United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr T Pullen (of Counsel) Messrs Quartson & Co. Solicitors 96a Talbot Road Highgate London N6 4RA
For the Respondents	Mr R Tolson (of Counsel) Messrs Triggs Turner Bartons Solicitors The Tunsgate 128 High Street Guildford GU1 3HH


 


JUDGE JOHN BYRT QC: This is an appeal from a decision promulgated on 6 October 1997 of an Employment Tribunal sitting at London South. It held that the employee Mrs Matthews had been unfairly dismissed and awarded her £1,036.35 by way of compensation. Mrs Matthews appeals that award.

Very shortly the background facts are that the Respondents own a number of local newspapers, essentially in Surrey. Mrs Matthews started working for them in December 1986 and held various positions with the Respondents including latterly that of the advertising manager of the Woking office. In October 1995 she suffered an accident at work, took sick leave and as a result found herself on return, in a somewhat humiliating position. Her place had been taken by somebody who was her junior. In any event she declined to take up that job and she did not go into work. The result was that on 6 February 1996 she was dismissed and given three months notice which expired on 7 May. In coming to their substantive findings the Employment Tribunal found that she had been unfairly dismissed.

The basic award was the subject matter of agreement between the parties, but this left the question of the compensatory award to be determined.

The Appellant's claims were under eight headings. The Employment Tribunal were saved making a finding as to the net loss of bonus. This loss was agreed at the figure of £572. The loss of statutory rights was worked out by the Tribunal as being worth £464.35. Those two items together totalled the £1,036 I have already mentioned.

The remaining six items of the Appellant's claim they dismissed, and this needs to be looked at a little closer. Mrs Matthews was 52 at the relevant time and the Tribunal noted that, after her dismissal on 7 May she looked for work locally, but the main employers for a person of the Appellant's background were the Respondents. She gave up looking for local employment in September and put all her efforts into getting her own business going; in other words she became self-employed.

The Appellant put in, in support of her claim, a cashflow and expenditure chart. The Tribunal had a look at this and in paragraph 7 came out with some fairly scathing remarks. They state that:

"We are unable to make any findings as to the Applicant's losses which depended on documentation which she provided and her evidence to us. In particular, we were quite unable to rely on the information set out in the cashflow and expenditure chart of the business, ........ in order to support any findings of fact on the balance of probabilities."

In fact the flow chart which we have seen purported to substantiate claims for lost earnings and expenditure entailed in setting up the new business. The bottom line of this flow chart showed that the new business had made a loss of approximately £11,000. However, picking out the items of expenditure which were of doubtful validity, these total approximately £13,000. The net result of offsetting the one against the other suggests that the new business was showing a profit of something like £2,000 rather than the deficit of £11,000. The Tribunal went on to say that in the absence of any reliable corroborative evidence of income for herself and of the business, they were unable to find any losses proved. They found that it was reasonable for her to be self employed, but when they came to assess her a claim for loss of earnings they stressed that the burden of proving such loss rested with the Applicant.

They then went on to say that they were unable to accept her evidence in support of her claims and concluded that she had not demonstrated a loss. In other words, they dealt with the matter essentially on the basis of burden of proof.

Most of the remaining six items, were small, and they are not the subject of this appeal. The claim for loss of pension rights is in somewhat of a different category. Potentially this was a substantial item of claim. It is a claim for loss of enhancement of accrued pension rights. The Appellant put in evidence figures provided by the Respondents' own pension provider and these show that her estimated pension in the year 2009, the expected date of the Appellant's retirement, would be of the order of £2,984.70 per annum. There cannot be any suggestion that this is a figure which was dependent upon the Appellant's credibility. The Appellant through her adviser then submitted that the appropriate multiplier to be applied was one of 1.3. That figure was taken from the chart displayed in the Industrial Tribunal's Guidance on Compensation for the loss of pension rights. These figures were used to advance a claim she had suffered a loss of £3,880. Of course, those figures are based on a set of assumptions which can be effected by a variety of factors. Most especially they could be influenced by whether Mrs Matthews was making a loss or was in fact earning more money in her new self employed job than in her old employment.

In our judgment, the Employment Tribunal do not deal with any part of this aspect of the Appellant's claim. They do not show how they took account of these other factors I have referred to, which can influence a final figure. Nowhere do they mention they have considered the pension claim. It may be that the Tribunal felt it was unnecessary to do so because they disbelieved the Applicant herself, and were content to say that the burden of proof which fell upon her had not being discharged.

In our judgment, the Applicant has a right to know why this substantial item of her claim was dismissed. She has a right to know the factors the Tribunal took into account in rejecting her figure of £3,880.

In order that justice may be done and, as important, be seen to be done, we consider we have no alternative but to allow this appeal on this limited aspect of the pension claim.

Accordingly, we direct that this matter be sent back to be reheard by a differently constituted Tribunal.