United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A FREER (Legal Officer) GMB 22-24 Worple Road London SW19 4DD
For the Respondents	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENTS


 


JUDGE N BUTTER QC: This is an appeal by Mr Armstrong in respect of a decision of the Industrial Tribunal at Bedford on 22 May 1996. The Tribunal sent out its Extended Reasons for the decision on 5 June 1996. The unanimous decision of that Tribunal was that, upon the Respondents conceding the unfairness of the Applicant's dismissal, the Applicant was awarded the sum of £666.00 by way of compensation. The Applicant, Mr Armstrong, is dissatisfied with that award and so the question for consideration before the Employment Appeal Tribunal relates to the way the Industrial Tribunal approached the issue of compensation.

The main facts can be stated in a few sentences. Mr Armstrong was a Quality Control Inspector and he had been in the Respondents' employment from 3 November 1967 until the termination of his employment on 17 November 1995, a period of some 28 years.

The Tribunal heard evidence concerning the question of loss and pointed out that, to his great credit Mr Armstrong had mitigated his loss because he had found first, a temporary post and subsequently a permanent one within a short period following his dismissal. Having considered the evidence the Tribunal concluded that Mr Armstrong had suffered no loss of earnings. For they said, there was little or no difference in pay between the post which he secured and that which he had applied for within the Respondents' undertaking, following his job becoming redundant. It is the job for which he applied and the rate of pay in that job, which is the appropriate comparative figure as it is clear that at the time of his dismissal the post which he occupied had become redundant. On this basis the Industrial Tribunal said, "We make no award for loss of earnings".

The Tribunal did take into account that, in his new employment, Mr Armstrong had to travel to work by car and they made a small allowance in that respect. In paragraph 6 of their decision they referred to that item, Travelling Expenses, for which they granted an award of £416.00 and went on to say: Loss of Statutory Rights £200.00 and Expenses in looking for work £50, a total of £666.00.

On appeal today, two main points are argued on behalf of the Appellant. The first concerns the fact that the Tribunal did not refer to, and do not appear to have, considered in their decision the question of the Applicant's accrued right to the statutory minimum period of notice.

In the case of R W Tidman v Aveling Marshall Ltd [1977] IRLR 218, the Employment Appeal Tribunal considered various heads of compensation. At paragraph 2 Kilner Brown J, giving the decision of the EAT said:

"Beginning with the well known case of Norton Tool Co Ltd v Tewson [1972] IRLR 86, certain guidelines have been laid down for Industrial Tribunals to follow and apply when assessing compensation. It is now and has been for some years clearly enjoined upon an Industrial Tribunal to give reasons under different heads to justify the total amount of the award. Those four heads in Norton Tool Co Ltd v Tewson were said to be (1) the immediate loss of wages, (2) the manner of dismissal, (3) future loss of wages and (4) loss of protection in respect of unfair dismissal. To those four heads there has been added and has existed now for some two or three years, an additional head, namely loss of pension rights."

In paragraph 5 of that decision the judgment went on to say:

"We are of the opinion that in future cases it is the duty of an Industrial Tribunal to raise itself the five different categories of compensatory award."

In the subsequent case of S H Muffett Ltd v Head [1986] IRLR 488 consideration was given - see paragraph 3 of the judgment there to:

" ... what is generally referred to as the 'loss of the right to long notice' or, more particularly, it is the loss of a right in the event of re-employment to a longer period of notice than that which would arise in that employment compared with that applying to the employment from which he [the employee] was unfairly dismissed."

The aspect of that loss is further developed in that paragraph and needs no recitation by me.

The employee in the present case Mr Armstrong, had, as I have already indicated, been in employment with the Respondents for 28 years. We are satisfied that this ground of appeal is valid. The Tribunal below do not appear to have taken this aspect into account and if they had done so, we have no doubt that they would have reached a conclusion that the Applicant was entitled to an award under this specific head. I will deal with the quantum of that award at the end of this judgment.

I turn to the second ground of appeal relating to the decision by the Industrial Tribunal that there had been no loss when looking at the comparable earnings of Mr Armstrong in his previous employment with the later employment. What is said in argument before us today is primarily this; that the Industrial Tribunal should have taken into account that, in order to achieve his present earnings, Mr Armstrong has to carry out a significant amount of overtime. That, it is said, is something which, whether by reference to hourly rate or otherwise should have led to the Industrial Tribunal making an award to reflect that aspect. It is argued on his behalf that there was evidence before the Industrial Tribunal which not merely entitled, but required the Industrial Tribunal to consider that aspect, and to the figures in the light of that particular point. It is plain however, that that point was not argued before the Industrial Tribunal.

At the preliminary hearing of the Employment Appeal Tribunal it was decided to ask the Chairman to provide notes and those notes indicate that the point raised today was not raised at all before that Tribunal. Indeed, the closing representations made on behalf of Mr Armstrong, albeit not by a person who is legally qualified, were in very simple terms and appeared to recognise the difficulties which that representative felt on behalf of Mr Armstrong in arguing that there was any continuing loss in the light of the fact that he was, in substance, earning much the same figure as he otherwise would have had. Whether loss in the sense of loss incurred because of extra hours work by way of overtime may constitute a valid argument as to the compensation that a Tribunal should award is not something which this Tribunal today feels it appropriate or proper to embark upon. It may be in a suitable case in the future that the point may be raised and argued.

We do not think we can fairly say that simply in the light of the Tidman decision that therefore there was a duty on the Industrial Tribunal to investigate and deal with that aspect which had never been argued before it.

In the circumstances, we do not consider that there is any demonstrable error of law arising today out of the decision of the Industrial Tribunal in that respect. We conclude that they were entitled to reach the decision which they did. Accordingly, that leaves the first ground of appeal only as a valid one. Although we have had presented to us what may be the appropriate figure for additional compensation, we are unable to say that it is necessarily the right figure for compensation.

In these circumstances, and it is our unanimous decision, we allow the appeal to the extent of remitting the matter for further consideration by the Industrial Tribunal in respect of the first aspect of compensation to which I have referred. We express the hope that in the meanwhile the parties reach agreement to make it unnecessary to return to argue the matter before the Industrial Tribunal.