solicitors

20 Furnival Street

London EC4A 1BN


 


JUDGE HICKS Q.C.: Mrs Deborah Kwakye-Manu, the appellant, was a Staff Nurse at St Bartholomew's Hospital when she was dismissed in April 1992. She had been employed by the respondent Health Authority or its predecessors since 1980. We need say nothing about the circumstances of the dismissal except that the Industrial Tribunal found that it did not involve racial discrimination but was unfair. The reason why no more is needed is that neither party has appealed those decisions, made on 5th April 1993. They are therefore the starting point of the matters with which we are concerned, which involve compensation.

In their decision of 5th April 1993 the Industrial Tribunal had ordered that Mrs Kwakye-Manu be re-engaged on terms equivalent to reinstatement. The Health Authority did not comply, and the matter returned to the Tribunal for assessment of compensation.

By their decision on 20th September 1994, the Industrial Tribunal found that the respondent, in the Tribunal's words, "did not make out a case for failing to re-engage the Applicant", which we take to be a finding that the Health Authority had not satisfied the Tribunal that it was not practicable to comply with the order. The consequence of that, under the legislation, is that an additional award of compensation fell to be made over and above the basic and compensatory awards. The Industrial Tribunal dealt with all those three categories. They made a basic award of £3,267, a compensatory award of £4,280, of which £4,130 was for loss of net wages and £150 for loss of statutory industrial rights, and an additional award of £2,574 for the failure to re-engage, giving a total of £10,121, of which £4,130 was what is called the "prescribed element" for the purposes of the recoupment regulations. It is against that award of compensation that Mrs Kwakye-Manu appeals.

There are three grounds of appeal. The first, as re-amended by leave at the outset of the hearing, reads as follows:

"1. On the face of the record the tribunal ought to have considered the following accepted heads of compensation and dismissed them for want of evidence even if the Appellant's representative failed to mention them.

a. Pension Rights

b. Expenses incurred in looking for Employment."

It is implicit in those words that there was in fact no evidence to found an award in respect of either of those heads, and Mr Akwagyiram accepted in his submissions that that was the case. Success on this ground would therefore be of no practical benefit to Mrs Kwakye-Manu. We therefore raised the question whether the substantive criticism sought to be made was not rather that the Industrial Tribunal should have raised the issue during the hearing, so that evidence on the point could have been led, but after taking instructions as to the course taken at the compensation hearing, and after a short adjournment for consultation, Mr Akwagyiram informed us that he made no application for leave to re-re-amend the Notice of Appeal to add such a ground, and we are therefore left with the ground formulated in the terms that I have read.

We are clear that it must fail. Not only would it serve no effective purpose either to dismiss these heads of compensation ourselves or to remit the matter the matter to the Industrial Tribunal so that they could do so, but also that would not even theoretically, in our judgment, be the right course.

We were referred to the case of Clarkson International Tools Ltd v Short [1973] IRLR 90, and in particular to the opening of paragraph 14 of the judgment of National Industrial Relations Court delivered by Sir John Donaldson in which he said, dealing with the assessment of compensation in that case:

" In our judgment the Tribunal's assessment of compensation involved two errors of law. First, there was a failure to set out how the sum of £750 was assessed. It is not sufficient to state a global sum and the factors of which account has been taken without indicating in general terms how the various factors contributed to the final assessment. ..."

That clearly indicates that an Industrial Tribunal should state under what heads compensation is awarded, and how its award under each head is arrived at. But here there was no simple award of a global sum. The Tribunal, as I have indicated in summarising their decision, clearly indicated how much was the amount of the basic award, how much the amount of the compensatory award and how much the amount the additional award. Although I have not set out their reasons in full, in fact they go into greater detail than that by showing, in the case of the additional award and the compensatory award in some detail, how they arrive at the figures which they awarded. In our understanding that fully complied with the requirements appearing from the case of Clarkson.

There is no reason in authority or principle why the Industrial Tribunal should go beyond that and refer to all or any of the possible heads of compensation which might have arisen, or might have been claimed, or on which there might have been evidence, but where none of those things happened.

It is perfectly true, as Mr Akwagyiram pointed out to us, that in specifying the terms of re-engagement in their original award the Tribunal showed themselves conscious of the fact, as indeed one would have thought might well be assumed in such an employment, that there was a pension scheme and potentially pension rights. But the fact remains that when it came to the assessment of compensation, as is conceded by the appellant, no evidence was led on which the Tribunal could have founded an award. That concession implies, and indeed it has been made express, that had they mentioned the matter at all they could only have dismissed this head, and in those circumstances we find it quite clear that they were under no obligation to go through that purely negative process of mentioning a head under which they could make no award. Ground 1 therefore fails.

Ground 2 is as follows:

"2. The Tribunal misdirected itself in Law by putting the burden of proof on the Applicant (now Appellant) with regard to mitigation of loss contrary to Section 74(4) of the Employment Protection (Consolidation) Act 1978 by stating ... [and there is a quotation from the decision] "We were not satisfied that the Applicant had made reasonable efforts to obtain further employment." ..."

As to that ground, so far as the burden of proof - the onus - is concerned, the respondent, through Mr Coppel, fully accepts that it is the law that the onus is on the employer. It is against that background that one turns to the reasons given by the Tribunal for their decision. They are to be found in paragraph 3 of their full reasons. They include the words which I have just quoted from the Notice of Appeal.

"We were not satisfied that the Applicant had made reasonable efforts to obtain further employment. We agree that for some time she would have been handicapped by the fact she had been dismissed by the Respondents but that she has had for some considerable time a decision of the Industrial Tribunal that this dismissal was unfair. In the circumstances we propose to limit the Applicant's loss to 30 weeks or the sum of £7,500 ..."

They then go on to deal with deductions and other matters.

Under this head of the appeal Mr Akwagyiram submitted that the Industrial Tribunal did not consider all the relevant circumstances, and he relied on two in particular. First, the working experience which the appellant had had, in particular, in night work in psychiatry, and how that affected the sort of work which she might reasonably be expected (a) to have sought, and (b) to have obtained. Secondly, the attitude of the employers to the employee with regard to a reference.

In our view those are really matters of fact - of inferences from the evidence - which the Tribunal might or might not have found, but they are really quite irrelevant to this ground of appeal, which is a straightforward one of whether the Tribunal misdirected itself materially in law.

The answer advanced by Mr Coppel, for the respondents, is that there is not even on the face of the words used by the Tribunal, namely "We were not satisfied that the Applicant had made reasonable efforts", any reference to or implicit adoption of a view as to onus. We are bound to say that we find it difficult to be as dismissive as that. In fact we are persuaded that it is not right to be dismissive of this point in that short way, because to use the words "We were not satisfied that" is to use the language of burden or onus. When one party has to establish a particular element in any case then, if the matter finally resolves itself into a question of onus, it is for that party to satisfy the Tribunal, not for the other party to satisfy the Tribunal as to the opposite. If the language is to be regarded as giving a definitive indication of the state of the Tribunal's mind we think that the words "We were not satisfied that the Applicant had made reasonable efforts" provides at least some initial support for the point made by the appellant.

But appeals are not to be allowed because of some particular form of words if an analysis of the situation shows that in truth the Industrial Tribunal was not misdirecting itself, had not misunderstood the law, and was guilty at most of some infelicity in the way in which it expressed its reasons.

It is therefore necessary to consider a little more deeply what is involved in the concept of onus of proof. To say that the onus on a particular issue lies on one party means two things. First, that if no evidence whatsoever is adduced on that issue, then the party on whom the onus lies must fail. That is plainly not the situation here. It is apparent from the Notes of Evidence, and accepted by the appellant, that there was evidence on the issue of mitigation. Mrs Kwakye-Manu gave evidence of the efforts which she had made to obtain employment. On the respondents' side she was cross-examined to suggest various matters that would have assisted their case. In particular it was put to her that there was plenty of opportunity for vacancies for nurses, and she accepted that that was the case. It was put to her that she had never asked the respondents for a reference, and she also accepted that. So this is not a case in which the onus of proof, in the sense of what happens when there is no evidence, comes into the picture at all.

The second way in which onus may arise is when there is evidence which leaves the tribunal of fact undecided as to whether the truth lies on one side or the other. In that situation, again, the party on whom the onus lies must fail. Since the first situation of no evidence, as I have said, is not in question here, the real issue on this point is: are the words used by the Tribunal reasonably to be understood as indicating that this was a situation where the evidence was so equally balanced that they could not make up their mind on which side the truth lay, and so dealt with the matter purely on the basis of onus? It is clear to us that that is not the case. The evidence which they heard, as we have said, so far as it appears from the Notes of Evidence, was that the applicant said that she had applied for jobs and could not get them. She repeated that she could not get a job as a nurse. In cross-examination she said that she had sought work from agencies, hospitals and from private homes, and produced a curriculum vitae. She then gave the two answers which I have already summarised about the availability of opportunities and her failure to ask the respondents for a reference. She was also asked a question, apparently, by the Tribunal on this point, and replied that when asked about previous employment she just said that her last employer was Hackney Hospital.

Against the background of that evidence, not only is there no suggestion in the reasons of the Tribunal that they had found this a point that left them in difficulty or doubt, but having started with the sentence which is criticised they went on to say "We agree that for some time she would have been handicapped by the fact that she had been dismissed by the Respondents but that she has had for some considerable time a decision of the Industrial Tribunal that this dismissal was unfair." That clearly is an implicit indication of the view which the Tribunal had formed about her case that she had found it impossible to obtain employment. Then they go on to say "In the circumstances we propose to limit the Applicant's loss to 30 weeks or the sum of £7,500". Now, if the Tribunal had simply and plainly, without using words such as "We were not satisfied", said "We find that the Applicant did not make reasonable efforts to obtain further employment" or "We find that the Applicant, acting reasonably, could have obtained employment within a period of 30 weeks", there could be no possible criticism of their approach to this matter. Having given the matter full consideration, we are satisfied that on a fair reading of the Notes of Evidence and the Tribunal's decision and reasons, that in fact was their state of mind. It was not a state of indecision in which the matter had to be settled by the onus of proof. It was a state of mind in which they had considered the evidence and reached a finding on the facts that the appellant's attempts had not satisfied the duty upon her to mitigate as it is expressed in the statute, and a further finding implicit in the amount of the award that had she made reasonable efforts, she would have obtained work in 30 weeks. For those reasons we have come to the conclusion that the use of the expression "We were not satisfied that the Applicant made reasonable efforts", although infelicitous to say the least, does not on a true understanding of the evidence and of the Tribunal's decision as a whole show that they were in a state of indecision and were applying a rule of onus. What is shown is that they had applied their minds to an issue in which there was evidence on both sides, and as to which they had come to a clear finding of fact, and on which therefore the law as to onus had no impact. We therefore find that Ground 2 is not made out.

Ground 3 reads:

"3. On the face of the record, the Tribunal failed to adhere to the procedural steps on Recoupment Regulations SI 1977/674 paragraph 5(4) by failing to explain the effect of regulations 8 and 9 in relation to the prescribed element. All that the Tribunal said at page 2 of its decision dated 20th September 1994 was "As to the compensatory award the applicant has been in receipt of unemployment benefit and the Recoupment Regulations apply."

Regulation 5(4) of the relevant regulations does indeed provide that:

" (4) Where the industrial tribunal at the hearing announces to the parties the effect of a decision which includes a monetary award it shall inform those parties at the same time of the amount of any prescribed element included in the monetary award and shall explain the effect of Regulations 8 and 9 below in relation to the prescribed element."

The answer to this ground of appeal is extremely short. What is required by Regulation 5(4) is not that in its written reasons the Tribunal shall give the relevant explanation. What is required is that it shall do so "at the same time", that is to say when it announces to the parties the effect of its decision. There is simply nothing before us whatsoever to indicate that the Tribunal failed to comply with its duty in that respect. The fact that its explanation was not repeated in the written reasons has absolutely nothing to do with the matter. It would be futile to repeat it then. What is required is that it should come to the attention of the parties at the time when the announcement of the decision is made. In any event, a failure to comply with Regulation 5(4), whatever other consequences it may have, cannot in our judgment amount to a misdirection of law which has resulted in the Tribunal's having failed to award the compensation which is just and equitable. It plainly makes absolutely no difference to the justice and equity of the award that is announced whether the Tribunal has gone through the process of giving the explanation required by the Regulations. That Ground therefore also fails.

What is included in the Notice of Appeal as Ground 4 is not of course an extra ground; it is simply a statement of the alleged consequences of the establishment of one or more of the earlier grounds. We have found all those earlier grounds, 1, 2 and 3 to fail. The appeal itself must therefore be dismissed.

Mr Coppel's application for costs on behalf of the respondents is refused.