United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR D WOLFE (of Counsel) Engineering Employers Federation Broadway House Tothill Street London SW1H 9NQ


 


JUDGE PETER CLARK: Mr Bishop, the Applicant before the Lincoln Employment Tribunal, was employed by the Respondent Candecca Resources Ltd (the Company) for a short period of time from 29 September 1997 until his dismissal on 8 December 1997. He brought a complaint of unfair dismissal which was upheld by the Tribunal in a decision dated 18 May 1998 (the liability decision) on the grounds that his dismissal was automatically unfair for an inadmissible reason under section 100 of the Employment Rights Act 1996, (a Health & Safety Reason). The liability hearing took place on 22 April 1998.

A remedies hearing was then held on 29 April. At that hearing the Tribunal made a basic award of £2,770, being the minimum amount provided for in section 120 of the Act. In addition it made a compensatory award of £741.71 calculated as follows; the Applicant was unemployed from 8 December 1997 until 4 January 1998. From 4 January to 4 April 1998 he undertook agency work. On 4 April he obtained permanent employment which the Tribunal held broke the chain of causation, applying the principles which we set out in Whelan -v- Richards [1998] IRLR 114. In monetary terms, they found that the net average pre-dismissal weekly wage with the Company was £202.23; 17 weeks loss at that rate from 8 December 1997 to 4 April 1998 totalled £3,437.91, from which the Tribunal deducted, first, one week's pay in lieu of notice received, and secondly the Applicant's total earnings from the agency work between the 4 January and 4 April 1998. In their remedies decision, with extended reasons, dated 21 May 1998, the Tribunal said this at paragraph 15.

"15. We also of course have to deduct by way of mitigation his earnings with the Driving Agency. Effectively he worked with them for 16 weeks. We saw his payslips for February and March but the Applicant did not have one for January. He told us that in that month he worked more hours than in the subsequent months and that he thought his net pay for January was about £1,400 that is of course considerably more than his net pay for February of £721.56 and for March of £672.41. However, as it was evidence given against his interest we propose to accept it. We therefore assess his net total earnings with the Agency which is to be deducted from the compensatory award to be £2,793.97."

Hence the net compensatory award, £741.97, after adding in £300 for the Applicant's additional travelling costs in discharging his duties for the agency.

At the end of the remedies hearing, after the Tribunal had announced its remedies decision orally, the solicitor for the Company applied for a review of the decision on the basis that the Tribunal had misconstrued the effect of section 120 which provided only for a minimum basic award in the case of a dismissal held to be unfair under section 100(1)(a) and (b) of the Act, whereas the finding in this case had been made under section 100(1)(c). The Tribunal granted the review application.

On 13 July 1998 a review hearing took place. By their decision with extended reasons dated 5 August 1998 (the review decision) the Tribunal revoked that part of the remedies decision which made a basic award. They accepted that the Applicant was entitled to a nil award under that head.

However they then went on to revisit the original compensatory award and revised the earnings figure for which credit had to be given for the period of agency work. As a result the compensatory award was increased to a total of £2,030.48.

It is against the review decision only that this appeal is brought by a Notice lodged on 27 August 1998. There are five separate grounds of appeal, developed in the helpful skeleton argument of Mr. Wolfe and in his oral submissions.

We can deal shortly with the first ground of appeal. It is submitted, on the basis of Whelan, that once the Applicant obtained fresh employment in January 1998 at a higher level of earnings than those he enjoyed with the Company the period of loss ended. We reject that submission on its merits. Applying Whelan, the agency employment was not permanent employment. However, even if it was, that would not necessarily break the chain of causation, so the Court of Appeal have held in the later case of Dench -v- Flynn [1998] IRLR 653, considering Whelan. In our view the Tribunal were entitled to conclude that the Applicant could properly be compensated for his loss of earnings up to 4 April 1998.

Further, and in any event, the first ground of appeal is strictly an appeal against a finding in the remedies decision and not the review decision. Time for appealing against the remedies decision expired before this Notice of Appeal was lodged. We shall not extend time in the circumstances.

Accordingly we dismiss the first ground of appeal.

The remaining grounds are, we think, arguable. What was the basis for reviewing the compensatory award? Was it to give the Applicant something extra to compensate for the loss of the basic award originally made? If so, was that an impermissible use of the review procedure by the Tribunal? Is a complainant bound to give credit for all monies earned during the loss period? If not, how should the alternative employment earnings be pro-rated where he has worked extra hours?

The final point is whether the Tribunal was entitled to pro-rate earnings for February and March when their finding of fact in the remedies decision was that the Applicant had only worked extra hours during January?

All these are matters for argument at a full inter partes hearing. For that purpose we shall direct that the case be listed for half a day, category C; there will be exchange of skeleton arguments between the parties, copies to be lodged with this Tribunal not less than 14 days before the date fixed for the full appeal hearing.