United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondent	MR F VITIELLO Free Representation Unit Room 140 49-51 Bedford Row London WC1R 4LR


 


JUDGE CLARK: On 11 November 1996 Mr Songra acquired the business of the Acton Kwik Save store in which the Respondent, Miss Marano, had been employed since May 1993. She continued working in the store until 8 February 1997 when she was dismissed on the ground that there was insufficient work for her.

On 14 March 1997 she presented a complaint of unfair dismissal to the Industrial Tribunal. On 1 July her complaint was heard by an Industrial Tribunal sitting at London (North). The complaint was upheld. Against the finding of unfair dismissal there is no appeal.

The Industrial Tribunal then went on to assess compensation arising from the unfair dismissal. As to loss of earnings, the Tribunal found the following facts. After her notice of dismissal on 8 February, the Respondent worked for a week for which she was paid by the Appellant. At that time her net weekly pay with him was £170. She was then out of work, making reasonable efforts to find alternative employment until she obtained a new job at a Kwik Save store in Cricklewood, starting on 28 April at a wage of £150 per week net. A partial loss of £20 per week.

On 20 June the Respondent was dismissed from her new employment in Cricklewood, coincidentally, as a result of the sale of that store to the Appellant.

The Industrial Tribunal, sitting on 1 July, found that it would take the Respondent approximately 12 weeks to find new employment paying £170 per week. In these circumstances the Tribunal set out their calculation of compensation in their Extended Reasons dated 23 July 1997 as follows:

Basic Award

3 years x ½ x 200 = £300.00

Net Compensatory Award

(a) Notice entitlement

3 weeks (less one week paid)

2 x £170 = 340.00

(b) 10 weeks from 15 February 1997 to

28 April 1997 at £170 per week = 1,700.00

9 weeks @ a net loss of £20 per week

from 28 April to-date of hearing 180.00

Future loss from the date of hearing

for a period of 12 weeks @ £170 = 2,040.00

Loss of statutory rights = 200.00

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Total compensatory award £4,460.00

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By a letter dated 10 August 1997 to the Employment Appeal Tribunal, treated as a Notice of Appeal, the Appellant challenged the award of compensation, and in particular the figure of £2,040 in respect of future loss of earnings.

The appeal came on for a Preliminary Hearing before a division presided over by the President, Morison J, on 16 January 1998. On that occasion the Appellant was represented under the ELAAS pro bono scheme. The matter was permitted to proceed to this full hearing on one point, namely, whether the fact that the Respondent had obtained alternative employment in late April 1997, had broken the chain of causation, so that any loss following termination of that alternative employment could not be regarded as attributable to the original unfair dismissal. A further point identified by the President was whether the Industrial Tribunal had given adequate reasons for their finding that the Respondent would take 12 weeks to obtain further employment, at the same rate of pay, as that earned with the Appellant.

Today, the Appellant does not appear and is not represented. Yesterday an application was made by fax to this Tribunal for an adjournment of this appeal on the grounds that both the Appellant and his representative, Mr Singh, had to attend the funeral of a friend's mother, today.

I directed that the appeal should go ahead, taking into account the interests of both parties. The Respondent has a decision in her favour and was anxious that this appeal should be disposed of one way or the other. The Appellant had the opportunity to put in written representations but has so far failed to do so, and, in particular, no Skeleton Argument was lodged in accordance with the EAT Practice Direction.

The Respondent has the advantage today of being represented by Mr Vitiello under the Free Representation Unit scheme. He has prepared a thorough and detailed Skeleton Argument which we have read and has made oral submissions before us.

So far as the principle point remaining in this appeal is concerned, he has drawn our attention to a very recent decision of the Court of Appeal in Dench v Flynn & Partners [1998], a Court consisting of Beldan & Mummery LJJ and Sir Christopher Stourton, judgment delivered on 9 June 1998 and as yet not transcribed. We have read a note of the case in the New Law Digest.

It appears that in Dench the Court approved the series of propositions which I set out in Whelan v Richardson [1998] IRLR 117, with the exception of the fifth proposition found at paragraph 46 of the report, which does not strictly arise in this case. The judgment in Dench confirms our view based on the approach which I indicated in Whelan, that on the facts of this case the Industrial Tribunal was perfectly entitled to conclude that the chain of causation, running from the date of the unfair dismissal by the Appellant, was not broken by the Respondent obtaining, for a comparatively brief period, alternative employment at the Cricklewood store.

In these circumstances, it seems to us that the Industrial Tribunal was, permissibly, considering the question of future loss in circumstances where the Respondent was out of work at the date of the Industrial Tribunal hearing on 1 July. Secondly, as to the Tribunal's reasons for their decision, we think it is, quintessentially, part of the task of an Industrial Tribunal consisting, as it does, of experienced lay Members, to judge on the evidence which it hears and its knowledge of the local labour market, how long they think it likely the future loss will continue in any particular case.

In our view it was sufficient for the Tribunal to state their conclusion. It was not necessary to set out an additional chain of reasoning which led to that conclusion.

In these circumstances, it seems to us that the appeal fails to identify any error of law on the part of the Industrial Tribunal and in those circumstances it must be dismissed.