United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR MALCOLM BEYNON (Representative)
For the Respondent	MR PETER O'BRIEN (Barrister) 18a Carlisle Avenue St Albans Herts AL3 5LU


 


JUDGE J HULL QC: This is an appeal to us by East Park Physically Handicapped Centre at Kilgetty, Dyfed. The Respondent to the appeal is Mrs Pauline Bedford, who was employed as a care assistant by the Centre from 20 January 1993 until she was finally dismissed on 12 May 1995, having been off sick for some time.

She presented her complaint to the Industrial Tribunal on 15 May 1995 complaining of unfair dismissal and claiming compensation. She said that her pay was £256.20 per calendar month. That was not in contest. The Respondent there, the Appellant to us, the Centre, agreed that that was right and that comes to £59.12 per week, if you work it out correctly because the correct sum of course, if that is the pay per month, is to multiply by 12 and divide by 52 to get the amount per week and we have all done that sum and it comes to £59.12.

Then the Answer was put in and that raised a number of contentions, which it has been held by our Tribunal on an earlier occasion are not maintainable, matters of defence and so forth. It was suggested that she was not an employee. That point was later conceded and the Industrial Tribunal proceeded on the basis that she was an employee. There was an appeal to this Tribunal. This Tribunal said that the appeal could proceed solely with regard to quantum, that is to say the Remedies Hearing. The Remedies Hearing was held by the Industrial Tribunal under the chairmanship of Mr Thomas, with only one member sitting with him, by consent, on 24 September 1996. The reasons given by the Tribunal are at pages 21 and 22 of our bundle.

The Tribunal held unanimously that the claim for sick pay under the Wages Act was dismissed and they then awarded sums for compensation. The basic award, they said, should be £192.15 and there should be a compensatory award of £1,008 and notice pay in the sum of £128.10. They then gave their reasons.

First of all, dealing with the question of sick pay the Tribunal said, at paragraph 1:

"The amendment is allowed [to claim sick pay] but the claim is dismissed for the following reasons. First of all the earnings level of the applicant was insufficient to entitle her to statutory sick pay and there was no term in the contract of employment which would entitle her to claim such sums from her employer."

They then went on to the other parts of the award, at paragraph 2:

"The applicant has stated that after receiving her notice dated 18 April she had been employed only as an agency cleaner earning some £36 per week, there has been therefore a shortfall in the interim period of £28 per week."

If you do the arithmetic that, of course, means that they are saying that her earnings, had she remained in employment, would have been £64 per week.

The Tribunal continue at paragraphs 2 and 3:

"We have heard the evidence of Mrs Bedford and are of the view that given her energy enterprise and presentability the period of compensation should be limited to 36 weeks by which time we feel confident that she should have been able to obtain alternative income from other sources in the domestic field to bring her up to the level of her former earnings. Consequently we award her the sum of £1,008 which is made up as to a 36 week period of a shortfall of £28.

The 36 week period commences from 12 May 1995 but her notice would have entitled her to two weeks pay [and they then award that on the basis not this time of £64 but £64.05] which amounts to £128.10. In addition the basic award in this case, given her age and period of working, three weeks at £64.05 amounting to £192.15."

Mr Beynon, who has addressed us on behalf of the Appellants, says that actually her pay should be £57.62 per week. He gets that £57.62 apparently from his own records. He said that is what she earned on average in the year prior to the dismissal. Mr Beynon attended before the Tribunal and, of course, it was open to him to lay any evidence that he wanted to before the Tribunal and it was up to the Tribunal to say what evidence they accepted, but bearing in mind the admission which was made in the Answer, they cannot possibly, in our view, be criticised, as a matter of law, for accepting what was said by the Applicant, Mrs Bedford and what was admitted by the Respondent, namely that her pay was £256.20 per month and they could not be criticised if they had said therefore, doing the correct calculation, that her pay was £59.12 per week on average. They did not. They said that it was £64 or £64.05 per week. It seems to us that they have arrived at that sum, not on the basis either of admissions, or of evidence which they heard, but simply by doing a wrong calculation, namely dividing the £256.20 by 4. So that appears to be a legitimate matter of criticism, namely that there is an error of arithmetic and for these purposes, errors of arithmetic are errors of law.

The second matter of criticism by Mr Beynon is this, that there was no documentation to prove that she was earning £36 per week. That was a matter for the Industrial Tribunal. Quite clearly that is a question of fact, what evidence they accept, what they reject. They might have said, "We are not prepared to accept that your earnings are as low as that or as high as that", that was a matter for them. They obviously did accept what she said about that.

Then Mr Beynon raised the question of this £64.05. He said, "How is that arrived at?". The only obvious answer is the one we have given and no reasons were given for that. Mr O'Brien, who appears supporting a cross-appeal for Mrs Bedford, says that he does not say that statutory sick pay should have been awarded, or declared to be payable by the Industrial Tribunal. That was the only basis on which our Tribunal gave leave to appeal in the first place. The Industrial Tribunal was saying that she was entitled to a sum of £64 or £64.05 per week, whereas the limit for sick pay was £57, they were told at that time. That certainly seems to be supported by the document at page 31 of our bundle, the letter from the Contributions Agency dated 4 July 1995 to the Centre, saying that her earnings had not reached the qualifying limit of £57. There is an anomaly there or apparent anomaly and it is for that reason that we gave leave to appeal.

But Mr O'Brien has a much more substantial point. He says, "Now if you look at this and look at the authorities, prima facie she was entitled to the entire period, that is to say 72 weeks between the date of her leaving employment and the hearing before the Industrial Tribunal". And he indicates to us that we should look carefully at what this Tribunal said itself, in the part of their decision which is not any longer under appeal. They said, at paragraph 4, page 15 of our bundle:

"The Tribunal reject the suggestion that the applicant has been guilty of any industrial misconduct. ... Further we reject any suggestion that apart from the conduct there are any grounds upon which it would be just and equitable to reduce any award of compensation for the applicant."

They were of course, it seems to us, referring to something which has nothing to do with this point. They are saying, "It would not be just and equitable to reduce her award, for example, on the basis of misconduct, or on the basis that she had contributed to her dismissal". They were not dealing with compensation at all at that point. Compensation was a matter which they had to look into at the compensation hearing and that is exactly what they were doing in the decision which is now under appeal.

Then says Mr O'Brien, they should have given reasons. If they were to reduce her period of compensation, which they were considering, to 36 weeks as opposed to 72 weeks, which was the prima facie measure, how could they reduce that without giving reasons? The answer to that, it seems to us, is absolutely self-evident and happens daily. Every Tribunal has to form a view as to what period it is reasonable to award compensation for. We do not know, though we have some indication, about the evidence which they heard. We do not know what they thought. They may have thought, "Well she could at any rate have obtained less well paid employment and it would have been reasonable for her to do that". They could have held, "We think that if she had used proper efforts, she could have obtained employment which would have indemnified her within the 36 weeks".

They could, of course, have formed a very general view, often Tribunals have to. They might say, "We cannot be precise about this. We cannot say in what period of time we think she would have obtained employment had she exerted herself. We cannot say what other employment she might have obtained. We can only form a very general view as to what compensation is just. If you like, the roughest possible way of doing it but the best, is simply to give her a period which we will allow her, on a basis of indemnity against the difference, and then we will say that that has got to cover all the imponderables", because there are many imponderables. She might have obtained employment towards the end, perhaps, of the full period of 72 weeks at a much higher rate of pay. She might not. They have to consider all these imponderables. They have to consider the state of the local labour market. Certainly, their view of that cannot be an exact one, it is simply what they gather from local knowledge and, of course, they have the great advantage of having seen the claimant in person and forming an assessment of her and she is said to be a personable and hardworking person who has a great deal of enterprise.

There is no need for them, in our view, to analyse it in the way that we have hypothetically analysed it. They are not bound to do that in any case, because it would involve them in setting out a series of imponderables which would get nobody any further. What they are bound to do is to form an assessment.

We reject the cross-appeal in so far as it relates to the assessment of the 36 week period; that method of calculating compensation seems to us a perfectly just method and the Tribunal was not bound, in the circumstances of this case, to go into a lot of detail over that. It would have been quite different if there had been evidence before them from employment consultants, if there had been attempts to quantify the matter with exactness and to put forward exact evidence of jobs which she could have taken and should have taken.

It may not be that sort of case at all. It may well be that the lady concerned formed the view that she would like a bit of a sabbatical year after all her hard work. She was perfectly entitled to take that view and the point then for them would have been, "For what period, hypothetically, would she have been looking for work, if she had been looking hard and purposefully for work?". They would then have awarded something based on that period as a hypothetical sum, being the maximum which it was right to award by way of compensation.

They were not bound to go into all these details and we are certainly not going to say that they were in error, as a matter of law, in taking that figure of 36 weeks, being very probably half the period between her dismissal and the hearing. But it does appear to us very likely that they made the mistake which we have indicated, which is not (in the context of the sums in this case) an entirely negligible one. Doing the arithmetic it would have made the basic award, on the basis of her earnings being, in truth, £59.12 a week, £177 odd, the compensatory award £832 odd and the notice award £118 odd and we do not think that is entirely negligible.

Moreover, and this is more important, it might well be that had they had these figures in mind, the Tribunal would have said to themselves, "Well if, on the face of it, it is about the limit for statutory sick pay we must look into that matter in a way which we have not". They might, on the other hand, have been shown the letter at page 31 of our papers and have said, "That is the end of that, that is conclusive so far as we are concerned". We do not know about that.

We think the right course to take is to remit this matter to the Industrial Tribunal on the basis of our judgment and to ask them to re-assess quantum in the light of our observations. If they do put forward a figure of £64 they will be expected to say why they arrived at that, if it was not an error of arithmetic, but it appears to us that it was.

So for that purpose we propose to remit the case. The entire matter of compensation will be open to the Industrial Tribunal. If the question of statutory sick pay or, indeed, other sick pay or any other question seems to them to arise on reconsideration, then they will be fully at liberty to give a decision in accordance with the evidence which they have heard and any further evidence which they receive.

Those are the reasons of us all and that is the order we make, that this is to be remitted to the Industrial Tribunal. They will be furnished with a copy of our judgment and they will then proceed, of course, in the way which they think right.