United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr M Trigg (Solicitor) Gill Turner & Tucker Solicitors Colman House King Street Maidstone Kent ME14 1JE
For the Respondent	Dr S Hussein


 


JUDGE JOHN BYRT QC: This is an appeal from a decision promulgated on 16 May 1997 of an Employment Tribunal sitting at London South and the decision was one which related to compensation only. By that decision, they held that the Respondents, the Appellants in this appeal were liable to pay Mrs Hussein, the employee £2,200 as damages for breach of contract. The employers appeal the computation of that sum.

Quite shortly the material facts are as follows: Mrs Hussein was employed by the Appellants between the dates of April 1993 and March 1995 when she was dismissed. She claimed unfair dismissal and that she had been the victim of a breach of contract. A Chairman sitting alone dismissed both complaints.

Mrs Hussein appealed to the Employment Appeal Tribunal, and that Tribunal found in favour of her claim in contract, but it left undisturbed the Chairman's dismissal of her claim of unfair dismissal. Having found in her favour on the breach of contract point, they remitted the case for a hearing by a full Tribunal, to assess damages.

That decision was made, on 16 May 1997 and it is that assessment of damage decision which is appealed today. The employers say that the figure of £2,200 is too high. They make three points in support of that contention.

First, they say that in awarding £2,200 the Employment Tribunal had awarded her eight weeks salary at the rate of £275 per week. Mr Triggs, who has argued the case on behalf of the employers, says the Tribunal took the gross salary figure whereas they should have taken the net salary figure. That is the salary figure less tax and less national insurance contribution. In advancing that proposition Mr Triggs was stating a proposition of law which is accepted both in this Tribunal and also in the common law courts. We accept that submission. That being the case, the figure of £2,200 has to be adjusted, and what should the adjustment be. Well Mrs Hussein's IT1 says that her monthly take home salary was £879.21 per calendar month. According to our calculations, that amounts to an annual net salary of £10,550.52. Dividing that figure by 52 in order to get the weekly amount, the net salary per week is £202.89. In our judgment, the Tribunal should have worked on that figure rather than the figure of £275 per week. Eight weeks at £202.89 results in a total of £1,623.12. There would be no sense in our remitting this case to the Tribunal for them to carry out that calculation. Accordingly, we adjust that figure of £2,200 and substitute the figure of £1,623.12 for it.

Mr Triggs argues a second point. He says that on the 15 December 1994, Mrs Hussein was given a written warning relating to her performance of her duties and that on that same day, she wrote a letter of complaint to the Local Authority Registration and Inspection Unit. We have seen the letter and certainly, one interpretation that can be put upon its contents is that it amounts to a cri de coeur rather than a formal letter of report to the Unit. The Employment Tribunal who heard this issue of compensation, took the view that, in writing that letter, Mrs Hussein was merely performing a duty she had to report any problems arising at her residential home. She was the manager, and in consequence in writing that letter she was fulfilling her duty. The contention put forward by the employers was that, far from being such a discharge of her duty, her letter amounted to an act of gross misconduct, one which was calculated to undermine the trust and confidence between the parties to the contract. The Employment Tribunal rejected that contention.

Mr Triggs submits their rejection of that contention was perverse. He then goes on to say that if this Tribunal were minded to accept it was gross misconduct, it could be taken into account to reduce the damages to be awarded to Mrs Hussein to nil.

Considering first the allegation of perversity; the first point we take into account is that we have no notes of evidence of what was said before the Tribunal. Mr Triggs says it is apparent from the fact there was no follow up action taken either by Mrs Hussein or by the Local Authority that no one attached any value or significance to that letter. It was seen as nothing more than a vengeful act on her part in return for the written warning given her that same day.

Our comment must be, "Where is the evidence for that?" This serves to underline how difficult it is for this Tribunal to come to findings of fact where we have no notes of evidence.

We have had to look at the letter for ourselves and ask whether the conclusion the Employment Tribunal came to, was one which was so plainly wrong that we would have to set it aside as being a decision which no reasonable Tribunal could have come to. We have considered the contents with care and have come to the conclusion we could not disturb the Employment Tribunal's finding in relation to that matter. That is the end of that particular point of appeal.

However, even if we were prepared to hold the writing of this letter amounted to gross misconduct, would it effect the assessment damages? A finding of gross misconduct would be relevant only to a charge of unfair dismissal, but that was not an issue before the Tribunal which was empowered to consider the assessment of damages only. The unfair dismissal claim had been dismissed at an earlier stage by the Chairman sitting alone and that finding had not been disturbed by the EAT. What of it as a breach of the implied term of the contract? Mr Triggs submits that gross misconduct would be a defence to a claim for wrongful dismissal and he recited the case of Cyril Leonard & Co v Simo Securities Trust Limited [1971] IWLR 1313 as authority in support of that proposition. However, there has already been a finding by the direction of Employment Appeal Tribunal that there had been a wrongful dismissal. We cannot therefore consider it as a defence to such a charge. But could that gross misconduct be cited in reduction of the compensatory claim following upon the finding of wrongful dismissal? The answer to that must be in the negative. In contract law, there is no equivalent to contributory conduct which might be used to reduced compensation payable to a person who has been wrongfully dismissed. Accordingly, we see no way in which a finding of gross misconduct might be argued in reduction of the compensation payable in this case. Accordingly, we dismiss this whole ground of appeal as well.

There remains one last point. There was a payment made to Mrs Hussein of the sum of £879, said to be by way of being an ex gratia payment. The cheque accompanied the letter of 24 March 1995, written by the employers to Mrs Hussein and we accept Mr Triggs' submission that if it was an ex gratia payment, then it would fall to be off-set against any other compensation the Tribunal awarded Mrs Hussein. Mrs Hussein says that on dismissal there was an issue whether she was entitled to be paid for overtime she had worked and if so, how much? We have been referred to the contract in this case which says that no overtime is payable, but that time off may be taken in lieu. Mrs Hussein says she was neither paid overtime, nor did she ever have the luxury or leisure of being able to take time off in lieu, as she was always too busy. She assesses that the amount of overtime she worked, unrewarded, without the opportunity to take time off in lieu was approximately 140 hours. This ex gratia payment she submits is in effect a payment without admission of liability for this potential liability.

The Chairman who heard this case originally, found that this so-called ex gratia payment, was compensation for the overtime Mrs Hussein had worked. The second employment Tribunal, who assessed the compensation, state in their extended reasons that there was nothing in the evidence to indicate that the Chairman was wrong in the conclusion he came to. Mr Triggs now asks us once more to find that the decision of the Employment Tribunal on compensation was a perverse finding. Again, we are in the difficulty of being invited to make a finding of perversity unassisted by any notes of evidence. We just have to look at the letter of 24 March 1995 which refers to an ex gratia payment and ask ourselves whether in view of that letter, the finding of the Employment Tribunal was one which no reasonable Tribunal could have come to. We find ourselves unable to say that it was such an unreasonable decision, and accordingly we are not prepared to find perversity. We therefore dismiss this third ground of appeal too.

Our decision is to allow the appeal to the extent that we adjust the figure awarded of £2,200 to one of £1,623.12.