United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR E R JOHNSON (Husband of the Appellant)


 


JUDGE CLARK: In order to understand what has been happening in this case, it is necessary to set out its history.

The Appellant, Mrs Constance Emily Johnson was employed by the Respondent as a Grade G Night Sister until her dismissal effective on 4 December 1994. She had been continuously employed by the Respondent, or its predecessor, since 26 June 1983, but had been employed in the National Health Service for many years prior to that.

On 1 March 1995 she presented an Originating Application to the Industrial Tribunal (Case No. 14682195/UM) complaining of:

1. Unfair selection for redundancy/dismissal

2. Race/Sex/Age Discrimination

3. Harassment

Her claim was resisted and it came on for hearing before an Industrial Tribunal chaired by Mr A B Rees, sitting at Bedford on 22-24 January and the 9, 10 and 19 April 1996. During those hearings the Appellant was represented by her husband, Mr E R Johnson (Mr Johnson).

By a decision with Extended Reasons promulgated on 1 May 1996 that Industrial Tribunal:

(1) held that it had no jurisdiction to entertain a complaint of age discrimination

(2) dismissed the complaints of both sex and race discrimination

(3) found that the Appellant was dismissed by reason of redundancy (that not then being in dispute between the parties) and that such dismissal was both procedurally and substantively unfair

(4) adjoined the question of remedies for that unfair dismissal.

It is important to note that no appeal was then lodged, within time or at all, against the Tribunal's decision dated 1 May 1996 (the substantive decision), nor was any application made for a review of that decision within the 14 day time limit permitted by Rule 11(4) of the Industrial Tribunal Rules of Procedure 1993.

The remedies hearing took place before the same Industrial Tribunal on 30 September and 7 October 1996. By a decision with Extended Reasons promulgated on 11 October and corrected on 17 October 1996 (the remedies decision) the Industrial Tribunal awarded the Appellant compensation totalling £2,526.92, after deducting an enhanced redundancy payment made to the Appellant by the Respondent on termination of her employment and after taking into account certain pension payments made to her, following dismissal, to which we shall return.

By a Notice of Appeal dated 21 November 1996 the Appellant appealed against the remedies decision. That appeal came before a division of the Employment Appeal Tribunal presided over by Morison J, at a Preliminary Hearing on 21 February 1997. On that occasion the Appellant was represented by Mr Jason Galbraith-Martin of Counsel under the ELAAS pro bono scheme.

Meanwhile, on 31 October 1996 the Appellant had applied for a review of the remedies decision. That application was refused by Mr Rees in a decision dated 29 November 1996 (the remedies review decision).

At the Preliminary Hearing held on 21 February 1997 this appeal tribunal acceded to an application by Counsel and adjourned the appeal pending an application for a review of the substantive decision dated 1 May 1996. That application was made by letter dated 21 February 1997 and was dismissed by the Regional Chairman, Mrs C Tribe, by a decision dated 28 February 1997. (The second review decision.)

We should add for completeness that on 27 November 1996 the Appellant presented a second Originating Application covering complaints relating to the Appellant's employment with the Respondent which had terminated on 4 December 1994. That complaint was struck out by a decision of the Industrial Tribunal dated 11 February 1997. An application for a review of the strike out decision was dismissed on 17 March 1997.

On 3 December 1997 the Registrar wrote to Mr Johnson enquiring as to whether the Appellant wished to pursue her appeal. She does and thus the appeal was restored for a Preliminary Hearing today. We are concerned only with the original appeal against the remedies decision, although we understand that on 4 February 1998 the Appellant lodged three further Notices of Appeal against Tribunal decisions in this case, each of which appears, on the face of it, to be out of time. That will be a matter for the Registrar to consider in the first instance.

In these circumstances Mr Johnson has limited his submission today to two matters. The first point is raised by way of a proposed amendment to the grounds of appeal, drafted on his behalf by Counsel, Miss Chudleigh, who has assisted him under the ELAAS pro bono scheme today, by way of advice, and it is this - in calculating the Appellant's lost earnings between the date of dismissal and 30 September 1996, the Industrial Tribunal appears to have deducted pension payments made to the Appellant totalling £12,308.44 during that period. Those were payments made out of a pension fund to which the Appellant, and no doubt her employer, had contributed throughout her lengthy service in the National Health Service.

The argument is that the principle applicable to personal injury cases (see the House of Lords decisions in Parry v Cleaver [1970] AC 1; Smoker v LFCDA [1991] 2 AC 502) extended to wrongful dismissal cases (see Hopkins v Norcross Plc [1994] ICR 11), that pension payments out of a fund to which the employee has contributed during employment are not deductible from the claim for loss of earnings, should apply equally to compensation for unfair dismissal. We are, of course, also conscious of the variety of views expressed by the EAT in connection with the deduction of Social Security Benefits, see for example Puglia v C James & Sons [1996] IRLR 70 and Rubinstein v McGloughlin [1996] IRLR 557.

It seems to us that the point is arguable and we shall grant the Appellant's application for leave to amend the Notice of Appeal by adding the proposed new ground as drafted by Counsel. The only other point advanced by Mr Johnson is that the Industrial Tribunal ought to have treated his faxed letters dated 30 September 1996 as forming an application for a review of the liability decision of 1 May 1996, instead of suggesting, as appears in paragraph 6 of the remedies decision reasons, that the Appellant should issue a fresh Originating Application (something which he later did, and which was struck out as we have earlier said in relating the history of this matter). We have considered those letters. They do not amount to an application for review of the liability decision under Rule 11. In our judgment the Tribunal did not fall into error in failing so to treat those letters.

Accordingly we shall allow this appeal to proceed to a full hearing on the amended ground of appeal only. All original grounds of appeal are dismissed.

The case will be listed for hearing commencing not before 11.30 a.m. on the day of hearing. Category C. Skeleton Arguments to be exchanged between the parties and copies lodged with this Tribunal not less than fourteen days before the date fixed for the full appeal hearing.