United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR J HOLMES (Representative) PMC Ltd The Technology Centre Lower Church Street Chepstow NP6 5HJ


 


JUDGE PETER CLARK: The applicant in this case, Ms Harradine, was employed by the respondent as Matron at the Bushy Ruff Nursing Home in Temple Ewell, near Dover, from February 1990 until her dismissal on the grounds of gross misconduct on 29th February 1996.

On 18th March 1996 she presented a complaint of unfair dismissal to the Central Office of Industrial Tribunals which came on for hearing before an Industrial Tribunal sitting at Ashford on 5th August 1996. We are told that two earlier hearings, fixed for 9th May and 21st June were adjourned, the first because no Chairman was available; the second at the request of the applicant. Neither of those adjournments were in any way the fault of the respondent.

The Industrial Tribunal found on that occasion that the applicant had been unfairly dismissed but that she had contributed to her dismissal to the extent of 30%. Extended reasons for that decision was given on 30th January 1997, following summary reasons dated 13th August 1996.

Following that decision on liability a remedies hearing was held on 8th October 1996. On that occasion the tribunal found that the applicant had failed to mitigate her loss in not making job applications to private nursing homes. They awarded her compensation based on her net loss of earnings from the date of dismissal to the date of the remedies hearing (32 weeks) less monies earned in alternative employment, pay in lieu of notice and the 30% deduction for contribution - a figure of £2,147.60 in all. In addition she received a further three weeks' future loss of earnings, limited to that figure by reason of her failure to mitigate her loss, together with awards in respect of her loss of statutory rights and expenses. When added to the basic award the final sum awarded was £3,742.90.

The employer now appeals against that award. The point taken by Mr Holmes is that the initial hearing was delayed as a result of the two adjournments not caused by the respondent employer, and the determination of remedies was further delayed until 8th October because the applicant did not bring along the necessary documentation to resolve that issue on 5th August.

That delay, it is submitted, increased the applicant's period of loss to the date of the remedies hearing, but no reduction was made in that loss for that period by the Industrial Tribunal notwithstanding its finding that she had failed to mitigate her loss.

Mr Holmes relies on the decision of the Employment Appeal Tribunal in Fougere v Phoenix Motor Co Ltd [1976] ICR 495, for the proposition that an Industrial Tribunal's self-misdirection in assessing compensation may constitute an error of law, allowing this appeal tribunal to interfere.

As a general proposition that is correct and accepted. The question is whether this Industrial Tribunal fell into error in its approach to assessing compensation on the facts of this case.

Industrial Tribunals have a wide discretion to decide what compensation is just and equitable under what is now s.123(1) of the Employment Rights Act 1996 (formerly s.74(1) of the Employment Protection (Consolidation) Act 1978). In this case the tribunal took into account its finding that the applicant failed to mitigate her loss by making job applications to private nursing homes by limiting her future loss of earnings to three weeks loss from the date of the remedies hearing held on 8th October 1996. In our judgment that was a permissible finding. Although the delays and adjournments were not the fault of the respondent, the tribunal had to assess, in a necessarily speculative exercise, what would have happened had the applicant applied for Nursing Home jobs following her dismissal. She may or may not have been successful; she may have obtained only temporary work and then lost it. All these were factors which the tribunal, as the tribunal of fact, had to take into account in making their assessment of both past and future loss.

In these circumstances we have reached the conclusion that this appeal discloses no arguable point of law, and accordingly it must be dismissed at this stage.